Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 99 560K
2: EX-3.1 Certificate of Incorporation 8 30K
3: EX-3.2 Bylaws 14 55K
4: EX-10.1 Reorganization Agreement 21 93K
13: EX-10.10 Gas Treating and Processing Agreement 48 131K
14: EX-10.11 Gas Gathering, Treating and Processing Agreement 36 99K
15: EX-10.12 Gas Gathering, Treating and Processing Agreement 32 104K
16: EX-10.13 Products Exchange Agreements 3 20K
17: EX-10.14 Gas Processing and Treating Agreement 11 44K
18: EX-10.15 Processing Agreement 30 66K
19: EX-10.16 Natural Gas Liquids Purchase Agreement 7 31K
20: EX-10.17 Purchase and Demolition Agreement 25 52K
21: EX-10.18 Purchase and Demolition Agreement 25 53K
22: EX-10.19 Agreement to Design and Construct New Facilities 21 43K
5: EX-10.2 Modification Agreement 6 34K
23: EX-10.20 Sales Acknowledgement 3 18K
24: EX-10.21 Loan Agreement Dated November 20, 1992 202 752K
25: EX-10.23 Natural Gas Liquids Purchase Agree. (Boldman) 14 46K
26: EX-10.25 1996 Incentive Compensation Plan 5 23K
27: EX-10.26 1996 Stock Incentive Plan of Registrant 13 52K
28: EX-10.27 1996 Nonemployee Director Stock Option Plan 9 40K
29: EX-10.28 Form of Non-Compete With J.M. Fox & Markwest 1 10K
6: EX-10.3 Amended and Restated Mortgage 41 166K
7: EX-10.4 Secured Guaranty, Dated May 2, 1996 23 62K
8: EX-10.5 Security Agreement, Dated May 2, 1996 23 78K
9: EX-10.6 Pledge Agreement, Dated May 2, 1996 21 70K
10: EX-10.7 Participation, Ownership and Operating Agreement 83 290K
11: EX-10.8 Second Amended and Restated Agreement 10 45K
12: EX-10.9 Subordination Agreement 13 47K
30: EX-11 Computation of Per Share Earnings 1 9K
31: EX-23.1 Consent of Price Waterhouse LLP 1 9K
32: EX-23.2 Consent of Bdo Seidman, LLP 1 10K
EX-3.2 — Bylaws
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BYLAWS
OF
MARKWEST HYDROCARBON, INC.
ARTICLE I.
Offices, Corporate Seal
Section 1.01. Offices. The Corporation shall have a registered
-------
office, a principal office and such other offices as the Board of Directors may
determine.
Section 1.02. Corporate Seal. The Corporation shall have no
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corporate seal.
ARTICLE II.
Meetings of Stockholders
Section 2.01. Place and Time of Meetings. Meetings of the
--------------------------
stockholders may be held at such place and at such time as may be designated by
the Board of Directors. In the absence of a designation of place, this meeting
shall be held at the principal office. In the absence of a designation of time,
the meeting shall be held at 10:00 a.m.
Section 2.02. Annual Meetings. The annual meeting of the
---------------
stockholders of the Corporation for the election of Directors and for the
transaction of any other proper business, notice of which was given in the
notice of the meeting, shall be held in June of each year on such business day
as the Secretary of the Corporation shall determine from time to time.
Section 2.03. Special Meetings. Special meetings of the stockholders
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for any purpose or purposes shall be called by the Secretary at the written
request of a majority of the total number of Directors, by the Chairman of the
Board, by the President or by the stockholders owning a majority of the shares
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at any special meeting
shall be limited to the purposes stated in the notice.
Section 2.04. Quorum, Adjourned Meetings. The holders of a majority
--------------------------
of the shares outstanding and entitled to vote shall constitute a quorum for the
transaction of business at any annual or special meeting. If a quorum is not
present at a meeting, those present shall adjourn to such day as they shall
agree upon by majority vote. Notice of any adjourned meeting need not be given
if the time and place thereof are announced at the meeting at which the
adjournment is taken. At adjourned meetings at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If
a quorum is present, the stockholders may continue to transact business until
adjournment notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 2.05. Organization. At each meeting of the stockholders, the
------------
Chairman of the Board or in his or her absence the President or in his or her
absence the chairman chosen by a majority in voting interest of the stockholders
present in person or by proxy and entitled to vote shall act as chairman; and
the Secretary of the Corporation or in his or her absence an Assistant Secretary
or in his or her absence any person whom the chairman of the meeting shall
appoint shall act as Secretary of the meeting.
