-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, mk0fROFqqluDLxv+6POzRntpZF8fJyVX0gKKW+aRI9QFnMvwsAa16WIIuO/otES3 sc7aVkCnglCh+WOsN0GuZw== 0000950134-95-001070.txt : 19950516 0000950134-95-001070.hdr.sgml : 19950516 ACCESSION NUMBER: 0000950134-95-001070 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19950331 FILED AS OF DATE: 19950515 SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MAXUS ENERGY CORP /DE/ CENTRAL INDEX KEY: 0000724176 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 751891531 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-08567 FILM NUMBER: 95538373 BUSINESS ADDRESS: STREET 1: 717 N HARWOOD ST- RM 3147 CITY: DALLAS STATE: TX ZIP: 75201-6594 BUSINESS PHONE: 2149532000 FORMER COMPANY: FORMER CONFORMED NAME: DIAMOND SHAMROCK CORP /DE/ DATE OF NAME CHANGE: 19870518 FORMER COMPANY: FORMER CONFORMED NAME: NEW DIAMOND CORP DATE OF NAME CHANGE: 19830908 10-Q 1 FORM 10-Q FOR PERIOD ENDED MARCH 31, 1995 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________ FORM 10-Q (Mark One) [x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ending March 31, 1995 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND EXCHANGE ACT OF 1934 COMMISSION FILE NUMBER 1-8567-2 MAXUS ENERGY CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 75-1891531 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 717 NORTH HARWOOD STREET, DALLAS, TEXAS 75201-6594 (Address of principal executive offices) (Zip Code) (214) 953-2000 (Registrant's telephone number, including area code) INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQURIED TO BE FILED BY SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DURING THE PRECEDING 12 MONTHS, AND (2) HAS BEEN SUBJECT TO THE FILING REQUIREMENTS FOR THE PAST 90 DAYS. YES /X/ NO / / Shares of Common Stock outstanding at April 28, 1995: 135,610,272 2 PART I. FINANCIAL INFORMATION The accompanying consolidated financial statements have not been examined by independent accountants, but in the opinion of the management of Maxus Energy Corporation (the "Company" or "Maxus") all adjustments (consisting only of normal accruals) necessary for a fair presentation of the consolidated results of operations, consolidated balance sheets and consolidated statements of cash flows at the date and for the periods indicated have been included. 3 MAXUS ENERGY CORPORATION CONSOLIDATED STATEMENT OF OPERATIONS (unaudited) (in millions, except per share)
- ------------------------------------------------------------------------- Three Months Ended March 31, 1995 1994 ----------------- REVENUES Sales and operating revenues $142.5 $187.1 Other revenues, net 9.6 6.0 - ------------------------------------------------------------------------- 152.1 193.1 ----------------- COSTS AND EXPENSES Operating expenses 62.1 61.7 Gas purchase costs 12.7 43.5 Exploration, including exploratory dry holes 8.1 9.3 Depreciation, depletion and amortization 29.9 38.2 General and administrative expenses 7.5 9.3 Taxes other than income taxes 3.1 4.3 Interest and debt expenses 24.1 22.5 Pre-merger costs 42.4 - ------------------------------------------------------------------------- 189.9 188.8 ----------------- INCOME (LOSS) BEFORE INCOME TAXES (37.8) 4.3 INCOME TAXES 19.1 15.5 - ------------------------------------------------------------------------- NET LOSS (56.9) (11.2) Dividend requirement on preferred stock (9.6) (12.3) - ------------------------------------------------------------------------- LOSS APPLICABLE TO COMMON SHARES ($66.5) ($23.5) ========================================================================= NET LOSS PER COMMON SHARE ($0.49) ($0.17) ========================================================================= AVERAGE COMMON SHARES OUTSTANDING (IN MILLIONS) 135.5 134.5
See Notes to Consolidated Financial Statements (Unaudited). 4 MAXUS ENERGY CORPORATION CONSOLIDATED BALANCE SHEET (in millions, except shares)
- -------------------------------------------------------------------------------------- March 31, December31, 1995 1994 --------------------------- ASSETS (Unaudited) Current Assets Cash and cash equivalents $91.6 $40.6 Short-term investments 65.0 103.8 Receivables, less doubtful receivables 127.8 152.4 Taxes receivable 13.7 23.8 Inventories 28.6 27.9 Restricted cash 48.5 46.4 Prepaids and other current assets 19.4 18.7 - -------------------------------------------------------------------------------------- Total Current Assets 394.6 413.6 Properties and Equipment, less accumulated depreciation and depletion of $1,638.0 in 1995 and $1,611.0 in 1994 1,110.7 1,088.4 Investments and Long-Term Receivables 41.5 40.2 Restricted Cash 79.9 94.2 Intangible assets, less accumulated amortization of $14.5 in 1995 and $14.2 in 1994 35.5 35.8 Deferred Income Taxes 9.4 9.4 Deferred Charges 20.5 25.1 - -------------------------------------------------------------------------------------- $1,692.1 $1,706.7 ====================================================================================== LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities Long-term debt $4.7 $4.7 Securities sold under repurchase agreements Accounts payable 49.8 65.1 Accrued liabilities 169.8 101.2 - -------------------------------------------------------------------------------------- Total Current Liabilities 224.3 171.0 Long-Term Debt 970.9 970.9 Deferred Income Taxes 199.7 199.3 Other Liabilities and Deferred Credits 158.7 149.4 $9.75 Redeemable Preferred Stock, $1.00 par value Authorized and issued shares--1,250,000 125.0 125.0 Stockholders' Equity $2.50 Preferred Stock, $1.00 par value Authorized shares--5,000,000 Issued shares--3,500,000 3.5 3.5 $4.00 Preferred Stock, $1.00 par value Authorized shares--5,915,017 Issued shares--4,356,958 and 4,358,658 4.4 4.4 Common Stock, $1.00 par value Authorized shares--300,000,000 Issued shares--135,897,899 and 135,694,722 135.9 135.7 Paid-in capital 966.1 988.1 Accumulated deficit (1,073.2) (1,016.4) Minimum pension liability (18.3) (18.3) Valuation reserve on marketable securities (1.3) (2.4) Common Treasury Stock, at cost--310,535 and 295,995 (3.6) (3.5) - -------------------------------------------------------------------------------------- Total Stockholders' Equity 13.5 91.1 - -------------------------------------------------------------------------------------- $1,692.1 $1,706.7 ======================================================================================
See Notes to Consolidated Financial Statements (Unaudited). The Company uses the successful efforts method to account for its oil and gas producing activities. 5 MAXUS ENERGY CORPORATION CONSOLIDATED STATEMENT OF CASH FLOWS (unaudited) (in millions)
- ------------------------------------------------------------------------------------------ Three Months Ended March 31, 1995 1994 ----------------- CASH FLOWS FROM OPERATING ACTIVITIES: Net loss ($56.9) ($11.2) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation, depletion and amortization 29.9 38.2 Dry hole costs 1.0 Deferred income taxes 0.4 0.2 Gain on sale of assets (1.7) Postretirement benefits 1.4 1.8 Pre-merger costs 42.4 Other 1.3 2.9 Changes in components of working capital: Receivables 23.8 25.8 Inventories, prepaids and other current assets (1.4) (0.2) Accounts payable (15.1) (23.5) Accrued liabilities 26.3 1.2 Taxes payable / receivable 10.1 (1.1) ----------------- NET CASH PROVIDED BY OPERATING ACTIVITIES 61.5 34.1 - ------------------------------------------------------------------------------------------ CASH FLOWS FROM INVESTING ACTIVITIES: Expenditures for properties and equipment--including dry hole costs (53.6) (55.5) Expenditures for investments (5.1) Proceeds from sale of assets 2.1 0.4 Proceeds from sale/maturity of short-term investments 63.4 4.2 Purchases of short-term investments (24.6) (2.8) Restricted cash 12.2 11.5 Other 9.8 (1.7) ----------------- NET CASH PROVIDED BY (USED IN) INVESTING ACTIVITIES 9.3 (49.0) - ------------------------------------------------------------------------------------------ CASH FLOWS FROM FINANCING ACTIVITIES: Interest rate swap 3.4 (5.9) Net borrowings from joint venture partners 0.3 Proceeds from issuance of short-term debt 30.0 Repayment of short-term debt (33.9) Proceeds from issuance of long-term debt 61.3 Repayment of long-term debt (0.1) Stock rights redemption (13.6) Redemption of preferred stock (62.5) Dividends paid (9.6) (12.3) ----------------- NET CASH USED IN FINANCING ACTIVITIES (19.8) (23.1) - ------------------------------------------------------------------------------------------ NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 51.0 (38.0) CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 40.6 128.7 - ------------------------------------------------------------------------------------------ CASH AND CASH EQUIVALENTS AT END OF PERIOD $91.6 $90.7 ==========================================================================================
