<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 31, 1997
REGISTRATION NO. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
APACHE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE NO. 41-0747868
(STATE OR OTHER JURISDICTION OF (I. R. S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(713) 296-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
APACHE CORPORATION
NON-EMPLOYEE DIRECTORS' COMPENSATION PLAN
(FULL TITLE OF THE PLAN)
Z.S. KOBIASHVILI
VICE PRESIDENT AND GENERAL COUNSEL
APACHE CORPORATION
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(713) 296-6000
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of Registration
Registered Registered Share (1) Price (1) Fee (1)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $1.25 per share, 25,000 shares $35.5625 $889,063 $270
and associated
Preferred Stock
Purchase Rights (2)
=================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(c) and 457(h), the offering price and
registration fee are computed on the basis of the average of the high
and low prices of the Common Stock, as reported on The New York Stock
Exchange, Inc. Composite Transactions Reporting System for July 29,
1997.
(2) Preferred Stock Purchase Rights are evidenced by certificates for
shares of the Common Stock and automatically trade with the Common
Stock. Value attributable to such Preferred Stock Purchase Rights, if
any, is reflected in the market price of the Common Stock.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Apache Corporation (the "Registrant" or
"Apache") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), Commission File No. 1-4300, are incorporated by reference into this
Registration Statement:
(1) Annual Report on Form 10-K for the fiscal year ended December
31, 1996.
(2) Quarterly Report on Form 10-Q for the quarter ended March 31,
1997.
(3) Current Report on Form 8-K dated June 13, 1997.
(4) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of
such documents.
The descriptions set forth below of the common stock of Apache, par value $1.25
per share ("Apache Common Stock"), the preferred stock and the Rights (as
defined below) constitute brief summaries of certain provisions of Apache's
Restated Certificate of Incorporation, Apache's Bylaws and the Rights Agreement
between Apache and Norwest Bank Minnesota, N. A. ("Norwest"), and are
qualified in their entirety by reference to the relevant provisions of such
documents, all of which are listed under Item 8 as exhibits to this
Registration Statement and are incorporated herein by reference.
APACHE COMMON STOCK
All outstanding shares of Apache Common Stock are fully paid and
nonassessable, and all holders of Apache Common Stock have full voting rights
and are entitled to one vote for each share held of record on all matters
submitted to a vote of stockholders. The Board of Directors of Apache is
classified into three groups of approximately equal size, one-third elected
each year. Stockholders do not have the right to cumulate votes in the
election of directors and have no preemptive or subscription rights. Apache
Common Stock is neither redeemable nor convertible, and there are no sinking
fund provisions relating to such stock.
Subject to preferences that may be applicable to any shares of
preferred stock outstanding at the time, holders of Apache Common Stock are
entitled to dividends when and as declared by the Board of Directors from funds
legally available therefor and are entitled, in the event of liquidation, to
share ratably in all assets remaining after payment of liabilities.
Apache's current policy is to reserve one ten-thousandth (1/10,000) of
a share of Series A Preferred Stock (as defined below) for each share of Apache
Common Stock issued in order to provide for possible exercises of Rights (as
defined below) under Apache's existing Rights Agreement.
The currently outstanding Apache Common Stock and the Rights (as
defined below) under Apache's existing Rights Agreement are listed on the New
York Stock Exchange and the Chicago Stock Exchange. Norwest is the transfer
agent and registrar for Apache Common Stock.
II - 1
<PAGE> 3
Apache typically mails its annual report to stockholders within 120
days after the end of its fiscal year. Notices of stockholder meetings are
mailed to record holders of Apache Common Stock at their addresses shown on the
books of the transfer agent and registrar.
PREFERRED STOCK
Apache has five million shares of no par preferred stock authorized,
of which 25,000 shares have been designated Series A Junior Participating
Preferred Stock ("Series A Preferred Stock") and authorized for issuance
pursuant to the Rights (as defined below) that trade with Apache Common Stock.
No preferred stock is currently outstanding; however, shares of Series A
Preferred Stock have been reserved for issuance in accordance with the Rights
Agreement relating to the Rights. Shares of preferred stock may be authorized
for issuance and issued by the Board of Directors with such voting powers and
in such classes and series, and with such designations, preferences, and
relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof (including conversion into or exchange for
Apache Common Stock or other securities of Apache or its subsidiaries), as may
be stated and expressed in the resolution or resolutions providing for the
issuance of such preferred stock adopted by the Board of Directors providing
for the issuance of such preferred stock.
RIGHTS
In December 1995, Apache declared a dividend of one right (a "Right")
for each outstanding share of Apache Common Stock effective January 31, 1996.
Each Right entitles the registered holder to purchase from Apache one ten-
thousandth (1/10,000) of a share of Series A Preferred Stock at a price of $100
per one ten-thousandth of a share, subject to adjustment. The Rights are
exercisable ten calendar days following a public announcement that certain
persons or groups have acquired 20 percent or more of the outstanding shares of
Apache Common Stock or ten business days following commencement of an offer for
30 percent or more of the outstanding shares of Apache Common Stock. Unless
and until the Rights become exercisable, they will be transferred with and only
with the shares of Apache Common Stock. If Apache engages in certain business
combinations or a 20-percent stockholder engages in certain transactions with
Apache, the Rights become exercisable for Apache Common Stock or the common
stock of the corporation acquiring Apache (as the case may be) at 50 percent of
the then-market price. Any Rights that are or were beneficially owned by a
person who has acquired 20 percent or more of the outstanding shares of Apache
Common Stock, and who engages in certain transactions or realizes the benefits
of certain transactions with Apache, will become void. Apache may redeem the
Rights at $.01 per Right at any time until ten business days after public
announcement that a person has acquired 20 percent or more of the outstanding
shares of Apache Common Stock. Unless the Rights have been previously
redeemed, all shares of Apache Common Stock will include Rights, including the
Apache Common Stock issuable under the terms of the Apache Corporation 1996
Performance Stock Option Plan.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II - 2
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), inter
alia, authorizes a corporation to 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 (other than an action by or in the right of the
corporation) because the person is or was a director, officer, employee or
agent of another corporation or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with the suit or proceeding if
the person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reason to believe his conduct was
unlawful. Similar indemnity is authorized against expenses (including
attorneys' fees) actually and reasonably incurred in defense or settlement of
any pending, completed or threatened action or suit if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and provided further that (unless a
court of competent jurisdiction otherwise provides) the person shall not have
been adjudged liable to the corporation. The indemnification may be made only
as authorized in each specific case upon a determination by the stockholders or
disinterested directors that indemnification is proper because the indemnitee
has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 corporation or
enterprise, against any liability asserted against him and incurred by him in
any capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him. Apache maintains
policies insuring the officers and directors of Apache and its subsidiaries
against certain liabilities for actions taken in their capacities, including
liabilities under the Securities Act of 1933, as amended (the "Securities
Act").
Article VII of Apache's Bylaws provides, in substance, that directors,
officers, employees and agents of Apache shall be indemnified to the extent
permitted by Section 145 of the DGCL. Additionally, the Seventeenth Article of
Apache's Restated Certificate of Incorporation eliminates in certain
circumstances the monetary liability of directors of Apache for a breach of
their fiduciary duty as directors. These provisions do not eliminate the
liability of a director (i) for a breach of a director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions by a director not
in good faith; (iii) for acts or omissions by a director involving intentional
misconduct or a knowing violation of the law; (iv) under Section 174 of the
DGCL (relating to the declaration of dividends and purchase or redemption of
shares in violation of the DGCL); and (v) for transactions from which the
director derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II - 3
<PAGE> 5
ITEM 8. EXHIBITS.
The following exhibits are filed herewith unless otherwise indicated:
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
4.1 Restated Certificate of Incorporation of Apache Corporation
(incorporated by reference to Exhibit 3.1 to Apache's Annual
Report on Form 10-K for the fiscal year ended December 31,
1993, Commission File No. 1-4300)
4.2 Certificate of Ownership and Merger Merging Apache Energy
Resources Corporation into Registrant, effective December 31,
1995, as filed with the Secretary of State of Delaware on
December 21, 1995 (incorporated by reference to Exhibit 3.2 to
Apache's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, Commission File No. 1-4300)
4.3 Certificate of Designations, Preferences and Rights of Series
A Junior Participating Preferred Stock of Registrant,
effective January 31, 1996, as filed with the Secretary of
State of Delaware on January 22, 1996 (incorporated by
reference to Exhibit 3.3 to Apache's Annual Report on Form
10-K for the fiscal year ended December 31, 1995, Commission
File No. 1-4300)
*4.4 Bylaws of Apache Corporation as amended July 17, 1997
4.5 Form of Apache Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Apache's Annual Report on Form
10-K for the fiscal year ended December 31, 1995, Commission
File No. 1-4300)
4.6 Rights Agreement dated as of January 31, 1996, between Apache
and Norwest Bank Minnesota, N.A., rights agent, relating to
the declaration of a Rights dividend to the holders of Apache
Common Stock of record on January 31, 1996 (incorporated by
reference to Exhibit (a) to Apache's Registration Statement on
Form 8-A, Commission File No. 1-4300)
*4.7 Apache Corporation Non-Employee Directors' Compensation Plan
and form of Director's Deferred Compensation Agreement
*5.1 Opinion of legal counsel regarding legality of securities
being registered
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Coopers & Lybrand, Chartered Accountants
*23.3 Consent of Ryder Scott Company Petroleum Engineers
*23.4 Consent of Netherland, Sewell & Associates, Inc.
*23.5 Consent of legal counsel included in Exhibit 5.1
*24.1 Power of Attorney included as part of the signature pages of
this Registration Statement
- ---------------------
*Filed herewith
II - 4
<PAGE> 6
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post- effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement relating to the
securities offered herein shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4), or 497(h) under the Securities Act of 1933 shall be deemed to
be part of this registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post- effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II - 5
<PAGE> 7
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions of Article 15,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II - 6
<PAGE> 8
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Houston, State of Texas.
