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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 27, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CABOT OIL & GAS CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 15375 MEMORIAL DRIVE 04-3072771
(State of incorporation) HOUSTON, TEXAS 77079 (I.R.S. Employer
(281) 589-4600 Identification No.)
(Address, including zip code, and telephone
number,
including area code, of registrant's principal
executive offices)
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SCOTT C. SCHROEDER
VICE PRESIDENT AND TREASURER
CABOT OIL & GAS CORPORATION
15375 MEMORIAL DRIVE
HOUSTON, TEXAS 77079
(281) 589-4600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
J. DAVID KIRKLAND, JR.
BAKER & BOTTS, L.L.P.
3000 ONE SHELL PLAZA
910 LOUISIANA
HOUSTON, TEXAS 77002-4995
(713) 229-1101
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
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Debt Securities(2)..........................................
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Preferred Stock, par value $.10 per share(2)................
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Class A Common stock, par value $.10 per share(3)...........
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Warrants....................................................
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Total.............................................. $400,000,000 $111,200
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $400,000,000 or the equivalent thereof in
foreign currencies, foreign currency units or composite currencies. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) There is also being registered hereunder an indeterminate principal amount
of Debt Securities, an indeterminate number of shares of Preferred Stock and
Class A Common Stock and an indeterminate number of Warrants as may be
issuable upon conversion, redemption, exchange or exercise of the Debt
Securities, Preferred Stock or Warrants registered hereunder.
(3) Includes preferred stock purchase rights associated with the Class A Common
Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JULY 27, 1999
PROSPECTUS
[LOGO]
CABOT OIL & GAS CORPORATION
15375 Memorial Drive
Houston, Texas 77079
(281) 589-4600
$400,000,000
DEBT SECURITIES
PREFERRED STOCK
CLASS A COMMON STOCK
WARRANTS
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We will provide the specific terms of the securities in supplements to this
prospectus.
You should read this prospectus and any supplement carefully before you invest.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 1999.
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TABLE OF CONTENTS
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About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
Forward-Looking Information................................. 4
About Cabot Oil & Gas Corporation........................... 4
Risk Factors................................................ 5
Use of Proceeds............................................. 6
Ratio of Earnings to Fixed Charges.......................... 6
Description of Debt Securities.............................. 7
Description of Capital Stock................................ 13
Description of Warrants..................................... 17
Plan of Distribution........................................ 18
Legal Opinions.............................................. 19
Independent Accountants..................................... 19
Experts..................................................... 19
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission under a "shelf" registration process.
Using this process, we may offer the securities described in this prospectus in
one or more offerings with a total initial offering price of up to $400,000,000.
This prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide a prospectus supplement
and, if applicable, a pricing supplement. The prospectus supplement and any
pricing supplement will describe the specific terms of that offering. The
prospectus supplement and any pricing supplement may also add, update or change
the information contained in this prospectus. Please carefully read this
prospectus, the prospectus supplement and any pricing supplement, in addition to
the information contained in the documents we refer to under the heading "Where
You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You can read and copy any materials we file with the
SEC at the SEC's public reference room at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the SEC's regional offices located at Seven World Trade
Center, New York, New York 10048, and at 500 West Madison Street, Chicago,
Illinois 60661. You can obtain information about the operation of the SEC's
public reference room by calling the SEC at 1-800-SEC-0330. The SEC also
maintains a Web site that contains information we file electronically with the
SEC, which you can access over the Internet at http://www.sec.gov. You can
obtain information about us at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005, or by visiting our Web site at
http://www.cabotog.com.
This prospectus is part of a registration statement we have filed with the
SEC relating to the securities. As permitted by SEC rules, this prospectus does
not contain all of the information we have included in the registration
statement and the accompanying exhibits and schedules we file with the SEC. You
may refer to the registration statement, the exhibits and schedules for more
information about us and our debt securities. The registration statement,
exhibits and schedules are available at the SEC's public reference room or
through its Web site.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information we incorporate by reference is
an important part of this prospectus, and later information that we file with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below, and any future filings we make with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the
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Securities Exchange Act of 1934 until we sell all the securities. The documents
we incorporate by reference are:
- our annual report on Form 10-K for the year ended December 31, 1998
- our quarterly report on Form 10-Q for the quarter ended March 31, 1999
- our current report on Form 8-K filed January 27, 1999
- the description of the common stock in our registration statement on Form
8-A filed on January 24, 1990, and the description of the rights to
purchase preferred stock contained in our registration statement on Form
8-A filed on April 1, 1991, as they may be amended in the future to
update or change these descriptions.
In this prospectus, we refer to our Class A common stock as our common
stock. Although we previously had outstanding shares of Class B common stock, we
do not expect to issue any shares of Class B common stock in the future.
You may request a copy of these filings (other than an exhibit to those
filings unless we have specifically incorporated that exhibit by reference into
the filing), at no cost, by writing or telephoning us at the following address:
Cabot Oil & Gas Corporation
15375 Memorial Drive
Houston, Texas 77079
Attention: Lisa A. Machesney
Telephone: (281) 589-4600
YOU SHOULD RELY ONLY ON THE INFORMATION WE HAVE PROVIDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANY PERSON (INCLUDING ANY SALESMAN OR BROKER) TO PROVIDE INFORMATION
OTHER THAN THAT PROVIDED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE
HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT
MAKING AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT
PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON ITS
COVER PAGE.
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FORWARD-LOOKING INFORMATION
This prospectus, including the information we incorporate by reference,
includes forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
You can identify our forward-looking statements by the words "expects,"
"projects," "estimates," "believes," "anticipates," "intends," "plans,"
"budgets," "predicts," "estimates" and similar expressions.
We have based the forward-looking statements relating to our operations on
our current expectations, estimates and projections about us and the oil and gas
industry in general. We caution you that these statements are not guarantees of
future performance and involve risks, uncertainties and assumptions that we
cannot predict. In addition, we have based many of these forward-looking
statements on assumptions about future events that may prove to be inaccurate.
Accordingly, our actual outcomes and results may differ materially from what we
have expressed or forecast in the forward-looking statements. Any differences
could result from a variety of factors, including the following:
- market factors
- market prices (including regional basis differentials) of natural gas and
oil
- results of future drilling and marketing activity
- future production and costs
ABOUT CABOT OIL & GAS CORPORATION
Cabot Oil & Gas Corporation explores for, develops, produces, stores,
transports, purchases and markets natural gas and, to a lesser extent, produces
and sells crude oil. Our operations are divided into three regions:
- the Appalachian Region of West Virginia and Pennsylvania
- the Western Region, including the Anadarko Basin of southwestern Kansas,
Oklahoma and the Texas Panhandle, and the Green River Basin of Wyoming
- the Gulf Coast Region, including onshore South Texas and South Louisiana
At December 31, 1998, we had approximately 1,043 Bcfe of total proved reserves,
of which 96% were natural gas. A significant portion of our natural gas reserves
are located in long-lived fields with extended production histories.
Cabot Oil & Gas was organized in 1989 to carry on the oil and gas business
of Cabot Corporation. Cabot Corporation had begun this business in 1891. In
1990, we completed the initial public offering of approximately 18% of the
outstanding common stock of Cabot Oil & Gas and the listing of the common stock
on the New York Stock Exchange. Cabot Corporation distributed the remaining
common stock it held to the shareholders of Cabot Corporation in 1991.
We are one of the largest producers of natural gas in the Appalachian
Basin, where we have conducted operations for more than a century. We have had
operations in the Anadarko Basin of the mid-Continent for over 60 years. We
acquired our initial operations in the Rocky Mountains and the Gulf Coast in an
acquisition we completed in May 1994. Historically, we have maintained our
reserve base through lower-risk development drilling and strategic acquisitions.
In recent years, we have stepped up our emphasis on exploration. We continue to
focus our operations in the Appalachian, Western and Gulf Coast Regions through
development of undeveloped reserves and acreage, acquisition of oil and gas
producing properties and new exploration opportunities.
We carry out a wide array of marketing activities designed to offer our
customers long-term, reliable supplies of natural gas. We use our pipeline and
storage facilities, gas procurement ability, transportation and natural gas risk
management expertise to provide a variety of services. These services include
gas supply and
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transportation management, short- and long-term supply contracts, capacity
brokering and risk management alternatives.
In this prospectus, we refer to Cabot Oil & Gas Corporation, its wholly
owned and majority owned subsidiaries and its ownership interest in equity
affiliates as "we," "us" or "Cabot Oil & Gas," unless the context clearly
indicates otherwise. Our principal executive offices are located at 15375
Memorial Drive, Houston, Texas 77079, and our telephone number at that location
is (281) 589-4600. In August 1999 we will move our principal executive offices
to 1200 Enclave Parkway, Houston, Texas 77077. Our telephone number will remain
the same at our new address.
RISK FACTORS
The following should be considered carefully with the information provided
elsewhere in this prospectus, the accompanying prospectus supplement and the
documents we incorporate by reference in reaching a decision regarding an
investment in the securities.
OUR RESULTS DEPEND ON OIL AND GAS PRICES, AND DECREASED PRICES COULD ADVERSELY
AFFECT US.
Our revenues, results of operations, financial condition and ability to
borrow funds or obtain additional capital are substantially dependent upon
prevailing prices of natural gas and, to a lesser extent, oil. Declines in oil
and gas prices may materially adversely affect our financial condition,
liquidity, ability to obtain financing and results of operations. Lower oil and
gas prices also may reduce the amount of oil and gas that we can produce
economically. Historically, the markets for oil and gas have been volatile, with
prices fluctuating greatly, and these markets are likely to continue to be
volatile. Prices for oil and gas are subject to wide fluctuations in response to
relatively minor changes in the supply of and demand for oil and gas, market
uncertainty and a variety of additional factors beyond our control. These
factors include the level of consumer product demand, weather conditions,
domestic and foreign governmental regulations, the price and availability of
alternative fuels, political conditions in the Middle East and elsewhere, the
foreign supply of oil and gas, the price of foreign imports and overall economic
conditions.
OUR RESERVE INFORMATION IS ONLY AN ESTIMATE.
The process of estimating quantities of proved reserves is uncertain, and
the reserve information included or incorporated by reference in this prospectus
or any prospectus supplement represents only estimates. Reserve engineering is a
subjective process of estimating underground accumulations of crude oil and
natural gas that cannot be measured in an exact manner. The accuracy of any
reserve estimate is a function of the quality of available data and of
engineering and geological interpretation and judgment. As a result, estimates
by different engineers often vary. Because these estimates depend upon many
assumptions, all of which may substantially differ from actual results, reserve
estimates are often materially different from the quantities of crude oil and
natural gas that are ultimately recovered. In addition, results of drilling,
testing and production after the date of an estimate may justify material
revisions to the estimate. In general, the volume of production from oil and gas
properties declines as reserves are depleted. Except to the extent we acquire
additional properties containing proved reserves or conduct successful
exploration and development activities or both, our proved reserves will decline
as reserves are produced.
WE FACE A VARIETY OF OPERATING HAZARDS AND RISKS THAT COULD CAUSE LOSSES.
Our business involves a variety of operating hazards such as fires,
explosions, blowouts, cratering, oil spills and encountering formations with
abnormal pressures. The occurrence of any of these risks could result in
substantial losses to us. The operation of the our natural gas gathering and
pipeline systems also involves various risks, including the risk of explosions
and environmental hazards caused by pipeline leaks and ruptures. The location of
pipelines near populated areas, including residential areas, commercial business
centers and industrial sites, could increase these risks. As of December 31,
1998, we owned or operated approximately 2,850 miles of natural gas gathering
and pipeline systems in the Appalachian Region. As part of our normal
maintenance program, we have identified certain segments of our pipelines that
we believe periodically require
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repair, replacement or additional maintenance. In accordance with customary
industry practices, we maintain insurance against some, but not all, of these
risks.
WE FACE INTENSE COMPETITION.
Competition in our primary producing areas is intense. We believe that our
competitive position is affected by price, contract terms and quality of
service, including pipeline connection times, distribution efficiencies and
reliable delivery record. We actively compete against some companies with
substantially larger financial and other resources, particularly in the Western
and Gulf Coast Regions.
ENVIRONMENTAL REGULATION CAN INCREASE OUR COSTS.
