-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, L71xTNJJotPZsqR/T2pjd7INaSHIks01+e1ddVEin5Uwttoh0VIvVxxawuZ+hgmS N9UTXlUnQvmL7xZ4looAEg== 0000950129-96-001538.txt : 19960723 0000950129-96-001538.hdr.sgml : 19960723 ACCESSION NUMBER: 0000950129-96-001538 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19960520 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19960719 SROS: CSE SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: APACHE CORP CENTRAL INDEX KEY: 0000006769 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 410747868 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-04300 FILM NUMBER: 96596538 BUSINESS ADDRESS: STREET 1: 2000 POST OAK BLVD STREET 2: ONE POST OAK CENTER STE 100 CITY: HOUSTON STATE: TX ZIP: 77056-4400 BUSINESS PHONE: 7132966000 MAIL ADDRESS: STREET 1: 2000 POST OAK BLVD STREET 2: STE 100 CITY: HOUSTON STATE: TX ZIP: 77056-4400 FORMER COMPANY: FORMER CONFORMED NAME: APACHE OIL CORP DATE OF NAME CHANGE: 19660830 8-K/A 1 APACHE CORP. - AMENDMENT #1 TO 8-K DATED 05/20/96 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K/A AMENDMENT NO. 1 CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): May 20, 1996 APACHE CORPORATION (Exact name of registrant as specified in its charter) Delaware 1-4300 41-0747868 (State or other (Commission (I.R.S. Employer jurisdiction File Number) Identification Number) of incorporation) 2000 Post Oak Boulevard Suite 100 Houston, Texas 77056-4400 (Address of Principal Executive Offices) Registrant's telephone number, including area code: (713) 296-6000 ================================================================================ 2 Item 2. Acquisition or Disposition of Assets In the first quarter of 1996, Apache Corporation ("Apache") entered into the Agreement and Plan of Merger (the "Merger Agreement"), dated March 27, 1996, among Apache, YPY Acquisitions Inc. ("YPY"), and The Phoenix Resource Companies, Inc. ("Phoenix"), providing for the merger of YPY with Phoenix (the "Merger") in a transaction by which Phoenix would become a wholly-owned subsidiary of Apache. Apache issued a press release, dated March 28, 1996, which is listed under Item 7 as Exhibit 99.1 and incorporated herein by reference. The Merger Agreement is listed under Item 7 as Exhibit 2.1 and incorporated herein by reference. On May 20, 1996, the Merger was consummated shortly after the transaction was approved by the Phoenix shareholders. Upon consummation of the Merger and pursuant to the Merger Agreement, each share of Phoenix common stock then outstanding was converted into the right to receive (a) .75 shares of Apache common stock, with any fractional shares paid in cash, without interest, and (b) $4.00 in cash. Apache issued a press release, dated May 20, 1996, which is listed under Item 7 as Exhibit 99.2 and incorporated herein by reference. Phoenix's principal assets are its interest in the Khalda and Qarun oil and gas concessions in the Western Desert of Egypt, which in the aggregate contain 18 oil fields and six gas fields. The sale of crude oil and natural gas accounted for all of Phoenix's operating revenues during the past three years. Phoenix's operations include exploring, developing and operating crude oil and natural gas properties in Egypt. Phoenix's oil and gas operations are currently conducted through Egyptian operating companies owned jointly by the Egyptian General Petroleum Corporation, Phoenix and certain other participants. Apache is one of the participants with Phoenix in the Qarun concession. In conjunction with the Merger, George D. Lawrence, Jr., former president and chief executive officer of Phoenix, joined Apache's board of directors. Other than the relationships mentioned above or provided for or contemplated by the Merger Agreement, there were no other material relationships between Phoenix and Apache or any of Apache's affiliates, officers or directors, or any associate of any officer or director of Apache. 1 3 ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (a) FINANCIAL STATEMENTS (i) The audited consolidated balance sheet of Phoenix and subsidiaries as of December 31, 1995 and 1994, and the related consolidated statements of income, stockholders' equity and cash flows for each of the three years ended December 31, 1995, 1994 and 1993, together with the related notes to consolidated financial statements and the report of independent accountants, dated February 23, 1996, previously filed with the Phoenix Annual Report on Form 10-K for the fiscal year ended December 31, 1995, as amended, are listed below as Exhibit 99.4 and are incorporated herein by reference. (ii) The unaudited consolidated balance sheet of Phoenix and subsidiaries as of March 31, 1996, and the related consolidated statements of income and cash flows for the fiscal quarters ended March 31, 1996 and 1995, together with the related notes to consolidated financial statements, previously filed with the Phoenix Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1996, are listed below as Exhibit 99.5 and are incorporated herein by reference. 2 4 (b) PRO FORMA FINANCIAL INFORMATION APACHE CORPORATION AND SUBSIDIARIES UNAUDITED PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS The following unaudited condensed financial statements and notes thereto are presented to show the pro forma effects of the merger ("Merger") of a wholly-owned subsidiary of Apache Corporation ("Apache") with The Phoenix Resource Companies, Inc. ("Phoenix") on May 20, 1996, pursuant to which Phoenix became a wholly-owned subsidiary of Apache. The Merger will be reported using the purchase method of accounting. The condensed pro forma statements of income are presented as if the Merger occurred effective January 1 for each of the periods presented. The condensed pro forma balance sheet assumes that the Merger occurred on March 31, 1996. Pro forma data are based on assumptions and include adjustments as explained in the notes to the unaudited pro forma consolidated condensed financial statements. The pro forma data are not necessarily indicative of the financial results that would have occurred had the transaction been effective on and as of the dates referenced above, and should not be viewed as indicative of operations in future periods. The unaudited pro forma consolidated condensed financial statements should be read in conjunction with the notes thereto, and Apache's and Phoenix's Annual Reports on Form 10-K for the fiscal year ended December 31, 1995, and Apache's and Phoenix's Quarterly Reports on Form 10-Q for the quarter ended March 31, 1996. 3 5 APACHE CORPORATION AND SUBSIDIARIES UNAUDITED PRO FORMA CONDENSED STATEMENT OF CONSOLIDATED INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (IN THOUSANDS, EXCEPT PER COMMON SHARE DATA)
APACHE PHOENIX PRO FORMA HISTORICAL HISTORICAL ADJUSTMENTS PRO FORMA ---------- ---------- ----------- ---------- REVENUES: Oil and gas production revenues................... $ 653,144 $ 33,255 $ (6,298)(f) $ 680,101 Gathering, processing and marketing revenues...... 97,207 0 97,207 Other revenues.................................... 351 1,781 (1,436)(d) 696 --------- --------- ---------- --------- 750,702 35,036 (7,734) 778,004 --------- --------- ---------- --------- OPERATING EXPENSES: Depreciation, depletion and amortization.......... 297,485 5,795 8,505 (a) 311,785 Operating costs................................... 211,742 6,421 218,163 Gathering, processing and marketing costs......... 91,243 - 91,243 Administrative, selling and other................. 36,552 2,194 38,746 Merger costs...................................... 9,977 - 9,977 Financing costs, net.............................. 70,560 - (11,708)(b) 61,837 4,421 (c) (1,436)(d) --------- --------- ---------- --------- 717,559 14,410 (218) 731,751 --------- --------- ---------- --------- INCOME BEFORE INCOME TAXES......................... 33,143 20,626 (7,516) 46,253 Provision for income taxes....................... 12,936 10,015 (3,748)(f) 19,203 --------- --------- ---------- --------- NET INCOME......................................... $ 20,207 $ 10,611 $ (3,768) $ 27,050 --------- --------- ---------- --------- INCOME PER COMMON SHARE............................ $ 0.28 $ 0.65 $ 0.32 ========= ========= ========= WEIGHTED AVERAGE COMMON SHARES OUTSTANDING...................................... 71,792 12,190 (g) 83,982 ========= ========== =========
The accompanying notes to unaudited pro forma consolidated condensed financial statements are an integral part of this statement. Page 4 6 APACHE CORPORATION AND SUBSIDIARIES UNAUDITED PRO FORMA CONDENSED STATEMENT OF CONSOLIDATED INCOME FOR THE THREE MONTHS ENDED MARCH 31, 1996 (IN THOUSANDS, EXCEPT PER COMMON SHARE DATA)
APACHE PHOENIX PRO FORMA HISTORICAL HISTORICAL ADJUSTMENTS PRO FORMA ----------- ---------- ----------- --------- REVENUES: Oil and gas production revenues.............. $ 171,921 $ 12,436 $ (1,957)(f) $ 182,400 Gathering, processing and marketing revenues. 33,949 0 33,949 Other revenues............................... 600 413 (366)(d) 647 ----------- ---------- ---------- --------- 206,470 12,849 (2,323) 216,996 ----------- ---------- ---------- --------- OPERATING EXPENSES: Depreciation, depletion and amortization..... 71,861 2,282 2,642 (a) 76,785 Operating costs.............................. 52,512 2,183 54,695 Gathering, processing and marketing costs.... 32,410 0 32,410 Administrative, selling and other............ 8,858 751 9,609 Merger costs................................. 0 334 (334)(e) 0 Financing costs, net......................... 15,423 209 (2,739)(b) 13,548 1,021 (c) (366)(d) ----------- ---------- ---------- --------- 181,064 5,759 224 187,047 ----------- ---------- ---------- --------- INCOME BEFORE INCOME TAXES..................... 25,406 7,090 (2,547) 29,949 Provision for income taxes................... 9,751 3,395 (1,355)(f) 11,791 ----------- ---------- ---------- --------- NET INCOME..................................... $ 15,655 $ 3,695 $ (1,192) $ 18,158 =========== ========== ========== ========= INCOME PER COMMON SHARE........................ $ 0.20 $ 0.22 $ 0.20 =========== ========== ========== ========= WEIGHTED AVERAGE COMMON SHARES OUTSTANDING.................................. $ 77,422 12,190 (g) $ 89,612 =========== ========== =========
The accompanying notes to unaudited pro forma consolidated condensed financial statements are an integral part of this statement. Page 5 7 APACHE CORPORATION AND SUBSIDIARIES UNAUDITED PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEETS AS OF MARCH 31,1996 (IN THOUSANDS)
APACHE PHOENIX PRO FORMA HISTORICAL HISTORICAL ADJUSTMENTS PRO FORMA ---------- ---------- ----------- ---------- ASSETS: Current assets...................... $ 221,877 $ 47,654 $ $ 269,531 Property and equipment, net......... 2,454,335 31,426 396,349 (h) 2,841,709 3,000 (i) 9,800 (j) (53,201)(k) Other assets........................ 69,795 7,283 77,078 ---------- --------- ----------- ---------- $2,746,007 $ 86,363 $ 355,948 $3,188,318 ========== ========= =========== ========== LIABILITIES AND SHAREHOLDERS' EQUITY: Current liabilities................. $ 213,948 $ 13,163 $ 3,000 (i) $ 239,111 9,000 (l) Long-term debt...................... 1,137,697 12,500 64,488 (h) 1,214,685 Other non-current liabilities....... 98,896 1,173 100,069 Deferred tax liabilities............ 190,349 6,326 9,800 (j) 206,475 Shareholders' equity................ 1,105,117 53,201 331,861 (h) 1,427,978 (53,201)(k) (9,000)(l) ---------- --------- ----------- ---------- $2,746,007 $ 86,363 $ 355,948 $3,188,318 ========== ========= =========== ==========