APACHE CORPORATION
Date: July 31, 1997 By: /s/ Raymond Plank
------------------------------------
Raymond Plank,
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The undersigned directors and officers of Apache Corporation do hereby
constitute and appoint Raymond Plank, G. Steven Farris, Z. S. Kobiashvili and
Matthew W. Dundrea, and each of them, with full power of substitution, our true
and lawful attorneys-in-fact to sign and execute, on behalf of the undersigned,
any and all amendments (including post-effective amendments) to this
Registration Statement; and each of the undersigned does hereby ratify and
confirm all that said attorneys-in-fact shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons, in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Raymond Plank Chairman and Chief
- -------------------------------------- Executive Officer
Raymond Plank (Principal Executive Officer) July 31, 1997
/s/ Roger B. Plank Vice President and
- -------------------------------------- Chief Financial Officer
Roger B. Plank (Principal Financial Officer) July 31, 1997
/s/ Thomas L. Mitchell Vice President and Controller
- -------------------------------------- (Principal Accounting Officer) July 31, 1997
Thomas L. Mitchell
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Frederick M. Bohen Director July 31, 1997
- --------------------------------------
Frederick M. Bohen
/s/ G. Steven Farris Director July 31, 1997
--------------------------------------
G. Steven Farris
/s/ Randolph M. Ferlic Director July 31, 1997
- --------------------------------------
Randolph M. Ferlic
/s/ Eugene C. Fiedorek Director July 31, 1997
- --------------------------------------
Eugene C. Fiedorek
/s/ W. Brooks Fields Director July 31, 1997
- --------------------------------------
W. Brooks Fields
/s/ A. D. Frazier, Jr. Director July 31, 1997
- --------------------------------------
A. D. Frazier, Jr.
/s/ Stanley K. Hathaway Director July 31, 1997
- --------------------------------------
Stanley K. Hathaway
/s/ John A. Kocur Director July 31, 1997
- --------------------------------------
John A. Kocur
/s/ George D. Lawrence Jr. Director July 31, 1997
- --------------------------------------
George D. Lawrence Jr.
/s/ Mary Ralph Lowe Director July 31, 1997
- --------------------------------------
Mary Ralph Lowe
/s/ Joseph A. Rice Director July 31, 1997
- --------------------------------------
Joseph A. Rice
</TABLE>
<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
<S> <C>
4.1 Restated Certificate of Incorporation of Apache Corporation (incorporated by reference to Exhibit 3.1
to Apache's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, Commission File No.
1-4300)
4.2 Certificate of Ownership and Merger Merging Apache Energy Resources Corporation into Registrant,
effective December 31, 1995, as filed with the Secretary of State of Delaware on December 21, 1995
(incorporated by reference to Exhibit 3.2 to Apache's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, Commission File No. 1-4300)
4.3 Certificate of Designations, Preferences and Rights of Series A Junior Participating Preferred Stock of
Registrant, effective January 31, 1996, as filed with the Secretary of State of Delaware on January 22,
1996 (incorporated by reference to Exhibit 3.3 to Apache's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, Commission File No. 1-4300)
*4.4 Bylaws of Apache Corporation as amended July 17, 1997
4.5 Form of Apache Common Stock Certificate (incorporated by reference to Exhibit 4.1 to Apache's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, Commission File No. 1-4300)
4.6 Rights Agreement dated as of January 31, 1996, between Apache and Norwest Bank Minnesota, N.A., rights
agent, relating to the declaration of a Rights dividend to the holders of Apache Common Stock of record
on January 31, 1996 (incorporated by reference to Exhibit (a) to Apache's Registration Statement on
Form 8-A, Commission File No. 1-4300)
*4.7 Apache Corporation Non-Employee Directors' Compensation Plan and form of Director's Deferred
Compensation Agreement
*5.1 Opinion of legal counsel regarding legality of securities being registered
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Coopers & Lybrand, Chartered Accountants
*23.3 Consent of Ryder Scott Company Petroleum Engineers
*23.4 Consent of Netherland, Sewell & Associates, Inc.
*23.5 Consent of legal counsel included in Exhibit 5.1
*24.1 Power of Attorney included as part of the signature pages of this Registration Statement
</TABLE>
- -----------------------
*Filed herewith
<PAGE> 1
EXHIBIT 4.4
BYLAWS OF
APACHE CORPORATION
(AS AMENDED JULY 17, 1997)
ARTICLE I.
NAME OF CORPORATION
The name of the corporation is Apache Corporation.
ARTICLE II.
OFFICES
SECTION 1. The principal office of the corporation shall be in the City
of Wilmington, County of New Castle, State of Delaware, and the name of its
resident agent in charge thereof is The Corporation Trust Company.
SECTION 2. The corporation may have such other offices either within or
without the State of Delaware as the board of directors may designate or as the
business of the corporation may from time to time require.
ARTICLE III.
SEAL
The corporate seal shall have inscribed upon it the name of the
corporation and other designations as the board of directors from time to time
determine. There may be alternate seals of the corporation.
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<PAGE> 2
ARTICLE IV.
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders of the
corporation shall be held at the office of the corporation in the City of
Houston, Texas, or at any other place within or without the State of Delaware
that shall be stated in the notice of the meeting.
SECTION 2. ANNUAL MEETINGS. The annual meeting of stockholders of the
corporation shall be held at the place and time within or without the State of
Delaware that may be designated by the board of directors, on the last Thursday
in April in each year or on such other date as may be designated by the board
of directors, if not a legal holiday, and if a legal holiday, then at the same
time on the next succeeding business day for the purpose of electing directors
and for the transaction of any other business that may properly come before the
meeting.
SECTION 3. SPECIAL MEETINGS OF THE STOCKHOLDERS. Special meetings of the
stockholders of the corporation, for any purpose or purposes, unless otherwise
prescribed by statute, may be called by the chairman of the board and shall be
called by the chairman of the board or secretary at the request in writing of a
majority of the board of directors. The request shall state the purpose or
purposes of the proposed meeting.
SECTION 4. NOTICE OF MEETING. Written or printed notice stating the
place, day and hour of the meeting and in the case of special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not
less than ten nor more than 50 days before the date of the meeting either
personally, by mail or other lawful means by or at the direction of the
chairman of the board or the secretary to each stockholder of record entitled
to vote at the meetings. If mailed, the notice shall be deemed to be delivered
when deposited in the United States Postal Service, addressed to the
stockholder at his address as it appears on the stock transfer books of the
corporation with postage thereon prepaid.
SECTION 5. CLOSING OF TRANSFER BOOKS FOR FIXING OF RECORD DATE. For the
purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders or adjournment thereof, the board of directors may
close the stock transfer books of the corporation for a period not exceeding 50
days preceding the date of any meeting of stockholders. In lieu of closing the
stock transfer books, the board of directors may fix in advance a date, not
exceeding 50 days preceding the date of any meeting of stockholders, as a
record date for the determination of the stockholders entitled to notice of and
to vote at the meeting and any adjournment thereof, and only the stockholders
as shall be stockholders of record on the date so fixed shall be entitled to
the notice of and to vote at the meeting and any adjournment thereof.
SECTION 6. VOTING LISTS. The officer or agent having charge of the stock
transfer books for shares of the corporation shall prepare and make, at least
ten days before every meeting of the stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
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<PAGE> 3
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. The list shall be open
to the examination of any stockholder during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the election is to be held and which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held, and the list shall be produced and kept at the time and place of
the meeting during the whole time thereof, and subject to the inspection of any
stockholder who may be present. Upon the willful neglect or refusal of the
board of directors of the corporation to produce a list at any meeting of the
stockholders at which an election is to be held in accordance with this Section
6, they shall be ineligible to hold any office at such election.
SECTION 7. VOTING RIGHTS. At each meeting of the stockholders of the
corporation, every stockholder having the right to vote thereat shall be
entitled to vote in person or by proxy, but no proxy shall be voted after three
years from its date unless the proxy provides for a longer period. Except as
otherwise provided by law or the Certificate of Incorporation, each stockholder
shall have one vote for each share of stock having voting power registered in
his name. The vote at an election for directors, and upon the demand of any
stockholder, the vote upon any question before a meeting of the stockholders,
shall be by written ballot. All elections shall be had and all questions
decided by a plurality vote except where by statute, by provision in the
Certificate of Incorporation or these bylaws it is otherwise provided.
Prior to any meeting, but subsequent to the date fixed by the board of
directors pursuant to Section 5 of Article IV of these bylaws, any proxy may
submit his proxy to the secretary for examination. The certificate of the
secretary as to the regularity of the proxy and as to the number of shares held
by the persons who severally and respectively executed such proxies shall be
received as prima facie evidence of the number of shares represented by the
holder of the proxy for the purpose of establishing the presence of a quorum at
the meeting and of organizing the same.
SECTION 8. QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, initially present in person or
represented by proxy, shall be requisite, and shall constitute a quorum of all
meetings of the stockholders for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
bylaws. If, however, a majority shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or by proxy, shall have power to adjourn the meeting from time to
time, without notice, other than announcement at the meeting, until the
requisite amount of voting stock shall be present. At the adjourned meeting at
which the requisite amount of voting stock shall be represented, any business
may be transacted which might have been transacted at the meeting as originally
notified.
SECTION 9. INSPECTORS. At each meeting of the stockholders, the polls
shall be opened and closed. The proxies and the ballots shall be received and
taken in charge and all questions touching the qualifications of voters and the
validity of proxies and the acceptance or rejection of votes shall be decided
by three inspectors. The inspectors shall be appointed by the board of
directors before or at the meeting, or if no appointment shall have been made,
then by the presiding officer at the meeting. If, for any reason any of the
inspectors previously appointed shall fail to attend or refuse or
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<PAGE> 4
be unable to serve, inspectors in place of any so failing to attend or refusing
or unable to serve shall be appointed in like manner.
SECTION 10. WAIVER OF NOTICE. Whenever any notice whatever is required
to be given pursuant to the provisions of a statute, the Certificate of
Incorporation or these bylaws of the corporation, a waiver thereof in writing
signed by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
SECTION 11. STOCKHOLDER ACTION. Any action required or permitted to be
taken by the stockholders must be effected at a duly called annual or special
meeting of stockholders and may not be effected by any consent in writing by
stockholders.