Our operations are subject to extensive federal, state and local laws and
regulations relating to the generation, storage, handling, emission,
transportation and discharge of materials into the environment. Permits are
required for the operation of various facilities, and these permits are subject
to revocation, modification and renewal. Governmental authorities have the power
to enforce compliance with their regulations, and violations are subject to
fines, injunctions or both. This government regulation can increase the cost of
planning, designing, installing and operating oil and gas facilities. Although
we believe that compliance with environmental regulations will not have a
material adverse effect on our business, risks of substantial costs and
liabilities related to environmental compliance issues are inherent in oil and
gas production operations. It is possible that other developments, such as
stricter environmental laws and regulations, and claims for damages to property
or persons resulting from oil and gas production, would result in substantial
costs and liabilities.
USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement, we will use
the net proceeds from the sale of the offered securities for general corporate
purposes. These purposes may include acquisitions, working capital, capital
expenditures, repayment and refinancing of debt and repurchases and redemptions
of securities. Pending any specific application, we may initially invest funds
in short-term marketable securities or apply them to the reduction of short-term
indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges and our ratio of earnings to fixed
charges and preferred stock dividends for each of the periods shown are as
follows:
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THREE MONTHS YEAR ENDED DECEMBER 31,
ENDED ----------------------------------
MARCH 31, 1999 1998 1997 1996 1995 1994
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Ratio of earnings to fixed
charges......................... n/m(1) 1.45x 3.45x 2.71x n/m(2) n/m(3)
Ratio of earnings to combined
fixed charges and preferred
stock dividends................. n/m(1) 1.13x 2.39x 1.86x n/m(2) n/m(3)
</TABLE>
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(1) The ratio indicates less than one-to-one coverage because earnings were
inadequate to cover fixed charges for the period. The amount of the
deficiency was $3.9 million for fixed charges, and $5.2 million for the
total of fixed charges and preferred stock dividends.
(2) Earnings were inadequate to cover fixed charges for the period due mainly to
the $113.8 million non-cash charge taken in 1995 as a result of the adoption
of Statement of Accounting Standards 121, combined with a $6.8 million
charge for a cost reduction program. The amount of the deficiency was $141.6
million for fixed charges, and $150.7 million for the total of fixed charges
and preferred stock dividends.
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(3) The ratio indicates less than one-to-one coverage because earnings were
inadequate to cover fixed charges for the period. The amount of the
deficiency was $1.6 million for fixed charges, and $9.0 million for the
total of fixed charges and preferred stock dividends.
We have computed the historical ratios of earnings to fixed charges by
dividing earnings by fixed charges. For this purpose, "earnings" consist of
income before income taxes and extraordinary items and fixed charges. "Fixed
charges" consist of interest expense, capitalized interest, if any, and
one-third of annual rental expense, which represents an appropriate interest
factor. The ratio of earnings to combined fixed charges and preferred stock
dividends is computed by dividing earnings available for fixed charges by fixed
charges plus preferred stock dividends. For purposes of this calculation,
"preferred stock dividends" represents the pretax earnings from continuing
operations that would be required to cover such a dividend.
Since May 1994, we have had outstanding 1,134,000 shares of 6% convertible
redeemable preferred stock. We pay annual dividends of $3,402,000 on this 6%
preferred stock. We also had outstanding 692,439 shares of $3.125 cumulative
convertible preferred stock until the conversion of this $3.125 preferred stock
into common stock in October 1997.
DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our general
unsecured obligations. The debt securities will be either senior debt securities
or subordinated debt securities. The debt securities will be issued under one or
more separate indentures between us and a trustee that we will name in the
prospectus supplement. Senior debt securities will be issued under a senior
indenture and subordinated debt securities will be issued under a subordinated
indenture. We sometimes call the senior indenture and the subordinated indenture
the indentures.
We have summarized selected provisions of the indentures and the debt
securities below. This summary is not complete. We have filed the forms of the
indentures with the SEC as exhibits to the registration statement, and you
should read the indentures for provisions that may be important to you.
In this summary description of the debt securities, all references to us
mean Cabot Oil & Gas Corporation only, unless we state otherwise or the context
clearly indicates otherwise.
GENERAL
The senior debt securities will constitute senior debt and will rank
equally with all of our unsecured and unsubordinated debt. The subordinated debt
securities will be subordinated to, and thus have a junior position to, the
senior debt securities and all of our other senior debt. The indentures do not
limit the amount of debt that we may issue under the indentures, nor do they
limit the amount of other unsecured debt or securities that we may issue. We may
issue debt securities under either indenture from time to time in one or more
series, each in an amount we authorize prior to issuance.
We currently conduct part of our operations through our subsidiaries, and
our subsidiaries generate part of our operating income and cash flow.
Distributions or advances from our subsidiaries are one source of funds to meet
our debt service obligations. Contractual provisions or laws, as well as our
subsidiaries' financial condition and operating requirements, may limit our
ability to obtain cash from our subsidiaries that we need to pay our debt
service obligations, including payments on the debt securities. In addition,
holders of the debt securities will have a junior position to the claims of
creditors of our subsidiaries on their assets and earnings.
The indenture and the debt securities do not contain any covenants or other
provisions designed to protect holders of the debt securities in the event of a
highly leveraged transaction. The indenture and the debt securities also do not
contain provisions that give holders of the debt securities the right to require
us to repurchase their securities in the event of a decline in our credit rating
resulting from a takeover, recapitalization or similar restructuring or
otherwise.
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The prospectus supplement relating to any series of debt securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
- the title of the debt securities
- the total principal amount of the debt securities
- whether the debt securities are senior debt securities or subordinated
debt securities
- whether we will issue the debt securities in individual certificates to
each holder or in the form of temporary or permanent global securities
held by a depository on behalf of holders
- the date or dates on which the principal of and any premium on the debt
securities will be payable
- any interest rate, the date from which interest will accrue, interest
payment dates and record dates for interest payments
- whether and under what circumstances any additional amounts with respect
to the debt securities will be payable
- the place or places where payments on the debt securities will be payable
- any optional redemption provisions
- any sinking fund or other provisions that would obligate us to redeem,
purchase or repay debt securities
- the denominations in which the debt securities will be issuable
- whether payments on the debt securities will be payable in foreign
currency or currency units or another form, and whether payments will be
payable by reference to any index or formula
- the portion of the principal amount of debt securities that will be
payable if the maturity is accelerated, if other than the entire
principal amount
- any additional means of defeasance of the debt securities, any additional
conditions or limitations to defeasance of the debt securities, or any
changes to those conditions or limitations
- any changes or additions to events of default or covenants
- any restrictions or other provisions relating to the transfer or exchange
of debt securities
- any terms for the conversion or exchange of the debt securities for other
securities of us or any other entity
- any other terms of the debt securities
We may sell the debt securities at a discount (which may be substantial)
below their stated principal amount. These debt securities may bear no interest
or interest at a rate that at the time of issuance is below market rates.
If we sell any of the debt securities for any foreign currency or currency
unit or if payments on the debt securities are payable in any foreign currency
or currency unit, we will describe in the prospectus supplement the
restrictions, elections, tax consequences, specific terms and other information
relating to those debt securities and the foreign currency or currency unit.
SUBORDINATION
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities will generally be subordinated
and junior in right of payment to the prior payment
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in full of all Senior Debt. The subordinated indenture provides that no payment
of principal, interest or any premium on the subordinated debt securities may be
made if:
- we fail to pay the principal, interest, premium or any other amounts on
any Senior Debt when due
- we default in performing any other covenant (a "covenant default") in any
Senior Debt that we have designated if the covenant default allows the
holders of that Senior Debt to accelerate the maturity of the Senior Debt
they hold
A covenant default will prevent us from paying the subordinated debt
securities only for up to 179 days after holders of the Senior Debt give the
trustee for the subordinated debt securities notice of the covenant default.
The subordination does not affect our obligation, which is absolute and
unconditional, to pay, when due, principal of, premium, if any, and interest on
the subordinated debt securities. In addition, the subordination does not
prevent the occurrence of any default under the subordinated indenture.
The subordinated indenture will not limit the amount of Senior Debt that we
may incur. As a result of the subordination of the subordinated debt securities,
if we became insolvent, holders of subordinated debt securities may receive less
on a proportionate basis than other creditors.
Unless we inform you otherwise in the prospectus supplement, "Senior Debt"
will mean all notes or other indebtedness, including guarantees, of Cabot Oil &
Gas for money borrowed and similar obligations, unless the indebtedness states
that it is not senior to the subordinated debt securities or our other junior
debt.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The indenture generally permits a consolidation or merger between us and
another entity. It also permits the sale by us of all or substantially all of
our assets. We have agreed, however, that we will consolidate with or merge into
any entity or transfer or dispose of all or substantially all of our assets to
any entity only if:
- we are the continuing corporation or
- if we are not the continuing corporation, the resulting entity is
organized and existing under the laws of any United States jurisdiction
and assumes the due and punctual payments on the debt securities and the
performance of our covenants and obligations under the indenture and the
debt securities and
- immediately after giving effect to the transaction, no default or event
of default would occur and be continuing or would result from the
transaction
EVENTS OF DEFAULT
Unless we inform you otherwise in the prospectus supplement, the following
are events of default with respect to a series of debt securities:
- our failure to pay interest on that series of debt securities for 30 days
- our failure to pay principal of or any premium on that series of debt
securities when due
- our failure to make any sinking fund payment for that series of debt
securities for 30 days
- our failure to comply with any of our covenants or agreements in that
series of debt securities or the indenture for that series (other than an
agreement or covenant that we have included in the indenture solely for
the benefit of other series of debt securities) for 90 days after written
notice by the trustee or by the holders of at least 25% in principal
amount of all outstanding debt securities affected by that failure
- certain events involving bankruptcy, insolvency or reorganization of
Cabot Oil & Gas Corporation
- any other event of default provided for that series of debt securities
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A default under one series of debt securities will not necessarily be a
default under another series. The trustee may withhold notice to the holders of
the debt securities of any default or event of default (except in any payment on
the debt securities) if the trustee considers it in the interest of the holders
of the debt securities to do so.
If an event of default for any series of debt securities occurs and is
continuing, the trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of the series affected by the default (or, in
some cases, 25% in principal amount of all senior debt securities or
subordinated debt securities affected, voting as one class) may require us to
pay the principal of and accrued and unpaid interest on those debt securities.
If an event of default relating to certain events of bankruptcy, insolvency or
reorganization occurs, the principal of and interest on all the debt securities
will become immediately due and payable without any action on the part of the
trustee or any holder. The holders of a majority in principal amount of the
outstanding debt securities of the series affected by the default (or of all
senior debt securities or subordinated debt securities affected, voting as one
class) may in some cases rescind this accelerated payment requirement.
A holder of a debt security of any series may pursue any remedy under the
indenture only if:
- the holder gives the trustee written notice of a continuing event of
default for that series
- the holders of at least 25% in principal amount of the outstanding debt
securities of that series make a written request to the trustee to pursue
the remedy
- the holder offers to the trustee indemnity reasonably satisfactory to the
trustee
- the trustee fails to act for a period of 60 days after receipt of notice
and offer of indemnity
- during that 60-day period, the holders of a majority in principal amount
of the debt securities of that series do not give the trustee a direction
inconsistent with the request
This provision does not, however, affect the right of a holder of a debt
security to sue for enforcement of any overdue payment.
In most cases, holders of a majority in principal amount of the outstanding
debt securities of a series (or of all debt securities affected, voting as one
class) may direct the time, method and place of
- conducting any proceeding for any remedy available to the trustee
- exercising any trust or power conferred on the trustee not relating to or
arising under an event of default
The indenture requires us to file with the trustee each year a written
statement as to our compliance with the covenants contained in the indenture.