Section 2.06. Order of Business. The order of business at all
-----------------
meetings of the stockholders shall be determined by the chairman of the meeting,
but such order of business may be changed by the vote of a majority in voting
interest of those present or represented at such meeting and entitled to vote
thereat.
Section 2.07. Voting. Each stockholder of the Corporation entitled
------
to vote at a meeting of stockholders or entitled to express consent in writing
to the corporate action without a meeting shall have one vote in person or by
proxy for each share of stock having voting rights held by him or her and
registered in his or her name on the books of the Corporation. Upon the request
of any stockholder, the vote upon any question before a meeting shall be by
written ballot, and all elections of Directors shall be by written ballot. All
questions at a meeting shall be decided by a majority vote of the number of
shares entitled to vote represented at the meeting at the time of the vote
except where otherwise required by statute, the Certificate of Incorporation or
these Bylaws. Any action to be taken by written consent without a meeting may be
taken by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting in which all shares entitled to vote thereon were present and voted. For
the election of Directors, the persons receiving the largest number of votes (up
to and including the number of Directors to be elected) shall be Directors. If
Directors are to be elected by consent in writing of the stockholders without a
meeting, those persons receiving the consent in writing of the largest number of
shares in the aggregate and constituting not less than a majority of the total
outstanding shares entitled to consent in writing thereon (up to and including
the number of Directors to be elected) shall be Directors. Persons holding stock
in a fiduciary capacity shall be entitled to vote the shares so held. If shares
stand of record in the names of two or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or if two or more persons shall have the same fiduciary
relationship respecting the same shares, unless the Secretary of the Corporation
shall have been given written notice to the contrary and shall have been
furnished with a copy of the instrument or order appointing them or creating a
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect:
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(i) if only one shall vote, his or her act shall bind all.
(ii) if more than one shall vote, the act of the majority voting
shall bind all.
(iii) if more than one shall vote, but the votes shall be evenly
split on any particular matter, then, except as otherwise
required by statute, each fraction may vote the shares in
question proportionately.
Section 2.08. Inspectors of Election. At each meeting of the
----------------------
stockholders, the chairman of such meeting may appoint two inspectors of
election to act. Each inspector of election so appointed shall first subscribe
an oath or affirmation briefly to execute the duties of an inspector of election
at such meeting with strict impartiality and according to the best of his or her
ability such inspectors of election, if any, shall take charge of the ballots at
such meeting and after the balloting thereat on any question shall count the
ballots cast thereon and shall make a report in writing to the Secretary of such
meeting of the results thereof. An inspector of election need not be a
stockholder of the Corporation, and any officer or employee of the Corporation
may be an inspector of election on any question other than a vote for or against
his or her election to any position with the Corporation or on any other
question in which he or she may be directly interested.
Section 2.09. Notices of Meetings and Consents. Every stockholder
--------------------------------
shall furnish the Secretary of the Corporation with an address at which notices
of meetings and notices and consent material with respect to proposed corporate
action without a meeting and all other corporate communications may be served on
or mailed to him or her. Except as otherwise provided by the Certificate of
Incorporation or by statute, a written notice of each annual and special meeting
of stockholders shall be given not less than 10 nor more than 60 days before the
date of such meeting or the date on which the corporate action without a meeting
is proposed to be taken to each stockholder of record of the Corporation
entitled to vote at such meeting by delivering such notice of meeting to him or
her personally or depositing the same in the United States mail, postage
prepaid, directed to him or her at the post office address shown upon the
records of the Corporation. Service of notice is complete upon mailing. Personal
delivery to any officer of a corporation or association or to any member of a
partnership is delivery to such corporation, association or partnership. Every
notice of a meeting of stockholders shall state the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called.