See Notes to Consolidated Financial Statements (Unaudited). 6 MAXUS ENERGY CORPORATION NOTES TO CONSOLIDATED FINANCIAL STATEMENTS FIRST QUARTER 1995 (UNAUDITED) MERGER On February 28, 1995, the Company entered into a merger agreement (the "Merger Agreement") with YPF Sociedad Anonima ("YPF"), a sociedad anonima organized under the laws of the Republic of Argentina, and YPF Acquisition Corp. ("YPFA Corp."), a wholly owned subsidiary of YPF. Pursuant to the Merger Agreement, YPFA Corp. commenced a tender offer to purchase all of the outstanding shares of the Company's common stock, $1.00 par value (the "Common Stock"), at a price of $5.50 per share in cash (the "Offer"). Following the expiration of the Offer on March 30, 1995, approximately 88.5% of the Common Stock was purchased by YPFA Corp. In connection with the Offer, record holders of Common Stock as of March 22, 1995 also received a cash payment of $0.10 per share, or an aggregate of approximately $14 million, upon the redemption of the rights attached to shares of Common Stock. A special meeting of the stockholders of the Company has been set for June 8, 1995 to vote on the adoption of the Merger Agreement. Upon such adoption and subject to certain conditions, each share of Common Stock outstanding and not previously acquired in the Offer will be converted into a right to receive the same price of $5.50 per share and YPFA Corp. will be merged into the Company (the "Merger"). Under the terms of the Merger Agreement, all of the Company's preferred stock will remain outstanding. PRE-MERGER COSTS The Company's 1995 first-quarter operating results reflect $42.4 million of pre-merger costs associated with the pending Merger. Such costs, which included expenses associated with financial consulting and legal services, severance payments pursuant to change of control agreements and payments for surrender of stock options and restricted stock, were recorded in accrued liabilities in the consolidated balance sheet. TAKE-OR-PAY OBLIGATION In March 1995, the Company received approximately $14.0 million from the purchaser of Northwest Java gas volumes to settle its 1994 take-or-pay obligation. After fulfillment of 1995 contract requirements, any excess quantities will be used to offset the 1994 take-or-pay settlement. The settlement was recorded as deferred revenue, which is included in Other Liabilities in the consolidated balance sheet. The deferred revenue will be recognized in the income statement as gas quantities are purchased which fulfill the take-or-pay obligation. 7 MAXUS ENERGY CORPORATION MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION FIRST QUARTER 1995 SIGNIFICANT EVENT On February 28, 1995, the Company entered into a merger agreement (the "Merger Agreement") with YPF Sociedad Anonima ("YPF"), a sociedad anonima organized under the laws of the Republic of Argentina, and YPF Acquisition Corp. ("YPFA Corp."), a wholly owned subsidiary of YPF. Pursuant to the Merger Agreement, YPFA Corp. commenced a tender offer to purchase all of the outstanding shares of the Company's common stock, $1.00 par value (the "Common Stock"), at a price of $5.50 per share in cash (the "Offer"). Following the expiration of the Offer on March 30, 1995, approximately 88.5% of the Common Stock was purchased by YPFA Corp. In connection with the Offer, record holders of Common Stock as of March 22, 1995 also received a cash payment of $0.10 per share, or an aggregate of approximately $14 million, upon the redemption of the rights attached to shares of Common Stock. A special meeting of the stockholders of the Company has been set for June 8, 1995 to vote on the adoption of the Merger Agreement. Upon such adoption and subject to certain conditions, each share of Common Stock outstanding and not previously acquired in the Offer will be converted into a right to receive the same price of $5.50 per share and YPFA Corp. will be merged into the Company (the "Merger"). Under the terms of the Merger Agreement, all of the Company's preferred stock will remain outstanding. RESULTS OF OPERATIONS Maxus reported a net loss of $57 million for the first quarter of 1995 or, after preferred dividends, a loss of 49 cents per share of Common Stock, compared to a net loss of $11 million or, after preferred dividends, a loss of 17 cents per share of Common Stock for the first quarter of 1994. The first quarter 1995 results reflect $42 million of pre-merger costs associated with the pending YPF Merger. Such costs included expenses associated with financial consulting and legal services, severance payments pursuant to change of control agreements and payments for surrender of stock options and restricted stock. Sales and operating revenues for the first quarter of 1994 were $143 million, compared to $187 million for the same period a year ago. The loss of production from properties divested in 1994 and lower volumes of purchased gas negatively impacted revenues $45 million. Lower U.S. natural gas prices also negatively impacted revenues $12 million. These declines were partially offset by first quarter 1995 revenue of $8 million from South America. Initial sales from the Company's South American operations were recorded in the third quarter 1994. Net worldwide crude oil production was 60 thousand barrels per day ("mbpd") in the first quarter 1995, compared to 69 mbpd in the same quarter a year ago. Domestic crude oil volumes declined four mbpd during the period due to the loss of production from the divested properties. Crude oil sales from the Company's Indonesian operations were also down 12 mbpd during the period primarily as a result of lower entitlements due to higher prices and lower production. Production from South America of seven mbpd partially offset these declines. U.S. natural gas sales for the first quarter of 1995 were 167 million cubic feet per day ("mmcfpd"), a decrease of 208 mmcfpd over the first quarter 1994. The decline was driven by the loss of production from divested properties and lower volumes of gas purchased for resale. The average gas price received in the United States was $1.45 per thousand cubic feet ("mcf") in the first quarter 1995 as compared to $2.24 per mcf a year ago. Northwest Java gas volumes of 40 mmcfpd in the first quarter 1995 were eight mmcfpd higher than the first quarter 1994. Gas realizations improved to $2.65 per mcf during the first quarter 1995 from $1.81 per mcf during the same period last year due to the change in contract terms which increased the price received for "old" gas production from $0.20 per mcf to $2.65 per mcf on January 1, 1995. Natural gas liquids sales in the United States for the first quarter 1995 were 18 mbpd, a slight decrease over first quarter last year. The average sales price for U.S. natural gas liquids in the first quarter of 1995 was $10.38 per barrel, an increase of $1.15 per barrel from 1994. 8 Gas purchase costs were $31 million lower in the first quarter of 1995 as compared to first quarter 1994 due to the reduction in volumes of gas purchased for resale as well as lower prices. Depreciation, depletion and amortization ("DD&A") of $30 million for the first quarter 1995 was $8 million lower than the same period last year. Approximately $11 million of DD&A from divested properties was included in the first quarter 1994. Partially offsetting this decline was $4 million of DD&A associated with South American operations included in the first quarter 1995. Income tax expense was $19 million and $16 million in the first quarters of 1995 and 1994, respectively. The increase in income tax expense was primarily due to higher Indonesian taxes as a result of increased taxable income from the Company's Indonesian operations. FINANCIAL CONDITION The Company's net cash provided by operating activities was $62 million in the first quarter of 1995 compared to $34 million in the first quarter of 1994. Net cash from operating activities before working capital changes declined $14 million during 1995 primarily as a result of the loss of cash flow from divested properties. Net working capital requirements, however, provided an additional $42 million primarily due to lower oil and gas receivables of $17 million, a $9 million tax refund and higher accrued liabilities. The Company began the year with $41 million of cash and cash equivalents. For the first three months of 1995, cash provided by operations was $62 million, short-term investment maturities were $39 million, the release of restricted cash provided $12 million and the settlement of a natural gas take-or-pay obligation in Northwest Java provided $14 million. After funding expenditures for properties and equipment of $54 million and the stock rights redemption of $14 million, and paying preferred dividends of $10 million, the balance of cash and cash equivalents increased $51 million over year end 1994. In the first three months of 1994, 1993 year-end cash balances of $129 million, $34 million of cash provided by operations, net borrowings of $52 million and the release of $12 million in restricted cash were used to redeem a portion of the Company's $9.75 Cumulative Convertible Preferred Stock, fund expenditures for properties and equipment and pay preferred dividends. Expenditures for properties and equipment, including dry hole costs, were $54 million for the first three months of 1995 as compared to $56 million for the same period last year. Spending in Ecuador was $19 million lower than last year due to completion of the initial phases of the project in 1994, partially offset by a $13 million acquisition of producing properties in the U.S. during the first quarter of 1995. Working capital declined $72 million from December 31, 1994, $42 million of which was due to the accrual for pre-merger costs associated with the Merger with YPF and the $14 million payment for the redemption of the rights attached to the Common Stock. FUTURE OUTLOOK In connection with the Merger, The Chase Manhattan Bank (National Association) ("Chase") has agreed to provide two credit facilities aggregating up to $425 million to certain subsidiaries of Maxus. A credit facility of up to $250 million will be made available to the Company's subsidiary, Midgard Energy Company ("Midgard"), and a credit facility of up to $175 million will be made available to the Company's subsidiaries, Northwest Java, Inc. ("Java") and Southeast Sumatra, Inc. ("Sumatra"). Funds from these facilities, along with up to $125 million of the Company's available cash, will be used to repay loans obtained by YPFA Corp. from Chase under a $550 million credit facility used to acquire the entire common equity interest in the Company and to effect the Merger. The loans made under the Midgard facility will be repaid in up to 28 consecutive quarterly installments beginning March 31, 1997. The loans made under the Java/Sumatra facility will be repaid in up to 24 consecutive quarterly installments beginning March 31, 1997. As a result of the additional debt, the Company's interest expense will increase approximately $35 million per year. The Company currently projects total program spending (capital expenditures plus exploration expenses) for 1995 to be approximately $240 million, $61 million of which was spent during the first quarter of 1995. 