MODIFICATION AND WAIVER
We may amend or supplement either indenture if the holders of a majority in
principal amount of the outstanding debt securities of all series affected by
the amendment or supplement (acting as one class) consent to it. Without the
consent of the holder of each debt security affected, however, no modification
may:
- reduce the amount of debt securities whose holders must consent to an
amendment, supplement or waiver
- reduce the rate of or change the time for payment of interest on the debt
security
- reduce the principal of the debt security or change its stated maturity
or any mandatory sinking fund payment
- reduce any premium payable on the redemption of the debt security or
change the time at which the debt security may or must be redeemed
- change any obligation to pay additional amounts on the debt security
- make the debt security payable in money other than originally stated in
the debt security
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- impair the holder's right to institute suit for the enforcement of any
payment on the debt security
- make any change in the percentage of principal amount of debt securities
necessary to waive compliance with certain provisions of the indenture
- waive a continuing default or event of default regarding any payment on
the debt securities
We may amend or supplement either indenture or waive any provision of it
without the consent of any holders of debt securities in certain circumstances,
including:
- to cure any ambiguity, omission, defect or inconsistency
- to provide for the assumption of our obligations under the indenture by a
successor upon any merger, consolidation or asset transfer
- to provide for uncertificated debt securities in addition to or in place
of certificated debt securities
- to provide any security for or guarantees of any series of debt
securities
- to comply with any requirement to effect or maintain the qualification of
the indenture under the Trust Indenture Act of 1939
- to make any change that does not adversely affect any outstanding debt
securities of any series in any material respect
The holders of a majority in principal amount of the outstanding debt
securities of any series (or of all senior debt securities or subordinated debt
securities affected, voting as one class) may waive any existing or past default
or event of default with respect to those debt securities. Those holders may
not, however, waive any default or event of default in any payment on any debt
security or compliance with a provision that cannot be amended or supplemented
without the consent of each holder affected.
DEFEASANCE
When we use the term defeasance, we mean discharge from some or all of our
obligations under an indenture. If we deposit with the trustee funds or
government securities sufficient to make payments on the debt securities of a
series on the dates those payments are due and payable, then, at our option,
either of the following will occur:
- we will be discharged from our obligations with respect to the debt
securities of that series ("legal defeasance") or
- we will no longer have any obligation to comply with the restrictive
covenants relating to the debt securities, and the related events of
default will no longer apply to us ("covenant defeasance")
If we defease a series of debt securities, the holders of the debt
securities of the series affected will not be entitled to the benefits of the
indenture, except for our obligations to register the transfer or exchange of
debt securities, replace stolen, lost or mutilated debt securities or maintain
paying agencies and hold moneys for payment in trust. In the case of covenant
defeasance, our obligation to pay principal, premium and interest on the debt
securities will also survive.
Unless we inform you otherwise in the prospectus supplement, we will be
required to deliver to the trustee an opinion of counsel that the deposit and
related defeasance would not cause the holders of the debt securities to
recognize income, gain or loss for federal income tax purposes. If we elect
legal defeasance, that opinion of counsel must be based upon a ruling from the
United States Internal Revenue Service or a change in law to that effect.
GOVERNING LAW
New York law will govern the indenture and the debt securities.
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TRUSTEE
If an event of default occurs and is continuing, the trustee will be
required to use the degree of care and skill of a prudent man in the conduct of
his own affairs. The trustee will become obligated to exercise any of its powers
under the indenture at the request of any of the holders of any debt securities
only after those holders have offered the trustee indemnity reasonably
satisfactory to it.
If the trustee becomes one of our creditors, it will be subject to
limitations in the indenture on its rights to obtain payment of claims or to
realize on certain property received for any claim, as security or otherwise.
The trustee is permitted to engage in other transactions with us. If, however,
it acquires any conflicting interest, it must eliminate that conflict or resign.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
We will issue the debt securities in registered form, without interest
coupons. We will not charge a service charge for any registration of transfer or
exchange of the debt securities. We may, however, require the payment of any tax
or other governmental charge payable for that registration.
Debt securities of any series will be exchangeable for other debt
securities of the same series, the same total principal amount and the same
terms but in different authorized denominations in accordance with the
indenture. Holders may present debt securities for registration of transfer at
the office of the security registrar or any transfer agent we designate. The
security registrar or transfer agent will effect the transfer or exchange when
it is satisfied with the documents of title and identity of the person making
the request.
We have appointed the trustee as security registrar for the debt
securities. If a prospectus supplement refers to any transfer agents initially
designated by us, we may at any time rescind that designation or approve a
change in the location through which any transfer agent acts. We are required to
maintain an office or agency for transfers and exchanges in each place of
payment. We may at any time designate additional transfer agents for any series
of debt securities.
In the case of any redemption, neither the security registrar nor the
transfer agent will be required to register the transfer or exchange of any debt
security:
- during a period beginning 15 business days prior to the mailing of the
relevant notice of redemption and ending on the close of business on the
day of mailing of such notice
- if the debt security has been called for redemption in whole or in part,
except the unredeemed portion of any debt security being redeemed in part
PAYMENT AND PAYING AGENTS
Unless we inform you otherwise in a prospectus supplement, payments on the
debt securities will be made in U.S. dollars at the office of the trustee. At
our option, however, we may make payments by check mailed to the holder's
registered address or, with respect to global debt securities, by wire transfer.
Unless we inform you otherwise in a prospectus supplement, we will make interest
payments to the person in whose name the debt security is registered at the
close of business on the record date for the interest payment.
Unless we inform you otherwise in a prospectus supplement, the trustee will
be designated as our paying agent for payments on debt securities issued under
the indenture. We may at any time designate additional paying agents or rescind
the designation of any paying agent or approve a change in the office through
which any paying agent acts.
Subject to the requirements of any applicable abandoned property laws, the
trustee and paying agent shall pay to us upon written request any money held by
them for payments on the debt securities that remain unclaimed for two years
after the date upon which that payment has become due. After payment to us,
holders entitled to the money must look to us for payment. In that case, all
liability of the trustee or paying agent with respect to that money will cease.
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BOOK-ENTRY DEBT SECURITIES
We may issue the debt securities of a series in the form of one or more
global debt securities that would be deposited with a depositary or its nominee
identified in the prospectus supplement. We may issue global debt securities in
either temporary or permanent form. We will describe in the prospectus
supplement the terms of any depositary arrangement and the rights and
limitations of owners of beneficial interests in any global debt security.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of:
- 40,000,000 shares of common stock
- 800,000 shares of Class B common stock
- 5,000,000 shares of preferred stock, issuable in series
As of June 30, 1999, there were 24,737,535 shares of common stock issued
and outstanding, which excludes 302,600 shares held as treasury stock. Also as
of June 30, 1999, there were 1,134,000 shares of 6% convertible redeemable
preferred stock issued and outstanding. There are no shares of Class B common
stock issued or outstanding, and we do not expect to issue any shares of Class B
common stock in the future.
COMMON STOCK
Holders of common stock may receive dividends if and when declared by our
board of directors. The payment of dividends on our common stock may be limited
by obligations we may have to holders of any preferred stock. Holders of common
stock are entitled to one vote per share on matters submitted to them.
Cumulative voting of shares is prohibited, meaning that the holders of a
majority of the voting power of the shares voting for the election of directors
can elect all directors to be elected if they choose to do so. The common stock
has no preemptive rights and is not convertible, redeemable or assessable, or
entitled to the benefits of any sinking fund.
If we liquidate or dissolve our business, the holders of common stock will
share ratably in all assets available for distribution to stockholders after
creditors are paid and preferred stockholders receive their distributions.
All issued and outstanding shares of common stock are fully paid and
nonassessable. Any shares of common stock we offer under this prospectus will be
fully paid and nonassessable.
The common stock is listed on the New York Stock Exchange and trades under
the symbol "COG."
PREFERRED STOCK
Our board of directors is allowed, without action by stockholders, to issue
one or more series of preferred stock. The board of directors can also determine
the rights, preferences, privileges and restrictions, including dividend rights,
voting rights, conversion rights, terms of redemption and liquidation
preferences, of a series of the preferred stock.
We have summarized selected provisions of the preferred stock in this
section. This summary is not complete. We will file the form of the preferred
stock with the SEC, and you should read it for provisions that may be important
to you.
The prospectus supplement relating to any series of preferred stock being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
- the title of the preferred stock
- the maximum number of shares of the series
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- the dividend rate (or the method of calculating the dividend), the date
from which dividends will accrue, and whether dividends will be
cumulative
- any liquidation preference
- any optional redemption provisions
- any sinking fund or other provisions that would obligate us to redeem or
purchase the preferred stock
- any terms for the conversion or exchange of the preferred stock for other
securities of us or any other entity
- any voting rights
- any other preferences and relative, participating, optional or other
special rights or any qualifications, limitations or restrictions on the
rights of the shares
The preferred stock will be fully paid and nonassessable.
6% Convertible Redeemable Preferred Stock. As of June 30, 1999, we had
1,134,000 shares of 6% convertible redeemable preferred stock issued and
outstanding. All of these shares were issued in May 1994 in connection with our
acquisition of Washington Energy Resources Company. Each share of 6% preferred
stock has a liquidation preference of $50, is entitled to cumulative quarterly
cash dividends at an annual rate of $3.00 per share, and is convertible into
common stock at the option of the holder at a conversion price of $28.75 per
share of common stock, subject to customary antidilution adjustments. While
there is no mandatory redemption requirement, we can redeem the 6% preferred
stock at our option for cash at a price of $50 per share, plus accrued and
unpaid dividends. Each share of 6% preferred stock is entitled to 1.739 votes on
matters submitted to stockholders. The 6% preferred stock also has certain class
voting rights and the right to elect two directors in the event of specified
dividend arrearages equal to at least six quarterly dividends.
STAGGERED BOARD OF DIRECTORS
Our by-laws divide our board of directors into three classes, as nearly
equal in number as possible, serving staggered three-year terms. The by-laws
also provide that the classified board provision may not be amended without the
affirmative vote of a majority of the voting power of our capital stock. The
classification of the board of directors has the effect of requiring at least
two annual stockholder meetings, instead of one, to effect a change in control
of the board of directors, unless the by-laws are amended.
STOCKHOLDER RIGHTS PLAN
On January 21, 1991, our board of directors adopted a preferred stock
purchase rights plan. Under the plan, each share of common stock currently
includes one right to purchase preferred stock. We have summarized selected
provisions of the rights below. This summary is not complete. We have filed the
form of the rights agreement with the SEC as an exhibit to the registration
statement, and you should read it for provisions that may be important to you.
Currently, the rights are not exercisable and are attached to all
outstanding shares of common stock. The rights will separate from the common
stock and become exercisable:
- ten days after public announcement that a person or group of affiliated
or associated persons has acquired, or obtained the right to acquire,
beneficial ownership of 15% of the outstanding common stock, or
- ten business days following the start of a tender offer or exchange offer
that would result in a person's acquiring beneficial ownership of 15% of
the outstanding common stock
Our board of directors can elect to delay the separation of the rights from the
common stock beyond the ten business days after the start of a tender or
exchange offer referred to in the second bullet point. A 15% beneficial owner is
referred to as an "acquiring person" under the plan. Until the rights are
separately
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distributed, the rights will be evidenced by the common stock certificates and
will be transferred with and only with the common stock certificates.
After the rights are separately distributed, each right will entitle the
holder to purchase from Cabot Oil & Gas one one-hundredth of a share of junior
participating preferred stock for a purchase price of $55. The rights will
expire at the close of business on January 21, 2001, unless we redeem or
exchange them earlier as described below.
If a person becomes an acquiring person, the rights will become rights to
purchase shares of common stock for one-half the current market price (as
defined in the rights agreement) of the common stock. This occurrence is
referred to as a "flip-in event" under the plan. After any flip-in event, all
rights that are beneficially owned by an acquiring person, or by certain related
parties, will be null and void. Our board of directors has the power to decide
that a particular tender or exchange offer for all outstanding shares of our
common stock is fair to and otherwise in the best interests of our stockholders.
If our board makes this determination, the purchase of shares under the offer
will not be a flip-in event.
If, after there is an acquiring person, we are acquired in a merger or
other business combination transaction or 50% or more of our assets or earning
power are sold or transferred, each holder of a right will have the right to
purchase shares of common stock of the acquiring company at a price of one-half
the current market price of that stock. An acquiring person will not be entitled
to exercise its rights, which will have become void.
Until ten days after the announcement that a person has become an acquiring
person, our board may decide to redeem the rights at a price of $.01 per right,
payable in cash, shares of common stock or other consideration. The rights will
not be exercisable after a flip-in event until the rights are no longer
redeemable.
At any time after a flip-in event and prior to a person's becoming the
beneficial owner of 50% or more of the shares of common stock, our board may
decide to exchange the rights for shares of common stock on a one-for-one basis.