SECTION 12. NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting of the
stockholders, only business shall be conducted that has been properly brought
before the meeting. To be properly brought before an annual meeting, business
must be (a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the board of directors, (b) otherwise properly
brought before the meeting by or at the direction of the board of directors, or
(c) otherwise properly brought before the meeting by a stockholder, which
stockholder must have given timely notice thereof in writing to the secretary
of the corporation. To be timely, a stockholder's notice must be delivered to
or mailed and received at the principal executive offices of the corporation,
not less than 60 days nor more than 90 days prior to the meeting; provided,
however, that in the event that less than 70 days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder to be timely, must be so received not later than the close
of business on the tenth day following the day on which the notice of the date
of the annual meeting was mailed or public disclosure was made. A
stockholder's notice to the secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (w) a brief description
of the business desired to be brought before the annual meeting, (x) the name
and address, as they appear on the corporation's books, of the stockholder
proposing the business, (y) the class and number of shares of the corporation
which are beneficially owned by the stockholder, and (z) any material interest
of the stockholder in the business. Notwithstanding anything in these bylaws
to the contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 12. The chairman of
an annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance
with the provisions of this Section 12, and if he should so determine, he shall
so declare to the meeting and any business not properly brought before the
meeting shall not be transacted. This section sets forth only the procedure by
which business may be properly brought before an annual meeting of stockholders
and does not in any way grant additional rights to stockholders beyond those
currently afforded them by law.
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SECTION 13. NOTICE OF STOCKHOLDER NOMINEES. Only persons who are
nominated in accordance with the procedures set forth in this Section 13 shall
be eligible for election as directors. Nominations of persons for election to
the board of directors of the corporation may be made at a meeting of
stockholders, by or at the direction of the board of directors or by any
stockholder of the corporation entitled to vote for the election of directors
at the meeting who complies with the notice procedures set forth in this
Section 13. Any nominations, other than those made by or at the direction of
the board of directors, shall be made pursuant to timely notice in writing to
the secretary of the corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth day following the day on which the notice of the
date of the meeting was mailed or public disclosure was made. The
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director (i) the name,
age, business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of shares of
the corporation which are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including without limitation the person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the corporation's books, of the stockholder and (ii)
the class and number of shares of the corporation which are beneficially owned
by the stockholder. At the request of the board of directors, any person
nominated by the board of directors for election as a director shall furnish to
the secretary of the corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director of the corporation unless
nominated in accordance with the procedures set forth in this Section 13. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by these bylaws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded. This section
sets forth only the procedure by which nominations for directors may be made
and does not in any way grant additional rights to stockholders beyond those
currently afforded them by law.
ARTICLE V.
DIRECTORS
SECTION 1. GENERAL POWERS. The property, business and affairs of the
corporation shall be managed by its board of directors which may exercise all
powers of the corporation and do all lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
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SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The board of directors
shall consist of not less than seven nor more than 13 members. The directors
shall be elected in the manner set forth in Article Ninth of the Certificate of
Incorporation of the corporation. The term of office of directors shall be
three years except as provided in Article Ninth of the Certificate of
Incorporation of the corporation. Directors need not be stockholders or
residents of the State of Delaware.
SECTION 3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Any vacancies on
the board of directors or any newly created directorships shall be filled by
the board of directors in the manner set forth in Article Ninth of the
Certificate of Incorporation of the corporation. If the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any increase therein), then upon application, any
stockholder or stockholders holding at least ten percent of the total number of
shares of the capital stock of the corporation at the time outstanding having
the right to vote for directors may require the board of directors to call a
special meeting of the stockholders for the purpose of electing directors to
fill the vacancy or vacancies or newly created directorships or to replace the
director or directors chosen by the directors then in office as aforesaid. The
person or persons elected at a special meeting of the stockholders shall serve
as director or as directors until the next annual meeting of stockholders and
until their successors are duly elected and qualified and shall displace any
person or persons who may theretofore have been appointed by the directors then
in office as aforesaid.
SECTION 4. CATASTROPHE. During any emergency period following a national
catastrophe due to enemy attack, or act of God, a majority of the surviving
members of the board who have not been rendered incapable of acting due to
physical or mental incapacity or due to the difficulty of transportation to the
place of the meeting shall constitute a quorum for the purpose of filling
vacancies on the board of directors and among the elected and appointed
officers of the corporation.
SECTION 5. PLACE OF MEETINGS. The directors of the corporation may hold
their meetings, both regular and special, at a place or places within or
without the State of Delaware that the board of directors may from time to time
determine.
SECTION 6. FIRST MEETING. The first meeting of the board of directors
following the annual meeting of stockholders shall be held at the time and
place that shall be fixed by the chairman of the board and shall be called in
the same manner as a special meeting.
SECTION 7. REGULAR MEETINGS. Regular meetings of the board of directors
may be held without notice at the time and place that shall from time to time
be determined by the board of directors.
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SECTION 8. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by the chairman of the board on three days notice to each
director, either personally or by mail, by telegram, or by facsimile or other
lawful means; special meetings of the board of directors shall be called by the
chairman of the board or secretary in like manner and upon like notice upon the
written request of two directors.
SECTION 9. QUORUM. At all meetings of the board of directors, a majority
of the directors shall be necessary and sufficient to constitute a quorum for
the transaction of business, and the act of a majority of the directors present
at any meeting, at which there is a quorum present, shall be the act of the
board of directors, except as may be otherwise specifically provided by
statute, the Certificate of Incorporation or by these bylaws. If at any
meeting of the board of directors there shall be less than a quorum present, a
majority of those present may adjourn the meeting from time to time without
notice, other than by announcement at the meeting, until a sufficient number of
directors to constitute a quorum shall attend. At any adjourned meeting at
which a quorum shall be present, any business may be transacted which might
have been transacted at the original meeting as originally notified.
SECTION 10. BUSINESS TO BE CONDUCTED. Unless otherwise indicated in the
notice, any and all business may be transacted at a regular or special meeting
of the board of directors. In the event a special meeting of the board of
directors is held without notice, any and all business may be transacted at the
meeting provided all directors are present.
SECTION 11. ORDER OF BUSINESS. At all meetings of the board of
directors, business shall be transacted in the order that from time to time the
board may determine by resolution. At all meetings of the board of directors
the chairman of the board or in his absence the vice chairman shall preside.
In the absence of the chairman and vice chairman of the board, the directors
present shall elect any director as chairman of the meeting.
SECTION 12. COMPENSATION OF DIRECTORS. Directors of the corporation
shall receive the compensation for their services that the board of directors
may from time to time determine and all directors shall be reimbursed for their
expenses of attendance at each regular or special meeting of the board or any
committee thereof.
SECTION 13. COMMITTEES. The board of directors may by resolution passed
by a majority of the board, in addition to the executive committee, designate
one or more committees. Each such committee shall consist of one or more of the
directors of the corporation, such number to be set by resolution of the board
of directors, or as otherwise provided in Section 14 below. Any committee, to
the extent provided in the resolution, shall have and may exercise the powers
of the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it. Any committee or committees shall have the name
or names that may be determined from time to time by resolution adopted by the
board of directors. Other than for a committee of one director, the chairman
of the board shall be an ex officio member of any board committee except the
audit committee, the management development and compensation committee, and the
stock option plan committee.
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SECTION 14. EXECUTIVE COMMITTEE.
A. MEMBERS. The executive committee shall consist of such number of
directors as set by resolution of the board of directors, with a minimum of
four members, and shall include the chairman and vice chairman of the board as
ex officio members, together with the other members of the board of directors,
as may be the case, designated by the board of directors.
B. TERM OF OFFICE. Each of the elected members of the executive committee
shall be elected for a one year term and shall serve until his successor shall
have been duly elected and qualified.
C. ELECTION. The election of members of the executive committee shall be
held each year at the first meeting of the board of directors following the
annual meeting of stockholders. Should a member of the executive committee for
any reason be unable to serve for the term to which he was elected, the vacancy
shall be filled by the board of directors at its next meeting following the
occurrence of such vacancy.
D. COMPENSATION. Each member of the executive committee shall receive the
compensation that the board of directors shall from time to time determine and
shall be reimbursed for their expenses of attendance at regular or special
meetings.
E. CHAIRMAN AND SECRETARY OF THE EXECUTIVE COMMITTEE. The chairman and
secretary of the executive committee shall be elected by members of the
executive committee.
F. MEETINGS. Regular meetings of the executive committee may be held
without call or notice of the time and place that the executive committee
determines. Special meetings of the executive committee may be called by any
member, either personally or by mail, by telegram, by facsimile or other lawful
means forwarded not later than 48 hours prior to the date and time set forth
for the meeting. Upon request of any member, the secretary of the corporation
shall give the required notice calling the meeting.
G. QUORUM. At any meeting of the executive committee, a majority of the
committee members shall constitute a quorum. Any action of the executive
committee to be effective must be authorized by the affirmative votes of a
majority of committee members.
H. RULES. The executive committee shall fix its own rules of procedure,
provided the same do not contravene the provisions of the law, the Certificate
of Incorporation or these bylaws.
I. AUTHORITY AND RESPONSIBILITY.
(a) The executive committee is vested with the authority to exercise the
full power of the board of directors, within the policies established by
the board of directors to govern the
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conduct of the business of the corporation, in the intervals between
meetings of the board of directors.
(b) The executive committee, in addition to the general authority vested
in it, may be vested with other specific powers and authority by
resolution of the board of directors.
J. REPORTS. All action by the executive committee shall be reported to
the board of directors at its meeting next succeeding the action, and shall be
subject to revision or alteration by the board of directors; provided, however,
that no rights or acts of third parties shall be affected by any such revision
or alteration.
SECTION 15. AUDIT COMMITTEE.
A. MEMBERS. The audit committee shall include only outside directors of
the corporation.
B. TERM OF OFFICE. Each of the elected members of the audit committee
shall be elected for a one year term and shall serve until a successor shall
have been duly elected and qualified.
C. ELECTION. The election of members of the audit committee shall be
held each year at the first meeting of the board of directors following the
annual meeting of stockholders. Should a member of the audit committee for any
reason be unable to serve for the term to which he was elected, the vacancy
shall be filled by the board of directors at its next meeting.
D. COMPENSATION. Each member of the audit committee shall receive the
compensation the board of directors determines and shall be reimbursed for
their expenses for attendance at regular or special meetings.