The accompanying notes to unaudited pro forma consolidated condensed financial statements are an integral part of this statement. Page 6 8 APACHE CORPORATION AND SUBSIDIARIES NOTES TO UNAUDITED PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS NOTE 1 -- BASIS OF PRESENTATION The unaudited pro forma consolidated condensed financial statements are based on the audited statements of Apache and Phoenix for the year ended December 31, 1995, on unaudited statements for the quarter ended March 31, 1996, and on the adjustments and assumptions described below. Pursuant to the terms of the Agreement and Plan of Merger, dated March 27, 1996, pro forma data reflect the issuance on May 20, 1996, of 12,121,150 shares of Apache Common Stock for 16,161,533 shares of Phoenix Common Stock outstanding as of the Merger date and 68,768 Apache shares issued in connection with Phoenix stock options exercised by Phoenix directors and employees immediately after closing. Merger consideration consisted of .75 shares of Apache common stock and $4.00 in cash for each share of Phoenix stock outstanding and for each stock option exercised, net of option exercise proceeds. A net value of approximately $14.9 million has been assigned to approximately 1.1 million Phoenix stock options assumed by Apache and not exercised immediately after closing that may be exercised in the future. The value for the Apache shares issued and for the unexercised Phoenix stock options equates to a total of approximately $331.9 million based on a price of $26.00 per Apache common share. In addition, approximately $64.5 million in net cash was paid to Phoenix stockholders and to directors and employees exercising their stock options. The purchase price, as described above, before consideration of transaction costs and a deferred tax liability adjustment required by accounting rules, totals approximately $396.3 million. Of this total, approximately $54 million has been allocated to pipelines and facilities, $160 million to proved properties, $61 million to unproved properties, $99 million to international concession rights, with the remaining value attributable to working capital and miscellaneous assets. International concession rights include the estimated value attributable to approximately 7 9 APACHE CORPORATION AND SUBSIDIARIES NOTES TO UNAUDITED PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (CONTINUED) 50 drilling prospects identified to date on 4.3 million gross acres on the Qarun and Khalda concessions in Egypt. Under features of the production sharing contracts, costs incurred to explore and develop will be reimbursable through increased future production sharing ratios. NOTE 2 -- PRO FORMA ADJUSTMENTS The unaudited pro forma condensed statements of consolidated income reflect the following adjustments. (a) Record incremental depreciation, depletion and amortization expense based on the purchase price allocation, and using a combined units-of-production rate for Egyptian properties and a 20-year straight-line method for facilities and pipelines. (b) Record capitalized interest relating to approximately $173 million of unevaluated properties, including international concession rights, assuming interest rates of 6.87 percent and 6.33 percent for the year ended December 31, 1995 and for the three months ended March 31, 1996, respectively. (c) Record interest expense on debt incurred with respect to the cash consideration paid to Phoenix stockholders, assuming interest rates of 6.87 percent for the year ended December 31, 1995 and 6.33 percent for the three months ended March 31, 1996. (d) Reclassification of Phoenix's interest income from revenues to financing costs, net, to conform to Apache's presentation. 8 10 APACHE CORPORATION AND SUBSIDIARIES NOTES TO UNAUDITED PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (CONTINUED) (e) Eliminate non-recurring expenses recorded by Phoenix in the first quarter of 1996 relating to the Merger. (f) Adjust tax provision and the related Phoenix Egyptian tax gross-up to reflect pro forma adjustments (a), (b), (c) and (e). (g) Increase Apache's weighted average shares outstanding by approximately 12,190,000 shares to reflect Apache shares issued at and immediately after closing. The effect of common stock equivalents associated with unexercised Phoenix stock options, along with all other Apache common stock equivalent shares, were insignificant for the periods presented. The unaudited consolidated condensed pro forma balance sheet reflects the following adjustments: (h) Record the consideration issued totaling $396.3 million, consisting of approximately 12,190,000 shares of Apache Common Stock valued at $26 per share, $14.9 million of net value associated with unexercised Phoenix stock options, and $64.5 million cash, and the related debt incurred. (i) Record estimated severance and other costs relating to the merger. (j) Record SFAS No. 109 deferred tax liability for the book basis in excess of tax basis after adjustment for assumed utilization of Phoenix net operating loss carryforwards and foreign tax credits. (k) Eliminate historical Phoenix stockholders' equity. (l) Record Apache Common Stock issuance costs. 9 11 (c) EXHIBITS EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1 Agreement and Plan of Merger among Registrant, YPY and Phoenix dated March 27, 1996 (incorporated by reference to Exhibit 99.1 to Registrant's Current Report on Form 8-K, dated March 27, 1996, SEC File No. 1-4300). 3.1* Bylaws of Registrant, As Amended July 11, 1996; Effective as of May 2, 1996. 23.1* Consent of Arthur Andersen LLP 99.1 Press Release, dated March 28, 1996, "Apache and Phoenix to Merge" (incorporated by reference to Exhibit 99.2 to Registrant's Current Report on Form 8-K, dated March 27, 1996, SEC File No. 1-4300). 99.2 Press Release, dated May 20, 1996, "Apache and Phoenix Complete Merger" (incorporated by reference to Exhibit 99.2 to Registrant's Current Report on Form 8-K, dated May 20, 1996, SEC File No. 1-4300). 99.3* Seventh Amendment to the Third Amended and Restated Credit Agreement, dated as of May 8, 1996, among the Registrant, the Lenders named therein, and The First National Bank of Chicago, as Administrative Agent and Arranger, and Chemical Bank, as Co-Agent and Arranger. 99.4 The audited consolidated balance sheet of Phoenix and subsidiaries as of December 31, 1995 and 1994, and the related consolidated statements of income, stockholders' equity and cash flows for each of the three years ended December 31, 1995, 1994 and 1993, together with the related notes to consolidated financial statements and the report of independent accountants (incorporated by reference to the Phoenix Annual Report on Form 10-K for the year ended December 31, 1995, SEC File No. 1-547). 99.5 The unaudited consolidated balance sheet of Phoenix and subsidiaries as of March 31, 1996, and the related consolidated statements of income and cash flows for the fiscal quarters ended March 31, 1996 and 1995, together with the related notes to consolidated financial statements (incorporated by reference to the Phoenix Quarterly Report on Form 10-Q for the quarter ended March 31, 1996, SEC File No. 1-547). - ------------------- *filed herewith 10 12 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 on Form 8-K/A to be signed on its behalf by the undersigned thereunto duly authorized. APACHE CORPORATION Date: July 18, 1996 /s/ Thomas L. Mitchell ----------------------------------------- Thomas L. Mitchell Controller and Chief Accounting Officer /s/ Z. S. Kobiashvili ----------------------------------------- Z. S. Kobiashvili Vice President and General Counsel 13 INDEX TO EXHIBITS EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1 Agreement and Plan of Merger among Registrant, YPY and Phoenix dated March 27, 1996 (incorporated by reference to Exhibit 99.1 to Registrant's Current Report on Form 8-K, dated March 27, 1996, SEC File No. 1-4300). 3.1* Bylaws of Registrant, As Amended July 11, 1996; Effective as of May 2, 1996. 23.1* Consent of Arthur Andersen LLP 99.1 Press Release, dated March 28, 1996, "Apache and Phoenix to Merge" (incorporated by reference to Exhibit 99.2 to Registrant's Current Report on Form 8-K, dated March 27, 1996, SEC File No. 1-4300). 99.2 Press Release, dated May 20, 1996, "Apache and Phoenix Complete Merger" (incorporated by reference to Exhibit 99.2 to Registrant's Current Report on Form 8-K, dated May 20, 1996, SEC File No. 1-4300). 99.3* Seventh Amendment to the Third Amended and Restated Credit Agreement, dated as of May 8, 1996, among the Registrant, the Lenders named therein, and The First National Bank of Chicago, as Administrative Agent and Arranger, and Chemical Bank, as Co-Agent and Arranger. 99.4 The audited consolidated balance sheet of Phoenix and subsidiaries as of December 31, 1995 and 1994, and the related consolidated statements of income, stockholders' equity and cash flows for each of the three years ended December 31, 1995, 1994 and 1993, together with the related notes to consolidated financial statements and the report of independent accountants (incorporated by reference to the Phoenix Annual Report on Form 10-K for the year ended December 31, 1995, SEC File No. 1-547). 99.5 The unaudited consolidated balance sheet of Phoenix and subsidiaries as of March 31, 1996, and the related consolidated statements of income and cash flows for the fiscal quarters ended March 31, 1996 and 1995, together with the related notes to consolidated financial statements (incorporated by reference to the Phoenix Quarterly Report on Form 10-Q for the quarter ended March 31, 1996, SEC File No. 1-547). - ------------------- *filed herewith EX-3.1 2 BYLAWS OF REGISTRANT 1 EXHIBIT 3.1 BYLAWS OF APACHE CORPORATION (AS AMENDED JULY 11, 1996; EFFECTIVE AS OF MAY 2, 1996) ARTICLE I. NAME OF CORPORATION The name of the corporation is Apache Corporation. ARTICLE II. OFFICES SECTION 1. The principal office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware, and the name of its resident agent in charge thereof is The Corporation Trust Company. SECTION 2. The corporation may have such other offices either within or without the State of Delaware as the board of directors may designate or as the business of the corporation may from time to time require. ARTICLE III. SEAL The corporate seal shall have inscribed upon it the name of the corporation and other designations as the board of directors from time to time determine. There may be alternate seals of the corporation. Page 1 2 ARTICLE IV. MEETINGS OF STOCKHOLDERS SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders of the corporation shall be held at the office of the corporation in the City of Houston, Texas, or at any other place within or without the State of Delaware that shall be stated in the notice of the meeting. SECTION 2. ANNUAL MEETINGS. The annual meeting of stockholders of the corporation shall be held at the place and time within or without the State of Delaware that may be designated by the board of directors, on the first Thursday in May in each year if not a legal holiday, and if a legal holiday, then at the same time on the next succeeding business day for the purpose of electing directors and for the transaction of any other business that may properly come before the meeting. SECTION 3. SPECIAL MEETINGS OF THE STOCKHOLDERS. Special meetings of the stockholders of the corporation, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the chairman of the board and shall be called by the chairman of the board or secretary at the request in writing of a majority of the board of directors. The request shall state the purpose or purposes of the proposed meeting. SECTION 4. NOTICE OF MEETING. Written or printed notice stating the place, day and hour of the meeting and in the case of special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than 50 days before the date of the meeting either personally, by mail or other lawful means by or at the direction of the chairman of the board or the secretary to each stockholder of record entitled to vote at the meetings. If mailed, the notice shall be deemed to be delivered when deposited in the United States Postal Service, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation with postage thereon prepaid. SECTION 5. CLOSING OF TRANSFER BOOKS FOR FIXING OF RECORD DATE. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or adjournment thereof, the board of directors may close the stock transfer books of the corporation for a period not exceeding 50 days preceding the date of any meeting of stockholders. In lieu of closing the stock transfer books, the board of directors may fix in advance a date, not exceeding 50 days preceding the date of any meeting of stockholders, as a record date for the determination of the stockholders entitled to notice of and to vote at the meeting and any adjournment thereof, and only the stockholders as shall be stockholders of record on the date so fixed shall be entitled to the notice of and to vote at the meeting and any adjournment thereof. SECTION 6. VOTING LISTS. The officer or agent having charge of the stock transfer books for shares of the corporation shall prepare and make, at least ten days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in Page 2 3 alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The list shall be open to the examination of any stockholder during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the election is to be held and which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held, and the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and subject to the inspection of any stockholder who may be present. Upon the willful neglect or refusal of the board of directors of the corporation to produce a list at any meeting of the stockholders at which an election is to be held in accordance with this Section 6, they shall be ineligible to hold any office at such election. SECTION 7. VOTING RIGHTS. At each meeting of the stockholders of the corporation, every stockholder having the right to vote thereat shall be entitled to vote in person or by proxy, but no proxy shall be voted after three years from its date unless the proxy provides for a longer period. Except as otherwise provided by law or the Certificate of Incorporation, each stockholder shall have one vote for each share of stock having voting power registered in his name. The vote at an election for directors, and upon the demand of any stockholder, the vote upon any question before a meeting of the stockholders, shall be by written ballot. All elections shall be had and all questions decided by a plurality vote except where by statute, by provision in the Certificate of Incorporation or these bylaws it is otherwise provided. Prior to any meeting, but subsequent to the date fixed by the board of directors pursuant to Section 5 of Article IV of these bylaws, any proxy may submit his proxy to the secretary for examination. The certificate of the secretary as to the regularity of the proxy and as to the number of shares held by the persons who severally and respectively executed such proxies shall be received as prima facie evidence of the number of shares represented by the holder of the proxy for the purpose of establishing the presence of a quorum at the meeting and of organizing the same. SECTION 8. QUORUM. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, initially present in person or represented by proxy, shall be requisite, and shall constitute a quorum of all meetings of the stockholders for the transaction of business except as otherwise provided by law, by the Certificate of Incorporation, or by these bylaws. If, however, a majority shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice, other than announcement at the meeting, until the requisite amount of voting stock shall be present. At the adjourned meeting at which the requisite amount of voting stock shall be represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 9. INSPECTORS. At each meeting of the stockholders, the polls shall be opened and closed. The proxies and the ballots shall be received and taken in charge and all questions touching the qualifications of voters and the validity of proxies and the acceptance or rejection of votes shall be decided by three inspectors. The inspectors shall be appointed by the board of directors before or at the meeting, or if no appointment shall have been made, then by the Page 3 4 presiding officer at the meeting. If, for any reason any of the inspectors previously appointed shall fail to attend or refuse or be unable to serve, inspectors in place of any so failing to attend or refusing or unable to serve shall be appointed in like manner. SECTION 10. WAIVER OF NOTICE. Whenever any notice whatever is required to be given pursuant to the provisions of a statute, the Certificate of Incorporation or these bylaws of the corporation, a waiver thereof in writing signed by the person or persons entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent thereto. SECTION 11. STOCKHOLDER ACTION. Any action required or permitted to be taken by the stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing by stockholders. SECTION 12. NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting of the stockholders, only business shall be conducted that has been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the board of directors, (b) otherwise properly brought before the meeting by or at the direction of the board of directors, or (c) otherwise properly brought before the meeting by a stockholder, which stockholder must have given timely notice thereof in writing to the secretary of the corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation, not less than 60 days nor more than 90 days prior to the meeting; provided, however, that in the event that less than 70 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely, must be so received not later than the close of business on the tenth day following the day on which the notice of the date of the annual meeting was mailed or public disclosure was made. A stockholder's notice to the secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (w) a brief description of the business desired to be brought before the annual meeting, (x) the name and address, as they appear on the corporation's books, of the stockholder proposing the business, (y) the class and number of shares of the corporation which are beneficially owned by the stockholder, and (z) any material interest of the stockholder in the business. Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 12. The chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section 12, and if he should so determine, he shall so declare to the meeting and any business not properly brought before the meeting shall not be transacted. This section sets forth only the procedure by which business may be properly brought before an annual meeting of stockholders and does not in any way grant additional rights to stockholders beyond those currently afforded them by law. Page 4 5 SECTION 13. NOTICE OF STOCKHOLDER NOMINEES. Only persons who are nominated in accordance with the procedures set forth in this Section 13 shall be eligible for election as directors. Nominations of persons for election to the board of directors of the corporation may be made at a meeting of stockholders, by or at the direction of the board of directors or by any stockholder of the corporation entitled to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 13. Any nominations, other than those made by or at the direction of the board of directors, shall be made pursuant to timely notice in writing to the secretary of the corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than 60 days nor more than 90 days prior to the meeting; provided, however, that in the event that less than 70 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the tenth day following the day on which the notice of the date of the meeting was mailed or public disclosure was made. The stockholder's notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of the corporation which are beneficially owned by the person, and (iv) any other information relating to the person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including without limitation the person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected); and (b) as to the stockholder giving the notice (i) the name and address, as they appear on the corporation's books, of the stockholder and (ii) the class and number of shares of the corporation which are beneficially owned by the stockholder. At the request of the board of directors, any person nominated by the board of directors for election as a director shall furnish to the secretary of the corporation that information required to be set forth in a stockholder's notice of nomination which pertains to the nominee. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth in this Section 13. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by these bylaws, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. This section sets forth only the procedure by which nominations for directors may be made and does not in any way grant additional rights to stockholders beyond those currently afforded them by law. ARTICLE V. DIRECTORS SECTION 1. GENERAL POWERS. The property, business and affairs of the corporation shall be managed by its board of directors which may exercise all powers of the corporation and do all lawful acts and things as are not by statute or by the Certificate of Incorporation or by these bylaws directed or required to be exercised or done by the stockholders. Page 5 6 SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The board of directors shall consist of not less than seven nor more than 13 members. The directors shall be elected in the manner set forth in Article Ninth of the Certificate of Incorporation of the corporation. The term of office of directors shall be three years except as provided in Article Ninth of the Certificate of Incorporation of the corporation. Directors need not be stockholders or residents of the State of Delaware. SECTION 3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Any vacancies on the board of directors or any newly created directorships shall be filled by the board of directors in the manner set forth in Article Ninth of the Certificate of Incorporation of the corporation. If the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any increase therein), then upon application, any stockholder or stockholders holding at least ten percent of the total number of shares of the capital stock of the corporation at the time outstanding having the right to vote for directors may require the board of directors to call a special meeting of the stockholders for the purpose of electing directors to fill the vacancy or vacancies or newly created directorships or to replace the director or directors chosen by the directors then in office as aforesaid. The person or persons elected at a special meeting of the stockholders shall serve as director or as directors until the next annual meeting of stockholders and until their successors are duly elected and qualified and shall displace any person or persons who may theretofore have been appointed by the directors then in office as aforesaid. SECTION 4. CATASTROPHE. During any emergency period following a national catastrophe due to enemy attack, or act of God, a majority of the surviving members of the board who have not been rendered incapable of acting due to physical or mental incapacity or due to the difficulty of transportation to the place of the meeting shall constitute a quorum for the purpose of filling vacancies on the board of directors and among the elected and appointed officers of the corporation. SECTION 5. PLACE OF MEETINGS. The directors of the corporation may hold their meetings, both regular and special, at a place or places within or without the State of Delaware that the board of directors may from time to time determine. SECTION 6. FIRST MEETING. The first meeting of the board of directors following the annual meeting of stockholders shall be held at the time and place that shall be fixed by the chairman of the board and shall be called in the same manner as a special meeting. SECTION 7. REGULAR MEETINGS. Regular meetings of the board of directors may be held without notice at the time and place that shall from time to time be determined by the board of directors. Page 6 7 SECTION 8. SPECIAL MEETINGS. Special meetings of the board of directors may be called by the chairman of the board on three days notice to each director, either personally or by mail, by telegram, or by facsimile or other lawful means; special meetings of the board of directors shall be called by the chairman of the board or secretary in like manner and upon like notice upon the written request of two directors. SECTION 9. QUORUM. At all meetings of the board of directors, a majority of the directors shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting, at which there is a quorum present, shall be the act of the board of directors, except as may be otherwise specifically provided by statute, the Certificate of Incorporation or by these bylaws. If at any meeting of the board of directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time without notice, other than by announcement at the meeting, until a sufficient number of directors to constitute a quorum shall attend. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the original meeting as originally notified. SECTION 10. BUSINESS TO BE CONDUCTED. Unless otherwise indicated in the notice, any and all business may be transacted at a regular or special meeting of the board of directors. In the event a special meeting of the board of directors is held without notice, any and all business may be transacted at the meeting provided all directors are present. SECTION 11. ORDER OF BUSINESS. At all meetings of the board of directors, business shall be transacted in the order that from time to time the board may determine by resolution. At all meetings of the board of directors the chairman of the board or in his absence the vice chairman shall preside. In the absence of the chairman and vice chairman of the board, the directors present shall elect any director as chairman of the meeting. SECTION 12. COMPENSATION OF DIRECTORS. Directors of the corporation shall receive the compensation for their services that the board of directors may from time to time determine and all directors shall be reimbursed for their expenses of attendance at each regular or special meeting of the board or any committee thereof. SECTION 13. COMMITTEES. The board of directors may by resolution passed by a majority of the board, in addition to the executive committee, designate one or more committees. Each such committee shall consist of one or more of the directors of the corporation, such number to be set by resolution of the board of directors, or as otherwise provided in Section 14 below. Any committee, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. Any committee or committees shall have the name or names that may be determined from time to time by resolution adopted by the board of directors. Other than for a committee of one director, the chairman of the board shall be an ex officio member of any board committee except the audit Page 7 8 committee, the management development and compensation committee, and the stock option plan committee. SECTION 14. EXECUTIVE COMMITTEE. A. MEMBERS. The executive committee shall consist of such number of directors as set by resolution of the board of directors, with a minimum of four members, and shall include the chairman and vice