Section 2.10. Proxies. Each stockholder entitled to vote at a
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meeting of stockholders or consent to corporate action without a meeting may
authorize another person or persons to act for him or her by proxy by an
instrument executed
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in writing. If any such instrument designates two or more persons to act as
proxies, a majority of such persons present at the meeting, or, if only one
shall be present, then that one, shall have and may exercise all of the powers
conferred by such written instrument upon all of the persons so designated
unless the instrument shall otherwise provide. No such proxy shall be valid
after three years from the date of its execution unless the proxy provides for a
longer period. A proxy may be irrevocable if it states that it is irrevocable
and, if, and only as long as, it is coupled with an interest sufficient to
support an irrevocable power. Subject to the above, any proxy may be revoked if
an instrument revoking it or proxy bearing a later date is filed with the
Secretary.
Section 2.11. Waiver of Notice. Notice of any annual or special
----------------
meeting may be waived either before, at or after such meeting in writing signed
by the person or persons entitled to the notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transacting of any business because the meeting is not
lawfully called or convened.
Section 2.12. Written Action. Any action that may be taken at a
--------------
meeting of the stockholders may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the actions so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be required to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
Section 2.13. Stockholder List. The officer who has charge of the
----------------
stock ledger of the Corporation shall prepare and make, at least ten days before
each meeting of stockholders, a complete list of the stockholders entitled to
vote at such meeting, arranged in alphabetical order and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder for
any purpose germane to the meeting, 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 meeting is to be held, 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. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof and may be inspected by any stockholder
who is present.
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ARTICLE III.
Board of Directors
Section 3.01. General Powers. The business of the Corporation shall
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be managed by the Board of Directors.
Section 3.02. Number, Qualification and Term of Office. The Board of
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Directors shall consist of not less than six members. The exact number of
Directors shall be fixed from time to time by the Board of Directors pursuant to
a resolution adopted by a majority of the entire Board of Directors. The
Directors shall be divided into three classes, as nearly equal in number as
possible, with respect to the times for which they shall severally hold office.
Directors of the First Class first chosen shall hold office for one year or
until the first annual election following their election; Directors of the
Second Class first chosen shall hold office for two years or until the second
annual election following their election; and Directors of the Third Class first
chosen shall hold office for three years or until the third annual election
following their election; and, in each case, until their successors shall be
duly elected and shall qualify. At each future annual meeting of the
stockholders, the successors to the Class of Directors whose terms shall expire
at that time shall be elected to hold office for a term of three years, so that
the term of office of one Class of Directors shall expire in each year. Each
Director elected shall hold office until his successor shall be elected and
shall qualify. Notwithstanding anything contained in these By-Laws to the
contrary, the affirmative vote of the holders of at least 80% of the shares of
the Corporation entitled to vote for the election of Directors shall be required
to amend or repeal, or to adopt any provision inconsistent with, this Section
3.02.
Section 3.03. Annual Meeting. As soon as practicable after each
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election of Directors, the Board of Directors shall meet at the registered
office of the Corporation, or at such other place previously designated by the
Board of Directors, for the purpose of electing the officers of the Corporation
and for the transaction of such other business as may come before the meeting.
Section 3.04. Regular Meetings. Regular meetings of the Board of
----------------
Directors shall be held from time to time at such time and place as may be fixed
by resolution adopted by a majority of the total number of Directors.
Section 3.05. Special Meetings. Special meetings of the Board of
----------------
Directors may be called by the Chairman of the Board, the President, or by any
two of the Directors and shall be held from time to time at such time and place
as may be designated in the notice of such meeting.
Section 3.06. Notice of Meetings. No notice need be given of any
------------------
annual or regular meeting of the Board of Directors. Notice of each special
meeting of the Board of Directors shall be given by the Secretary who shall give
at least
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twenty-four hours' notice thereof to each Director by mail, telephone, telegram,
or in person. Notice shall be effective upon receipt.
Section 3.07. Waiver of Notice. Notice of any meeting of the Board
----------------
of Directors may be waived either before, at, or after such meeting in writing
signed by each Director. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purposes of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 3.08. Quorum. A majority of the total number of Directors
------
shall constitute a quorum for the transaction of business. The vote of a
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors unless these Bylaws require a greater
number.