Rights owned by an acquiring person, which will have become void, will not be
exchanged.
Other than certain provisions relating to the principal economic terms of
the rights, the rights agreement may be amended by our board of directors prior
to the distribution of the rights. After the distribution of the rights, the
provisions of the rights agreement may be amended by our board of directors in
order to cure any ambiguity, defect or inconsistency, to make changes that do
not materially adversely affect the interests of holders of rights (excluding
the interests of any acquiring person), or to shorten or lengthen any time
period under the rights agreement. No amendment to lengthen the time period for
redemption may be made if the rights are not redeemable at that time.
Various actions under the rights agreement, including redeeming and
exchanging the rights or amending the rights agreement, will require the
approval of our "continuing directors." A "continuing director" is any member of
our board of directors who was a member of the board prior to the date of the
rights agreement, and any person who is subsequently elected to the board if the
person is recommended or approved by a majority of the continuing directors. The
"continuing directors" do not include an acquiring person, or an affiliate or
associate of an acquiring person, or any representative or nominee of them.
The rights have certain anti-takeover effects. The rights will cause
substantial dilution to any person or group that attempts to acquire us without
the approval of our board of directors. As a result, the overall effect of the
rights may be to render more difficult or discourage any attempt to acquire us
even if the acquisition may be favorable to the interests of our stockholders.
Because our board of directors can redeem the rights or approve a tender or
exchange offer, the rights should not interfere with a merger or other business
combination approved by our board of directors.
LIMITATION ON DIRECTORS' LIABILITY
Delaware has adopted a law that allows corporations to limit or eliminate
the personal liability of directors to corporations and their stockholders for
monetary damages for breach of directors' fiduciary duty of care. The duty of
care requires that, when acting on behalf of the corporation, directors must
exercise an informed
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business judgment based on all material information reasonably available to
them. Absent the limitations allowed by the law, directors are accountable to
corporations and their stockholders for monetary damages for acts of gross
negligence. Although the Delaware law does not change directors' duty of care,
it allows corporations to limit available relief to equitable remedies such as
injunction or rescission. Our certificate of incorporation limits the liability
of our directors to the fullest extent permitted by this law. Specifically, our
directors will not be personally liable for monetary damages for any breach of
their fiduciary duty as a director, except for liability
- for any breach of their duty of loyalty to the company or our
stockholders
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law
- under provisions relating to unlawful payments of dividends or unlawful
stock repurchases or redemptions
- for any transaction from which the director derived an improper personal
benefit
This limitation may have the effect of reducing the likelihood of
derivative litigation against directors, and may discourage or deter
stockholders or management from bringing a lawsuit against directors for breach
of their duty of care, even though such an action, if successful, might
otherwise have benefitted our stockholders.
DELAWARE ANTI-TAKEOVER STATUTE
We are a Delaware corporation and are subject to Section 203 of the
Delaware General Corporation Law. In general, Section 203 prevents us from
engaging in a business combination with an "interested stockholder" (generally,
a person owning 15% or more of our outstanding voting stock) for three years
following the time that person becomes a 15% stockholder unless either:
- before that person became a 15% stockholder, our board of directors
approved the transaction in which the stockholder became a 15%
stockholder or approved the business combination
- upon completion of the transaction that resulted in the stockholder's
becoming a 15% stockholder, the stockholder owns at least 85% of our
voting stock outstanding at the time the transaction began (excluding
stock held by directors who are also officers and by employee stock plans
that do not provide employees with the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer) or
- after the transaction in which that person became a 15% stockholder, the
business combination is approved by our board of directors and authorized
at a stockholder meeting by at least two-thirds of the outstanding voting
stock not owned by the 15% stockholder.
Under Section 203, these restrictions also do not apply to certain business
combinations proposed by a 15% stockholder following the disclosure of an
extraordinary transaction with a person who was not a 15% stockholder during the
previous three years or who became a 15% stockholder with the approval of a
majority of our directors. This exception applies only if the extraordinary
transaction is approved or not opposed by a majority of our directors who were
directors before any person became a 15% stockholder in the previous three
years, or the successors of these directors.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is EquiServe, L.P.,
Boston, Massachusetts.
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DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, common stock, preferred
stock or other securities. We may issue warrants independently or together with
other securities. Warrants sold with other securities may be attached to or
separate from the other securities. Warrants will be issued under one or more
warrant agreements between us and a warrant agent that we will name in the
prospectus supplement.
We have summarized selected provisions of the warrants and the warrant
agreements below. This summary is not complete. We will file the form of any
warrant agreement with the SEC, and you should read the warrant agreement for
provisions that may be important to you.
The prospectus supplement relating to any warrants being offered will
include specific terms relating to the offering. These terms will include some
or all of the following:
- the title of the warrants
- the aggregate number of warrants offered
- the designation, number and terms of the debt securities, common stock,
preferred stock or other securities purchasable upon exercise of the
warrants, and procedures pursuant to which such numbers may be adjusted
- the exercise price of the warrants
- the dates or periods during which the warrants are exercisable
- the designation and terms of any securities with which the warrants are
issued
- if the warrants are issued as a unit with another security, the date on
and after which the warrants and the other security will be separately
transferable
- if the exercise price is not payable in U.S. dollars, the foreign
currency, currency unit or composite currency in which the exercise price
is denominated
- any minimum or maximum amount of warrants that may be exercised at any
one time
- any terms, procedures and limitations relating to the transferability,
exchange or exercise of the warrants
- any other terms of the warrants
Warrant certificates will be exchangeable for new warrant certificates of
different denominations at the office indicated in the prospectus supplement.
Prior to the exercise of their warrants, holders of warrants will not have any
of the rights of holders of the securities subject to the warrants.
MODIFICATIONS
We may amend the warrant agreements and the warrants without the consent of
the holders of the warrants to cure any ambiguity, to cure, correct or
supplement any defective or inconsistent provision, or in any other manner that
will not materially and adversely affect the interests of holders of outstanding
warrants.
We may also modify or amend certain other terms of the warrant agreements
and the warrants with the consent of the holders of not less than a majority in
number of the then outstanding unexercised warrants affected. Without the
consent of the holders affected, however, no modification or amendment may:
- shorten the period of time during which the warrants may be exercised or
- otherwise materially and adversely affect the exercise rights of the
holders of the warrants
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ENFORCEABILITY OF RIGHTS
The warrant agent will act solely as our agent. The warrant agent will not
have any duty or responsibility if we default under the warrant agreements or
the warrant certificates. A warrant holder may, without the consent of the
warrant agent, enforce by appropriate legal action on its own behalf the
holder's right to exercise the holder's warrants.
PLAN OF DISTRIBUTION
We may sell the offered securities in and outside the United States (a)
through underwriters or dealers, (b) directly to purchasers or (c) through
agents. The prospectus supplement will set forth the following information:
- the terms of the offering
- the names of any underwriters or agents
- the purchase price of the securities from us
- the net proceeds
- any delayed delivery arrangements
- any underwriting discounts and other items constituting underwriters'
compensation
- any initial public offering price
- any discounts or concessions allowed or reallowed or paid to dealers
SALE THROUGH UNDERWRITERS OR DEALERS
If we use underwriters in the sale, the underwriters will acquire the
securities for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, in which selling concessions allowed
to syndicate members or other broker-dealers for the offered securities sold for
their account may be reclaimed by the syndicate if such offered securities are
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might otherwise
prevail in the open market. If commenced, these activities may be discontinued
at any time.
If we use dealers in the sale of securities, we will sell the securities to
them as principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. We will include
in the prospectus supplement the names of the dealers and the terms of the
transaction.
DIRECT SALES AND SALES THROUGH AGENTS
We may sell the securities directly. In this case, no underwriters or
agents would be involved. We may also sell the securities through agents we
designate from time to time. In the prospectus supplement, we will name any
agent involved in the offer or sale of the offered securities, and we will
describe any commissions
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payable by us to the agent. Unless we inform you otherwise in the prospectus
supplement, any agent will agree to use its reasonable best efforts to solicit
purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act of
1933 with respect to any sale of those securities. We will describe the terms of
any such sales in the prospectus supplement.
DELAYED DELIVERY CONTRACTS
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
GENERAL INFORMATION
We may have agreements with the agents, dealers and underwriters to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act of 1933, or to contribute with respect to payments that the
agents, dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their businesses.
LEGAL OPINIONS
Baker & Botts, L.L.P., Houston, Texas, our outside counsel, will issue an
opinion about the legality of the offered securities for us. Any underwriters
will be advised about other issues relating to any offering by their own legal
counsel.
INDEPENDENT ACCOUNTANTS
The financial statements incorporated in this prospectus by reference to
the annual report on Form 10-K for the year ended December 31, 1998, have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
With respect to the unaudited consolidated financial information of Cabot
Oil & Gas Corporation for the three-month periods ended March 31, 1999 and 1998
incorporated by reference in this prospectus, PricewaterhouseCoopers LLP
reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their separate
report dated May 12, 1999 incorporated by reference states that they did not
audit and they do not express an opinion on that unaudited consolidated
financial information. Accordingly, the degree of reliance on their report on
such information should be restricted in light of the limited nature of the
review procedures applied. PricewaterhouseCoopers LLP is not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
report on the unaudited consolidated financial information because that report
is not a "report" or a "part" of the registration statement prepared or
certified by PricewaterhouseCoopers LLP within the meaning of Sections 7 and 11
of the act.
EXPERTS
We have incorporated in this prospectus by reference the review letter of
Miller and Lents, Ltd., independent oil and gas consultants, dated February 9,
1999 with respect to certain proved reserve estimates prepared by us in reliance
on the authority of that firm as experts in petroleum engineering.
19
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses payable by Cabot Oil & Gas
Corporation (the "Company") in connection with the issuance and distribution of
the securities being registered. All the amounts shown are estimates, except the
registration fee.
<TABLE>
<S> <C>
Registration fee............................................ $111,200
Printing expenses........................................... *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Fees and expenses of trustee and counsel.................... *
Rating agency fees.......................................... *
Miscellaneous expenses...................................... *
--------
Total............................................. *
========
</TABLE>
- ---------------
* To be provided by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
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,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation) by reason of the fact that such person
is or was a director or officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided that
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. A Delaware corporation may indemnify directors, officers,
employees and others in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted without
judicial approval if the person to be indemnified has been adjudged to be liable
to the corporation. Where a director or officer is successful on the merits or
otherwise in the defense of any action referred to above or in defense of any
claim, issue or matter therein, the corporation must indemnify such director or
officer against the expenses (including attorneys' fees) which he or she
actually and reasonably incurred in connection therewith.
Article XXXVIII of the Company's by-laws provides for indemnification of
the directors and officers of the Company to the full extent permitted by law,
as now in effect or later amended. Article XXXVIII of the By-laws provides that
expenses incurred by a director or officer in defending a suit or other similar
proceeding shall be paid by the Company upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it is ultimately
determined that such director or officer is not entitled to be indemnified by
the Company.
Additionally, the Company's Certificate of Incorporation (the "Charter")
contains a provision that limits the liability of the Company's directors to the
fullest extent permitted by the Delaware General Corporation Law. The provision
eliminates the personal liability of directors to the Company or its
stockholders for monetary damages for breach of the director's fiduciary duty of
care as a director. As a result, stockholders may be unable to recover monetary
damages against directors for negligent or grossly negligent acts or omissions
in violation of their duty of care. The provision does not change the liability
of a director for breach of his duty of loyalty to the Company or to
stockholders, for acts or omissions not in good faith or which
II-1
<PAGE> 22
involve intentional misconduct or a knowing violation of law, for the
declaration or payment of dividends in violation of Delaware law, or in respect
of any transaction from which a director receives an improper personal benefit.
In addition to its Charter and By-law provisions, the Company has taken
such other steps as are reasonably necessary to effect its indemnification
policy. Included among such other steps is liability insurance provided by the
Company for its directors and officers for certain losses arising from claims or
charges made against them in their capacities as directors or officers of the
Company. The Company has also entered into indemnification agreements with
individual officers and directors. These agreements generally provide such
officers and directors with a contractual right to indemnification to the full
extent provided by applicable law and the By-laws of the Company as in effect at
the respective dates of such agreements.