E. CHAIRMAN AND SECRETARY OF THE AUDIT COMMITTEE. The chairman and
secretary of the audit committee shall be elected by the members of the audit
committee.
F. MEETINGS. Regular meetings of the audit committee may be held without
call or notice of the time and place that the audit committee determines.
Special meetings of the audit committee may be called by any member, either
personally or by mail, by telegram, by facsimile or other lawful means
forwarded not later than 48 hours prior to the date and time set forth for the
meeting. Upon request of any member, the secretary of the corporation shall
give the required notice calling the meeting.
G. QUORUM. At any meeting of the audit committee, a majority of
committee members shall constitute a quorum. Any action of the audit committee
to be effective must be authorized by the affirmative votes of a majority of
committee members.
H. RULES. The audit committee shall determine its own rules of
procedure, provided the rules do not contravene the provisions of the law, the
Certificate of Incorporation or these bylaws.
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I. AUTHORITY AND RESPONSIBILITY.
(a) The audit committee is vested with the authority to (i) review with
the independent and internal auditors of the corporation their respective
audit and review programs and procedures; (ii) review the corporation's
financial statements; (iii) review the adequacy of the corporation's
system of internal accounting controls and the scope and results of
internal audit engagements, special services provided by them and related
fees; and (iv) make recommendations to the board of directors regarding
the independence of the independent auditors and their engagement or
discharge.
(b) The audit committee, in addition to the authority vested in it under
subsection (a) above, may be vested with other specific powers and
authority by resolution of the board of directors.
J. REPORTS. All action by the audit committee shall be reported to the
board of directors at its next meeting, and shall be subject to revision or
alteration by the board of directors.
SECTION 16. MANAGEMENT DEVELOPMENT AND COMPENSATION COMMITTEE
A. MEMBERS. The management development and compensation committee shall
include only outside directors of the corporation.
B. TERM OF OFFICE. Each of the elected members of the management
development and compensation committee shall be elected for a one year term and
shall serve until a successor shall have been duly elected and qualified.
C. ELECTION. The election of members of the management development and
compensation committee shall be held each year at the first meeting of the
board of directors following the annual meeting of stockholders. Should a
member of the management development and compensation committee for any reason
be unable to serve for the term to which he was elected, the vacancy shall be
filled by the board of directors at its next meeting.
D. COMPENSATION. Each member of the management development and
compensation committee shall receive the compensation the board of directors
determines and shall be reimbursed for their expenses for attendance at regular
or special meetings.
E. CHAIRMAN AND SECRETARY OF THE MANAGEMENT DEVELOPMENT AND COMPENSATION
COMMITTEE. The chairman and secretary of the management development and
compensation committee shall be elected by the members of the management
development and compensation committee.
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F. MEETINGS. Regular meetings of the management development and
compensation committee may be held without call or notice of the time and place
that the management development and compensation committee determines. Special
meetings of the management development and compensation committee may be called
by any member, either personally or by mail, by telegram, by facsimile or other
lawful means forwarded not later than 48 hours prior to the date and time set
forth for the meeting. Upon request of any member, the secretary of the
corporation shall give the required notice calling the meeting.
G. QUORUM. At any meeting of the management development and compensation
committee, a majority of committee members shall constitute a quorum. Any
action of the management development and compensation committee to be effective
must be authorized by the affirmative votes of a majority of committee members.
H. RULES. The management development and compensation committee shall
determine its own rules of procedure, provided the rules do not contravene the
provisions of the law, the Certificate of Incorporation or these bylaws.
I. AUTHORITY AND RESPONSIBILITY. The management development and
compensation committee has three principal responsibilities:
(a) to monitor the corporation's management resources, structure,
succession planning, development, and selection process, and the
performance of key executives;
(b) to review and approve executive compensation and changes; and
(c) to make such reports on executive compensation as appropriate or
required.
The management development and compensation committee also serves as the
committee administering all incentive compensation plans other than the
corporation's stock option plans.
J. REPORTS. All action by the management development and compensation
committee shall be reported to the board of directors at its next meeting, and
shall be subject to revision or alteration by the board of directors.
SECTION 17. STOCK OPTION PLAN COMMITTEE
A. MEMBERS. The stock option plan committee shall include only directors
of the corporation who qualify as "outside directors" pursuant to Section
162(m) or any successor section(s) of the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
B. TERM OF OFFICE. Each of the elected members of the stock option plan
committee shall be elected for a one year term and shall serve until a
successor shall have been duly elected and qualified.
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C. ELECTION. The election of members of the stock option plan committee
shall be held each year at the first meeting of the board of directors
following the annual meeting of stockholders. Should a member of the stock
option plan committee for any reason be unable to serve for the term to which
he was elected, the vacancy shall be filled by the board of directors at its
next meeting.
D. COMPENSATION. Each member of the stock option plan committee shall
receive the compensation the board of directors determines and shall be
reimbursed for their expenses for attendance at regular or special meetings.
E. CHAIRMAN AND SECRETARY OF THE STOCK OPTION PLAN COMMITTEE. The
chairman and secretary of the stock option plan committee shall be elected by
the members of the stock option plan committee.
F. MEETINGS. Regular meetings of the stock option plan committee may be
held without call or notice of the time and place that the stock option plan
committee determines. Special meetings of the stock option plan committee may
be called by any member, either personally or by mail, by telegram, by
facsimile or other lawful means forwarded not later than 48 hours prior to the
date and time set forth for the meeting. Upon request of any member, the
secretary of the corporation shall give the required notice calling the
meeting.
G. QUORUM. At any meeting of the stock option plan committee, a majority
of committee members shall constitute a quorum, provided that such quorum shall
not be less than two members. Any action of the stock option plan committee to
be effective must be authorized by the affirmative votes of a majority of
committee members.
H. RULES. The stock option plan committee shall determine its own rules
of procedure, provided the rules do not contravene the provisions of the law,
the Certificate of Incorporation or these bylaws.
I. AUTHORITY AND RESPONSIBILITY. The stock option plan committee has two
principal responsibilities:
(a) to monitor and report on the corporation's stock option plans;
and
(b) to establish any performance goals under which compensation in
the form of stock option grants is paid to employees of the
corporation, and to make such grants of stock options, in the
discretion of the stock option plan committee, on the terms and
conditions set forth in the option plans or otherwise established by
the stock option plan committee.
J. REPORTS. All action by the stock option plan committee shall be
reported to the board of directors at its next meeting, and is subject to
ratification by the board of directors.
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SECTION 18. NOMINATING COMMITTEE.
A. MEMBERS. The nominating committee may consist of any of the members
of the board of directors.
B. TERM OF OFFICE. Each of the elected members of the nominating
committee shall be elected for a one year term and shall serve until a
successor shall have been duly elected and qualified.
C. ELECTION. The election of members of the nominating committee shall
be held each year at the first meeting of the board of directors following the
annual meeting of stockholders. Should a member of the nominating committee
for any reason be unable to serve for the term to which he was elected, the
vacancy shall be filled by the board of directors at its next meeting.
D. COMPENSATION. Each member of the nominating committee shall receive
the compensation the board of directors determines and shall be reimbursed for
their expenses for attendance at regular or special meetings.
E. CHAIRMAN AND SECRETARY OF THE NOMINATING COMMITTEE. The chairman and
secretary of the nominating committee shall be elected by the members of the
nominating committee.
F. MEETINGS. Regular meetings of the nominating committee may be held
without call or notice of the time and place that the nominating committee
determines. Special meetings of the nominating committee may be called by any
member, either personally or by mail, by telegram, by facsimile or other lawful
means forwarded not later than 48 hours prior to the date and time set forth
for the meeting. Upon request of any member, the secretary of the corporation
shall give the required notice calling the meeting.
G. QUORUM. At any meeting of the nominating committee, a majority of
committee members shall constitute a quorum. Any action of the nominating
committee to be effective must be authorized by the affirmative votes of a
majority of committee members.
H. RULES. The nominating committee shall determine its own rules of
procedure, provided the rules do not contravene the provisions of the law, the
Certificate of Incorporation or these bylaws.
I. AUTHORITY AND RESPONSIBILITY.
(a) The nominating committee is vested with the authority and
responsibility to (i) recommend to the board of directors criteria for
selection of candidates to serve on the board of directors; (ii) recommend
to the board of directors qualified candidates to fill any newly created
directorships or vacancies on the board of directors which occur between
annual meetings of stockholders without regard to race, sex, age, religion
or physical disability; (iii) recommend candidates for election to the
committees of the board of directors; (iv) periodically review,
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assess, and make recommendations to the board of directors with regard to
the size and composition of the board of directors, and its evaluation of
incumbent directors; (v) cause the names of all director candidates that
are approved by the board of directors to be listed in the corporation's
proxy materials and support the election of all candidates so nominated by
the board of directors to the extent permitted by law; (vi) evaluate and
recommend to the board of directors potential candidates to serve in the
future on the board of directors to assure the continuity and succession
of the board of directors; and (vii) otherwise aid in attracting qualified
candidates to the board of directors.
(b) Only candidates recommended by the nominating committee shall be
eligible for nomination by the board of directors for election, or to fill
a vacancy or any newly created directorship, but if the board does not
approve one or more of the candidates recommended by the nominating
committee, the nominating committee shall submit a recommendation of other
candidates. If for any reason the nominating committee shall fail to act
or determines not to make a recommendation, the board of directors shall
fill any vacancy or newly created directorship in the manner that it deems
appropriate.
(c) The nominating committee, in addition to the authority vested in it
under subsections (a) and (b) above, shall have all additional powers
necessary to carry out its responsibilities, and may be vested with other
specific powers and authority by resolution of the board of directors.
J. REPORTS. All action by the nominating committee shall be reported to
the board of directors at its next meeting, and shall be subject to revision or
alteration by the board of directors.
K. RIGHTS OF STOCKHOLDERS. Nothing in this Section 18 shall affect or
restrict the right of any stockholder to nominate any person for election as a
director where such nomination is otherwise authorized by law and made in
accordance with Section 13 of Article IV of these bylaws.