9 Funding for the remaining 1995 spending program is expected to be provided by cash from operations. The Company anticipates that it will be able to meet its obligations, including its indebtedness to Chase, during 1995; however, pursuant to the Merger Agreement, in the event the Company should be unable to meet its obligations when due, whether upon maturity or otherwise, including for this sole purpose preferred stock dividends and redemption payments, YPF has agreed, for a period of nine years following the effectiveness of the Merger, to fund the Company in an amount necessary to permit the Company to meet its obligations. This obligation is limited to the amount of the debt service for the obligation arising from the acquisition loans or refinancing loans and will be reduced by the amount of any capital contribution received by the Company after the Merger is completed and with the net proceeds of any sale by the Company of Common Stock or nonredeemable preferred stock after the Merger. In addition, YPF has informed the Company that it will guarantee payment of the Company's long-term financial obligations, which amounted to approximately U.S.$1 billion as of the time of the acquisition, provided that, in certain cases discussed below, consents are obtained. Holders of the Company's debt securities issued under Indentures dated as of April 1, 1988 and November 1, 1990, respectively (the "Indentures"), between the Company and Chemical Bank, as trustee, are being asked to consent to a single modification of a definition appearing in the Indentures so that, as a result of the guarantees, YPF will not subject itself to the terms of the Indentures (including their covenant and default provisions) in addition to guaranteeing the debt. Indebtedness to be covered by the guarantees consists of the Company's outstanding 11 1/4%, 11 1/2% and 8 1/2% Sinking Fund Debentures, its outstanding 9 7/8%, 9 1/2 % and 9 3/8% Notes and its outstanding medium-term notes. Certain information regarding the financial condition and results of operations of YPF, presented in its 1994 Annual Report and first quarter 1995 press release, is set forth below. This financial information should be read in conjunction with, and is qualified in its entirety by reference to, YPF's financial statements and the notes thereto for the year ended December 31, 1994, which have been filed with the Securities and Exchange Commission ("SEC") on Form 6-K, and YPF's financial statements and the notes thereto for the three months ended March 31, 1995, which are expected to be filed with the SEC during the week of May 14, 1995.
1994 March 31, 1995 ---- -------------- (amounts in millions of pesos) (1) Summarized Balance Sheet Data (at period end) (2) Current assets.................................... 1,097 1,239 Non-current assets................................ 6,412 6,748 Current liabilities............................... 1,395 1,629 Long-term debt.................................... 641 659 Long-term debt.................................... 641 659 Other non-current liabilities..................... 387 370 Summarized Statement of Income Data (2) Sales............................................. 4,192 1,049 Operating income ................................. 708 210 Net income........................................ 538 177
______________________________ (1) Under Argentine law, the Central Bank is obligated to sell dollars to any person who so requires at a rate of one peso per dollar. (2) Based on generally accepted accounting principles in Argentina, which differ in certain respects from generally accepted accounting principles in the United States. Maxus is in the process of determining the impact of the Merger and the allocation of the YPF purchase price on its Financial Statements. 10 PART II. OTHER INFORMATION Item 6. Exhibits and Reports on Form 8-K. (a) Exhibits. 3(ii).1 -- Amendment to the By-Laws of the Company 3(ii).2 -- By-Laws of the Company, as amended 27.1 -- Financial Data Schedule (b) Reports on Form 8-K During the Quarter. None. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. MAXUS ENERGY CORPORATION By: G. R. Brown G. R. Brown, Vice President and Controller, on behalf of the registrant and as its chief accounting officer May 12, 1995 11 Exhibit Index
Exhibit Title Exhibit No. Amendment to the By-Laws of the Company 3(ii).1 By-Laws of the Company, as amended 3(ii).2 Financial Data Schedule 27.1
EX-3.II.1 2 AMENDMENT TO THE BY-LAWS OF MAXUS ENERGY CORP. 1 Exhibit 3(ii).1 Resolved, that the By-Laws of Maxus Energy Corporation be, and hereby they are, amended as follows: By-Law 5 is amended to read as follows: 5. Special Meetings. Special meetings of the stockholders for any purpose may be called by the President and shall be promptly called by the President or by the Secretary at the written request of a majority of the Board of Directors upon not fewer than 10 nor more than 60 days' written notice. The request shall be sent to the President and the Secretary and shall state the purposes of the proposed meeting. Special meetings of holders of the outstanding Preferred Stock may be called in the manner and for the purposes provided in the resolutions of the Board of Directors providing for the issue of such stock (a "Preferred Stock Designation"). Business transacted at special meetings shall be confined to the purposes stated in the notice. By-Law 15 is amended by adding after section (d) thereof the following section (e): (e) Chairman of the Board. The Board may elect one of its members Chairman of the Board, who shall preside at all meetings of the Board. The Chairman of the Board shall also preside at all meetings of stockholders unless the Board of Directors designates another person to preside. By-Laws 19, 20 and 21 are amended to read as follows: 19. Resignation. Any Director may resign at any time by giving written notice of his resignation to the President or the Secretary. 20. Meetings. Immediately after the adjournment of the annual meeting of the stockholders each year, the Directors elected thereat shall, without notice, convene the annual meeting of Directors for the organization of the Board of Directors, the election of officers and members of committees and the transaction of any other business which may properly come before the meeting. If a quorum of the Board of Directors shall not be present, the President shall call a meeting for such purposes as promptly as is practicable. Except as otherwise provided in this By-Law 20, Directors may hold their regular and special meetings at such times and places and have one or more offices and keep the books of the Corporation at such places as the Board of Directors determines. 21. Notices. No notice of regular meetings of the Board of Directors need be given. Special meetings of the Board of Directors may be called by the President upon notice to each Director, given either in person or by mail, telephone, telegram, telex or similar medium of communication; special meetings shall be called by the President or the Secretary on like notice, on the written request of three Directors. At least 24 hours' notice of special meetings shall be given to each Director. 1 2 By-Laws 24 through 36 are amended to read as follows: 24. Executive Officers. At the annual meeting of the Board of Directors each year, or such other times as the Board of Directors may determine, the Board of Directors may elect the following executive officers: President One or more Vice Presidents General Counsel Treasurer Controller 25. Authority of the Board of Directors. The executive officers shall have the duties, responsibilities and authorities as are reflected in these By-Laws or in resolutions of the Board of Directors, but at all times the actions of the executive officers shall be subject to the review, delegation, redetermination, direction and control of the Board of Directors. Any number of executive offices may be held by the same person. The President shall be a member of the Board of Directors. At any meeting the Board of Directors may elect additional executive officers, fill vacancies and, by vote of a majority of the whole Board of Directors, remove any executive officer. 26. Term of Office. An executive officer shall hold office until he retires, resigns or is removed by majority vote of the whole Board of Directors. An officer may resign at any time by giving written notice of his resignation to the President or the Secretary. 27. Compensation of Executive Officers. The executive officers shall receive such compensation as shall be fixed by the Board of Directors. 28. Other Officers and Agents. The President may appoint the Secretary, such Assistant Secretaries, Assistant Treasurers, Assistant Controllers, Deputy General Counsels, Assistant General Counsels and other officers and agents as the President shall deem necessary or proper in the conduct of the affairs of the Corporation with such designations, titles, seniority, duties and responsibilities as he shall deem advisable. The President shall report appointments of other officers and agents to the Board of Directors. 29. Direction and Compensation of Other Officers. All officers and agents appointed by the President shall perform their duties under the direction of the President and shall receive compensation as from time to time shall be fixed by the President and shall hold their offices at the pleasure of the President. 30. Bond. If required by the Board of Directors, any and every officer or agent shall give the Corporation a bond in a sum and with one or more sureties satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. 