chairman of the board as ex officio members, together with the other members of the board of directors, as may be the case, designated by the board of directors. B. TERM OF OFFICE. Each of the elected members of the executive committee shall be elected for a one year term and shall serve until his successor shall have been duly elected and qualified. C. ELECTION. The election of members of the executive committee shall be held each year at the first meeting of the board of directors following the annual meeting of stockholders. Should a member of the executive committee for any reason be unable to serve for the term to which he was elected, the vacancy shall be filled by the board of directors at its next meeting following the occurrence of such vacancy. D. COMPENSATION. Each member of the executive committee shall receive the compensation that the board of directors shall from time to time determine and shall be reimbursed for their expenses of attendance at regular or special meetings. E. CHAIRMAN AND SECRETARY OF THE EXECUTIVE COMMITTEE. The chairman and secretary of the executive committee shall be elected by members of the executive committee. F. MEETINGS. Regular meetings of the executive committee may be held without call or notice of the time and place that the executive committee determines. Special meetings of the executive committee may be called by any member, either personally or by mail, by telegram, by facsimile or other lawful means forwarded not later than 48 hours prior to the date and time set forth for the meeting. Upon request of any member, the secretary of the corporation shall give the required notice calling the meeting. G. QUORUM. At any meeting of the executive committee, a majority of the committee members shall constitute a quorum. Any action of the executive committee to be effective must be authorized by the affirmative votes of a majority of committee members. H. RULES. The executive committee shall fix its own rules of procedure, provided the same do not contravene the provisions of the law, the Certificate of Incorporation or these bylaws. Page 8 9 I. AUTHORITY AND RESPONSIBILITY. (a) The executive committee is vested with the authority to exercise the full power of the board of directors, within the policies established by the board of directors to govern the conduct of the business of the corporation, in the intervals between meetings of the board of directors. (b) The executive committee, in addition to the general authority vested in it, may be vested with other specific powers and authority by resolution of the board of directors. J. REPORTS. All action by the executive committee shall be reported to the board of directors at its meeting next succeeding the action, and shall be subject to revision or alteration by the board of directors; provided, however, that no rights or acts of third parties shall be affected by any such revision or alteration. SECTION 15. AUDIT COMMITTEE. A. MEMBERS. The audit committee shall include only outside directors of the corporation. B. TERM OF OFFICE. Each of the elected members of the audit committee shall be elected for a one year term and shall serve until a successor shall have been duly elected and qualified. C. ELECTION. The election of members of the audit committee shall be held each year at the first meeting of the board of directors following the annual meeting of stockholders. Should a member of the audit committee for any reason be unable to serve for the term to which he was elected, the vacancy shall be filled by the board of directors at its next meeting. D. COMPENSATION. Each member of the audit committee shall receive the compensation the board of directors determines and shall be reimbursed for their expenses for attendance at regular or special meetings. E. CHAIRMAN AND SECRETARY OF THE AUDIT COMMITTEE. The chairman and secretary of the audit committee shall be elected by the members of the audit committee. F. MEETINGS. Regular meetings of the audit committee may be held without call or notice of the time and place that the audit committee determines. Special meetings of the audit committee may be called by any member, either personally or by mail, by telegram, by facsimile or other lawful means forwarded not later than 48 hours prior to the date and time set forth for the meeting. Upon request of any member, the secretary of the corporation shall give the required notice calling the meeting. Page 9 10 G. QUORUM. At any meeting of the audit committee, a majority of committee members shall constitute a quorum. Any action of the audit committee to be effective must be authorized by the affirmative votes of a majority of committee members. H. RULES. The audit committee shall determine its own rules of procedure, provided the rules do not contravene the provisions of the law, the Certificate of Incorporation or these bylaws. I. AUTHORITY AND RESPONSIBILITY. (a) The audit committee is vested with the authority to (i) review with the independent and internal auditors of the corporation their respective audit and review programs and procedures; (ii) review the corporation's financial statements; (iii) review the adequacy of the corporation's system of internal accounting controls and the scope and results of internal audit engagements, special services provided by them and related fees; and (iv) make recommendations to the board of directors regarding the independence of the independent auditors and their engagement or discharge. (b) The audit committee, in addition to the authority vested in it under subsection (a) above, may be vested with other specific powers and authority by resolution of the board of directors. J. REPORTS. All action by the audit committee shall be reported to the board of directors at its next meeting, and shall be subject to revision or alteration by the board of directors. SECTION 16. MANAGEMENT DEVELOPMENT AND COMPENSATION COMMITTEE A. MEMBERS. The management development and compensation committee shall include only outside directors of the corporation. B. TERM OF OFFICE. Each of the elected members of the management development and compensation committee shall be elected for a one year term and shall serve until a successor shall have been duly elected and qualified. C. ELECTION. The election of members of the management development and compensation committee shall be held each year at the first meeting of the board of directors following the annual meeting of stockholders. Should a member of the management development and compensation committee for any reason be unable to serve for the term to which he was elected, the vacancy shall be filled by the board of directors at its next meeting. D. COMPENSATION. Each member of the management development and compensation committee shall receive the compensation the board of directors determines and shall be reimbursed for their expenses for attendance at regular or special meetings. Page 10 11 E. CHAIRMAN AND SECRETARY OF THE MANAGEMENT DEVELOPMENT AND COMPENSATION COMMITTEE. The chairman and secretary of the management development and compensation committee shall be elected by the members of the management development and compensation committee. F. MEETINGS. Regular meetings of the management development and compensation committee may be held without call or notice of the time and place that the management development and compensation committee determines. Special meetings of the management development and compensation committee may be called by any member, either personally or by mail, by telegram, by facsimile or other lawful means forwarded not later than 48 hours prior to the date and time set forth for the meeting. Upon request of any member, the secretary of the corporation shall give the required notice calling the meeting. G. QUORUM. At any meeting of the management development and compensation committee, a majority of committee members shall constitute a quorum. Any action of the management development and compensation committee to be effective must be authorized by the affirmative votes of a majority of committee members. H. RULES. The management development and compensation committee shall determine its own rules of procedure, provided the rules do not contravene the provisions of the law, the Certificate of Incorporation or these bylaws. I. AUTHORITY AND RESPONSIBILITY. The management development and compensation committee has two principal responsibilities: (a) to monitor the corporation's management resources, structure, succession planning, development, and selection process, and the performance of key executives; (b) to review and approve executive compensation and changes; and (c) to make such reports on executive compensation as appropriate or required. The management development and compensation committee also serves as the committee administering all incentive compensation plans other than the corporation's stock option plans. J. REPORTS. All action by the management development and compensation committee shall be reported to the board of directors at its next meeting, and shall be subject to revision or alteration by the board of directors. SECTION 17. STOCK OPTION PLAN COMMITTEE A. MEMBERS. The stock option plan committee shall include only directors of the corporation who qualify as "outside directors" pursuant to Section 162(m) or any successor Page 11 12 section(s) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder. B. TERM OF OFFICE. Each of the elected members of the stock option plan committee shall be elected for a one year term and shall serve until a successor shall have been duly elected and qualified. C. ELECTION. The election of members of the stock option plan committee shall be held each year at the first meeting of the board of directors following the annual meeting of stockholders. Should a member of the stock option plan committee for any reason be unable to serve for the term to which he was elected, the vacancy shall be filled by the board of directors at its next meeting. D. COMPENSATION. Each member of the stock option plan committee shall receive the compensation the board of directors determines and shall be reimbursed for their expenses for attendance at regular or special meetings. E. CHAIRMAN AND SECRETARY OF THE STOCK OPTION PLAN COMMITTEE. The chairman and secretary of the stock option plan committee shall be elected by the members of the stock option plan committee. F. MEETINGS. Regular meetings of the stock option plan committee may be held without call or notice of the time and place that the stock option plan committee determines. Special meetings of the stock option plan committee may be called by any member, either personally or by mail, by telegram, by facsimile or other lawful means forwarded not later than 48 hours prior to the date and time set forth for the meeting. Upon request of any member, the secretary of the corporation shall give the required notice calling the meeting. G. QUORUM. At any meeting of the stock option plan committee, a majority of committee members shall constitute a quorum, provided that such quorum shall not be less than two members. Any action of the stock option plan committee to be effective must be authorized by the affirmative votes of a majority of committee members. H. RULES. The stock option plan committee shall determine its own rules of procedure, provided the rules do not contravene the provisions of the law, the Certificate of Incorporation or these bylaws. I. AUTHORITY AND RESPONSIBILITY. The stock option plan committee has two principal responsibilities: (a) to monitor and report on the corporation's stock option plans; and (b) to establish any performance goals under which compensation in the form of stock option grants is paid to employees of the corporation, and to make such grants Page 12 13 of stock options, in the discretion of the stock option plan committee, on the terms and conditions set forth in the option plans or otherwise established by the stock option plan committee. J. REPORTS. All action by the stock option plan committee shall be reported to the board of directors at its next meeting, and is subject to ratification by the board of directors. SECTION 18. NOMINATING COMMITTEE. A. MEMBERS. The nominating committee may consist of any of the members of the board of directors. B. TERM OF OFFICE. Each of the elected members of the nominating committee shall be elected for a one year term and shall serve until a successor shall have been duly elected and qualified. C. ELECTION. The election of members of the nominating committee shall be held each year at the first meeting of the board of directors following the annual meeting of stockholders. Should a member of the nominating committee for any reason be unable to serve for the term to which he was elected, the vacancy shall be filled by the board of directors at its next meeting. D. COMPENSATION. Each member of the nominating committee shall receive the compensation the board of directors determines and shall be reimbursed for their expenses for attendance at regular or special meetings. E. CHAIRMAN AND SECRETARY OF THE NOMINATING COMMITTEE. The