The Company has placed in effect insurance which purports (a) to insure it
against certain costs of indemnification which may be incurred by it pursuant to
the aforementioned By-law provision or otherwise and (b) to insure the officers
and directors of the Company and of specified subsidiaries against certain
liabilities incurred by them in the discharge of their functions as officers and
directors except for liabilities arising from their own malfeasance.
Agreements which may be entered into with underwriters, dealers and agents
who participate in the distribution of securities of the Company may contain
provisions relating to the indemnification of the Company's officers and
directors.
ITEM 16. EXHIBITS.*
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
<C> <S>
*1 -- Form of Underwriting Agreement
**4.1 -- Certificate of Incorporation of the Company (incorporated
herein by this reference to the Registration Statement on
Form S-1 of the Company (Registration No. 33-32553))
4.2 -- Bylaws of the Company as amended
+4.3 -- Form of Indenture relating to the Senior Debt Securities
+4.4 -- Form of Indenture relating to the Subordinated Debt
Securities
+5 -- Opinion of Baker & Botts, L.L.P.
12 -- Computation of ratio of earnings to fixed charges
15 -- Awareness letter of PricewaterhouseCoopers LLP
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Miller and Lents, Ltd.
23.3 -- Consent of Baker & Botts, L.L.P. (included in Exhibit 5)
24 -- Powers of Attorney (included on the signature page of the
Registration Statement)
</TABLE>
- ---------------
* The Company will file as an exhibit to a current report on Form 8-K (i) any
underwriting agreement relating to Securities offered hereby, (ii) the
instruments setting forth the terms of any debt securities, preferred stock
or warrants, (iii) any required opinion of counsel to the Company as to
certain tax matters relative to securities offered hereby or (iv) any
Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of the applicable trustee.
** Incorporated by reference as indicated.
+ To be filed by amendment.
II-2
<PAGE> 23
ITEM 17. 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act if, in
the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement; and
(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 registration statement is on Form S-3 or Form S-8 and 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, 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
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 and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 24
(d) The undersigned registrant hereby undertakes that:
(1) 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 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) 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-4
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, the State of Texas, on July 27, 1999.
CABOT OIL & GAS CORPORATION
By: /s/ RAY R. SEEGMILLER
----------------------------------
Ray R. Seegmiller
Chairman of the Board,
Chief Executive Officer and
President
POWER OF ATTORNEY
Each person whose signature appears below appoints Scott C. Schroeder and
Lisa A. Machesney, and each of them, each of whom may act without the joinder of
the others, as his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign (i) any and all amendments (including
post-effective amendments) to this Registration Statement and (ii) any
Registration Statement of the type contemplated by Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto and all other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully and for all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them or their substitutes, may lawfully 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 INDICATED ON JULY 27, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ RAY R. SEEGMILLER Chairman of the Board, Chief July 27, 1999
- ----------------------------------------------------- Executive Officer, President
Ray R. Seegmiller and Director (Principal
Executive Officer)
/s/ PAUL F. BOLING Vice President -- Finance July 27, 1999
- ----------------------------------------------------- (Principal Financial Officer)
Paul F. Boling
/s/ HENRY C. SMYTH Controller (Principal Accounting July 27, 1999
- ----------------------------------------------------- Officer)
Henry C. Smyth
/s/ ROBERT F. BAILEY Director July 27, 1999
- -----------------------------------------------------
Robert F. Bailey
/s/ SAMUEL W. BODMAN Director July 27, 1999
- -----------------------------------------------------
Samuel W. Bodman
</TABLE>
II-5
<PAGE> 26
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ HENRY O. BOSWELL Director July 27, 1999
- -----------------------------------------------------
Henry O. Boswell
/s/ JOHN G. L. CABOT Director July 27, 1999
- -----------------------------------------------------
John G. L. Cabot
/s/ WILLIAM R. ESLER Director July 27, 1999
- -----------------------------------------------------
William R. Esler
/s/ WILLIAM H. KNOELL Director July 27, 1999
- -----------------------------------------------------
William H. Knoell
/s/ C. WAYNE NANCE Director July 27, 1999
- -----------------------------------------------------
C. Wayne Nance
/s/ P. DEXTER PEACOCK Director July 27, 1999
- -----------------------------------------------------
P. Dexter Peacock
/s/ CHARLES P. SIESS, JR. Director July 27, 1999
- -----------------------------------------------------
Charles P. Siess, Jr.
/s/ WILLIAM P. VITITOE Director July 27, 1999
- -----------------------------------------------------
William P. Vititoe
</TABLE>
II-6
<PAGE> 27
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
<C> <S>
*1 -- Form of Underwriting Agreement
**4.1 -- Certificate of Incorporation of the Company (incorporated
herein by this reference to the Registration Statement on
Form S-1 of the Company (Registration No. 33-32553))
4.2 -- Bylaws of the Company as amended
+4.3 -- Form of Indenture relating to the Senior Debt Securities
+4.4 -- Form of Indenture relating to the Subordinated Debt
Securities
+5 -- Opinion of Baker & Botts, L.L.P.
12 -- Computation of ratio of earnings to fixed charges
15 -- Awareness letter of PricewaterhouseCoopers LLP
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Miller and Lents, Ltd.
23.3 -- Consent of Baker & Botts, L.L.P. (included in Exhibit 5)
24 -- Powers of Attorney (included on the signature page of the
Registration Statement)
</TABLE>
- ---------------
* The Company will file as an exhibit to a current report on Form 8-K (i) any
underwriting agreement relating to Securities offered hereby, (ii) the
instruments setting forth the terms of any debt securities, preferred stock
or warrants, (iii) any required opinion of counsel to the Company as to
certain tax matters relative to securities offered hereby or (iv) any
Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of the applicable trustee.
** Incorporated by reference as indicated.
+ To be filed by amendment.
<PAGE> 1
AMENDED AND RESTATED
BY-LAWS
OF
CABOT OIL & GAS CORPORATION
Adopted August 5, 1994
Amended February 20, 1997
<PAGE> 2
INDEX OF AMENDED AND RESTATED BY-LAWS
CABOT OIL & GAS CORPORATION
<TABLE>
<CAPTION>
Article Page
- ------- ----
<S> <C>
I. Certificate of Incorporation..............................................................1
II. Annual Meeting of Stockholders............................................................2
III. Special Meetings of Stockholders..........................................................3
IV. Place of Stockholders' Meetings...........................................................3
V. Notice of Stockholders' Meetings..........................................................3
VI. Quorum and Action of Stockholders.........................................................8
VII. Proxies and Voting........................................................................9
VIII. Action by Written Consent ...............................................................10
IX. Board of Directors.......................................................................12
X. Powers of the Board of Directors.........................................................14
XI. Executive Committee......................................................................14
XII. Committees...............................................................................16
XIII. Meetings of the Board of Directors.......................................................16
XIV. Quorum and Action of Directors...........................................................17
XV. Restrictions on Stock Transfer...........................................................18
XVI. Compensation of Directors................................................................18
XVII. Officers and Agents......................................................................19
XVIII. Chairman of the Board of Directors.......................................................19
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Article Page
- ------- ----
<S> <C>
XIX. President................................................................................20
XX. Executive Vice Presidents, Senior Vice Presidents........................................21
XXI. Chief Financial Officer..................................................................21
XXII. Secretary and Assistant Secretaries......................................................22
XXIII. Treasurer and Assistant Treasurers.......................................................23
XXIV. General Counsel and Assistant General Counsels...........................................24
XXV. Controller...............................................................................25
XXVI. Resignations and Removals................................................................26
XXVII. Vacancies................................................................................27
XXVIII. Waiver of Notice.........................................................................28
XXIX. Certificates of Stock....................................................................28
XXX. Transfer of Shares of Stock..............................................................29
XXXI. Transfer Books: Record Date..............................................................30
XXXII. Loss of Certificates.....................................................................31
XXXIII. Seal.....................................................................................31
XXXIV. Execution of Papers......................................................................31
XXXV. Fiscal Year..............................................................................32
XXXVI. Dividends................................................................................32
XXXVII. Respecting Certain Contracts.............................................................32
XXXVIII. Indemnification of Directors, Officers and Employees.....................................33
XXXIX. Amendments...............................................................................35
</TABLE>
-ii-
<PAGE> 4
AMENDED AND RESTATED
BY-LAWS
OF
CABOT OIL & GAS CORPORATION
(THE "CORPORATION")
ARTICLE I
Certificate of Incorporation
The name, location of the principal office or place of business in
Delaware, and the objects or purposes of the Corporation shall be as set forth
in its Certificate of Incorporation. These By-laws, the powers of the
Corporation and of its directors and stockholders, and all matters concerning
the management of the business and conduct of the affairs of the Corporation
shall be subject to such provisions in regard thereto, if any, as are set forth
in the Certificate of Incorporation; and the Certificate of Incorporation is
hereby made a part of these By-laws. In these By-laws, references to the
Certificate of Incorporation mean the provisions of the Certificate of
Incorporation (as that term is defined in the General Corporation Law of the
State of Delaware) of the Corporation as from time to time in effect, and
references to these By-laws or to any requirement or provision of law mean
these By-laws or such requirement or provision of law as from time to time in
effect.
<PAGE> 5
ARTICLE II
Annual Meeting of Stockholders
The annual meeting of stockholders shall be held at such date and time
as the Board of Directors may designate. Purposes for which the annual meeting
is to be held, in addition to those prescribed by law, by the Certificate of
Incorporation and by these By-laws, may be specified by the chairman of the
board of directors, the president or by the board of directors.
If the election of directors shall not be held on the day provided for
by these By-laws, the directors shall cause the election to be held as soon
thereafter as convenient, and to that end, if the election of directors shall
not be held at the annual meeting, a special meeting of the stockholders may be
held in place of such omitted meeting or election, and any business transacted
or election held at such special meeting shall have the same effect as if
transacted or held at the annual meeting, and in such cases all references in
these By-laws, except in this Article II and in Article IV to the annual
meeting of the stockholders, or to the annual election of directors, shall be
deemed to refer to or include such special meeting. Any such special meeting
shall be called, and the purposes thereof shall be specified in the call, as
provided in Article III.
The Chairman of a meeting of stockholders may adjourn the meeting from
time to time. No notice of the time and place of adjourned meetings need be
given except as required by law. The stockholders present at a duly called
meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. Any previously scheduled meeting of the stockholders may be
postponed, by resolution of the Board of
- 2 -
<PAGE> 6
Directors upon public notice given prior to the date previously scheduled for
such meeting of stockholders.
ARTICLE III
Special Meetings of Stockholders
A special meeting of the stockholders may be called at any time by the
chairman of the board of directors, the president or by the board of directors.
Such call shall state the time, place and purposes of the meeting.
ARTICLE IV
Place of Stockholders' Meetings
The annual election of directors, whether at the original or any
adjourned session of the annual meeting of the stockholders or of a special
meeting held in place thereof, shall be held at such place as the board of
directors shall fix for each such meeting. Sessions of such meetings for any
other purposes, and the original or any adjourned session of any other special
meeting of the stockholders, shall be held at such place within or without the
State of Delaware as shall be stated in the call or in the vote of adjournment,
as the case may be.
ARTICLE V
Notice of Stockholders' Meetings, Business and Nominations
A. Notice of Meetings.
Except as may be otherwise required by law, by the Certificate of
Incorporation or by other provisions of these By-laws, a written notice of each
meeting of stockholders, stating the place, day and hour thereof and the
purposes for which the meeting is called, shall be given, at least ten days but
no more than sixty days before the
- 3 -
<PAGE> 7
date of the meeting, to each stockholder entitled to vote thereat by leaving
such notice with him or her or at his or her residence or usual place of
business, or by mailing it, postage prepaid, addressed to such stockholder at
his or her address as it appears upon the books of the Corporation. Such notice
shall be given by the secretary or an assistant secretary or in case of their
death, absence, incapacity or refusal, by some other officer or by a person
designated by the board of directors.
B. Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors
of the Company and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a) pursuant to
the Company's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Company who was a stockholder of
record at the time of giving of notice provided for in this By-law, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-law.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph (B)(1)
of this By-law, the stockholder must have given timely notice thereof in
writing to the Secretary of the Company and such other business must otherwise
be a proper matter for stockholder action. To be timely, a stockholder's notice
shall be delivered to the Secretary at the principal executive offices of the
Company not later than the close of business on the 60th day nor earlier than
the close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before or more than 60 days
after
- 4 -
<PAGE> 8
such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 90th day prior to such
annual meeting and not later than the close of business on the later of the
60th day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made by the
Company. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth (a) as to
each person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to be named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Company's books, and of such
beneficial owner and (ii) the class and number of shares of the Company which
are owned beneficially and of record by such stockholder and such beneficial
owner.