31. President. The President shall be the chief executive officer of the Corporation. He 2 3 shall have such duties and responsibilities as may be assigned to him by the Board of Directors. He shall be the senior officer of the Corporation and shall have overall responsibility for the management and direction of the business and affairs of the Corporation. In addition, he shall perform such other duties and services and shall have such other authority and responsibilities as shall be assigned to or required of him from time to time by the Board of Directors or the Executive Committee of the Board of Directors. 32. Vice Presidents. Each Vice President, however titled, shall perform such duties and services and shall have such authority and responsibilities as shall be assigned to or required of him from time to time by the Board of Directors, the Executive Committee of the Board of Directors or the President. 33. Secretary and Assistant Secretaries. (a) The Secretary shall attend all meetings of the stockholders and all meetings of the Board of Directors and record all proceedings of the meetings of the stockholders and of the Board of Directors, and he shall perform like duties for the standing committees when requested by the Board of Directors or the President. He shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors. He shall perform such duties as may be prescribed to him by the President. He shall have charge of the seal of the Corporation and authority to affix the seal to any instrument. He or any Assistant Secretary may attest to the corporate seal by handwritten or facsimile signature. The Secretary shall keep and account for all books, documents, papers and records of the Corporation except those for which some other officer or agent has been designated or is otherwise properly accountable. He shall have authority to sign stock certificates. (b) Assistant Secretaries, in the order of their seniority, shall assist the Secretary and, if the Secretary is unavailable or fails to act, perform the duties and exercise the authorities of the Secretary. 34. Treasurer and Assistant Treasurers. (a) The Treasurer shall have the custody of the funds and securities belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Treasurer with the prior approval of the Chairman or the President. He shall disburse the funds and pledge the credit of the Corporation as may be directed by the Board of Directors and shall render to the Board of Directors and the President, as and when required by them, or any of them, an account of all his transactions as Treasurer. (b) Assistant Treasurers, in the order of their seniority, shall assist the Treasurer and, if the Treasurer is unable or fails to act, perform the duties and exercise the powers of the Treasurer. 35. Controller and Assistant Controllers. (a) The Controller shall be the chief accounting officer of the Corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation in accordance with accepted accounting methods and procedures. He shall initiate periodic audits of the accounting records, methods and systems of the Corporation. He shall render to the Board of Directors and the President, as and when required by them, or any of them, a statement of the financial condition of the 3 4 Corporation. (b) Assistant Controllers, in the order of their seniority, shall assist the Controller and, if the Controller is unable or fails to act, perform the duties and exercise the powers of the Controller. 36. General Counsel and Deputy and Assistant General Counsels. (a) The General Counsel shall be the chief legal officer of the Corporation. He shall provide legal counsel and advice to the Board of Directors and to the officers with respect to compliance with applicable laws and regulations. He shall also provide or obtain legal defense of the Corporation. He shall render to the Board of Directors and the President, as and when required by them, or any of them, a report on the status of claims against, and pending litigation of, the Corporation. (b) Deputy and Assistant General Counsels, in the order of their seniority, shall assist the General Counsel and, if the General Counsel is unable or fails to act, perform the duties and exercise the powers of the General Counsel. By-Law 39 is amended to read as follows: 39. Form of Certificates. The certificates representing stock of the Corporation shall be numbered and shall be entered in the books of the Corporation as they are issued. They shall exhibit the holder's name and number of shares and shall be mechanically signed with a facsimile of the signature of the President or a Vice President, and a facsimile of the signature of the Secretary or an Assistant Secretary, and shall also be signed by, or bear the facsimile signature of, a duly authorized officer or agent of any properly designated transfer agent of the Corporation. Such certificates may be issued and delivered notwithstanding that the person whose facsimile signature appears thereon shall have ceased to be such officer at the time the certificates are issued and delivered. 4 EX-3.II.2 3 BY-LAWS AS AMENDED APRIL 21, 1995 1 Exhibit 3(ii).2 MAXUS ENERGY CORPORATION BY-LAWS AS AMENDED APRIL 21, 1995 _______________________________________________ MAXUS ENERGY CORPORATION DALLAS, TEXAS 75201 2 MAXUS ENERGY CORPORATION BY-LAWS TABLE OF CONTENTS
PAGE ---- OFFICES 1. Delaware . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Dallas and Elsewhere . . . . . . . . . . . . . . . . . . . . . . . . 1 STOCKHOLDERS' MEETINGS 3. Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6. Notice of Stockholder Business . . . . . . . . . . . . . . . . . . . 1 7. Inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 10. List of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . 3 11. Order of Business . . . . . . . . . . . . . . . . . . . . . . . . . 3 NOMINATION OF DIRECTOR CANDIDATES 12. Notification of Nominees . . . . . . . . . . . . . . . . . . . . . . 3 13. Substitution of Nominees . . . . . . . . . . . . . . . . . . . . . . 4 14. Compliance with Procedures . . . . . . . . . . . . . . . . . . . . . 4 DIRECTORS 15. Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . 4 16. Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 6 17. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 18. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 19. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 20. Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 21. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 22. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 23. Committees of the Board of Directors . . . . . . . . . . . . . . . . 7 OFFICERS 24. Executive Officers . . . . . . . . . . . . . . . . . . . . . . . . . 8 25. Authority of the Board of Directors . . . . . . . . . . . . . . . . 8 26. Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 27. Compensation of Executive Officers . . . . . . . . . . . . . . . . . 8 28. Other Officers and Agents . . . . . . . . . . . . . . . . . . . . . 8
ii 3 29. Direction and Compensation of Other Officers . . . . . . . . . . . . 8 30. Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 31. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 32. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . 9 33. Secretary and Assistant Secretaries . . . . . . . . . . . . . . . . 9 34. Treasurer and Assistant Treasurers . . . . . . . . . . . . . . . . . 9 35. Controller and Assistant Controllers . . . . . . . . . . . . . . . . 10 36. General Counsel and Deputy and Assistant General Counsels . . . . . . . . . . . . . . . . . . . . . . . . . . 10 INDEMNIFICATION 37. Damages and Expenses . . . . . . . . . . . . . . . . . . . . . . . . 10 38. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 STOCK RECORDS 39. Form of Certificates . . . . . . . . . . . . . . . . . . . . . . . . 14 40. Classes of Stock: Rights . . . . . . . . . . . . . . . . . . . . . . 14 41. Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 15 43. Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 GENERAL 44. Contracts, Checks, Etc. . . . . . . . . . . . . . . . . . . . . . . 15 45. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 46. Annual Statement . . . . . . . . . . . . . . . . . . . . . . . . . . 15 47. Form of Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 16 48. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 49. By-Law Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 16 50. Certificate of Incorporation and Applicable Law . . . . . . . . . . . 16