SECTION 19. ELECTION OF OFFICERS. At the first meeting of the board of
directors in each year, at which a quorum shall be present, following the
annual meeting of the stockholders of the corporation, the board of directors
shall proceed to the election of the officers of the corporation, except
regional officers who are subject to appointment in accordance with Section 19
of Article VI of these bylaws.
SECTION 20. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if prior to the action a written consent
thereto is signed by all members of the board of directors or of the committee,
as the case may be, and such written consent is filed with the minutes of the
proceedings of the board of directors or committee.
SECTION 21. WAIVER OF NOTICE. Whenever any notice whatever is required
to be given pursuant to the provisions of a statute, the Certificate of
Incorporation or these bylaws of the corporation, a waiver thereof in writing
signed by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
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ARTICLE VI.
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be a chairman
of the board, vice chairman of the board, president, one or more executive vice
presidents, one or more senior vice presidents, one or more vice presidents,
secretary, treasurer, controller and such assistant vice presidents, assistant
secretaries, assistant treasurers and assistant controllers as the board of
directors may provide for and elect. The chairman of the board and the vice
chairman of the board shall be members of the board of directors. Any two or
more offices may be held by the same person. The board of directors may
appoint such other officers as they shall deem necessary, who shall have the
authority and shall perform the duties that from time to time may be prescribed
by the board of directors. In its discretion, the board of directors by a vote
of a majority thereof may leave unfilled for any period that it may fix by
resolution any office except those of president, treasurer and secretary.
SECTION 2. ELECTION. The board of directors at their first meeting after
each annual meeting of the stockholders or at any regular or special meeting
shall elect, as may be required, a chairman of the board, vice chairman of the
board, president, and one or more executive vice presidents, senior vice
presidents, vice presidents, a secretary, treasurer, controller, and assistant
vice presidents, assistant secretaries, assistant treasurers, and assistant
controllers.
SECTION 3. TENURE. The officers of the corporation elected by the board
of directors shall hold office for one year and until their successors are
chosen and qualify in their stead. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors.
SECTION 4. SALARIES. The salaries of the officers of the corporation
shall be recommended by the management development and compensation committee
and approved by the board of directors.
SECTION 5. VACANCIES. If the office of any officer of the corporation
becomes vacant by reason of death, resignation, disqualification or otherwise,
the directors by a majority vote, may choose his successor or successors.
SECTION 6. RESIGNATION. Any officer may resign his office at any time,
such resignation to be made in writing and take effect at the time of receipt
by the corporation, unless some time be fixed in the resignation and then from
that time. The acceptance of a resignation shall not be required to make it
effective.
SECTION 7. DELEGATION OF DUTIES. Duties of officers may be delegated in
case of the absence of any officer of the corporation or for any reason that
the board of directors may deem sufficient. The board of directors may
delegate the powers or duties of the officer to any other officer
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or to any director, except as otherwise provided by statute, for the time
being, provided a majority of the entire board of directors concurs therein.
SECTION 8. CHAIRMAN OF THE BOARD. The chairman of the board shall be the
chief executive officer and shall have, subject to the direction of the board
of directors, general control and management of the corporation's business and
affairs and shall see that all the policies and resolutions of the board of
directors are carried into effect, subject, however, to the right of the board
of directors to delegate any specific powers, except such as may be by statute
exclusively conferred on the president, to any other officer or officers of the
corporation. He shall preside at all meetings of stockholders and the board of
directors at which he may be present.
SECTION 9. VICE CHAIRMAN OF THE BOARD. The vice chairman shall preside
at all meetings of the board of directors and stockholders from which the
chairman of the board may be absent, and shall perform such other duties that
shall be specifically assigned to him from time to time by the board of
directors or the chairman of the board.
SECTION 10. PRESIDENT. The president shall be the chief operating
officer and shall perform those duties that shall be specifically assigned to
him from time to time by the board of directors. In the absence of the chief
executive officer or in the event of his death, inability or refusal to act,
the president shall perform the duties of the chief executive officer, and when
so acting shall have the powers of and be subject to all the restrictions upon
the chief executive officer.
SECTION 11. EXECUTIVE VICE PRESIDENTS, SENIOR VICE PRESIDENTS, AND VICE
PRESIDENTS. In the absence of the president or in the event of his death,
inability or refusal to act, the senior executive vice president present shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. In the
absence of the president and all executive or senior vice presidents, or in the
event of their deaths, inability or refusal to act, a vice president designated
by the board of directors, or in case the board of directors has failed to act,
designated by the chief executive officer, shall perform the duties of the
president and when so acting shall have all the powers of and be subject to all
the restrictions upon the president. The executive vice presidents, the senior
vice presidents, and all other vice presidents shall perform those duties
consistent with these bylaws and that may be specifically designated by the
president or by the board of directors.
SECTION 12. ASSISTANT VICE PRESIDENTS. The assistant vice presidents
shall perform those duties, not inconsistent with these bylaws, the Certificate
of Incorporation or statute, that may be specifically designated by the board
of directors or the president. In the absence of the executive vice
presidents, senior vice presidents, or vice presidents, an assistant vice
president (or in the event there be more than one assistant vice president, the
assistant vice presidents in the order designated at the time of their
election, or in the absence of any designation, then in the order of their
election) shall perform the duties of the executive vice presidents, senior
vice presidents or vice presidents, and when so acting, shall have all the
powers of and be subject to all restrictions upon the executive vice
presidents, the senior vice presidents, and vice presidents.
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SECTION 13. SECRETARY. The secretary shall attend and keep all the
minutes of all meetings of the board of directors and all meetings of the
stockholders and, when requested by the board of directors, of any committees
of the board of directors. He shall give, or cause to be given, notice of all
meetings of the stockholders and board of directors and when so ordered by the
board of directors, shall affix the seal of the corporation thereto; he shall
have charge of all of those books and records that the board of directors may
direct, all of which shall, at all reasonable times, be open to the examination
of any director at the office of the corporation during business hours; he
shall, in general, perform all of the duties incident to the office of
secretary subject to the control of the board of directors or of the president,
under whose supervision he shall be, and shall do and perform any other duties
that may from time to time be assigned to him by the board of directors.
SECTION 14. ASSISTANT SECRETARIES. In the absence of the secretary or in
the event of his death, inability or refusal to act, the assistant secretary
(or in the event there be more than one assistant secretary, the assistant
secretaries in the order designated at the time of their election, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the secretary, and when so acting shall have all the powers of
and be subject to all the restrictions upon the secretary and shall perform any
other duties that may from time to time be assigned to him by the board of
directors, the president or the secretary.
SECTION 15. TREASURER. The treasurer shall have custody of and be
responsible for all funds and securities of the corporation, receive and give
receipts for money due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in those
banks or depositories that shall be selected and designated by the board of
directors and shall in general perform all of the duties incident to the office
of treasurer and any other duties that may be assigned to him by the president
or by the board of directors. If required by the board of directors, the
treasurer shall give bond for the faithful discharge of his duties in the sum
and with the surety or sureties as the board of directors shall determine.
SECTION 16. ASSISTANT TREASURERS. In the absence of the treasurer or in
the event of his death, inability or refusal to act, the assistant treasurer
(or in the event there be more than one assistant treasurer, the assistant
treasurers in the order designated at the time of their election, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the treasurer and when so acting shall have all the powers and be
subject to all the restrictions upon the treasurer, and shall perform any other
duties that from time to time may be assigned to him by the president,
treasurer or the board of directors. The assistant treasurers shall, if
required by the board of directors, give bonds for the faithful discharge of
their duties in the sums and with the surety or sureties that the board of
directors shall determine.
SECTION 17. CONTROLLER. The controller shall maintain adequate records
of all assets, liabilities and transactions of the corporation; see that
adequate audits thereof are currently and regularly made; and, in conjunction
with other officers and department heads, initiate and enforce measures and
procedures whereby the business of the corporation shall be conducted with the
maximum safety, efficiency and economy. Except as otherwise determined by the
board of directors, or lacking a determination by the board of directors, then
by the president, his duties and powers shall
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extend to all subsidiary corporations and, so far as may be practicable, to all
affiliate corporations. He shall have any other powers and perform other
duties that may be assigned to him by the president or by the board of
directors. If required by the board of directors, the controller shall give
bond for the faithful discharge of his duties in the sum and with the surety or
sureties as the board of directors shall determine.
SECTION 18. ASSISTANT CONTROLLERS. In the absence of the controller or
in the event of his death, inability or refusal to act, the assistant
controller (or in the event there be more than one assistant controller, the
assistant controllers, in the order designated at the time of their election,
or in the absence of any designation, then in the order of their election)
shall perform the duties of the controller and when so acting shall have all
the powers and be subject to all the restrictions upon the controller, and
shall perform any other duties that from time to time may be assigned to him by
the president, controller or the board of directors. The assistant controllers
shall, if required by the board of directors, give bonds for the faithful
discharge of their duties in the sums and with the surety or sureties that the
board of directors shall determine.
SECTION 19. REGIONAL VICE PRESIDENTS.
A. ELECTION. One or more regional vice presidents may be appointed by the
chairman of the board, or the authority for such appointments may be delegated
by the chairman of the board to the president of the corporation.
B. TENURE. The regional vice presidents appointed by the chairman of the
board or the president of the corporation shall hold office for one year and
until their successors are chosen and qualify in their stead. Any regional
vice president so appointed may be removed at any time by the chairman of the
board or the president of the corporation.
C. DUTIES. The regional vice presidents shall do and perform those duties
that shall from time to time be specifically designated or assigned by the
chairman of the board or the president of the corporation; however, the
regional vice presidents shall not perform "policy-making functions" as defined
pursuant to Section 16 or any successor section(s) of the Securities Exchange
Act of 1934, as amended, and shall be deemed not to be subject to such Section
16 and the rules and regulations promulgated thereunder.
ARTICLE VII.