- 5 -
<PAGE> 9
(3) Notwithstanding anything in the second sentence of paragraph
(B)(2) of this By-law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Company is increased
and there is no public announcement by the Company naming all of the nominees
for director or specifying the size of the increased Board of Directors at
least 70 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this By-law shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Company not later than the close of business
on the 10th day following the day on which such public announcement is first
made by the Company.
C. Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Company's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the Company's
notice of meeting (a) by or at the direction of the Board of Directors or (b)
provided that the Board of Directors has determined that directors shall be
elected at such meeting, by any stockholder of the Company who is a stockholder
of record at the time of giving of notice provided for in this By-law, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this By-law. In the event the Company calls a special
meeting of stockholders for the purpose of electing one or more directors to
the Board of Directors, any such stockholder may nominate a person or persons
(as the case may be), for election to such position(s) as specified in the
Company's notice of meeting, if the stockholder's notice
- 6 -
<PAGE> 10
required by paragraph (B)(2) of this By-law shall be delivered to the Secretary
at the principal executive offices of the Company not earlier than the close of
business on the 90th day prior to such special meeting and not later than the
close of business on the later of the 60th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
D. General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this By-law shall be eligible to serve as directors
and only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set
forth in this By-law. Except as otherwise provided by Law, the Certificate of
Incorporation or these By-laws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-law and, if any proposed
nomination or business is not in compliance with this By-law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Company with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
- 7 -
<PAGE> 11
(3) Notwithstanding the foregoing provisions of this By-law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-law. Nothing in this By-law shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Company's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE VI
Quorum and Action of Stockholders
At any meeting of the stockholders, a quorum for the election of any
director or for the consideration of any question shall consist of a majority
in interest of all stock issued and outstanding and entitled to vote for the
election of such director or upon such question, respectively, except in any
case where a larger quorum is required by law, by the Certificate of
Incorporation or by these By-laws. Stock owned by the Corporation, if any,
shall not be deemed outstanding for this purpose. In any case, any meeting may
be adjourned from time to time by a majority of the votes properly cast upon
the question, whether or not a quorum is present, and the meeting may be held
as adjourned without further notice.
When a quorum for an election is present at any meeting, the
affirmative vote of the holders of a plurality of the voting power of the stock
of the Company which is present at the meeting shall elect to such office. When
a quorum for the consideration of a question is present at any meeting, the
affirmative vote of the holders of a majority of the voting power of the stock
of the Company which is present at the meeting shall
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decide the quorum, except in any case where a larger vote is required by law,
by the Certificate of Incorporation or by these By-laws.
ARTICLE VII
Proxies and Voting
Except as otherwise may be provided in the Certificate of
Incorporation and subject to the provisions of Article XXXI of these By-laws,
each stockholder at every meeting of the stockholders shall be entitled to one
vote in person or by proxy for each share of the capital stock held by such
stockholder, but no proxy shall be voted after six months from its date, unless
the proxy provides for a longer period; and except where the transfer books of
the Corporation shall have been closed or a date shall have been fixed as a
record date for the determination of the stockholders entitled to vote, as
provided in Article XXXI, no share of stock shall be voted at any election for
directors which has been transferred on the books of the Corporation within the
twenty days preceding such election of directors. Shares of the capital stock
of the Corporation belonging to the Corporation shall not be voted upon
directly or indirectly.
Persons holding stock in a fiduciary capacity shall be entitled to
vote the shares so held, or to give any consent permitted by law, and persons
whose stock is pledged shall be entitled to vote, or to give any consent
permitted by law, unless in the transfer by the pledgor on the books of the
Corporation he or she shall have expressly empowered the pledgee to vote
thereon, in which case only the pledgee or his or her proxy may represent said
stock and vote thereon or give any such consent.
The secretary shall prepare or cause to be prepared, at least ten days
before every election of directors, a complete list of the stockholders
entitled to vote at said election,
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arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder during ordinary business
hours, at the place where such election meeting is to be held, or such other
place as may be specified in the notice of the meeting, within the city, town
or village where the election meeting is to be held, for said ten days, and
shall be produced and kept at the time and place of the election meeting for
the duration of the election meeting, and be subject to the inspection of any
stockholder who may be present. The original or duplicate stock ledger shall
conclusively list and identify the stockholders entitled to examine such list
or to vote in person or by proxy at such election.
ARTICLE VIII
Action by Written Consent
A. In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within 10 days after the date on
which such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the Board of Directors within 10 days of the
date on which such a request is received, the
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record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation by delivery to its principal place of business
or to any officer or agent of the corporation having custody of the book in
which proceedings of meetings of stockholders are recorded. Delivery made to
the corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required
by applicable law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the date on which the Board of Directors adopts the resolution
taking such prior action.
B. Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the
record date established in accordance with paragraph (A) of this Article VIII,
a written consent or consents signed by a sufficient number of holders to take
such action are delivered to the corporation in the manner prescribed in
paragraph (A) of this Article.
C. In the event of the delivery, in the manner provided by this
Article, to the corporation of the requisite written consent or consents to
take corporate action and/or any related revocation or revocations, the
corporation shall engage nationally recognized independent inspectors of
elections for the purpose of promptly performing a ministerial review of the
validity of the consents and revocations. For the purpose of permitting a
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prompt ministerial review by the independent inspectors, no action by written
consent without a meeting shall be effective until the earlier of (i) five
business days following delivery to the corporation of consents signed by the
holders of the requisite minimum number of votes that would be necessary to
take such action, which delivery shall be accompanied by a certification by the
stockholder of record (or his or her designee) who delivered, in accordance
with paragraph (A) above, the written notice to the Secretary requesting the
Board of Directors to fix a record date or (ii) such date as the independent
inspectors certify to the corporation that the consents delivered to the
corporation in accordance with this Article represent at least the minimum
number of votes that would be necessary to take the corporate action. Nothing
contained in this paragraph shall in any way be construed to suggest or imply
that the Board of Directors or any stockholder shall not be entitled to contest
the validity of any consent or revocation thereof, whether during or after such
five business day period, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto).
ARTICLE IX
Board of Directors
The number of directors which constitute the whole board of directors
shall be not less than three nor more than twenty. Within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors. The directors shall be elected at the annual meeting of the
stockholders, except as provided elsewhere in these By-laws, and each director
elected shall hold office until a successor is elected and qualified, or until
he or she sooner dies, resigns or is removed or replaced. Directors need
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not be stockholders. Newly-created directorships resulting from any increase in
the authorized number of directors voted by the board of directors between
annual meetings may be filled, at the discretion of the board, by an election
at a meeting of stockholders held for that purpose, or by an election at a
meeting of the board of directors, by vote of a majority of the directors then
in office though less than a quorum, and each director so chosen shall hold
office until the next annual election of the class of directors to which such
director is assigned and until his or her successor is duly elected and shall
qualify, unless he or she sooner dies, resigns, or is removed or replaced.
The board of directors shall be divided into three classes as
designated by the initial members of the board of directors. Each class shall
be as nearly equal in number as possible to the other classes so designated.
The term of office of the first class shall expire at the first annual meeting
of stockholders; of the second class one year thereafter; and of the third
class two years thereafter. Each subsequent class of directors shall be elected
for a full term of office of three years. At all subsequent annual meetings
thereafter, the number of directors equal to the number constituting the class
whose term expires at the time of such meeting shall be elected to hold office
for the full term of office of three years. Upon the creation of any new
directorships resulting from any increase in the authorized number of directors
voted by the board of directors between annual meetings, such new directors
shall be assigned to one of the aforementioned three classes by the vote of a
majority of the directors then in office, provided that after such appointment
to a class, each class shall be as nearly equal in number as possible to the
other classes of the board of directors.
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The provisions of the foregoing paragraph of this Article IX may not
be altered, amended or repealed except by the vote of the holders of a majority
of the voting power of the issued and outstanding stock of the Corporation at
any annual, regular or special stockholders' meeting called for that purpose,
the notice of which shall specify the subject matter of the proposed
alteration, amendment or repeal of this Article IX.
ARTICLE X
Powers of the Board of Directors
The board of directors shall have and may exercise all the powers of
the Corporation, except such as are conferred exclusively upon the stockholders
by law, by the Certificate of Incorporation or by these By-laws.
ARTICLE XI
Executive Committee
The board of directors, by a resolution adopted by a majority of the
whole board, may from its own number elect an executive committee of the board
of directors, to consist of not less than two members in addition to the
president, and may from time to time designate or alter, within the limits
permitted by this article, the duties and powers of such committee, or change
its membership. The chairman of the board of directors shall be an ex officio
member of the executive committee.
Such executive committee shall be vested with power to take any action
which the board itself could take, except as hereinafter provided, with respect
to the conduct and management of the business of the Corporation, including
declaring dividends, designating and altering the duties, powers and
compensation of the officers and agents of the Corporation, electing or
appointing the officers and agents other than the chairman of
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the board of directors, president, treasurer and secretary, filling vacancies
other than those vacancies occurring within the board of directors and
executive committee, and authorizing or ratifying all purchases, sales,
contracts, offers, conveyances, transfers, negotiable instruments, powers of
attorney, bonds, and other transactions and instruments of every kind, as well
as authorizing the seal of the Corporation to be affixed to all papers which
may require it.
If an executive committee is elected, each member of such executive
committee shall hold office until the first meeting of the board of directors
following the next annual meeting of the stockholders and until his or her
successor is elected and qualified, or until he or she sooner dies, resigns, is
removed, is replaced by change of membership or becomes disqualified by ceasing
to be a director.
One-third of the members of the executive committee then in office,
but in no case less than two members, shall constitute a quorum for the
transaction of business, but any meeting may be adjourned from time to time by
affirmative vote of a majority of the votes cast upon the question, whether or
not a quorum is present, and upon such majority consent to adjourn, the meeting
may be adjourned without further notice. All minutes of proceedings of the
executive committee shall be kept by the secretary or an assistant secretary
and shall be available to the board of directors upon its verbal or written
request. The executive committee may make rules not inconsistent herewith for
the holding and conducting of its meetings, but unless otherwise provided in
such rules, its meetings shall be held and conducted in the same manner, as
nearly as may be, as is provided in these By-laws for meetings of the board of
directors. The board of directors
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shall have power and authority to rescind any vote or resolution of the
executive committee, but no such rescission shall have retroactive effect.
ARTICLE XII
Committees
The board of directors may at any time and from time to time, by
resolution adopted by a majority of the whole board of directors, appoint,
designate, change the membership of or terminate the existence of one or more
committees (other than the executive committee provided for in Article XI),
each committee to consist of two or more of the directors of the Corporation.
Each such committee shall have such name as may be determined from time to time
by resolution adopted by the board of directors and shall have and may exercise
such powers of the board of directors in the management of the business and
affairs of the Corporation, including the power to authorize the seal of the
Corporation to be affixed to all papers which may require it, as may be
determined from time to time by resolution adopted by a majority of the whole
board. All minutes of proceedings of committees shall be kept by the secretary
or an assistant secretary and shall be available to the board of directors upon
its verbal or written request.
ARTICLE XIII
Meetings of the Board of Directors
Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware and
at such times as the board may from time to time determine. A regular meeting
of the board of directors may be held without call or formal notice immediately
after and at the same place as the annual meeting of the stockholders.
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Special meetings of the board of directors may be held at any time and
at any place either within or without the State of Delaware when called by the
chairman of the board, the president, the chief financial officer or two or
more directors, reasonable notice thereof being given to each director by the
secretary or an assistant secretary, or in the case of the death, absence,
incapacity or refusal of the secretary or an assistant secretary, by the
officer or directors calling the meeting, or without call or formal notice if
each director then in office is either present at the special meeting or waives
notice before or after such meeting. A waiver of notice in writing, signed by a
director entitled to such notice shall be deemed to satisfy such notice
requirement whether such written waiver of notice were signed before or after
the time of the meeting. In any case it shall be deemed sufficient notice to a
director to send notice addressed to him or her at his or her usual or last
known business or residence address by postage paid mail at least forty-eight
hours before the meeting, or by telegram, telex or facsimile transmission at
least twenty-four hours before the meeting, or to give notice to him or her in
person at least twenty-four hours before the meeting either by telephone, or by
handing him or her a written notice.