Section 3.09. Vacancies. Newly created directorships resulting from
---------
any increase in the authorized number of Directors or any vacancies in the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall he filled by a majority vote of the
remaining Directors, though less than a quorum, and the Directors so chosen
shall hold office for a term expiring at the next annual meeting of stockholders
at which a successor shall be elected and shall qualify. Notwithstanding
anything contained in these By-Laws to the contrary, the affirmative vote of the
holders of at least 80% of the shares of the Corporation entitled to vote for
the election of Directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Section 3.09.
Section 3.10. Removal. At any meeting of the stockholders held for
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the purpose of removal of Directors, any Director may, by the vote of 80% of all
the shares of stock outstanding and entitled to vote, be removed from office,
but only for cause. Notwithstanding anything contained in these By-Laws to the
contrary, the affirmative vote of the holders of at least 80% of the shares of
the Corporation entitled to vote for the election of Directors shall be required
to amend or repeal, or to adopt any provision inconsistent with, this Section
3.10.
Section 3.11. Committees of Directors. The Board of Directors may,
-----------------------
by resolution adopted by a majority of the total number of Directors, designate
one or more committees, each to consist of two or more of the Directors of the
Corporation, which, to the extent provided in the resolution, may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Corporation. The Board of Directors may designate one or more Directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Such committee or
committees shall have such name or names as may be determined by the resolution
adopted by the Directors. The committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
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Section 3.12. Written Action. Any action required or permitted to be
--------------
taken at a meeting of the Board of Directors or any committee thereof may be
taken without a meeting if all Directors or committee members consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the Board of Directors or committee.
Section 3.13. Compensation. Directors who are not salaried officers
------------
of the Corporation may receive a fixed sum per meeting attended or a fixed
annual sum and such other forms of reasonable compensation as may be determined
by resolution of the Board of Directors. All Directors shall receive their
expenses, if any, of attendance at meetings of the Board of Directors or any
committee thereof. Any Director may serve the Corporation in any other capacity
and receive proper compensation therefor.
Section 3.14. Conference Communications. Directors may participate
-------------------------
in any meeting of the Board of Directors, or of any duly constituted committee
thereof, by means of a conference telephone conversation or other comparable
communication technique whereby all persons participating in the meeting can
hear and communicate to each other. For the purposes of establishing a quorum
and taking any action at the meeting, such Directors participating pursuant to
this Section 3.14 shall be deemed present in person at the meeting; and the
place of the meeting shall be the place of origination of the conference
telephone conversation or other comparable communication technique.
Section 3.15. Conflicts of Interest.
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(a) As used in this Section 3.15, "Control Person" means any Director
or officer of the Corporation or any holder of 10% or more of the Corporation's
securities.
(b) As used in this Section 3.15, "Conflicting Interest Transaction"
means any of the following:
(i) A loan or other assistance by the Corporation to a Control
Person or to an entity in which a Control Person is a director or
officer or has a material financial interest;
(ii) A guaranty by the Corporation of an obligation of a Control
Person or of an obligation of an entity in which a Control Person is
a director or officer or has a material financial interest; or
(iii) A contract or transaction between the Corporation and a
Control Person or between the Corporation and an entity in which a
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Control Person is a director or officer or has a material financial
interest.
(c) As used in this Section 3.15, "Outside Director" means any member
of the Board of Directors of the Corporation not employed by the Corporation and
not a party to the Conflicting Interest Transaction under consideration.
(d) The Corporation shall not enter into any Conflicting Interest
Transaction unless and until the material facts as to the Director's
relationship or interest and as to the Conflicting Interest Transaction are
disclosed or are known to the Board of Directors, and a majority of the Outside
Directors in good faith authorizes, approves, or ratifies the Conflicting
Interest Transaction by affirmative vote, even though the Outside Directors are
less than a quorum.
(e) All Directors present at a meeting of the Board of Directors may
be counted in determining the presence of a quorum at a meeting of the Board of
Directors which authorizes, approves, or ratifies the Conflicting Interest
Transaction.
ARTICLE IV.
Officers
Section 4.01. Number. The officers of the Corporation shall consist
------
of a President, one or more Vice Presidents, a Secretary, a Treasurer, and any
officers and agents as the Board of Directors by a majority vote of the total
number of Directors may designate. Any person may hold two or more offices.