chairman and secretary of the nominating committee shall be elected by the members of the nominating committee. F. MEETINGS. Regular meetings of the nominating committee may be held without call or notice of the time and place that the nominating committee determines. Special meetings of the nominating committee may be called by any member, either personally or by mail, by telegram, by facsimile or other lawful means forwarded not later than 48 hours prior to the date and time set forth for the meeting. Upon request of any member, the secretary of the corporation shall give the required notice calling the meeting. G. QUORUM. At any meeting of the nominating committee, a majority of committee members shall constitute a quorum. Any action of the nominating committee to be effective must be authorized by the affirmative votes of a majority of committee members. H. RULES. The nominating committee shall determine its own rules of procedure, provided the rules do not contravene the provisions of the law, the Certificate of Incorporation or these bylaws. Page 13 14 I. AUTHORITY AND RESPONSIBILITY. (a) The nominating committee is vested with the authority and responsibility to (i) recommend to the board of directors criteria for selection of candidates to serve on the board of directors; (ii) recommend to the board of directors qualified candidates to fill any newly created directorships or vacancies on the board of directors which occur between annual meetings of stockholders without regard to race, sex, age, religion or physical disability; (iii) recommend candidates for election to the committees of the board of directors; (iv) periodically review, assess, and make recommendations to the board of directors with regard to the size and composition of the board of directors, and its evaluation of incumbent directors; (v) cause the names of all director candidates that are approved by the board of directors to be listed in the corporation's proxy materials and support the election of all candidates so nominated by the board of directors to the extent permitted by law; (vi) evaluate and recommend to the board of directors potential candidates to serve in the future on the board of directors to assure the continuity and succession of the board of directors; and (vii) otherwise aid in attracting qualified candidates to the board of directors. (b) Only candidates recommended by the nominating committee shall be eligible for nomination by the board of directors for election, or to fill a vacancy or any newly created directorship, but if the board does not approve one or more of the candidates recommended by the nominating committee, the nominating committee shall submit a recommendation of other candidates. If for any reason the nominating committee shall fail to act or determines not to make a recommendation, the board of directors shall fill any vacancy or newly created directorship in the manner that it deems appropriate. (c) The nominating committee, in addition to the authority vested in it under subsections (a) and (b) above, shall have all additional powers necessary to carry out its responsibilities, and may be vested with other specific powers and authority by resolution of the board of directors. J. REPORTS. All action by the nominating committee shall be reported to the board of directors at its next meeting, and shall be subject to revision or alteration by the board of directors. K. RIGHTS OF STOCKHOLDERS. Nothing in this Section 18 shall affect or restrict the right of any stockholder to nominate any person for election as a director where such nomination is otherwise authorized by law and made in accordance with Section 13 of Article IV of these bylaws. SECTION 19. ELECTION OF OFFICERS. At the first meeting of the board of directors in each year, at which a quorum shall be present, following the annual meeting of the stockholders of the corporation, the board of directors shall proceed to the election of the officers of the corporation, except regional officers who are subject to appointment in accordance with Section 19 of Article VI of these bylaws. Page 14 15 SECTION 20. ACTION WITHOUT MEETING. Any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if prior to the action a written consent thereto is signed by all members of the board of directors or of the committee, as the case may be, and such written consent is filed with the minutes of the proceedings of the board of directors or committee. SECTION 21. WAIVER OF NOTICE. Whenever any notice whatever is required to be given pursuant to the provisions of a statute, the Certificate of Incorporation or these bylaws of the corporation, a waiver thereof in writing signed by the person or persons entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VI. OFFICERS SECTION 1. OFFICERS. The officers of the corporation shall be a chairman of the board, vice chairman of the board, president, one or more executive vice presidents, one or more senior vice presidents, one or more vice presidents, secretary, treasurer, controller and such assistant vice presidents, assistant secretaries, assistant treasurers and assistant controllers as the board of directors may provide for and elect. The chairman of the board and the vice chairman of the board shall be members of the board of directors. Any two or more offices may be held by the same person. The board of directors may appoint such other officers as they shall deem necessary, who shall have the authority and shall perform the duties that from time to time may be prescribed by the board of directors. In its discretion, the board of directors by a vote of a majority thereof may leave unfilled for any period that it may fix by resolution any office except those of president, treasurer and secretary. SECTION 2. ELECTION. The board of directors at their first meeting after each annual meeting of the stockholders or at any regular or special meeting shall elect, as may be required, a chairman of the board, vice chairman of the board, president, and one or more executive vice presidents, senior vice presidents, vice presidents, a secretary, treasurer, controller, and assistant vice presidents, assistant secretaries, assistant treasurers, and assistant controllers. SECTION 3. TENURE. The officers of the corporation elected by the board of directors shall hold office for one year and until their successors are chosen and qualify in their stead. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. SECTION 4. SALARIES. The salaries of the officers of the corporation shall be recommended by the management development and compensation committee and approved by the board of directors. Page 15 16 SECTION 5. VACANCIES. If the office of any officer of the corporation becomes vacant by reason of death, resignation, disqualification or otherwise, the directors by a majority vote, may choose his successor or successors. SECTION 6. RESIGNATION. Any officer may resign his office at any time, such resignation to be made in writing and take effect at the time of receipt by the corporation, unless some time be fixed in the resignation and then from that time. The acceptance of a resignation shall not be required to make it effective. SECTION 7. DELEGATION OF DUTIES. Duties of officers may be delegated in case of the absence of any officer of the corporation or for any reason that the board of directors may deem sufficient. The board of directors may delegate the powers or duties of the officer to any other officer or to any director, except as otherwise provided by statute, for the time being, provided a majority of the entire board of directors concurs therein. SECTION 8. CHAIRMAN OF THE BOARD. The chairman of the board shall be the chief executive officer and shall have, subject to the direction of the board of directors, general control and management of the corporation's business and affairs and shall see that all the policies and resolutions of the board of directors are carried into effect, subject, however, to the right of the board of directors to delegate any specific powers, except such as may be by statute exclusively conferred on the president, to any other officer or officers of the corporation. He shall preside at all meetings of stockholders and the board of directors at which he may be present. SECTION 9. VICE CHAIRMAN OF THE BOARD. The vice chairman shall preside at all meetings of the board of directors and stockholders from which the chairman of the board may be absent, and shall perform such other duties that shall be specifically assigned to him from time to time by the board of directors or the chairman of the board. SECTION 10. PRESIDENT. The president shall be the chief operating officer and shall perform those duties that shall be specifically assigned to him from time to time by the board of directors. In the absence of the chief executive officer or in the event of his death, inability or refusal to act, the president shall perform the duties of the chief executive officer, and when so acting shall have the powers of and be subject to all the restrictions upon the chief executive officer. SECTION 11. EXECUTIVE VICE PRESIDENTS, SENIOR VICE PRESIDENTS, AND VICE PRESIDENTS. In the absence of the president or in the event of his death, inability or refusal to act, the senior executive vice president present shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. In the absence of the president and all executive or senior vice presidents, or in the event of their deaths, inability or refusal to act, a vice president designated by the board of directors, or in case the board of directors has failed to act, designated by the chief executive officer, shall perform the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president. The executive vice presidents, the senior vice presidents, and all Page 16 17 other vice presidents shall perform those duties consistent with these bylaws and that may be specifically designated by the president or by the board of directors. SECTION 12. ASSISTANT VICE PRESIDENTS. The assistant vice presidents shall perform those duties, not inconsistent with these bylaws, the Certificate of Incorporation or statute, that may be specifically designated by the board of directors or the president. In the absence of the executive vice presidents, senior vice presidents, or vice presidents, an assistant vice president (or in the event there be more than one assistant vice president, the assistant vice presidents in the order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall perform the duties of the executive vice presidents, senior vice presidents or vice presidents, and when so acting, shall have all the powers of and be subject to all restrictions upon the executive vice presidents, the senior vice presidents, and vice presidents. SECTION 13. SECRETARY. The secretary shall attend and keep all the minutes of all meetings of the board of directors and all meetings of the stockholders and, when requested by the board of directors, of any committees of the board of directors. He shall give, or cause to be given, notice of all meetings of the stockholders and board of directors and when so ordered by the board of directors, shall affix the seal of the corporation thereto; he shall have charge of all of those books and records that the board of directors may direct, all of which shall, at all reasonable times, be open to the examination of any director at the office of the corporation during business hours; he shall, in general, perform all of the duties incident to the office of secretary subject to the control of the board of directors or of the president, under whose supervision he shall be, and shall do and perform any other duties that may from time to time be assigned to him by the board of directors. SECTION 14. ASSISTANT SECRETARIES. In the absence of the secretary or in the event of his death, inability or refusal to act, the assistant secretary (or in the event there be more than one assistant secretary, the assistant secretaries in the order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall perform the duties of the secretary, and when so acting shall have all the powers of and be subject to all the restrictions upon the secretary and shall perform any other duties that may from time to time be assigned to him by the board of directors, the president or the secretary. SECTION 15. TREASURER. The treasurer shall have custody of and be responsible for all funds and securities of the corporation, receive and give receipts for money due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in those banks or depositories that shall be selected and designated by the board of directors and shall in general perform all of the duties incident to the office of treasurer and any other duties that may be assigned to him by the president or by the board of directors. If required by the board of directors, the treasurer shall give bond for the faithful discharge of his duties in the sum and with the surety or sureties as the board of directors shall determine. SECTION 16. ASSISTANT TREASURERS. In the absence of the treasurer or