ARTICLE XIV
Quorum and Action of Directors
At any meeting of the board of directors, except in any case where a
larger quorum or the vote of a larger number of directors is required by law,
by the Certificate of Incorporation or by these By-laws, a quorum for any
election or for the consideration of any question shall consist of one-third of
the directors then in office, but in no case less than two directors, but any
meeting may be adjourned from time to time by a majority of the votes cast upon
the question, whether or not a quorum is present, and upon such
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majority consent to adjournment, the meeting may be adjourned without further
notice. When a quorum is present at any meeting, the votes of a majority of the
directors present and voting shall be requisite and sufficient to elect any
officer, and a majority of the directors present and voting shall decide any
questions brought before such meeting, except in any case where a larger vote
is required by law, by the Certificate of Incorporation or by these By-laws.
ARTICLE XV
Restrictions on Stock Transfer
The board of directors by resolution or resolutions may from time to
time, in connection with any employee stock option or purchase plan, fix
limitations and restrictions on the transfer of any or all of the authorized
but unissued shares or treasury shares of the Corporation made available for
such stock option or purchase plan, such restrictions to take effect upon the
issue, sale or transfer of such shares. No such limitation or restriction shall
be valid unless notice thereof is given on the certificate or certificates
representing such shares.
ARTICLE XVI
Compensation of Directors
The directors may be paid their expenses, if any, of attendance at
each meeting of the board of directors and may be paid a fixed sum for
attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be paid like compensation for attending
committee meetings.
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ARTICLE XVII
Officers and Agents
The officers of the Corporation shall be chosen by the board of
directors and shall consist of a chairman of the board, a president, one or
more vice presidents, a secretary, a treasurer and such other officers as the
board shall deem necessary or appropriate. The board of directors, in its
discretion, may choose a chief financial officer, one or more executive vice
presidents, senior vice presidents, assistant secretaries and assistant
treasurers. Two or more offices may be held by the same person, except that
when one person holds the offices of both president and secretary such person
shall not hold any other office.
The board of directors at its first meeting after each annual meeting
of stockholders shall choose the corporate officers, of whom only the chairman
of the board and the president must be board members. At any time as it shall
deem necessary, the board of directors may choose any other officers and
agents, who shall hold their offices for such terms, and shall exercise such
powers, and perform such duties, as the board shall determine from time to
time.
Any vacancies occurring in any office of the Corporation shall be
filled by the board of directors.
ARTICLE XVIII
Chairman of the Board of Directors
The chairman of the board, who may be the chief executive officer of
the Corporation, shall perform all duties commonly incident to his or her
office and shall perform such other duties as the board of directors shall from
time to time designate. The
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chairman of the board shall preside at all meetings of the stockholders and of
the board of directors at which he or she is present, except as otherwise voted
by the board of directors.
The chief executive officer, in addition to his or her other duties,
shall have general and active management authority of corporate business and
shall ensure that all orders and resolutions of the board of directors are
carried into effect.
ARTICLE XIX.
President
The president, who may be the chief executive officer or the chief
operating officer of the Corporation, shall have such duties and powers as
shall be designated from time to time by the chairman of the board or the board
of directors. The president shall have all the powers and shall discharge all
the duties, other than those as a director, of the chairman of the board or the
chief executive officer during his or her absence or his or her inability or
incapacity to act. The president shall preside at all meetings of the
stockholders and the board of directors, except when the chairman of the board
or the chief executive officer is present at such meetings.
The chief operating officer shall have general responsibility for the
daily operations of the Corporation and shall have such duties and powers as
shall be designated from time to time by the chairman of the board, the chief
executive officer or the board of directors.
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ARTICLE XX
Executive Vice Presidents, Senior Vice Presidents
and Vice Presidents
Any executive vice president, any senior vice president or, if they
are not available, any available vice president, shall have all the powers and
shall discharge all the duties of the president during his or her absence or
his or her inability or incapacity to act, and each such vice president shall
further have such powers and discharge such duties as are imposed upon them by
these By-laws or may be from time to time conferred or imposed upon them by the
chairman of the board, the chief executive officer, the president, the chief
operating officer or the board of directors. Any executive vice president or
senior vice president may be the chief operating officer of the Corporation.
ARTICLE XXI
Chief Financial Officer
The chief financial officer, if such officer is appointed, or if not,
the treasurer, shall be responsible for developing, recommending and
implementing financial policies of the Corporation and shall have general
responsibility for protecting the Corporation's financial position. He or she
shall keep and maintain or cause to be kept and maintained, adequate and
correct books and records of accounts of the properties and business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses capital, retained earnings and shares.
He or she shall represent the Corporation in its transactions with banks and
other financial institutions.
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ARTICLE XXII
Secretary and Assistant Secretaries
The secretary or an assistant secretary shall attend all meetings of
the stockholders and all meetings of the board of directors and its committees,
and shall record all the proceedings of the meetings of the stockholders and of
the board of directors and its committees in a book or books to be kept for
that purpose. He or she shall give, or cause to be given, notice of all
meetings of the stockholders and meetings of the board of directors and shall
perform such other duties as may be prescribed by the chairman of the board,
the president or by the board of directors, under whose supervision the
secretary shall work. The secretary shall keep in safe custody the seal of the
Corporation and when authorized by the chairman of the board, the president,
the board of directors, or these By-laws, affix the same to any instrument
requiring it and, when so affixed, the secretary or an assistant secretary
shall attest the seal by signing his or her name to the sealed document. The
secretary shall be responsible for the stock ledger (which may, however, be
kept by any transfer agent or agents of the Corporation under the direction of
the secretary).
The assistant secretary, or if there are more than one, the assistant
secretaries, in the order determined by the secretary, shall in the absence or
disability of the secretary perform the duties and exercise the powers of the
secretary, and shall perform such other duties and have such other powers as
the chairman of the board, the president, the board of directors and the
secretary may from time to time prescribe.
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ARTICLE XXIII
Treasurer and Assistant Treasurers
The treasurer shall have custody of the corporate funds and securities
and shall keep, or cause to be kept, full and accurate account of receipts and
disbursements in books belonging to the Corporation, and shall deposit or cause
to be deposited all monies and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
board of directors. The treasurer shall invest surplus funds in such
investments as he or she shall deem appropriate in consultation with the chief
financial officer and pursuant to this authority may buy and sell securities on
behalf of the Corporation from time to time. He or she shall disburse or cause
to be disbursed the funds of the Corporation as may be ordered by the board of
directors, the chairman of the board or such other officer as the chairman of
the board may from time to time designate, taking proper vouchers for such
disbursements. The treasurer shall work under the supervision of the chief
financial officer, if the board of directors has appointed such an officer.
If required by the board of directors, the treasurer shall give the
Corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the board of directors
for the faithful performance of his or her office and for the restoration to
the Corporation in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his or her possession or under his or her control belonging to
the Corporation. The assistant treasurer, if any, shall in the absence or
disability of the treasurer, perform the duties and exercise the powers of the
treasurer and
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shall perform such other duties and have such other powers as the chairman of
the board, the president, the board of directors and the treasurer may from
time to time prescribe and shall be responsible to and shall report to the
treasurer.
ARTICLE XXIV
General Counsel and Assistant General Counsels
The general counsel, if the board of directors appoints such an
officer, shall be the chief counseling officer of the Corporation in all legal
matters, and, subject to the control by the board of directors, he or she shall
have charge of all matters of legal import to the Corporation. His or her
relationship to the Corporation shall in all respects be that of an attorney to
a client. The general counsel shall have charge of all litigation of the
Corporation and keep himself or herself advised of the progress of all legal
proceedings and claims by and against the Corporation, or in which the
Corporation is interested by reason of its ownership and control of other
Corporations. The general counsel shall maintain records of all lawsuits and
actions of every nature in which the Corporation may be a party, or in which it
is interested, with sufficient data to show the nature of the case and the
proceedings therein, and such records and the papers relating thereto shall be
open at all times to the inspection of the directors and the executive officers
of the Corporation.
The general counsel shall give to the board of directors and to any
officer of the Corporation, whenever requested to do so, his or her opinion
upon any question affecting the interests of the Corporation and when requested
by the chairman of the board, the president, a vice president, or by the board
of directors or the executive committee, give his or her opinion upon any
subject that may be referred to him or her.
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The general counsel may, in his or her discretion, on behalf of the
Corporation, retain such independent attorneys, or law firms, in any and all
parts of the world, as he or she may deem necessary to assist him or her in the
performance of his or her duties and to protect and further the interests of
the Corporation.
The general counsel shall have power and authority to execute in the
name of the Corporation any and all bonds or stipulations for costs or other
purposes connected with legal proceedings in any of the courts of justice, for
the protection or enforcement of the rights and interests of this Corporation;
and, by instrument in writing, he or she may delegate to any such authority
appropriate power and authority to execute such bonds or stipulations.
The assistant general counsel, or, if there are more than one, the
assistant general counsels, shall, in the order determined by the general
counsel, in the absence or disability of the general counsel, perform his or
her duties and exercise his or her powers and shall perform such other duties
and have such other powers as the chairman of the board, the president, the
board of directors and the general counsel may from time to time prescribe.
ARTICLE XXV
Controller
The controller, if the board of directors elects such an officer,
shall be the chief accounting officer of the Corporation, shall keep its books
of account and accounting records, and shall be in charge of the Corporation's
accounting policies and procedures. The controller shall work under the
supervision of the chief financial officer. The
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controller shall, with the approval of the board of directors, arrange for
annual audits by independent public accountants.
If required by the board of directors, the controller shall give the
Corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the board of directors
for the faithful performance of his or her office and for the restoration to
the Corporation in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his or her possession or under his or her control belonging to
the Corporation.
The assistant controller, if any, shall in the absence or disability
of the controller perform the duties and exercise the powers of the controller,
and shall perform such other duties and have such other powers as the chairman
of the board, the president, the board of directors and the controller may from
time to time prescribe, and shall be responsible to and shall report to the
controller.
ARTICLE XXVI
Resignations and Removals
Any director or officer may resign at any time by delivering his or
her resignation in writing to the chairman of the board, the president or the
secretary, or to a meeting of the board of directors. Such resignation shall
take effect at the time stated in the resignation, or if no time be so stated
therein, immediately upon its delivery, and without the necessity of its being
accepted unless the resignation shall so state.
The stockholders may remove any director from office, by vote of a
majority in interest of the stock issued and outstanding and entitled to vote
for such removal, at any
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meeting called for that purpose. The board of directors may at any time, by
vote of a majority of the directors then in office, remove from office the
chairman of the board, the president, any executive vice president, any vice
president, the chief financial officer, the treasurer, the secretary, the
general counsel or the controller at a special meeting called for that purpose.
Any other officer, agent or employee may be removed from office, agency or
employment by (i) vote of the board of directors at any meeting thereof, or
(ii) in the case of any officer, agent or employee not elected to his or her
position by the board of directors, by any committee or officer upon whom such
power may be conferred by the board of directors.
No director or officer resigning, and (except where a right to receive
compensation for a definite future period shall be expressly provided in a
written agreement with the Corporation duly approved by the board of directors)
no director or officer being removed shall have any right to any compensation
as such director or officer for any period following his or her resignation or
removal, or any right to damages on account of such removal, whether his or her
compensation be by the month or by the year or otherwise.
ARTICLE XXVII
Vacancies
If the office of any director becomes vacant, by reason of death,
resignation or removal, a successor may be elected by the board of directors by
vote of a majority of the remaining directors then in office whether or not the
remaining directors constitute a quorum. If the office of any officer becomes
vacant, by reason of death, resignation, removal or disqualification, a
successor may be elected or appointed by the board of
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directors by vote of a majority of the directors present and voting. Each such
successor shall hold office for the unexpired terms, and until his or her
successor shall be elected or appointed and qualified, or until he or she
sooner dies, resigns, is removed or replaced or becomes disqualified. The board
of directors shall have and may exercise all its powers notwithstanding the
existence of one or more vacancies in its number as fixed by the stockholders,
subject to any requirements of law or of these By-laws as to the number of
directors required for a quorum or for any vote, resolution or other action.