iii 4 BY-LAWS OFFICES 1. Delaware. The Corporation's registered office in the State of Delaware shall be in the City of Wilmington, County of New Castle, State of Delaware, and the name of the registered agent in charge thereof is The Corporation Trust Company. 2. Dallas and Elsewhere. The Corporation shall also have an office at such place in the City of Dallas, County of Dallas, State of Texas, and may also have offices at such other places, as the Board of Directors may from time to time appoint or the business of the Corporation may require. STOCKHOLDERS' MEETINGS 3. Place. Meetings of the stockholders shall be held at such place as the Board of Directors shall determine. 4. Annual Meeting. The annual meeting of the stockholders for the election of Directors, the receiving of reports and the transaction of such other business as may properly be brought before the meeting shall be held on such date and at such time as the Board of Directors determines. 5. Special Meetings. Special meetings of the stockholders for any purpose may be called by the President and shall be promptly called by the President or by the Secretary at the written request of a majority of the Board of Directors upon not fewer than 10 nor more than 60 days' written notice. The request shall be sent to the President and the Secretary and shall state the purposes of the proposed meeting. Special meetings of holders of the outstanding Preferred Stock may be called in the manner and for the purposes provided in the resolutions of the Board of Directors providing for the issue of such stock (a "Preferred Stock Designation"). Business transacted at special meetings shall be confined to the purposes stated in the notice. 6. Notice of Stockholder Business. At an annual meeting of the stockholders, only such business shall be conducted as shall have 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 1 5 be requested to be brought before the meeting by a stockholder. For business to be properly requested to be brought before an annual meeting by a stockholder, the 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 80 days prior to the meeting; provided, however, that in the event that the date of the meeting is not publicly announced by the Corporation by mail, press release or otherwise more than 90 days prior to the meeting, notice by the stockholder to be timely must be delivered to the Secretary of the Corporation not later than the close of business on the tenth day following the day on which such announcement of the date of the meeting was communicated to stockholders. A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (b) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business, (c) the class and number of shares of the Corporation which are beneficially owned by the stockholder, and (d) any material interest of the stockholder in such business. Notwithstanding anything in the By-Laws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this By-Law 6. 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 and in accordance with the provisions of this By-Law 6, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. 7. Inspectors. The Board of Directors shall appoint inspectors of election to act as judges of the voting and to determine those entitled to vote at any stockholders' meeting, or any adjournment thereof, in advance of such meeting, but if the Board of Directors fails to make such appointments or if an appointee fails to serve, the chairman of the stockholders' meeting may appoint substitute inspectors. 8. Quorum. Except as otherwise provided in a Preferred Stock Designation, the holders of stock having a majority of voting power entitled to vote at any stockholders' meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business thereat. If, however, such majority shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time without notice, other than announcement at the meeting of the time and place of the adjourned meeting, until the requisite amount of voting stock shall be present or represented or the meeting has been adjourned permanently. At such adjourned meeting, at which the requisite amount of voting stock shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally called. 9. Voting. At each meeting of the stockholders, every stockholder having the right to vote shall be entitled to vote in person or by proxy appointed by a legally sufficient instrument. The vote for Directors, the vote upon any questions set forth in the Proxy Statement for the meeting and the vote upon any other action of business at the discretion of the chairman of the stockholders' meeting shall be by written ballot. The vote upon any other question before the meeting shall be 2 6 by written ballot upon the demand of stockholders voting at least 15% of the shares represented at the meeting. All questions, except election or removal of Directors or as otherwise provided in these By-Laws, the Certificate of Incorporation of the Corporation (the "Certificate of Incorporation") or the Preferred Stock Designation for any series of Preferred Stock, shall be decided by a majority vote of those shares present or represented and voting, and, with respect to any election or question to be decided by any class of stock voting as a class, by a majority vote of those shares present or represented and voting of that class. 10. List of Stockholders. A complete list of the stockholders entitled to vote at any meeting shall be available for examination by such persons for any proper purpose, for such period of time and at such place as is required by law. 11. Order of Business. Unless otherwise determined by the Board of Directors prior to the meeting, the chairman of the stockholders' meeting shall determine the order of business and shall have the authority in his discretion to regulate the conduct of any such meeting, including, without limitation, by imposing restrictions on the persons (other than stockholders of the Corporation or their duly appointed proxies) who may attend any such stockholders' meeting, whether any stockholder or his proxy may be excluded from any stockholders' meeting based upon any determination by the chairman, in his sole discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings thereat, and the circumstances in which any person may make a statement or ask questions at any stockholders' meeting. NOMINATION OF DIRECTOR CANDIDATES 12. Notification of Nominees. Subject to the rights of holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, nominations for the election of Directors may be made by the Board of Directors or a committee appointed by the Board of Directors or by any stockholder entitled to vote in the election of Directors generally. However, any stockholder entitled to vote in the election of Directors generally may nominate one or more persons for election as Directors at a meeting only if written notice of such stockholder's intent to make such nomination or nominations has been received by the Secretary of the Corporation not less than 80 days in advance of such meeting; provided, however, that in the event that the date of the meeting was not publicly announced by the Corporation by mail, press release or otherwise more than 90 days prior to the meeting, notice by the stockholder to be timely must be delivered to the Secretary of the Corporation not later than the close of business on the tenth day following the day on which such announcement of the date of the meeting was communicated to stockholders. Each such notice shall set forth: (a) the name and address of the stockholder who intends to make the nomination and of the person or persons to be nominated; (b) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote for the election of Directors on the date of such notice and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons 3 7 (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (d) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (e) the consent of each nominee to serve as a director of the Corporation if so elected. 13. Substitution of Nominees. In the event that a person is validly designated as a nominee in accordance with By-Law 12 and shall thereafter become unable or unwilling to stand for election to the Board of Directors, the Board of Directors or the stockholder who proposed such nominee, as the case may be, may designate a substitute nominee upon delivery, not fewer than five days prior to the date of the meeting for the election of such nominee of a written notice to the Secretary setting forth such information regarding such substitute nominee as would have been required to be delivered to the Secretary pursuant to By-Law 12 had such substitute nominee been initially proposed as a nominee. Such notice shall include a signed consent to serve as a Director of the Corporation, if elected, of each such substitute nominee. 14. Compliance with Procedures. If the chairman of the meeting for the election of Directors determines that a nomination of any candidate for election as a Director at such meeting was not made in accordance with the applicable provisions of By-Laws 12 and 13, such nomination shall be void; provided, however, that nothing in By-Laws 12 or 13 shall be deemed to limit any voting rights upon the occurrence of dividend arrearages provided to holders of Preferred Stock pursuant to the Preferred Stock Designation for any series of Preferred Stock. DIRECTORS 15. Board of Directors. (a) Number, election and terms. Except as otherwise fixed by, or pursuant to the provisions of, Article Fourth of the Certificate of Incorporation relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional Directors under specified circumstances, the number of the Directors of the Corporation shall be fixed from time to time by the Board of Directors but shall be no fewer than twelve nor more than sixteen. The Directors, other than those who may be elected by the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as determined by the Board of Directors of the Corporation. At the annual meeting of the stockholders held in 1985, one class shall be originally elected for a term expiring at the annual meeting of stockholders to be held in 1986, another class shall be originally elected for a term expiring at the annual meeting of stockholders to be held in 1987, and another class shall be originally elected for a term expiring at the annual meeting of stockholders to be held in 1988, with each member of each class to hold office until his successor 4 8 is elected and qualified. At each succeeding annual meeting of the stockholders of the Corporation, the successors of the class of Directors whose term expires at that meeting shall, subject to Section (b) of this By-Law 15, be elected by plurality vote by written ballot to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. (b) Cumulative Voting In Certain Circumstances. In any election of Directors of the Corporation on or after the date on which the Corporation becomes aware that any 30% Stockholder (as defined below) has become a 30% Stockholder, and until such time as no 30% Stockholder any longer exists, there shall be cumulative voting for election of Directors so that any holder of shares of the Corporation entitled to vote generally in the election of Directors may cumulate the voting power represented by his