Section 4.02. Election, Term of Office, and Qualifications. At each
--------------------------------------------
annual meeting of the Board of Directors all officers, from within or without
their number, shall be elected. Such officers shall hold office until the next
annual meeting of the Directors or until their successors are elected and
qualified, or until such office is eliminated by a vote of the majority of all
Directors. Officers who may be Directors shall hold office until the election
and qualification of their successors, notwithstanding an earlier termination of
their Directorship.
Section 4.03. Removal and Vacancies. Any officer may be removed from
---------------------
his or her office by a majority vote of the total number of Directors with or
without cause. Such removal shall be without prejudice to the contract rights of
the person so removed. A vacancy among the officers by death, resignation,
removal, or otherwise shall be filled for the unexpired term by the Board of
Directors.
Section 4.04. Chairman of the Board. The Chairman of the Board, if
---------------------
one is elected, shall preside at all meetings of the stockholders and Directors
and
-8-
shall have such other duties as may be prescribed, from time to time, by the
Board of Directors.
Section 4.05. President. The President shall have general active
---------
management of the business of the Corporation. He or she shall preside at all
meetings of the stockholders and Directors. He or she shall be the chief
executive officer of the Corporation and shall see that all orders and
resolutions of the Directors are carried into effect. He or she shall be ex
--
officio a member of all standing committees. He or she may execute and deliver
-------
in the name of the Corporation any deeds, mortgages, bonds, contracts or other
instruments pertaining to the business of the Corporation and in general shall
perform all duties usually incident to the office of the President. He or she
shall have such other duties as may, from time to time, be prescribed by the
Board of Directors.
Section 4.06. Vice President. Each Vice President shall have such
--------------
powers and shall perform such duties as may be prescribed by the Board of
Directors or by the President. In the event of absence or disability of the
President, Vice Presidents shall succeed to his or her power and duties in the
order designated by the Board of Directors.
Section 4.07. Secretary. The Secretary shall be secretary of and
---------
shall attend all meetings of the stockholders and Board of Directors and shall
record all proceedings of such meetings in the minute book of the Corporation.
He or she shall give proper notice of meetings of stockholders and the Board of
Directors. He or she shall perform such other duties as may from time to time be
prescribed by the Board of Directors or by the President.
Section 4.08. Treasurer. The Treasurer shall keep accurate accounts
---------
of all moneys of the Corporation received or disbursed. He or she shall deposit
all moneys, drafts and checks in the name of and to the credit of the
Corporation in such banks and depositaries as a majority of the whole Board of
Directors shall from time to time designate. He or she shall have power to
endorse for deposit all notes, checks and drafts received by the Corporation. He
or she shall disburse the funds of the Corporation as ordered by the Directors,
making proper vouchers therefor. He or she shall render to the President and the
Board of Directors whenever required an account of all his or her transactions
as Treasurer and of the financial condition of the Corporation and shall perform
such other duties as may from time to time be prescribed by the Board of
Directors or by the President.
Section 4.09. Duties of Other Officers. The duties of such other
------------------------
officers and agents as the Board of Directors may designate shall be set forth
in the resolution creating such office or by subsequent resolution.
Section 4.10. Compensation. The officers of the Corporation shall
------------
receive such compensation for their services as may be determined from time to
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time by resolution of the Board of Directors or by one or more committees to the
extent so authorized from time to time by the Board of Directors.
ARTICLE V.
Shares and Their Transfer
Section 5.01. Certificates for Stock. Every holder of stock in the
----------------------
Corporation shall be entitled to a certificate, to be in such form as shall be
prescribed by the Board of Directors, certifying the number of shares in the
Corporation owned by him or her. The certificates for such shares shall be
numbered in the order in which they shall be issued and shall be signed in the
name of the Corporation by the Chairman of the Board, the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary. Every certificate surrendered to the Corporation for
exchange or transfer shall be canceled, and no new certificate or certificates
shall be issued in exchange for any existing certificate until such certificate
shall have been so canceled, except in cases provided for in Section 5.05.