ARTICLE XXVIII
Waiver of Notice
Whenever any notice is required to be given by law or under the
provisions of the Certificate of Incorporation or of these By-laws, a written
waiver of notice, signed by the person or persons entitled to such notice shall
be deemed to satisfy such notice requirement, whether such waiver was signed
and delivered before or after the meeting or other event for which notice is
waived.
ARTICLE XXIX
Certificates of Stock
Every holder of stock in the Corporation shall be entitled to have a
certificate, signed in the name of the Corporation, by the chairman of the
board, the president or a vice president and by the treasurer or an assistant
treasurer or the secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by him or her in the Corporation;
provided, however, that where any such certificate is countersigned by a
transfer agent, other than the Corporation or its employee, or by a registrar,
other than the Corporation or its employee, any other signature on such
certificate may be a facsimile,
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engraved, stamped or printed. In case any officer or officers who shall have
signed, or whose facsimile signature or signatures shall have been used on any
such certificate or certificates shall cease to be such officer or officers of
the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be adopted by the Corporation
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
Corporation, and any such issue and delivery shall be regarded as an adoption
by the Corporation of such certificate or certificates. Certificates of stock
shall be in such form as shall, in conformity to law, be prescribed from time
to time by the board of directors.
ARTICLE XXX
Transfer of Shares of Stock
Subject to applicable restrictions upon transfer, if any, title to a
certificate of stock and to the shares represented thereby shall be transferred
only by delivery of the certificate properly endorsed, or by delivery of the
certificate accompanied by a written assignment of the same, or a written power
of attorney to sell, assign or transfer the same or the shares represented
thereby, properly executed; but the person registered on the books of the
Corporation as the owner of shares shall have the exclusive right to receive
dividends thereon and, except as provided in Article VII with respect to stock
which has been pledged, to vote thereon as such owner or to give any consent
permitted by law, and shall be held liable for such calls and assessments, if
any, as may lawfully be made thereon, and except only as may be required by
law, may in all respects be treated by the
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<PAGE> 33
Corporation as the exclusive owner thereof. It shall be the duty of each
stockholder to notify the Corporation of his or her post office or mailing
address and to furnish to the Corporation such other information as the
Corporation may by law be required to obtain.
ARTICLE XXXI
Transfer Books: Record Date
The board of directors shall have power to close the stock transfer
books of the Corporation for a period not exceeding sixty days preceding the
date of any meeting of stockholders or the date for payment of any dividend or
the date for the allotment of rights or the date when any change or conversion
or exchange of capital stock shall go into effect or for a period of not
exceeding sixty days in connection with obtaining the consent of stockholders
for any purpose; provided, however, that in lieu of closing the stock transfer
books as aforesaid, the board of directors may fix in advance a date, not
exceeding sixty days preceding the date of any meeting of stockholders, or any
other of the above-mentioned events, or a date in connection with obtaining
such consent, as a record date for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect to any such change,
conversion or exchange of capital stock, or to give such consent, and in such
case such stockholders and only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights,
or to give such consent, as the case may be,
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<PAGE> 34
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
ARTICLE XXXII
Loss of Certificates
In the case of the alleged loss or destruction or the mutilation of a
certificate of stock, a duplicate certificate may be issued in place thereof
upon such terms in conformity with law as the board of directors may prescribe.
ARTICLE XXXIII
Seal
The corporate seal of the Corporation shall, subject to alteration by
the board of directors, consist of a flat-faced circular die with the word
"Delaware", together with the name of the Corporation and the year of its
organization, cut or engraved thereon. The corporate seal of the Corporation
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE XXXIV
Execution of Papers
Unless the board of directors generally or in particular cases
authorizes the execution thereof in some other manner, all deeds, leases,
transfers, sales of securities, contracts, proxies, bonds, notes, checks,
drafts and other obligations, agreements and undertakings made, accepted or
endorsed by the Corporation, shall be signed by the chairman of the board, the
president or by one of the vice presidents, and, if such papers require a seal,
the seal of the Corporation shall be affixed thereto and attested by the
secretary or an assistant secretary.
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<PAGE> 35
ARTICLE XXXV
Fiscal Year
Except as from time to time otherwise provided by the board of
directors, the fiscal year of the Corporation shall commence on the first day
of January of each year, commencing January 1, 1991.
ARTICLE XXXVI
Dividends
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation. Before payment
of any dividend, there may be set aside, out of any funds of the Corporation
available for dividends, such sum or sums as the directors from time to time,
in their absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE XXXVII
Respecting Certain Contracts
The directors of the Corporation are likely to be connected with other
corporations, partnerships, associations or firms with which from time to time
this Corporation may have business dealings. No contract or other transaction
between the
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<PAGE> 36
Corporation and any other corporation, partnership, association or firm and no
act of the Corporation shall be affected by the fact that directors of this
Corporation are pecuniarily or otherwise interested in, or are directors,
members or officers of such other corporation, partnership, association or
firm. Any director individually, or any firm of which such director may be a
member, may be a party to or may be pecuniarily or otherwise interested in any
contract or transaction of the Corporation, provided that the fact that he or
she or such firm is so interested shall be disclosed or shall have been known
to the board of directors or a majority thereof that approves such contract or
transaction. Every contract, act or transaction which at any annual meeting of
the stockholders, or at any meeting of the stockholders called for that
purpose, among others, of considering such contract, act or transaction, shall
be authorized, approved or ratified by vote of the holders of a majority of the
shares in the capital stock of the Corporation present in person or represented
by proxy at such meeting (provided that a quorum of stockholders be there
present or represented by proxy) shall be as valid and binding upon the
Corporation and upon all its stockholders as though such a contract, act or
transaction had been expressly authorized, approved and ratified by every
stockholder of the Corporation.
ARTICLE XXXVIII
Indemnification of Directors, Officers and Employees
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(and whether or not by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
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<PAGE> 37
Corporation as a director, officer, employee or agent of another company,
partnership, joint venture, trust or other enterprise or is or was serving as a
fiduciary of any employee benefit plan, fund or program sponsored by the
Corporation or such other company, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, to the extent and under the
circumstances permitted by the General Corporation Law of the State of Delaware
as amended from time to time. Such indemnification (unless ordered by a court)
shall be made as authorized in a specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set forth
in the General Corporation Law of the State of Delaware. Such determination
shall be made (1) by the board of directors by vote of a majority of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such quorum is not obtainable, or even if obtainable a
quorum of disinterested directors so directs by independent legal counsel in a
written opinion, or (3) by the stockholders. The foregoing right of
indemnification shall not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under any by-law, agreement, vote
of stockholders or disinterested directors or otherwise, and shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
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<PAGE> 38
ARTICLE XXXIX
Amendments
Except as provided in Article IX, these By-laws may be altered,
amended or repealed by (i) the affirmative vote of the holders of a majority of
the voting power of the issued and outstanding stock of the Corporation or (ii)
the affirmative vote of the majority of the directors then holding office at
any annual, regular or special stockholders or directors meeting, called for
that purpose, the notice of which shall specify the subject matter of the
proposed alteration, amendment or repeal and the articles to be affected
thereby. Any by-law, whether made, altered, amended or repealed by the
stockholders or directors, may be repealed, amended, further amended or
reinstated, as the case may be, by either the stockholders or the directors as
aforesaid.
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<PAGE> 1
EXHIBIT 12
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE THREE
MONTHS ENDED FOR THE YEARS ENDED DECEMBER 31,
MARCH 31, -------------------------------------------
1999 1998 1997 1996 1995 1994
------------- ------ ------ ------ -------- -----
<S> <C> <C> <C> <C> <C> <C>
Earnings (Loss) Before Income Taxes..... (3,874) 8,805 45,891 31,378 (141,643) (1,638)
Total Interest Expense(1)..... 6,934 19,422 18,742 18,332 25,776 17,515
------ ------ ------ ------ -------- -----
Pretax earnings plus fixed charges...... 3,060 28,227 64,633 49,710 (115,867) 15,877
====== ====== ====== ====== ======== =====
RATIO OF EARNINGS TO FIXED CHARGES...... n/m(3) 1.45 3.45 2.71 n/m(4) n/m(5)
</TABLE>
<TABLE>
<CAPTION>
1998 1997 1996 1995 1994
------ ------ ------ -------- -------
<S> <C> <C> <C> <C> <C> <C>
Earnings (Loss) Before Income Taxes.... (3,874) 8,805 45,891 31,378 (141,643) (1,638)
Total Interest Expense(1).... 6,934 19,422 18,742 18,332 25,776 17,515
Preferred Dividends(2)....... 1,349 5,648 8,265 8,387 9,081 7,324
------ ------ ------ ------ -------- -------
Combined fixed charges and preferred
dividends............................ 8,283 25,070 27,007 26,719 34,857 24,839
------ ------ ------ ------ -------- -------
Pretax earnings plus fixed charges..... 3,060 28,227 64,633 49,710 (115,867) 15,877
====== ====== ====== ====== ======== =======
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES.............................. n/m(3) 1.13 2.39 1.86 n/m(4) n/m(5)
</TABLE>
- ---------------
(1) Total interest expense includes an interest component of rental expense.
(2) "Preferred stock dividends" represents the pretax earnings from continuing
operations that would be required to cover such a dividend.
(3) The ratio indicates less than one-to-one coverage because earnings were
inadequate to cover fixed charges for the period. The amount of the
deficiency was $3.9 million for fixed charges, and $5.2 million for the
total of fixed charges and preferred stock dividends.
(4) Earnings were inadequate to cover fixed charges for the period due mainly to
the $113.8 million non-cash charge taken in 1995 as a result of the adoption
of Statement of Accounting Standards 121 combined with a $6.8 million charge
for a cost reduction program. The amount of the deficiency was $141.6
million for fixed charges, and $150.7 million for the total of fixed charges
and preferred stock dividends.
(5) The ratio indicates less than one-to-one coverage because earnings were
inadequate to cover fixed charges for the period. The amount of the
deficiency was $1.6 million for fixed charges, and $9.0 million for the
total of fixed charges and preferred stock dividends.
<PAGE> 1
EXHIBIT 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Cabot Oil & Gas Corporation
Registration Statement on Form S-3
Commissioners:
We are aware that our report dated May 12, 1999 on our review of the interim
condensed consolidated financial information of Cabot Oil & Gas Corporation as
of and for the period ended March 31, 1999 and included in the Company's
quarterly report on Form 10-Q for the quarter then ended is incorporated by
reference in this registration statement dated July 27, 1999. Pursuant to Rule
436(c) under the Securities Act of 1933, this report should not be considered a
part of the registration statement prepared or certified by us within the
meaning of Sections 7 and 11 of that Act.
PricewaterhouseCoopers LLP
Houston, Texas
July 27, 1999
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 26, 1999 relating to the
financial statements, which appear in the Cabot Oil & Gas Corporation Annual
Report on Form 10-K for the year ended December 31, 1998. We also consent to the
references to us under the heading "Independent Accountants" in such
Registration Statement.
PricewaterhouseCoopers LLP
Houston, Texas
July 27, 1999
<PAGE> 1
EXHIBIT 23.2
July 21, 1999
Cabot Oil & Gas Corporation
15375 Memorial Drive
Houston, Texas 77079
Re: Securities and Exchange Commission
Form S-3 of Cabot Oil & Gas Corporation
Gentlemen:
The firm of Miller and Lents, Ltd., by reference in this registration
statement on Form S-3 to be filed by Cabot Oil & Gas Corporation with the
Securities and Exchange Commission, consents to the use of its name and to the
use of its report dated February 9, 1999 regarding the Cabot Oil & Gas
Corporation Proved Reserves and Future Net Revenues as of January 1, 1999.
Miller and Lents, Ltd. has no financial interests in Cabot Oil & Gas
Corporation, or in any of its affiliated companies or subsidiaries and is not to
receive any such interest as payment for such report and has no director,
officer, or employee employed or otherwise connected with Cabot Oil & Gas
Corporation. We are not employed by Cabot Oil & Gas Corporation on a contingent
basis.
Very truly yours,
MILLER AND LENTS, LTD.
By /s/ JAMES A. COLE
-----------------------------
James A. Cole
Senior Vice President