in the event of his death, inability or refusal to act, the assistant treasurer (or in the event there be more than one assistant treasurer, the assistant treasurers in the order designated at the time of their Page 17 18 election, or in the absence of any designation, then in the order of their election) shall perform the duties of the treasurer and when so acting shall have all the powers and be subject to all the restrictions upon the treasurer, and shall perform any other duties that from time to time may be assigned to him by the president, treasurer or the board of directors. The assistant treasurers shall, if required by the board of directors, give bonds for the faithful discharge of their duties in the sums and with the surety or sureties that the board of directors shall determine. SECTION 17. CONTROLLER. The controller shall maintain adequate records of all assets, liabilities and transactions of the corporation; see that adequate audits thereof are currently and regularly made; and, in conjunction with other officers and department heads, initiate and enforce measures and procedures whereby the business of the corporation shall be conducted with the maximum safety, efficiency and economy. Except as otherwise determined by the board of directors, or lacking a determination by the board of directors, then by the president, his duties and powers shall extend to all subsidiary corporations and, so far as may be practicable, to all affiliate corporations. He shall have any other powers and perform other duties that may be assigned to him by the president or by the board of directors. If required by the board of directors, the controller shall give bond for the faithful discharge of his duties in the sum and with the surety or sureties as the board of directors shall determine. SECTION 18. ASSISTANT CONTROLLERS. In the absence of the controller or in the event of his death, inability or refusal to act, the assistant controller (or in the event there be more than one assistant controller, the assistant controllers, in the order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall perform the duties of the controller and when so acting shall have all the powers and be subject to all the restrictions upon the controller, and shall perform any other duties that from time to time may be assigned to him by the president, controller or the board of directors. The assistant controllers shall, if required by the board of directors, give bonds for the faithful discharge of their duties in the sums and with the surety or sureties that the board of directors shall determine. Page 18 19 SECTION 19. REGIONAL VICE PRESIDENTS. A. ELECTION. One or more regional vice presidents may be appointed by the chairman of the board, or the authority for such appointments may be delegated by the chairman of the board to the president of the corporation. B. TENURE. The regional vice presidents appointed by the chairman of the board or the president of the corporation shall hold office for one year and until their successors are chosen and qualify in their stead. Any regional vice president so appointed may be removed at any time by the chairman of the board or the president of the corporation. C. DUTIES. The regional vice presidents shall do and perform those duties that shall from time to time be specifically designated or assigned by the chairman of the board or the president of the corporation; however, the regional vice presidents shall not perform "policy-making functions" as defined pursuant to Section 16 or any successor section(s) of the Securities Exchange Act of 1934, as amended, and shall be deemed not to be subject to such Section 16 and the rules and regulations promulgated thereunder. ARTICLE VII. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS SECTION 1. The board of directors shall indemnify any person (and that person's heirs and personal representatives) who was or is a party or is threatened or expected to be made a party to any threatened, pending or completed action, suit, arbitration or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, partner or agent of another corporation, partnership (including a partnership in which the corporation is a partner), joint venture, trust or other enterprise, against expenses (including, but not limited to, attorneys' fees, expert fees, bonds, prospective or retroactive insurance premiums or costs, litigation, appeal and court costs and out-of-pocket expenses of such person during any investigation hearing, arbitration, trial, or appeal of any such action, suit or proceeding, including any interest payable thereon), judgments, damages, arbitration awards, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, arbitration or proceeding, including any interest payable thereon, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed Page 19 20 to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. SECTION 2. The board of directors shall indemnify any person (and that person's heirs and personal representatives) who was or is a party or is threatened or expected to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, partner or agent of another corporation, partnership (including a partnership in which the corporation is a partner), joint venture, trust or other enterprise against expenses (including, but not limited to, attorneys' fees, expert fees, bonds, prospective or retroactive insurance premiums or costs, litigation, appeal and court costs, and out-of-pocket expenses of such person during any investigation, hearing, trial or appeal of any such action or suit, including any interest payable thereon), actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. SECTION 3. To the extent that a present or past director, officer, employee or agent of the corporation has been successful on the merits or otherwise in defense of any action, suit, arbitration or proceeding referred to in Sections 1 and 2, or in defense of claim, issue or matter therein, he shall be indemnified against expenses (including, but not limited to, attorneys' fees, expert fees, bonds, prospective or retroactive insurance premiums or costs, litigation, appeal, and court costs, and out-of-pocket expenses of such person during any investigation, hearing, arbitration, trial or appeal of any such action, suit or proceeding) actually and reasonably incurred by him in connection therewith, including any interest payable thereon. SECTION 4. The board of directors shall cause the corporation to advance to any person covered by Sections 1 or 2 the expenses (including, but not limited to, attorneys' fees, expert fees, bonds, prospective or retroactive insurance premiums or costs, litigation, appeal, and court costs and out-of-pocket expenses, of such person during any investigation, hearing, arbitration, trial or appeal of any such action, suit, arbitration or proceeding) incurred by that person in defending a threatened, pending, or completed civil, criminal, administrative, or investigative action suit, arbitration, or proceeding, including any interest payable thereon, in advance of the final disposition of such action, suit or proceeding. Page 20 21 SECTION 5. Any advance by the board of directors under Section 4 above to any employee or agent who is not a present or past director or officer of the corporation shall be conditional upon evidence of compliance with the terms and conditions, if any, deemed appropriate and specified by the board of directors for such advance if such employee or agent is determined ultimately to be not legally entitled to indemnification from the corporation. SECTION 6. Any advance authorized by the board of directors under Section 4 above to a present or past officer or director shall be conditional upon prior receipt by the corporation of a written undertaking from that officer or director to repay such advance if he is determined ultimately to be not legally entitled to indemnification from the corporation. Such undertaking shall be in the form of a simple agreement by the officer or director to repay advances made to him in the event that it is determined ultimately that he is not legally entitled to indemnification by the corporation. Such undertaking shall specifically state that no bond, collateral or other security shall be required by the officer or director to insure its performance and that no interest on any amount advanced shall be required to be paid to the corporation if the officer or director is determined ultimately to be not legally entitled to indemnification from the corporation. SECTION 7. The board of directors, in its sole discretion, may establish and may fund in advance and from time to time, in whole or in part, a separate provision or provisions, which may be in the form of a trust fund, periodic or advance retainers to counsel, or otherwise as the board of directors may determine in each instance, to be used as payment and/or advances of indemnification obligations under this Article VII to officers, directors, employees and agents of the corporation; provided, however, that any amount which is contributed to such fund shall not in any way be construed to be a limitation on the amount of indemnification and/or advances of the corporation. SECTION 8. The board of directors shall cause the corporation to pay to any director, officer, employee or agent all expenses (including, but not limited to, attorneys' fees, expert fees, bonds, prospective or retroactive insurance premiums or costs, litigation, appeal, and court costs, and out-of-pocket expenses of such person during any investigation, hearing, arbitration, trial or appeal of any such action, suit, arbitration or proceeding, including any interest payable thereon), which may be incurred by such director, officer, employee or agent in enforcing his rights to indemnification (as set forth herein in Sections 1, 2 and 3) and/or advances (as set forth herein in Section 4) whether or not such director, officer, employee or agent is successful in enforcing such rights and whether or not suit or other proceedings are commenced. SECTION 9. Any amendment to this Article VII shall only apply prospectively and shall in no way affect the corporation's obligations to indemnify and make advances to officers, directors, employees and agents as set forth in this Article VII for actions or events which occurred before any such amendment, and provided that any amendment to this Article VII shall require affirmative vote of four-fifths of the entire board of directors. Page 21 22 SECTION 10. Any indemnification granted under the provisions of Sections 1, 2, 3 and 8 above shall be subject to the provisions of subsections (d), (e), (f) and (g) of Section 145 of the General Corporation Law of the State of Delaware. ARTICLE VIII. CONTRACTS, LOANS, CHECKS AND DEPOSITS SECTION 1. CONTRACTS. The board of directors may authorize any officer or officers, agent or agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation. Such authority may be general or confined to specific instances. SECTION 2. LOANS. No loan shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name, unless authorized by resolution of the board of directors. Such authority may be general or confined to specific instances. SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other order or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents and in such manner that shall from time to time be determined by resolution of the board of directors. SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in the bank or banks or other depositories that the board of directors may elect. ARTICLE IX. VOTING OF STOCK OF OTHER CORPORATIONS Unless otherwise ordered by the board of directors, the chairman of the board shall have full power and authority on behalf of the corporation to act and vote at any meeting of stockholders of any corporation in which the corporation may hold stock, and at any such meeting, shall possess, and may exercise, any and all of the rights and powers incident to the ownership of the stock, which, as the owner thereof, the corporation might have possessed and exercised if present. The board of directors by resolution from time to time, may confer like powers upon any other person or persons. Page 22 23 ARTICLE X. NOTICES SECTION 1. FORM OF NOTICE. Whenever under the provisions of the statutes, the Certificate of Incorporation, or these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but the notice may be given in writing by mail, which shall mean depositing same in a United States Postal Service post office or letter box, in a postage paid, sealed envelope, addressed to the stockholder or director at the address that appears on the books of the corporation or, in default of other address, to such director or stockholder at the United States Postal Service general post office in the City of Wilmington, Delaware, and the notice shall be deemed to be given at the time when the same shall be thus mailed or by any other means expressly provided for in these bylaws. SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be given under the provision of the statutes, the Certificate