shares and give one candidate a number of votes equal to the number of Directors to be elected multiplied by the number of votes to which such shares are entitled, or distribute such votes on the same principle among as many candidates for election as such holder of shares determines. For the purposes of this Section (b) of By-Law 15, a 30% Stockholder shall mean any person (other than the Corporation and any other corporation of which a majority of the voting power of the capital stock entitled to vote generally in the election of directors is owned, directly or indirectly, by the Corporation) who or which is the beneficial owner, directly or indirectly of 30% or more of the voting power of all shares of the Corporation entitled to vote generally in the election of Directors. For the purpose of this By-Law 15: (1) A "person" shall mean any individual, firm, corporation or other entity. (2) A person shall be a "beneficial owner" of any shares of stock of the Corporation: (i) which such person or any of its Affiliates or Associates (as hereinafter defined) beneficially owns, directly or indirectly; or (ii) which such person or any of its Affiliates or Associates (as defined in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on January 1, 1985) has (A) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (B) the right to vote pursuant to any agreement, arrangement or understanding; (iii) which is beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of stock of the Corporation; provided, however, that no person shall be deemed to be a "beneficial owner" of any shares of Voting Stock solely by reason of such person's right to vote or to acquire such Voting Stock pursuant to any agreement or instrument approved by a majority of the Board of Directors. 5 9 (3) In determining whether a person is a holder of 30% or more of the voting power of all shares of the Corporation entitled to vote generally in the election of Directors pursuant to Section (b) of this By-Law 15, any class of such shares outstanding shall be deemed to include any such shares deemed owned through application of paragraph (2) of this Section (b) but shall not include any other securities of such class which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. (c) Newly created directorships and vacancies. Except as otherwise provided for or fixed by or pursuant to the provisions of Article Fourth of the Certificate of Incorporation relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled only by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director's successor shall have been elected and qualified. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director. (d) Removal. Subject to the rights of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect Directors under specified circumstances, any Director may be removed from office only by the affirmative vote of the holders of at least 80% of the combined voting power of the outstanding shares of stock entitled to vote generally in the election of Directors, voting together as a single class; provided that notwithstanding the foregoing provisions of this Section (d), if at any time when cumulative voting is permitted pursuant to Section (b) of this By-Law 15 less than the entire Board of Directors is to be removed, no Director may be removed from office if the votes cast against his removal would be sufficient to elect him as a Director if then cumulatively voted at an election of the class of Directors of which he is a part. (e) Chairman of the Board. The Board may elect one of its members Chairman of the Board, who shall preside at all meetings of the Board. The Chairman of the Board shall also preside at all meetings of stockholders unless the Board of Directors designates another person to preside. 16. Responsibilities. The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. 17. Powers. In addition to the powers and authorities expressly conferred by these By-Laws, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders. 6 10 18. Compensation. The Board of Directors may establish such compensation for, and reimbursement of the expenses of, Directors for attendance at meetings of the Board of Directors or committees, or for other services by Directors to the Corporation, as the Board of Directors may determine. 19. Resignation. Any Director may resign at any time by giving written notice of his resignation to the President or the Secretary. 20. Meetings. Immediately after the adjournment of the annual meeting of the stockholders each year, the Directors elected thereat shall, without notice, convene the annual meeting of Directors for the organization of the Board of Directors, the election of officers and members of committees and the transaction of any other business which may properly come before the meeting. If a quorum of the Board of Directors shall not be present, the President shall call a meeting for such purposes as promptly as is practicable. Except as otherwise provided in this By-Law 20, Directors may hold their regular and special meetings at such times and places and have one or more offices and keep the books of the Corporation at such places as the Board of Directors determines. 21. Notices. No notice of regular meetings of the Board of Directors need be given. Special meetings of the Board of Directors may be called by the President upon notice to each Director, given either in person or by mail, telephone, telegram, telex or similar medium of communication; special meetings shall be called by the President or the Secretary on like notice, on the written request of three Directors. At least 24 hours' notice of special meetings shall be given to each Director. 22. Quorum. Subject to the provisions of Section (c) of By-Law 15, at all meetings of the Board of Directors, a majority of the total number of Directors shall constitute a quorum for the transaction of business and, except for the designation of committees (as provided in By-Law 23) and the removal of executive officers (as provided in By-Law 25), the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum is not present, a majority of the Directors present may adjourn the meeting without notice other than announcement until a quorum is present. 23. Committees of the Board of Directors. The Board of Directors, by resolution passed by a majority of the whole Board of Directors, may designate one or more committees, each committee to consist of two or more Directors. A committee shall have and exercise the powers of the Board of Directors in the direction of the management of the business and affairs of the Corporation to the extent provided in the resolution. Each committee shall have such name as may be determined by the Board of Directors. Except as may be otherwise provided in a resolution or resolutions duly adopted by the Board of Directors, a majority of the members of a committee shall constitute a quorum and a majority vote of the members at a meeting at which a quorum is present shall be the act of the committee. A committee shall keep minutes of its proceedings, and shall report its proceedings to the Board of Directors when required or when requested by a Director to do so. 7 11 OFFICERS 24. Executive Officers. At the annual meeting of the Board of Directors each year, or such other times as the Board of Directors may determine, the Board of Directors may elect the following executive officers: President One or more Vice Presidents General Counsel Treasurer Controller 25. Authority of the Board of Directors. The executive officers shall have the duties, responsibilities and authorities as are reflected in these By-Laws or in resolutions of the Board of Directors, but at all times the actions of the executive officers shall be subject to the review, delegation, redetermination, direction and control of the Board of Directors. Any number of executive offices may be held by the same person. The President shall be a member of the Board of Directors. At any meeting the Board of Directors may elect additional executive officers, fill vacancies and, by vote of a majority of the whole Board of Directors, remove any executive officer. 26. Term of Office. An executive officer shall hold office until he retires, resigns or is removed by majority vote of the whole Board of Directors. An officer may resign at any time by giving written notice of his resignation to the President or the Secretary. 27. Compensation of Executive Officers. The executive officers shall receive such compensation as shall be fixed by the Board of Directors. 28. Other Officers and Agents. The President may appoint the Secretary, such Assistant Secretaries, Assistant Treasurers, Assistant Controllers, Deputy General Counsels, Assistant General Counsels and other officers and agents as the President shall deem necessary or proper in the conduct of the affairs of the Corporation with such designations, titles, seniority, duties and responsibilities as he shall deem advisable. The President shall report appointments of other officers and agents to the Board of Directors. 29. Direction and Compensation of Other Officers. All officers and agents appointed by the President shall perform their duties under the direction of the President and shall receive compensation as from time to time shall be fixed by the President and shall hold their offices at the pleasure of the President. 30. Bond. If required by the Board of Directors, any and every officer or agent shall give the Corporation a bond in a sum and with one or more sureties satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, 8 12 money and other property of whatever kind in his possession or under his control belonging to the Corporation. 