Section 5.02. Issuance of Stock. The Board of Directors is
-----------------
authorized to cause to be issued stock of the Corporation up to the full amount
authorized by the Certificate of Incorporation in such amounts and for such
consideration as may be determined by the Board of Directors. No shares shall be
allotted except in consideration of cash, labor, personal property, or real
property, or leases thereof, or of an amount transferred from surplus to stated
capital upon a share dividend. At the time of such allotment of stock, the Board
of Directors shall state its determination of the fair value to the Corporation
in monetary terms of any consideration other than cash for which shares are
allotted. Stock so issued shall be fully paid and nonassessable. The amount of
consideration to be received in cash or otherwise shall not be less than the par
value of the shares so allotted. Treasury shares may be disposed of by the
Corporation for such consideration, expressed in dollars, as may be fixed by the
Board of Directors.
Section 5.03. Partly Paid Stock. The Corporation may issue the whole
-----------------
or any part of its stock as partly paid and subject to call for the remainder of
the consideration to be paid therefor. Upon the face or back of each certificate
issued to represent any such partly paid stock, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid stock, the Corporation may
declare a dividend upon partly paid stock of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon. The Board of
Directors may, from time to time, demand payment, in respect of each share of
stock not fully paid, of such sum of money as the necessities of the business
may, in the judgment of the Board of Directors, require, not exceeding in the
whole the balance remaining unpaid on such stock, and such sum so demanded shall
be paid to the Corporation at such times and by such installments as the
Directors shall direct. The Directors shall give
-10-
written notice of the time and place of such payments, which notice shall be
mailed at least 30 days before the time for such payment, to each holder of or
subscriber for stock which is not fully paid at his or her last known post-
office address.
Section 5.04. Transfer of Stock. Transfer of stock on the books of
-----------------
the Corporation may be authorized only by the stockholder named in the
certificate, the stockholder's legal representative or the stockholder's duly
authorized attorney-in-fact and upon surrender of the certificate or the
certificates for such stock. The Corporation may treat as the absolute owner of
stock of the Corporation the person or persons in whose name stock is registered
on the books of the Corporation.
Section 5.05. Loss of Certificates. Any stockholder claiming a
--------------------
certificate for stock to be lost, stolen or destroyed shall make an affidavit of
that fact in such form as the Board of Directors may require and shall, if the
Board of Directors so requires, give the Corporation a bond of indemnity in
form, in an amount, and with one or more sureties satisfactory to the Board of
Directors, to indemnify the Corporation against any claims which may be made
against it on account of the alleged loss, theft or destruction of the
certificate or issuance of such new certificate. A new certificate may then be
issued in the same tenor and for the same number of shares as the one claimed to
have been lost, stolen or destroyed.
Section 5.06. Facsimile Signatures. Whenever any certificate is
--------------------
countersigned by a transfer agent or by a registrar other than the Corporation
or its employee, then the signatures of the officers or agents of the
Corporation may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed on any such
certificate shall cease to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation as though the
person who signed such certificate or whose facsimile signature or signatures
had been placed thereon were such officer, transfer agent or registrar at the
date of issue.
ARTICLE VI.
Dividends, Surplus, Etc.
Section 6.01. Dividends. The Board of Directors may declare
---------
dividends from the Corporation's surplus, or if there be none, out of its net
profits for the current fiscal year, and/or the preceding fiscal year in such
amounts as in their opinion the condition of the affairs of the Corporation
shall render advisable unless otherwise restricted by law.
Section 6.02. Use of Surplus, Reserves. The Board of Directors may
------------------------
use any of its property or funds, unless such would cause an impairment of
capital, in purchasing any of the stock, bonds, debentures, notes, scrip or
other securities or evidences of indebtedness of the Corporation. The Board of
Directors may from
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time to time set aside from its surplus or net profits such sums as it deems
proper as a reserve fund for any purpose.
ARTICLE VII.
Books and Records, Audit, Fiscal Year
Section 7.01. Books and Records. The Board of Directors of the
-----------------
Corporation shall cause to be kept: (a) a share ledger which shall be a charge
of an officer designated by the Board of Directors; (b) records of all
proceedings of stockholders and Directors; and (c) such other records and books
of account as shall be necessary and appropriate to the conduct of the corporate
business.
Section 7.02. Audit. The Board of Directors shall cause the records
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and books of account of the Corporation to be audited at least once in each
fiscal year and at such other times as it may deem necessary or appropriate.