of Incorporation or these bylaws, a waiver thereof in writing signed by the person or persons entitled to the notice whether before or after the time stated therein shall be deemed equivalent thereto. ARTICLE XI. STOCK CERTIFICATES SECTION 1. CERTIFICATES FOR SHARES. The certificates for shares of the capital stock of the corporation shall be in the form, not inconsistent with the Certificate of Incorporation, that shall be approved by the board of directors. The certificate shall be signed by the chairman of the board, president or a vice president, and either the treasurer or an assistant treasurer, or the secretary or an assistant secretary, but where the certificate is signed by a transfer agent or an assistant transfer agent and a registrar, the signatures of the chairman of the board, president, vice president, treasurer, assistant treasurer, secretary or assistant secretary may be facsimiles. All certificates shall be consecutively numbered, and the name of the person owning the shares represented thereby, with the number of shares and the date of issue shall be entered in the corporation's books. No certificate shall be valid unless it is signed by the chairman of the board, president, or a vice president, and either the treasurer or an assistant treasurer, or the secretary or an assistant secretary, but where the certificate is signed by a transfer agent or an assistant transfer agent and a registrar, the signatures of the chairman of the board, president, vice president, treasurer, assistant treasurer, secretary or assistant secretary may be facsimiles. All certificates surrendered to the corporation shall be canceled, and no new certificates shall be issued until the former certificate for the same number of shares of the same class shall have been surrendered and canceled. Page 23 24 SECTION 2. TRANSFER OF SHARES. Shares of the capital stock of the corporation shall be transferred only on the books of the corporation by the holder thereof in person or by his attorney upon surrender and cancellation of certificates for the same number of shares. SECTION 3. REGULATIONS. The board of directors shall have authority to make any rules and regulations that they may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the corporation. The board of directors may appoint one or more transfer agents or assistant transfer agents and one or more registrars of transfers and may require all certificates to bear the signature of the transfer agent or assistant transfer agent and a registrar of transfers. The board of directors may at any time terminate the appointment of any transfer agent or any assistant transfer agent or any registrar of transfers by the vote of a majority of the board of directors. SECTION 4. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS' RIGHTS. The board of directors may close the stock transfer books of the corporation for a period not exceeding 50 days preceding the date of any meeting of stockholders, or the date for payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or for a period not exceeding 50 days in connection with obtaining the consent of stockholders for any purpose. In lieu of closing the stock transfer books as aforesaid, the board of directors may fix a date not exceeding 50 days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise the rights in respect of any change, conversion or exchange of capital stock, or to give such consent, and in such case the stockholders and only the stockholders that shall be stockholders of record on the date so fixed shall be entitled to the notice or to receive payment of the dividend, or to receive the allotment of rights, or to exercise the rights or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the corporation after any record date fixed as aforesaid. SECTION 5. REGISTERED STOCKHOLDERS. The corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim to or interest in the share or shares on the part of any other person whether or not it shall have express or other notice thereof except as otherwise provided by the laws of the State of Delaware. SECTION 6. LOST CERTIFICATES. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact with the person claiming the certificate of stock to be lost or destroyed. When authorizing the issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of the lost or destroyed certificate or Page 24 25 certificates, or his legal representative, to advertise the same in a manner that it shall require for each share of stock having voting power registered in his name and to give the corporation a bond in the sum that it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. SECTION 7. DIVIDENDS. The board of directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Certificate of Incorporation. SECTION 8. RESERVE FUNDS. Before payment of any dividend there may be set aside out of any funds of the corporation available for dividends the sum or sums that the board of directors may from time to time in their absolute discretion think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for any other purpose that the directors shall think conducive to the interest of the corporation and the board of directors may modify or abolish the reserve in the manner in which it was created. ARTICLE XII. GENERAL PROVISIONS SECTION 1. FISCAL YEAR. The fiscal year of the corporation shall begin on the first day of January in each year. SECTION 2. INSPECTION OF BOOKS. The board of directors shall determine from time to time whether, and if allowed, when and under what conditions and regulations, the accounts and books of the corporation (except as may be by statute specifically open to inspection) or any of them, shall be open to the inspection of the stockholders, and a stockholder's rights in this respect are, and shall be, restricted and limited accordingly. SECTION 3. GENDER. The use of the masculine gender in these bylaws shall be deemed to include the feminine gender. Page 25 26 ARTICLE XIII. AMENDMENTS TO AND SUSPENSION OF BYLAWS SECTION 1. AMENDMENTS. Subject to the provisions of Section 12 of Article IV, these bylaws may be altered or repealed at any regular meeting of the stockholders or at any special meeting of the stockholders at which a quorum is present or represented, provided notice of the proposed alteration or repeal be contained in the notice of the special meeting, by the affirmative vote of a majority of the stockholders entitled to vote at the meeting and present or represented thereat, or by the affirmative vote of a majority of the board of directors at any regular meeting of the board of directors or at any special meeting of the board of directors, if notice of the proposed alteration or repeal be contained in the notice of the special meeting. SECTION 2. SUSPENSION. Any provision of these bylaws may be suspended by vote of two-thirds of the votes cast upon the motion to suspend except that the suspension of the bylaw provision might be in contravention of any provision of any statute or of the Certificate of Incorporation. * * * Page 26 EX-23.1 3 CONSENT OF ARTHUR ANDERSEN LLP 1 Exhibit 23.1 CONSENT OF ARTHUR ANDERSEN LLP As independent public accountants, we hereby consent to the incorporation by reference in this Form 8-K/A Amendment No. 1 of our report dated February 23, 1996, included in The Phoenix Resource Companies, Inc.'s Form 10-K for the year ended December 31, 1995. It should be noted that we have not audited any financial statements of the company subsequent to December 31, 1995 or performed any audit procedures subsequent to the date of our report. ARTHUR ANDERSEN LLP /s/ Arthur Andersen LLP Oklahoma City, Oklahoma July 17, 1996 EX-99.3 4 7TH AMEND. TO 3RD RESTATED CREDIT AGREEMENT 1 EXHIBIT 99.3 - -------------------------------------------------------------------------------- SEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 8, 1996 among APACHE CORPORATION and VARIOUS COMMERCIAL LENDING INSTITUTIONS, and THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent and Arranger and CHEMICAL BANK, as Co-Agent and Arranger - -------------------------------------------------------------------------------- 2 SEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT THIS SEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 8, 1996, (this "Seventh Amendment"), is among APACHE CORPORATION, a Delaware corporation (the "Company"), the various commercial lending institutions as are or may become parties hereto (the "Lenders"), THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent (in such capacity, the "Administrative Agent") and Arranger (in such capacity, an "Arranger"), and CHEMICAL BANK, as Co-Agent (in such capacity, the "Co-Agent") and Arranger (in such capacity, an "Arranger"). W I T N E S S E T H: 1. The Company, the Lenders, the Arrangers, the Co-Agent and the Administrative Agent have heretofore entered into that certain Third Amended and Restated Credit Agreement, dated as of March 1, 1995, as previously amended (the "Credit Agreement"). 2. The Company, the Lenders, the Arrangers, the Co-Agent and the Administrative Agent now intend to amend the Credit Agreement (i) to permit the proposed merger of YPY Acquisitions, Inc., a Delaware corporation and a wholly- owned Subsidiary of the Company ("YPY"), and The Phoenix Resource Companies, Inc., a Delaware corporation ("Phoenix"), pursuant to that certain Agreement and Plan of Merger, dated as of March 27, 1996, between the Company, YPY and Phoenix (the "Phoenix Merger"), (ii) to permit the Company to replace Phoenix as guarantor of the obligations of Phoenix Resources Company of Qarun, a Delaware corporation and wholly-owned Subsidiary of Phoenix ("Phoenix Egypt"), to the International Finance Corporation ("IFC") and certain participant banks in connection with a project financing in the maximum aggregate amount of $50 million relating to the development of the Qarun oil and gas concession, (iii) to permit the pledge of the stock of Phoenix Egypt by Phoenix Resources Company International, a Delaware corporation ("Phoenix International"), to IFC and the liens on substantially all of the property of Phoenix Egypt and (iv) to address various other issues in connection therewith as follows: I. AMENDMENTS TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT. A. Section 1.1 of the Credit Agreement is hereby amended by adding the following definitions of "Phoenix", "Phoenix Egypt", "Phoenix International" and "Phoenix Merger" in appropriate alphabetical order: "Phoenix" means The Phoenix Resource Companies, Inc., a Delaware corporation, and following the effective date of the Phoenix Merger, the successor company to the 3 merger between Phoenix and YPY pursuant to the terms thereof. "Phoenix Egypt" means Phoenix Resources Company of Qarun, Inc., a Delaware corporation and a wholly-owned Subsidiary of Phoenix International. "Phoenix International" means Phoenix Resources Company International, a Delaware corporation and a wholly-owned Subsidiary of Phoenix. "Phoenix Merger" means the acquisition transaction contemplated by that certain Agreement and Plan of Merger, dated as of March 27, 1996, between the Company, YPY Acquisitions, Inc., a Delaware corporation ("YPY"), and Phoenix under the terms of which Phoenix will become a Subsidiary of the Company. B. Section 2.3(b) of the Credit Agreement is hereby amended in its entirety to the following: " (b) Determination of Borrowing Base at Request of Company. The Company may request two Borrowing Base determinations between any regularly scheduled semi-annual redeterminations of the Borrowing Base by delivery to the Administrative Agent, the Engineering Banks and the Lenders of a written request for such determination; provided that a deemed request for a determination of the Borrowing Base pursuant to Section 11.1(c), (d) or (e) shall not preclude the Company's requesting a Borrowing Base determination to which it is otherwise entitled pursuant to this clause (b). In connection with any such determination the Company shall deliver to the Administrative Agent, the Engineering Banks and the Lenders such reports and information concerning the Properties (which may include in the Engineering Banks' sole discretion an Approved Engineers' Report or a Company's Engineers' Report as of such date) as the Engineering Banks shall deem appropriate in its or their sole discretion." C. Section 11.1 of the Credit Agreement is hereby amended (a) by deleting from subsection 11.1(j) the letter "(i)" from the second line thereof and by replacing it with the letter "(j)"; (b) by relettering subsection 11.1(j) as subsection 11.1(k); and (c) by inserting the following after subsection 11.1(i) thereof: (j) Other Indebtedness of Phoenix Egypt to IFC in a maximum aggregate principal amount of $50,000,000, together with interest, fees and expenses related thereto; and 2 4 D. Section 11.2 of the Credit Agreement is hereby amended by inserting the following proviso at the end of the first sentence thereof before the period: "provided, further, that the foregoing shall not prohibit the Phoenix Merger". E. Section 11.4 of the Credit Agreement