31. President. The President shall be the chief executive officer of the Corporation. He shall have such duties and responsibilities as may be assigned to him by the Board of Directors. He shall be the senior officer of the Corporation and shall have overall responsibility for the management and direction of the business and affairs of the Corporation. In addition, he shall perform such other duties and services and shall have such other authority and responsibilities as shall be assigned to or required of him from time to time by the Board of Directors or the Executive Committee of the Board of Directors. 32. Vice Presidents. Each Vice President, however titled, shall perform such duties and services and shall have such authority and responsibilities as shall be assigned to or required of him from time to time by the Board of Directors, the Executive Committee of the Board of Directors or the President. 33. Secretary and Assistant Secretaries. (a) The Secretary shall attend all meetings of the stockholders and all meetings of the Board of Directors and record all proceedings of the meetings of the stockholders and of the Board of Directors, and he shall perform like duties for the standing committees when requested by the Board of Directors or the President. He shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors. He shall perform such duties as may be prescribed to him by the President. He shall have charge of the seal of the Corporation and authority to affix the seal to any instrument. He or any Assistant Secretary may attest to the corporate seal by handwritten or facsimile signature. The Secretary shall keep and account for all books, documents, papers and records of the Corporation except those for which some other officer or agent has been designated or is otherwise properly accountable. He shall have authority to sign stock certificates. (b) Assistant Secretaries, in the order of their seniority, shall assist the Secretary and, if the Secretary is unavailable or fails to act, perform the duties and exercise the authorities of the Secretary. 34. Treasurer and Assistant Treasurers. (a) The Treasurer shall have the custody of the funds and securities belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Treasurer with the prior approval of the Chairman or the President. He shall disburse the funds and pledge the credit of the Corporation as may be directed by the Board of Directors and shall render to the Board of Directors and the President, as and when required by them, or any of them, an account of all his transactions as Treasurer. 9 13 (b) Assistant Treasurers, in the order of their seniority, shall assist the Treasurer and, if the Treasurer is unable or fails to act, perform the duties and exercise the powers of the Treasurer. 35. Controller and Assistant Controllers. (a) The Controller shall be the chief accounting officer of the Corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation in accordance with accepted accounting methods and procedures. He shall initiate periodic audits of the accounting records, methods and systems of the Corporation. He shall render to the Board of Directors and the President, as and when required by them, or any of them, a statement of the financial condition of the Corporation. (b) Assistant Controllers, in the order of their seniority, shall assist the Controller and, if the Controller is unable or fails to act, perform the duties and exercise the powers of the Controller. 36. General Counsel and Deputy and Assistant General Counsels. (a) The General Counsel shall be the chief legal officer of the Corporation. He shall provide legal counsel and advice to the Board of Directors and to the officers with respect to compliance with applicable laws and regulations. He shall also provide or obtain legal defense of the Corporation. He shall render to the Board of Directors and the President, as and when required by them, or any of them, a report on the status of claims against, and pending litigation of, the Corporation. (b) Deputy and Assistant General Counsels, in the order of their seniority, shall assist the General Counsel and, if the General Counsel is unable or fails to act, perform the duties and exercise the powers of the General Counsel. INDEMNIFICATION 37. Damages and Expenses. (a) Actions, Suits or Proceedings Other Than by or in the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was or has agreed to become a Director, officer, employee or agent of the Corporation, or is or was serving or has agreed to serve at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges, expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, 10 14 suit or proceeding and any appeal therefrom, 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 meet the standards of conduct set forth in this Section (a). (b) Actions or Suits by or in the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action 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 or has agreed to become a Director, officer, employee or agent of the Corporation, or is or was serving or has agreed to serve at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges and expenses (including attorney's fees) actually and reasonably incurred by him or on his behalf in connection with the defense or settlement of such action or suit and any appeal therefrom, 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, 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 of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such costs, charges and expenses which the Court of Chancery or such other court shall deem proper. (c) Indemnification for Costs, Charges and Expenses of Successful Party. Notwithstanding the other provisions of this By-Law 37, to the extent that a Director, officer, employee or agent of the Corporation has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in Sections (a) and (b) of this By-Law 37, or in the defense of any claim, issue or matter therein, he shall be indemnified against all costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by him or on his behalf in connection therewith. (d) Determination of Right to Indemnification. Any indemnification under Sections (a) and (b) of this By-Law 37 (unless ordered by a court) shall be paid by the Corporation unless a determination is made (1) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or even if obtainable a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders, that indemnification of the Director, officer, employee or agent is not proper in the circumstances because he has not met the applicable standards of conduct set forth in Sections (a) and (b) of this By-Law 37. (e) Advance of Costs, Charges and Expenses. Costs, charges and expenses (including 11 15 attorneys' fees) incurred by a person referred to in Sections (a) and (b) of this By-Law 37 in defending a civil or criminal action, suit or proceeding (including investigations by any government agency and all costs, charges and expenses incurred in preparing for any threatened action, suit or proceeding) shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding; provided, however, that the payment of such costs, charges and expenses incurred by a Director or officer in his capacity as a Director or officer (and not in any other capacity in which service was or is rendered by such person while a Director or officer) in advance of the final disposition of such action, suit or proceeding shall be made only upon receipt of an undertaking by or on behalf of the Director or officer to repay all amounts so advanced in the event that it shall ultimately be determined that such Director or officer is not entitled to be indemnified by the Corporation as authorized in this By-Law 37. No security shall be required for such undertaking and such undertaking shall be accepted without reference to the recipient's financial ability to make repayment. The repayment of such charges and expenses incurred by other employees and agents of the Corporation which are paid by the Corporation in advance of the final disposition of such action, suit or proceeding as permitted by this Section (e) may be required upon such terms and conditions, if any, as the Board of Directors deems appropriate. The Board of Directors may, in the manner set forth above, and subject to the approval of such Director, officer, employee or agent of the Corporation, authorize the Corporation's counsel to represent such person, in any action, suit or proceeding, whether or not the Corporation is a party to such action, suit or proceeding. (f) Procedure for Indemnification. Any indemnification under Sections (a), (b), or (c) or advance of costs, charges and expenses under Section (e) of this By-Law 37 shall be made promptly, and in any event within 60 days, upon the written request of the Director, officer, employee or agent directed to the Secretary of the Corporation. The right to indemnification or advances as granted by this By-Law 37 shall be enforceable by the Director, officer, employee or agent in any court of competent jurisdiction if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such person's costs and expenses incurred in connection with successfully establishing his right to indemnification or advances, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section (e) of this By-Law 37 where the required undertaking, if any, has been received by the Corporation) that the claimant has not met the standard of conduct set forth in Sections (a) or (b) of this By-Law 37, but the burden of proving that such standard of conduct has not been met shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections (a) and (b) of this By-Law 37, nor the fact that there has been an actual determination by the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. (g) Other Rights; Continuation of Right to Indemnification. The indemnification provided by this By-Law 37 shall not be deemed exclusive of any other rights to which a person seeking 12 16 indemnification may be entitled under any law (common or statutory), agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office or while employed by or acting as agent for the Corporation, and shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the estate, heirs, executors and administrators of such person. All rights to indemnification under this By-Law 37 shall be deemed to be a contract between the Corporation and each Director, officer, employee or agent of the Corporation who serves or served in such capacity at any time while this By-Law 37 is in effect. No amendment or repeal of this By-Law 37 or of any relevant provisions of the Delaware General Corporation Law or any other applicable laws shall adversely affect or deny to any Director, officer, employee or agent any rights to indemnification which such person may have, or change or release any obligations of the Corporation, under this By-Law 37 with respect to any costs, charges, expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement which arise out of an action, suit or proceeding based in whole or substantial part on any act or failure to act, actual or alleged, which takes place before or while this By-Law 37, as adopted by the Board of Directors of the Corporation on April 17, 1986, is in effect. The provisions of this Section (g) shall apply to any such action, suit or proceeding whenever commenced, including any such action, suit or proceeding commenced after any amendment or repeal of this By-Law 37. (h) For purposes of this By-Law: (1) "the Corporation" shall include any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its Directors, officers, and employees or agents, so that any person who is or was a Director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this By-Law 37 with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued; (2) "other enterprises" shall include employee benefit plans, including but not limited to any employee benefit plan of the Corporation; (3) "serving at the request of the Corporation" shall include any service which imposes duties on, or involves services by, a Director, officer, employee, or agent of the Corporation with respect to an employee benefit plan, its participants, or beneficiaries, including acting as a fiduciary thereof; (4) "fines" shall include any penalties and any excise or similar taxes assessed on a person with respect to an employee benefit plan; (5) A person who acted in good faith and in a manner he reasonably believed 13 17 to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in Sections (a) and (b) of this By-Law 37; (6) Service as a partner, trustee or member of management or similar committee of a partnership or joint venture, or as a Director, officer, employee or agent of a corporation which is a partner, trustee or joint venturer, shall be considered service as a Director, officer, employee or agent of the partnership, joint venture, trust or other enterprise. (i) Savings Clause. If this By-Law 37 or any portion hereof shall be invalidated on any ground by a court of competent jurisdiction, then the Corporation shall nevertheless indemnify each Director, officer, employee and agent of the Corporation as to costs, charges and expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation, to the full extent permitted by any applicable portion of this By-Law 37 that shall not have been invalidated and to the full extent permitted by applicable law. 38. Insurance. The Corporation shall purchase and maintain insurance on behalf of any person who is or was or has agreed to become a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him or on his behalf in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of By-Law 37, provided that such insurance is available on acceptable terms as determined by a vote of a majority of the entire Board of Directors. STOCK RECORDS 39. Form of Certificates. The certificates representing stock of the Corporation shall be numbered and shall be entered in the books of the Corporation as they are issued. They shall exhibit the holder's name and number of shares and shall be mechanically signed with a facsimile of the signature of the President or a Vice President, and a facsimile of the signature of the Secretary or an Assistant Secretary, and shall also be signed by, or bear the facsimile signature of, a duly authorized officer or agent of any properly designated transfer agent of the Corporation. Such certificates may be issued and delivered notwithstanding that the person whose facsimile signature appears thereon shall have ceased to be such officer at the time the certificates are issued and delivered. 40. Classes of Stock: Rights. The designations, preferences and relative participating, optional or other special rights of the various classes of stock or series thereof, and the qualifications, limitations or restrictions thereof, shall be set forth in full or summarized on the face 14 18 or back of the certificates which the Corporation issues to represent its stock, or in lieu thereof, such certificates shall set forth the office of the Corporation from which the holders of certificates may obtain a copy of such information. 41. Transfers. Subject to restrictions on the transfer of stock, the Corporation shall make transfers of stock on its books upon surrender of the certificate for the shares to the Corporation or its duly appointed transfer agent duly endorsed by the stockholder named in the certificate or his duly authorized attorney. 42. Lost Certificates. An executive officer may direct a new certificate to be issued in place of certificates theretofore issued by the Corporation and alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance thereof, the officer may require the claimant to advertise the alleged loss, theft or destruction in such manner as the officer may require and to give the Corporation a bond in such sum as he may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate. 43. Record Dates. The Board of Directors may fix in advance a date, not more than 60 days nor fewer than 10 days prior to the date of any meeting of stockholders, nor more than 60 prior to 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, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting and any adjournment thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock and in such case such stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting and any adjournment thereof, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. GENERAL 44. Contracts, Checks, Etc. All contracts, agreements, checks, drafts, notes, bonds, bills of exchange and orders for the payment of money shall be signed or endorsed by the persons whom the Board of Directors prescribes therefor. 45. Fiscal Year. The fiscal year of the Corporation shall be the calendar year, except as otherwise determined from time to time by the Board of Directors. 46. Annual Statement. The Board of Directors shall cause an independent public accountant, selected from time to time by the Board of Directors, to examine in accordance with 15 19 generally accepted auditing standards, prior to the annual meeting of the stockholders in each year, the books and records of the Corporation and the financial statements for the preceding fiscal year, which statements shall set forth the financial position as of the close of, and the results of operations of the Corporation for, the preceding fiscal year, and the Board of Directors shall cause such accountant or firm of accountants to render to the Board of Directors its opinion with respect thereto. The Board of Directors shall cause copies of the financial statements together with the opinion to be sent to all stockholders entitled to vote at the annual meeting in the year succeeding the year to which the financial statements apply and to be available to stockholders attending the annual meeting. 47. Form of Notices. Whenever notice is required to be given to any Director or officer or stockholder, such notice may be given either in person or by mail, telephone or telegram, telex or similar medium of communication, except as provided in By-Law 6, By-Law 12 or By-Law 21. Except as provided in By-Law 6, By-Law 12 or By-Law 21, if mailed, the notice will be deemed given when deposited in the United States mail, postage prepaid, addressed to the stockholder, officer or Director at such address as appears on the books of the Corporation, or, in default of other address, to such Director, officer or stockholder at the General Post Office in the City of Dallas, Texas, or the City of Cleveland, Ohio. If given in person or by telephone, notice will be deemed given when communicated, and if given by telegram, telex or similar medium of communication, notice will be deemed given when properly dispatched. Any stockholder, Director or officer may waive any notice required to be given under these By-Laws. 48. Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. 49. By-Law Amendment. Subject to the provisions of the Certificate of Incorporation, these By-Laws may be altered, changed, amended or repealed at any regular meeting of the stockholders (or at any special meeting thereof duly called for that purpose) by a majority vote of the shares represented and entitled to vote at such meeting; provided that in the notice of such special meeting notice of such purpose shall be given. Subject to the laws of the State of Delaware, the Certificate of Incorporation and these By-Laws, the Board of Directors may by majority vote of those present at any meeting at which a quorum is present amend these By-Laws, or enact such other By-Laws as in their judgement may be advisable for the regulation of the conduct of the affairs of the Corporation. 50. Certificate of Incorporation and Applicable Law. These By-Laws are subject to the provisions of the Certificate of Incorporation and applicable law. 16 EX-27.1 4 FINANCIAL DATA SCHEDULE
5 1,000,000 3-MOS DEC-31-1995 MAR-31-1995 92 65 128 1 29 395 1,111 1,638 1,692 224 971 125 8 136 (130) 1,692 143 152 75 108 58 0 24 (38) 19 (57) 0 0 0 (57) (.49) 0
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