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS
SECTION 1. The board of directors shall cause the corporation to
indemnify any person (and that person's heirs and personal representatives) who
was or is a party or is threatened or expected to be made a party to any
threatened, pending or completed action, suit, arbitration or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the
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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, partner or agent of another
corporation, partnership (including a partnership in which the corporation is a
partner), joint venture, trust or other enterprise, against expenses
(including, but not limited to, attorneys' fees, expert fees, bonds,
prospective or retroactive insurance premiums or costs, litigation, appeal and
court costs and out-of-pocket expenses of such person during any investigation
hearing, arbitration, trial, or appeal of any such action, suit or proceeding,
including any interest payable thereon), judgments, damages, arbitration
awards, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, arbitration or proceeding,
including any interest payable thereon, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. The board of directors shall indemnify any person (and that
person's heirs and personal representatives) who was or is a party or is
threatened or expected to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that 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, partner or agent
of another corporation, partnership (including a partnership in which the
corporation is a partner), joint venture, trust or other enterprise against
expenses (including, but not limited to, attorneys' fees, expert fees, bonds,
prospective or retroactive insurance premiums or costs, litigation, appeal and
court costs, and out-of-pocket expenses of such person during any
investigation, hearing, trial or appeal of any such action or suit, including
any interest payable thereon), actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 3. To the extent that a present or past director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit, arbitration or proceeding referred to
in Sections 1 and 2, or in defense of claim, issue or matter therein, he shall
be indemnified against expenses (including, but not limited to, attorneys'
fees, expert fees, bonds, prospective or retroactive insurance premiums or
costs, litigation, appeal, and court costs, and out-of-pocket expenses of such
person during any investigation, hearing, arbitration, trial or appeal of
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any such action, suit or proceeding) actually and reasonably incurred by him in
connection therewith, including any interest payable thereon.
SECTION 4. The board of directors shall cause the corporation to advance
to any person covered by Sections 1 or 2 the expenses (including, but not
limited to, attorneys' fees, expert fees, bonds, prospective or retroactive
insurance premiums or costs, litigation, appeal, and court costs and
out-of-pocket expenses, of such person during any investigation, hearing,
arbitration, trial or appeal of any such action, suit, arbitration or
proceeding) incurred by that person in defending a threatened, pending, or
completed civil, criminal, administrative, or investigative action suit,
arbitration, or proceeding, including any interest payable thereon, in advance
of the final disposition of such action, suit or proceeding.
SECTION 5. Any advance by the board of directors under Section 4 above to
any employee or agent who is not a present or past director or officer of the
corporation shall be conditional upon evidence of compliance with the terms and
conditions, if any, deemed appropriate and specified by the board of directors
for such advance if such employee or agent is determined ultimately to be not
legally entitled to indemnification from the corporation.
SECTION 6. Any advance authorized by the board of directors under Section
4 above to a present or past officer or director shall be conditional upon
prior receipt by the corporation of a written undertaking from that officer or
director to repay such advance if he is determined ultimately to be not legally
entitled to indemnification from the corporation. Such undertaking shall be in
the form of a simple agreement by the officer or director to repay advances
made to him in the event that it is determined ultimately that he is not
legally entitled to indemnification by the corporation. Such undertaking shall
specifically state that no bond, collateral or other security shall be required
by the officer or director to insure its performance and that no interest on
any amount advanced shall be required to be paid to the corporation if the
officer or director is determined ultimately to be not legally entitled to
indemnification from the corporation.
SECTION 7. The board of directors, in its sole discretion, may establish
and may fund in advance and from time to time, in whole or in part, a separate
provision or provisions, which may be in the form of a trust fund, periodic or
advance retainers to counsel, or otherwise as the board of directors may
determine in each instance, to be used as payment and/or advances of
indemnification obligations under this Article VII to officers, directors,
employees and agents of the corporation; provided, however, that any amount
which is contributed to such fund shall not in any way be construed to be a
limitation on the amount of indemnification and/or advances of the corporation.
SECTION 8. The board of directors shall cause the corporation to pay to
any director, officer, employee or agent all expenses (including, but not
limited to, attorneys' fees, expert fees, bonds, prospective or retroactive
insurance premiums or costs, litigation, appeal, and court costs, and
out-of-pocket expenses of such person during any investigation, hearing,
arbitration, trial or appeal of any such action, suit, arbitration or
proceeding, including any interest payable thereon), which may be incurred by
such director, officer, employee or agent in enforcing his rights to
indemnification (as set forth herein in Sections 1, 2 and 3) and/or advances
(as set forth herein in Section 4) whether or not
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such director, officer, employee or agent is successful in enforcing such
rights and whether or not suit or other proceedings are commenced.
SECTION 9. Any amendment to this Article VII shall only apply
prospectively and shall in no way affect the corporation's obligations to
indemnify and make advances to officers, directors, employees and agents as set
forth in this Article VII for actions or events which occurred before any such
amendment, and provided that any amendment to this Article VII shall require
affirmative vote of four-fifths of the entire board of directors.
SECTION 10. Any indemnification granted under the provisions of Sections
1, 2, 3 and 8 above shall be subject to the provisions of subsections (d), (e),
(f) and (g) of Section 145 of the General Corporation Law of the State of
Delaware.
ARTICLE VIII.
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any officer
or officers, agent or agents to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation. Such authority
may be general or confined to specific instances.
SECTION 2. LOANS. No loan shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name,
unless authorized by resolution of the board of directors. Such authority may
be general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other order or
other orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation shall be signed by such officer or
officers, agent or agents and in such manner that shall from time to time be
determined by resolution of the board of directors.
SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in the
bank or banks or other depositories that the board of directors may elect.
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ARTICLE IX.
VOTING OF STOCK OF OTHER CORPORATIONS
Unless otherwise ordered by the board of directors, the chairman of the
board shall have full power and authority on behalf of the corporation to act
and vote at any meeting of stockholders of any corporation in which the
corporation may hold stock, and at any such meeting, shall possess, and may
exercise, any and all of the rights and powers incident to the ownership of the
stock, which, as the owner thereof, the corporation might have possessed and
exercised if present. The board of directors by resolution from time to time,
may confer like powers upon any other person or persons.
ARTICLE X.
NOTICES
SECTION 1. FORM OF NOTICE. Whenever under the provisions of the
statutes, the Certificate of Incorporation, or these bylaws, notice is required
to be given to any director or stockholder, it shall not be construed to mean
personal notice, but the notice may be given in writing by mail, which shall
mean depositing same in a United States Postal Service post office or letter
box, in a postage paid, sealed envelope, addressed to the stockholder or
director at the address that appears on the books of the corporation or, in
default of other address, to such director or stockholder at the United States
Postal Service general post office in the City of Wilmington, Delaware, and the
notice shall be deemed to be given at the time when the same shall be thus
mailed or by any other means expressly provided for in these bylaws.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be given
under the provision of the statutes, the Certificate of Incorporation or these
bylaws, a waiver thereof in writing signed by the person or persons entitled to
the notice whether before or after the time stated therein shall be deemed
equivalent thereto.
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ARTICLE XI.
STOCK CERTIFICATES
SECTION 1. CERTIFICATES FOR SHARES. The certificates for shares of the
capital stock of the corporation shall be in the form, not inconsistent with
the Certificate of Incorporation, that shall be approved by the board of
directors. The certificate shall be signed by the chairman of the board,
president or a vice president, and either the treasurer or an assistant
treasurer, or the secretary or an assistant secretary, but where the
certificate is signed by a transfer agent or an assistant transfer agent and a
registrar, the signatures of the chairman of the board, president, vice
president, treasurer, assistant treasurer, secretary or assistant secretary may
be facsimiles. All certificates shall be consecutively numbered, and the name
of the person owning the shares represented thereby, with the number of shares
and the date of issue shall be entered in the corporation's books. No
certificate shall be valid unless it is signed by the chairman of the board,
president, or a vice president, and either the treasurer or an assistant
treasurer, or the secretary or an assistant secretary, but where the
certificate is signed by a transfer agent or an assistant transfer agent and a
registrar, the signatures of the chairman of the board, president, vice
president, treasurer, assistant treasurer, secretary or assistant secretary may
be facsimiles. All certificates surrendered to the corporation shall be
canceled, and no new certificates shall be issued until the former certificate
for the same number of shares of the same class shall have been surrendered and
canceled.
SECTION 2. TRANSFER OF SHARES. Shares of the capital stock of the
corporation shall be transferred only on the books of the corporation by the
holder thereof in person or by his attorney upon surrender and cancellation of
certificates for the same number of shares.
SECTION 3. REGULATIONS. The board of directors shall have authority to
make any rules and regulations that they may deem expedient concerning the
issue, transfer and registration of certificates for shares of the capital
stock of the corporation. The board of directors may appoint one or more
transfer agents or assistant transfer agents and one or more registrars of
transfers and may require all certificates to bear the signature of the
transfer agent or assistant transfer agent and a registrar of transfers. The
board of directors may at any time terminate the appointment of any transfer
agent or any assistant transfer agent or any registrar of transfers by the vote
of a majority of the board of directors.
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SECTION 4. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS' RIGHTS. The
board of directors may close the stock transfer books of the corporation for a
period not exceeding 50 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 not exceeding 50 days in connection with
obtaining the consent of stockholders for any purpose. In lieu of closing the
stock transfer books as aforesaid, the board of directors may fix a date not
exceeding 50 days preceding the date of any meeting of stockholders, or the
date for the 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 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 meeting and any adjournment thereof, or entitled to receive
payment of any dividend, or to any allotment of rights, or to exercise the
rights in respect of any change, conversion or exchange of capital stock, or to
give such consent, and in such case the stockholders and only the stockholders
that shall be stockholders of record on the date so fixed shall be entitled to
the notice or to receive payment of the dividend, or to receive the allotment
of rights, or to exercise the 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 record date fixed as aforesaid.
SECTION 5. REGISTERED STOCKHOLDERS. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in
fact thereof and accordingly shall not be bound to recognize any equitable or
other claim to or interest in the share or shares on the part of any other
person whether or not it shall have express or other notice thereof except as
otherwise provided by the laws of the State of Delaware.
SECTION 6. LOST CERTIFICATES. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact with the person
claiming the certificate of stock to be lost or destroyed. When authorizing
the issue of a new certificate or certificates, the board of directors may, in
its discretion and as a condition precedent to the issuance thereof, require
the owner of the lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in a manner that it shall require for
each share of stock having voting power registered in his name and to give the
corporation a bond in the sum that it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate
alleged to have been lost or destroyed.