is hereby amended by amending subsection 11.4(d) of the Credit Agreement in its entirety to the following: "(d)(i) net Contingent Obligations of International, Apache Overseas, Inc., Phoenix and any of their Subsidiaries consisting of foreign work commitments or other similar obligations (but not including obligations under authorizations for expenditures and other joint operating arrangements) under exploration or production licenses or agreements entered into by International, Apache Overseas, Inc., Phoenix or any of their Subsidiaries in the ordinary course of business not to exceed $85,000,000 net at any one time outstanding for all such Contingent Obligations and (ii) Contingent Obligations of International, Apache Overseas, Inc., Phoenix and any of their Subsidiaries consisting of obligations under authorizations for expenditures and other joint operating arrangements entered into by International, Apache Overseas, Inc., Phoenix or any of their Subsidiaries in the ordinary course of business; provided that for purposes of clause (d)(i), net Contingent Obligations shall be deemed to be the difference between the aggregate for all such Contingent Obligations in respect of foreign work commitments or other similar obligations in which International, Apache Overseas, Inc., Phoenix or any of their Subsidiaries is required to perform or pay a certain amount (but not including obligations under authorizations for expenditures and other joint operating arrangements) less the aggregate of such Contingent Obligations in respect of which another industry partner (which the Company reasonably believes is capable of performing such commitments or obligations) has become obligated to perform," ; (ii) by deleting the word "and" at the end of subsections 11.4(j); and (iii) by inserting the following after subsection 11.4(k) thereof before the period: ", and (l) Contingent Obligations of the Company and Phoenix to IFC relating to Phoenix Egypt not exceeding $50,000,000 in the aggregate, together with interest, fees and expenses related thereto". 3 5 F. Section 11.5 of the Credit Agreement is hereby amended by inserting the following after subsection 11.5(j) thereof: "(k) Liens securing the Indebtedness permitted in connection with Section 11.1(j)." G. Section 11.7 of the Credit Agreement is hereby amended by inserting after the phrase "Apache Egypt" and before the semicolon preceding the first proviso thereto the phrase "or Phoenix Egypt". H. The proviso at the end of Section 11.10 of the Credit Agreement is hereby amended in its entirety to the following: "provided, however, that, notwithstanding the foregoing, this section shall not apply to Apache Canada, Apache Egypt, Phoenix or any of their Subsidiaries or to any restrictions on the creation, assumption or perfection of any Lien on, or any transfer or sale of, any of their respective securities." I. Section 11.11 of the Credit Agreement is hereby amended by inserting the following proviso before the period at the end of the first sentence thereof: "provided, further, that the foregoing shall not prohibit the Phoenix Merger". J. Section 11.12 of the Credit Agreement is hereby amended (i) by amending subsection 11.12(e) in its entirety to the following: " (e) in the ordinary course of business, Investments in Subsidiaries, including, without limitation, International, Apache Energy Limited, Apache Overseas, Inc., DEKALB, Phoenix or any of their Subsidiaries, for (i) the acquisition, exploration, drilling or development of Properties which are located outside the United States of America and are not included in the Borrowing Base, or (ii) costs incurred in connection with gathering, processing, transporting and marketing production from such Properties;" ; (ii) by amending subsections 11.12(i), (j) and (k) in their entirety to the following: " (i) Investments in Phoenix and its Subsidiaries in connection with the Phoenix Merger and other Investments in Phoenix permitted under Section 11.12(e); provided, however, that 4 6 (1) any Investment which when made complies with the requirements of the definition of the term "Cash Equivalent Investment" may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements; and (2) no Investment otherwise permitted by clause (d), (e) (f) or (g) shall be permitted to be made if, immediately before or after giving effect thereto, any Default shall have occurred and be continuing." II. LIMITED WAIVER OF SECTION 2.3(A). In connection with the Approved Engineers Report, dated as of December 31, 1995, received by the Engineering Banks pursuant to Section 9.1(d) of the Credit Agreement, each of the Lenders consent and agree to the extension of the time for the Engineering Banks to make their determination of the Borrowing Base pursuant to Section 2.3(a) of the Credit Agreement from 30 days after receipt by the Engineering Banks of the Approved Engineers Report to 60 days after receipt by the Engineering Banks of the Approved Engineers Report. Except as set forth in this section, this consent and agreement shall not be deemed to be a waiver or amendment of any other provision or requirement of the Credit Agreement or Section 2.3(a) thereto, now or hereafter. III. EFFECTIVENESS. This Seventh Amendment shall become effective as of the date hereof when the Administrative Agent shall have received counterparts hereof duly executed by the Company, the Required Lenders, the Administrative Agent and the Co-Agent (or, in the case of any party as to which an executed counterpart shall not have been received, telegraphic, telex, or other written confirmation from such party of execution of a counterpart hereof by such party). IV. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce the Lenders, the Administrative Agent, the Co-Agent and the Arrangers to enter into this Seventh Amendment, the Company hereby reaffirms, as of the date hereof, its representations and warranties in their entirety contained in Article VIII of the Credit Agreement and in all other documents executed pursuant thereto (except to the extent such representations and warranties relate solely to an earlier date) and additionally represents and warrants as follows: (i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite authority, permits and approvals, and is in good standing to conduct its business in each jurisdiction in which its business is conducted. 5 7 (ii) The Company has the corporate power and authority and legal right to execute and deliver this Seventh Amendment and to perform its obligations hereunder. The execution and delivery by the Company of this Seventh Amendment and the performance of its obligations hereunder have been duly authorized by proper corporate proceedings, and this Seventh Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally. (iii) No Default or Unmatured Default has occurred and is continuing as of the date hereof. (iv) There has been no material adverse change (a) in the businesses, assets, properties, operations, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries from March 1, 1995, (b) affecting the rights and remedies of the Lenders under and in connection with this Seventh Amendment and the Credit Agreement, as amended by this Seventh Amendment, or (c) in the ability of the Company to perform its obligations under this Seventh Amendment or the Credit Agreement, as amended by this Seventh Amendment. (v) There is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of any of their officers threatened against or affecting the Company or its Subsidiaries which is or could have a Material Adverse Effect. V. DEFINED TERMS. Except as amended hereby, terms used herein when defined in the Credit Agreement shall have the same meanings herein unless the context otherwise requires. VI. REAFFIRMATION OF CREDIT AGREEMENT. This Seventh Amendment shall be deemed to be an amendment to the Credit Agreement, and the Credit Agreement, as amended hereby, is hereby ratified, approved and confirmed in each and every respect. All references to the Credit Agreement herein and in any other document, instrument, agreement or writing shall hereafter be deemed to refer to the Credit Agreement as amended hereby. VII. GOVERNING LAW. THIS SEVENTH AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. All obligations of the Company and rights of the Lenders, the Administrative Agent, the Co-Agent and the Arrangers and any other holders of the Notes expressed herein 6 8 shall be in addition to and not in limitation of those provided by applicable law. VIII. SEVERABILITY OF PROVISIONS. Any provision in this Seventh Amendment that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Seventh Amendment are declared to be severable. IX. COUNTERPARTS. This Seventh Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Seventh Amendment by signing any such counterpart. X. HEADINGS. Article and section headings in this Seventh Amendment are for convenience of reference only, and shall not govern the interpretation of any of the provisions of this Seventh Amendment. XI. SUCCESSORS AND ASSIGNS. This Seventh Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. XII. NOTICE. THIS WRITTEN SEVENTH AMENDMENT TOGETHER WITH THE THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. [SIGNATURES BEGIN ON FOLLOWING PAGE] 7 9 IN WITNESS WHEREOF, the Company, the Lenders, the Administrative Agent, the Co-Agent and the Arrangers have executed this Seventh Amendment as of the date first above written. APACHE CORPORATION By:/s/ Matthew W. Dundrea --------------------------------------------- Name: Matthew W. Dundrea Title: Treasurer THE FIRST NATIONAL BANK OF CHICAGO, Individually, as Administrative Agent and as Arranger By:/s/ George R. Schanz --------------------------------------------- Name: George R. Schanz Title: Vice President CHEMICAL BANK, Individually, as Co-Agent and as Arranger By:/s/ R. Potter --------------------------------------------- Name: Ronald Potter Title: Mananging Director BANK OF MONTREAL, Individually and as Lead Manager By:/s/ Robert Roberts --------------------------------------------- Name: Robert L. Roberts Title: Director, U.S. Corporate Banking S-1 10 CIBC INC., Individually and as Lead Manager By: --------------------------------------------- Name: Title: NATIONSBANK of Texas, N.A., Individually and as Lead Manager By:/s/ Kristin B. Palmer --------------------------------------------- Name: Kristin B. Palmer Title: Senior Vice President BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION By:/s/ J. Stephen Mernick --------------------------------------------- Name: J. Stephen Mernick Title: Senior Vice President BANQUE PARIBAS By: --------------------------------------------- Name: Title: By: --------------------------------------------- Name: Title: SOCIETE GENERALE, SOUTHWEST AGENCY By:/s/ R.A. Erbert --------------------------------------------- Name: Richard A. Erbert Title: Vice President S-2 11 MORGAN GUARANTY TRUST COMPANY OF NEW YORK By: --------------------------------------------- Name: Title: ABN-AMRO BANK N.V. - HOUSTON AGENCY By: --------------------------------------------- Name: Title: By: --------------------------------------------- Name: Title: THE FIRST NATIONAL BANK OF BOSTON By: --------------------------------------------- Name: Title: THE BANK OF NOVA SCOTIA, ATLANTA AGENCY By:/s/ A.S. Norsworthy --------------------------------------------- Name: A.S. Norsworthy Title: Assistant Agent THE CHASE MANHATTAN BANK, N.A. By:/s/ Bettylou J. Robert --------------------------------------------- Name: Bettylou J. Robert Title: Vice President S-3 12 CITIBANK, N.A. By:/s/ Marjorie Futornick --------------------------------------------- Name: Marjorie Futornick Title: Vice President THE FUJI BANK, LIMITED - HOUSTON AGENCY By:/s/ Soichi Yoshida --------------------------------------------- Name: Soichi Yoshida Title: Vice President & Senior Manager UNION BANK OF SWITZERLAND, HOUSTON AGENCY By:/s/ J. George Kubove --------------------------------------------- Name: J. George Kobove Title: Assistant Vice President By:/s/ Kelly Boots --------------------------------------------- Name: Kelly Boots Title: Assistant Treasurer UNION BANK By:/s/ Richard P. DeGrey --------------------------------------------- Name: Richard P. DeGrey Title: Vice President By: --------------------------------------------- Name: Title: 13 CHRISTIANIA BANK OG KREDITKASSE By:/s/ Steve Phillips --------------------------------------------- Name: Steve Phillips Title: Vice President By:/s/ Carl-Petter Svendsen --------------------------------------------- Name: Carl-Petter Svendsen Title: First Vice President COLORADO NATIONAL BANK By:/s/ Charles S. Searle --------------------------------------------- Name: Charles S. Searle Title: Senior Vice President THE LONG-TERM CREDIT BANK OF JAPAN, LTD. By:/s/ Satoru Otsubo --------------------------------------------- Name: Satoru Otsubo Title: Joint General Manager ROYAL BANK OF CANADA, GRAND CAYMAN (NORTH AMERICAN #1) BRANCH By:/s/ Linda M. Stephens --------------------------------------------- Name: Linda M. Stephens Title: Manager S-5 -----END PRIVACY-ENHANCED MESSAGE-----