Section 7.03. Annual Report. The Board of Directors shall cause to
-------------
be filed with the Delaware Secretary of State in each year the annual report
required by law.
Section 7.04. Fiscal Year. The fiscal year of the Corporation shall
-----------
end on December 31 of each year.
Section 7.05. Examination by Stockholders. Any stockholder of record
---------------------------
of the Corporation, upon written demand under oath stating the purpose thereof,
shall have the right to inspect in person or by agent or attorney, during usual
business hours, for any proper purpose, the Corporation's stock ledger, a list
of its stockholders and its other books and records, and to make copies or
extracts therefrom. A proper purpose shall mean a purpose reasonably related to
such person's interest as a stockholder. Holders of voting trust certificates
representing stock of the Corporation shall be regarded as stockholders for the
purpose of this subsection. In every instance where an attorney or other agent
shall be the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the Corporation at its registered
office in Delaware or at its principal office.
ARTICLE VIII.
Indemnification
Section 8.01. Indemnification. The Corporation shall indemnify such
---------------
persons for such liabilities in such manner under such circumstances, and to
such extent, as permitted by the Certificate of Incorporation of the Corporation
and by Section 145 of the Delaware General Corporation Law, as now enacted or
hereafter
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amended. The Board of Directors may authorize the purchase and maintenance of
insurance and/or the execution of individual agreements for the purpose of such
indemnification, and the Corporation shall advance all reasonable costs and
expenses (including attorneys' fees) incurred in defending any action, suit or
proceeding to all persons entitled to indemnification under this section 8.01,
all in the manner, under the circumstances and to the extent permitted by the
Certificate of Incorporation of the Corporation and by Section 145 of the
Delaware General Corporation Law, as now enacted or hereafter amended.
ARTICLE IX.
Miscellaneous
Section 9.01. Fixing Date for Determination of Stockholders of
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Record. (a) In order that the Corporation may determine the stockholders
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entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than 60 nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action.
(b) If no record date is fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors is necessary, shall be the
day on which the first written consent is expressed.
(iii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
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Section 9.02. Periods of Time. During any period of time prescribed
---------------
by these Bylaws, the date from which the designated period of time begins to run
shall not be included, and the last day of the period so computed shall be
included.
Section 9.03. Voting Securities Held by the Corporation. Unless
-----------------------------------------
otherwise ordered by the Board of Directors, the President shall have full power
and authority on behalf of the Corporation (a) to attend and to vote at any
meeting of security holders of other corporations in which the Corporation may
hold securities; (b) to execute any proxy for such meeting on behalf of the
Corporation; or (c) to execute a written action in lieu of a meeting of such
other corporation on behalf of the Corporation. At such meeting, by such proxy
or by such writing in lieu of meeting, the President shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities that the Corporation might have possessed and exercised if it had
been present. The Board of Directors may, from time to time, confer like powers
upon any other person or persons.
Section 9.04. Purchase and Sale of Securities. Unless otherwise
-------------------------------
ordered by the Board of Directors, the President shall have full power and
authority on behalf of the Corporation to purchase, sell, transfer or encumber
any and all securities of any other corporation owned by the Corporation and may
execute and deliver such documents as may be necessary to effectuate such
purchase, sale, transfer or encumbrance. The Board of Directors may, from time
to time, confer like powers upon any other person or persons.
ARTICLE X.
Amendments
Section 10.01. Amendment by Board of Directors. The Board of
-------------------------------
Directors shall have the power to make, amend and repeal these By-Laws of the
Corporation, by vote of a majority of all of the Directors, at any regular or
special meeting of the Board; provided, however, that any By-Laws made by the
Board of Directors may be amended, altered, or repealed by the stockholders as
provided in Section 10.02.
Section 10.02. Amendment by Stockholders. Except as provided in
-------------------------
Sections 3.02, 3.09 and 3.10 of these By-Laws, the stockholders, by the
affirmative vote of the majority of the stock issued, outstanding and entitled
to vote, may make, alter or amend these By-Laws without notice at any annual
meeting, or any special meeting if notice thereof be contained in the notice of
such meeting.
July 1996
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