SECTION 7. DIVIDENDS. The board of directors 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.
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SECTION 8. RESERVE FUNDS. Before payment of any dividend there may be
set aside out of any funds of the corporation available for dividends the sum
or sums that the board of directors may from time to time in their absolute
discretion think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for any other purpose that the directors shall think conducive
to the interest of the corporation and the board of directors may modify or
abolish the reserve in the manner in which it was created.
ARTICLE XII.
GENERAL PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the corporation shall begin
on the first day of January in each year.
SECTION 2. INSPECTION OF BOOKS. The board of directors shall determine
from time to time whether, and if allowed, when and under what conditions and
regulations, the accounts and books of the corporation (except as may be by
statute specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders, and a stockholder's rights in this respect are,
and shall be, restricted and limited accordingly.
SECTION 3. GENDER. The use of the masculine gender in these bylaws shall
be deemed to include the feminine gender.
ARTICLE XIII.
AMENDMENTS TO AND SUSPENSION OF BYLAWS
SECTION 1. AMENDMENTS. Subject to the provisions of Section 12 of
Article IV, these bylaws may be altered or repealed at any regular meeting of
the stockholders or at any special meeting of the stockholders at which a
quorum is present or represented, provided notice of the proposed alteration or
repeal be contained in the notice of the special meeting, by the affirmative
vote of a majority of the stockholders entitled to vote at the meeting and
present or represented thereat, or by the affirmative vote of a majority of the
board of directors at any regular meeting of the board of directors or at any
special meeting of the board of directors, if notice of the proposed alteration
or repeal be contained in the notice of the special meeting.
SECTION 2. SUSPENSION. Any provision of these bylaws may be suspended by
vote of two-thirds of the votes cast upon the motion to suspend except that the
suspension of the bylaw provision might be in contravention of any provision of
any statute or of the Certificate of Incorporation.
* * *
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EXHIBIT 4.7
APACHE CORPORATION
NON-EMPLOYEE DIRECTORS' COMPENSATION PLAN
Effective as of July 1, 1997
PURPOSE
The purpose of the Non-Employee Directors' Compensation Plan (the "PLAN")
is to set forth certain of the compensation arrangements for members of the
board of directors (the "BOARD") of Apache Corporation ("APACHE") who are not
also employees of Apache ("NON-EMPLOYEE DIRECTORS"). The Plan supersedes the
Directors' Deferred Compensation Plan; however, all elections previously made
thereunder shall remain in effect in respect of the Plan. The Plan does not
supersede or amend in any way any other arrangements relating to Non-Employee
Directors including specifically, without limitation, the Equity Compensation
Plan for Non-Employee Directors, the Outside Directors' Retirement Plan,
indemnification provisions of Apache's charter or bylaws, or policies with
respect to reimbursement of expenses.
PLAN PROVISIONS
1. BOARD RETAINER. Each Non-Employee Director shall be paid, as soon as
practicable following accrual, the Board retainer fee ("BOARD RETAINER FEE")
set forth below:
(a) $5,000.00 shall be paid to each Non-Employee Director at the end
of each calendar quarter during which such Non-Employee Director served,
for any period of time, as a member of the board of directors of Apache;
and
(b) $2,500.00 in value of Apache common stock, par value $1.25 per
share ("STOCK"), shall be paid from Apache's treasury shares to each
Non-Employee Director at the end of each calendar quarter during which
such Non-Employee Director served, for any period of time, as a member of
the board of directors of Apache. The number of shares of Apache common
stock shall be determined by dividing $2,500.00 by the closing price of
the Stock as reported on the New York Stock Exchange, Inc. Composite
Transactions Reporting System as of the trading day prior to the last
trading day of the relevant calendar quarter, with all fractional shares
to be paid to the director in cash.
2. COMMITTEE RETAINERS. Each Non-Employee Director serving on any
committee of the Board shall be paid, as soon as practicable, the committee
retainer fee ("COMMITTEE RETAINER FEE") set forth below:
<PAGE> 2
(a) $500.00 shall be paid to each Non-Employee Director at the end
of each calendar quarter in respect of each committee on which such
Non-Employee Director served, for any period of time, during such
quarter; and
(b) $1,000.00 shall be paid to each Non-Employee Director at the end
of each calendar quarter in respect of each committee on which such
Non-Employee Director served, for any period of time, as chairperson
during such quarter.
3. ATTENDANCE FEES. Each Non-Employee Director shall receive an
attendance fee ("ATTENDANCE FEE") of $1,000.00 for each meeting of the Board
and of any committee thereof attended, such fee to be paid at each such meeting
or as soon thereafter as practicable.
4. OPTIONAL DEFERRAL OF FEES.
(a) DEFERRABLE FEES. A Non-Employee Director may defer all or any
portion of any unpaid Board Retainer Fee, Committee Retainer Fee, and
Attendance Fee, all of which are paid to Non-Employee Directors with
respect to their services performed as a director on the Board
("DEFERRABLE FEES"). No other payments to Non-Employee Directors may be
deferred including, without limitation, any expense reimbursement, any
award under Apache's Equity Compensation Plan for Non-Employee Directors
or benefits payable under Outside Directors' Retirement Plan. Any Board
Retainer Fees payable in Stock which are deferred by a Non-Employee
Director shall not be issued until such deferral is terminated; however,
Apache shall at all times have reserved from its treasury shares for
issuance pursuant hereto to deferring Non-Employee Directors a number of
shares at least equal to the number of shares of Stock issuable pursuant
to Section 1(b) hereof.
(b) ELECTION TO DEFER. A Non-Employee Director's election to defer
("ELECTION") all or any portion of Deferrable Fees shall be effected by
execution of a Directors' Deferred Compensation Agreement between the
participating director and Apache ("AGREEMENT"), a copy of the form of
which is attached hereto as Exhibit A. An Agreement must be executed by
the deferring Non-Employee Director and provided to Apache's Corporate
Secretary on or before December 31 of the year prior to the year for
which deferral is elected. Once executed, an Agreement shall be
irrevocable with respect to the year made and the Deferrable Fees
designated for deferral (the "DEFERRED COMPENSATION"), and shall remain
in effect with respect to all subsequent years until the Agreement is
terminated or amended. All elections to defer Deferrable Fees previously
made in respect of the Directors' Deferred Compensation Plan shall
constitute valid Elections in respect of the Plan. Upon full or partial
termination of deferral by a Non-Employee Director, the cash and/or Stock
shall be paid and/or issued to such Non-Employee Director pursuant to the
terms of such Non-Employee Director's Agreement.
(c) TERMINATION OR MODIFICATION OF ELECTION. Any termination of an
Election shall be made in writing and provided to Apache's Corporate
Secretary on or before December 31 of the year prior to the year for
which the termination is to be effective. Any modification or amendment
of an Election shall be made by executing a
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<PAGE> 3
new Agreement which shall supersede any previous Agreement. Such new
Agreement must be executed by the deferring Non-Employee Director and
provided to Apache's Corporate Secretary on or before December 31 of the
year prior to the year for which the amended Election is to be effective.
Upon termination or modification of an Election, all Deferred
Compensation payable to the Non-Employee Director terminating or
modifying the Election shall be paid in accordance with the provisions of
such Non-Employee Director's then effective Agreement, as modified or
amended.
(d) DIVIDENDS AND INTEREST; NO VOTING. All Deferrable Fees payable
in Stock which are deferred by a Non-Employee Director shall accrue
dividends denominated in the cash value thereof as if such Stock were
issued and outstanding as and when dividends are payable in respect of
such Stock. All Deferrable Fees payable in cash which are deferred by a
Non-Employee Director, plus all previously accrued dividends and
interest, shall accrue interest at the end of each calendar quarter or as
of and through the date of payment of Deferred Compensation, as
appropriate. The rate of interest per diem shall equal (i) the annual
rate of interest earned by Apache's short-term marketable securities
portfolio, or (ii) an equivalent index or market rate for similar
investments in short-term marketable securities, divided by the number of
days elapsed in the relevant period. Non-Employee Directors shall have
no right to vote any Stock which constitutes Deferred Compensation prior
to the date on which share certificates representing such Stock are
issued.
(e) MEMORANDUM ACCOUNT. Apache will maintain a separate Deferred
Compensation memorandum account ("MEMORANDUM ACCOUNT") for each deferring
Non-Employee Director. All Deferred Compensation and accrued dividends
and interest accumulated in each Memorandum Account will be classified in
the same category as other unsecured creditors and accounts payable of
Apache, and neither the deferring Non-Employee Director nor his or her
beneficiary or estate shall have any property interest whatsoever in any
specific assets of Apache. All distributions of accrued cash from a
Memorandum Account shall be paid in cash, and all distributions of stock
from a Memorandum Account shall be made by issuance of shares of Stock.
(f) TERMINATION OF DIRECTORSHIP. Upon retirement or other
termination of a Non-Employee Director's directorship with Apache, or on
a date specifically designated in a Non-Employee Director's Agreement,
any balance in such Non-Employee Director's Memorandum Account shall be
paid (a) in a lump sum, or (b) in annual installments over a ten-year
period (or over such shorter period as designated in the deferring
Non-Employee Director's Agreement) beginning with the first business day
of the calendar year immediately following retirement or other
termination of such Non-Employee Director's directorship.
(g) ASSIGNMENT AND TRANSFER. The right of the deferring
Non-Employee Director or any other person to receive payments under the
Plan shall not be assigned, transferred, pledged or encumbered, except by
will or by the laws of descent and distribution. Upon the death of a
deferring Non-Employee Director, any balance remaining in such
Non-Employee Director's Memorandum Account at the time of his
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<PAGE> 4
death shall be paid in a lump sum to his or her designated beneficiary
or, if there is no designated beneficiary, to his or her estate as soon
as practicable after such Non-Employee Director's death.
(h) ADJUSTMENTS IN STOCK. In the event of any merger,
consolidation, liquidation, dissolution, recapitalization or
reorganization of Apache, split, subdivision or consolidation of shares
of Stock, the payment of a stock dividend, or any other material change
in Apache's capital structure, the number of shares of Stock shown in
each deferring Non-Employee Director's Memorandum Account shall be
adjusted to reflect that number of shares of Stock or such cash,
securities or other property to which such Non-Employee Director would
have been entitled if, immediately prior thereto, such Non-Employee
Director had been the holder of record of the number of shares of Stock
shown in the Memorandum Account. Notwithstanding the foregoing, the
issuance by Apache of Stock, rights, options or warrants to acquire
Stock, or securities convertible or exchangeable into Stock in
consideration of cash, property, labor or services, whether or not for
fair value, shall not result in an adjustment pursuant to this paragraph.
5. AMENDMENT OF PLAN. The Plan may be amended from time to time or
terminated by vote of the Board. Upon such amendment or termination,
Non-Employee Directors shall not be entitled to receive pursuant to the Plan
any compensation or other rights or benefits not accrued hereunder prior to the
time of amendment or termination hereof; provided, however, that no such Plan
amendment or termination shall impair any rights of Non-Employee Directors to
amounts previously accrued pursuant to the Plan or accumulated in such
Non-Employee Director's Memorandum Account.
6. SUCCESSORS AND ASSIGNS. The Plan is binding upon Apache and its
successors and assigns. The Plan shall continue in effect from year to year
unless and until revoked by the Board. Any such revocation shall operate only
prospectively and shall not affect the rights and obligations under elections
previously made.
7. DEFINED TERMS. Except when otherwise indicated by the context, the
definition of any term herein in the singular shall also include the plural,
and the masculine gender shall also include the feminine gender.
8. GOVERNING LAW. The Plan and all Agreements hereunder shall be
construed in accordance with and governed by the laws of the State of Texas.
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<PAGE> 5
EXHIBIT A
APACHE CORPORATION
DIRECTOR'S DEFERRED COMPENSATION AGREEMENT
THIS DIRECTOR'S DEFERRED COMPENSATION AGREEMENT is made this ___ day of
__________, 19_____, between Apache Corporation, a Delaware corporation
("Apache"), and ________________ (the "Non-Employee Director"), pursuant to
the terms of the Apache Corporation Non-Employee Directors' Compensation Plan
(the "Plan"). All terms used but not defined herein shall have the meanings
ascribed thereto in the Plan.
WITNESSETH, that the parties hereto hereby agree as follows:
1. CASH DEFERRALS. ______ percent of all accrued (check one or both):
[ ] Board Retainer Fees and Committee Retainer Fees, and/or
[ ] Attendance Fees
payable in cash to the Non-Employee Director in the succeeding calendar year,
and from year-to-year thereafter until this Agreement is terminated or amended,
will be credited to the Non-Employee Director's Memorandum Account as of the
dates such Board Retainer Fees, Committee Retainer Fees, and Attendance Fees,
as appropriate, are regularly paid.
2. STOCK DEFERRALS. ______ percent of all accrued Board Retainer Fees
payable in shares of Stock to the Non-Employee Director in the succeeding
calendar year, and from year-to-year thereafter until this Agreement is
terminated or amended, will be credited to the Non-Employee Director's
Memorandum Account as of the dates such Board Retainer Fees are regularly paid.
3. MEMORANDUM ACCOUNT. All amounts of cash and shares of Stock deferred
pursuant to the Plan, together with dividends and interest provided for in
Section 4(d) of the Plan, will be accumulated in the Non-Employee Director's
Memorandum Account. The Non-Employee Director, his or her beneficiary, and all
amounts accumulated in the Non-Employee Director's Memorandum Account will be
classified in the same category as other unsecured creditors and accounts
payable of Apache.
4. TIME OF PAYMENT. Payments from the Non-Employee Director's Memorandum
Account are to be made (check one):
[ ] upon retirement or other termination as a director of Apache, or
[ ] on ________________, ______.
<PAGE> 6
5. MANNER OF PAYMENT. Payments from the Non-Employee Director's
Memorandum Account are to be made (check one):
[ ] in cash in a lump sum, or
[ ] in cash in annual installments over a ten-year period beginning
with the first business day of the calendar year immediately
following retirement or other termination as a director of
Apache or, alternatively, the date specified in Section 4
hereof, or
[ ] in cash in annual installments over a ______-year period
beginning with the first business day of the calendar year
immediately following retirement or other termination as a
director of Apache or, alternatively, the date specified in
Section 4 hereof.
6. INTEREST DURING INSTALLMENT PERIODS. Interest provided for in Section
4(d) of the Plan will continue to accrue on the remaining balances in the
Non-Employee Director's Memorandum Account during any installment periods.
7. NON-ASSIGNABILITY. The right to receive payments under the Plan is
non-assignable (except as set forth in Section 8 hereof), may not be
transferred, and is not subject to attachment or levy for any debts of the
Non-Employee Director.
8. DESIGNATED BENEFICIARY. The Non-Employee Director hereby designates
---------------------------------------------------------
(Please Print Name and Relationship or "N/A")
as beneficiary to receive any balance remaining in the Non-Employee Director's
Memorandum Account at the time of the Non-Employee Director's death. If the
Non-Employee Director is married as of the date of this Agreement and the
beneficiary designated above is not the Non-Employee Director's spouse, the
Non-Employee Director's spouse must consent to such designation by signing the
"Consent to Beneficiary Designation" set out below. At the time of the
Non-Employee Director's death, any balance remaining in the Non-Employee
Director's Memorandum Account will be paid in a lump sum to the Non-Employee
Director's designated beneficiary or, if there is no designated beneficiary, to
the Non-Employee Director's estate.
9. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be given by first class registered or
certified mail, postage prepaid, or by personal delivery to the appropriate
party, addressed:
(a) If to Apache, to Apache Corporation at its
principal place of business at 2000 Post Oak Boulevard, Suite
100, Houston, Texas 77056-4400 (Attention: Office of the
Secretary) or at such other address as may have been furnished
to the Non-Employee Director in writing by Apache; or
(b) If to the Non-Employee Director, at the address
indicated below the Non-Employee Director's signature, or at
such other address as may have been furnished to Apache by the
Non-Employee Director.
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<PAGE> 7
Any such notice shall be deemed to have been given as of the second day after
deposit in the United States Postal Service, postage prepaid, properly
addressed as set forth above, in the case of mailed notice, or as of the date
delivered in the case of personal delivery.
10. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
IN PRESENCE OF:
- ------------------------------ ---------------------------------------
,
---------------------
Non-Employee Director
---------------------------------------
Social Security Number
---------------------------------------
Address
---------------------------------------
City, State, Zip Code
ATTEST: APACHE CORPORATION
By:
- ------------------------------ -----------------------------------
Cheri L. Peper Z. S. Kobiashvili
Corporate Secretary Vice President and General Counsel
CONSENT TO BENEFICIARY DESIGNATION IN SECTION 8 ABOVE
I understand that if the Non-Employee Director designates a beneficiary
other than his or her spouse, the spouse must consent to such designation. I
hereby consent to the beneficiary designated in Section 8 of this Agreement.
- ------------------------------ -----------------------------------
Date Signature of Spouse
<PAGE> 1
[APACHE LETTERHEAD]
EXHIBIT 5.1
July 29, 1997
Apache Corporation
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
Gentlemen:
I am rendering this opinion in my capacity as Assistant General
Counsel of Apache Corporation, a Delaware corporation ("Apache"), in connection
with the Registration Statement on Form S-8 (the "Registration Statement")
filed on or about this date by Apache under the Securities Act of 1933, as
amended, and relating to 25,000 shares of Apache's common stock, $1.25 par
value ("Apache Common Stock"), to be offered under the plan described in the
Registration Statement (the "Plan").
In connection therewith, I have examined the Registration Statement,
the corporate proceedings with respect to the offering of shares and such other
documents and instruments as I have deemed necessary or appropriate for the
expression of the opinion contained herein.
On the basis of the foregoing, and having regard for such legal
considerations I have deemed relevant, it is my opinion that the 25,000 shares
of Apache Common Stock to be registered have been duly authorized for issuance
and sale, and when issued in accordance with the terms and conditions of the
Plan, will be legally issued, fully paid and non- assessable.
I express no opinion as to the laws of any jurisdiction other than the
State of Texas and the General Corporation Law of the State of Delaware.
I consent to the inclusion of this letter as an exhibit to the
Registration Statement and to the reference in the Prospectus included as part
of the Registration Statement to my having issued the opinion expressed herein.
Very truly yours,
/s/ Eric L. Harry
Eric L. Harry
Assistant General Counsel
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 28, 1997
on the audited consolidated financial statements of Apache Corporation and
Subsidiaries included in the Apache Corporation Annual Report on Form 10-K for
the year ended December 31, 1996, and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Houston, Texas
July 28, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF COOPERS & LYBRAND
We hereby consent to the incorporation by reference in this registration
statement of our report dated February 13, 1995 on our audit of the
consolidated financial statements of DEKALB Energy Company for the year ended
December 31, 1994 included in the Apache Corporation Annual Report on Form 10-K
for the year ended December 31, 1996, and to all references to our Firm
included in this registration statement.
/s/ Coopers & Lybrand
Coopers & Lybrand
Chartered Accountants
Calgary, Alberta, Canada
July 28, 1997
<PAGE> 1
EXHIBIT 23.3
[RYDER SCOTT LETTERHEAD]
Consent of Ryder Scott Company Petroleum Engineers
As independent petroleum engineers, we hereby consent to the incorporation by
reference in this registration statement of our Firm's review of the proved oil
and gas reserve quantities of Apache Corporation as of January 1, 1997, and to
all references to our Firm included in this registration statement.
/s/ Ryder Scott Company
/s/ Petroleum Engineers
Ryder Scott Company
Petroleum Engineers
Houston, Texas
July 31, 1997
<PAGE> 1
EXHIBIT 23.4
Consent of Independent Petroleum Engineers and Geologists
As independent petroleum engineers and geologists, we hereby consent to the
incorporation by reference in this Registration Statement of our Firm's review
of the proved oil and gas reserve quantities as of January 1, 1997, for certain
of Apache Corporation's interests located in The Arab Republic of Egypt, and to
all references to our Firm included in this Registration Statement.
Netherland, Sewell & Associates, Inc.
By: /s/ Clarence M. Netherland
---------------------------------
Clarence M. Netherland
Chairman
Dallas, Texas
July 31, 1997
