UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
March 11, 2015
CABOT OIL & GAS CORPORATION
(Exact name of registrant as specified in
its charter)
Delaware
(State or other jurisdiction
of incorporation) |
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1-10447
(Commission File Number) |
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04-3072771
(I.R.S. Employer
Identification No.) |
Three Memorial City Plaza
840 Gessner Road, Suite 1400
Houston, Texas |
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77024 |
(Address of principal executive offices) |
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(Zip Code) |
Registrant’s telephone number, including
area code: (281) 589-4600
Check the appropriate
box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2):
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On March 11, 2015, Cabot
Oil & Gas Corporation (the “Company”) amended its Amended and Restated Bylaws (the “Bylaws”) to implement
“proxy access”—a means for stockholders to include stockholder-nominated director candidates in the Company’s
proxy materials for annual meetings of stockholders. The proxy access process under the Bylaws will first be available to stockholders
in connection with the Company’s 2016 annual meeting of stockholders.
Pursuant to these amendments,
a stockholder, or group of not more than ten stockholders (collectively, an “eligible stockholder”), meeting specified
eligibility requirements, may include director nominees in the Company’s proxy materials for annual meetings of its stockholders.
In order to be eligible to use these proxy access provisions, an eligible stockholder must, among other requirements:
| • | have owned 5% or more of the Company’s outstanding common stock continuously for at least
three years; and |
| • | provide a notice requesting the inclusion of director nominees in the Company’s proxy materials
and provide other required information to the Company not less than 120 days nor more than 150 days prior to the anniversary of
the date of the proxy statement for the prior year’s annual meeting of stockholders. |
Additionally, all director
nominees submitted through these provisions (“stockholder nominees”) must be independent and meet specified additional
criteria, and no stockholder nominees will be included in the Company’s proxy materials for any annual meeting if the Company
receives notice pursuant to the advance notice provisions of the Bylaws that a stockholder intends to nominate one or more directors
at such meeting. The maximum number of stockholder nominees that may be included in the proxy statement pursuant to these proxy
access provisions may not exceed 20% of the number of directors in office on the date of the annual meeting. In addition, an eligible
stockholder may include a written statement, not to exceed 500 words, in support of the candidacy of the stockholder nominees proposed
by the eligible stockholder.
The foregoing proxy
access provisions are subject to additional eligibility, procedural and disclosure requirements set forth in Article V, Section
E of the Bylaws, and the foregoing description of the amendments to the Bylaws does not purport to be complete and is qualified
in its entirety by reference to a copy of the Bylaws filed as Exhibit 3.1 to this Form 8-K, which is incorporated by reference
herein.
Item 9.01 |
Financial Statements and Exhibits. |
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(d) |
Exhibits |
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3.1 |
Amended and Restated Bylaws of Cabot Oil & Gas Corporation. |
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
hereunto duly authorized.
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CABOT OIL & GAS CORPORATION |
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By: |
/s/ Deidre L. Shearer |
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Deidre L. Shearer |
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Corporate Secretary and Managing Counsel |
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Date: March 11, 2015
EXHIBIT INDEX
No. |
Description |
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3.1 |
Amended and Restated Bylaws of Cabot Oil & Gas Corporation. |
AMENDED AND RESTATED
BYLAWS
OF
CABOT OIL & GAS CORPORATION
Adopted August 5, 1994
Amended February 20, 1997
Amended May 3, 2001
Amended September 6, 2001
Amended May 2, 2007
Amended January 14, 2010
Amended February 17, 2012
Last Amended March 11, 2015
INDEX OF AMENDED AND RESTATED BYLAWS
CABOT OIL & GAS CORPORATION
Article |
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Page |
ARTICLE I Certificate of Incorporation |
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1 |
ARTICLE II Annual Meeting of Stockholders |
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1 |
ARTICLE III Special Meetings of Stockholders |
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2 |
ARTICLE IV Place of Stockholders’ Meetings |
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2 |
ARTICLE V Notice of Stockholders’ Meetings, Business and Nominations |
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2 |
ARTICLE VI Quorum and Action of Stockholders |
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14 |
ARTICLE VII Proxies and Voting |
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15 |
ARTICLE VIII Action by Written Consent |
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16 |
ARTICLE IX Board of Directors |
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17 |
ARTICLE X Powers of the Board of Directors |
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17 |
ARTICLE XI Executive Committee |
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18 |
ARTICLE XII Committees |
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19 |
ARTICLE XIII Meetings of the Board of Directors |
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19 |
ARTICLE XIV Quorum and Action of Directors |
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20 |
ARTICLE XV Restrictions on Stock Transfer |
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20 |
ARTICLE XVI Compensation of Directors |
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20 |
ARTICLE XVII Officers and Agents |
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20 |
ARTICLE XVIII Chairman of the Board of Directors |
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21 |
ARTICLE XIX President |
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21 |
ARTICLE XX Executive Vice Presidents, Senior Vice Presidents and Vice Presidents |
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22 |
ARTICLE XXI Chief Financial Officer |
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22 |
ARTICLE XXII Secretary and Assistant Secretaries |
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22 |
ARTICLE XXIII Treasurer and Assistant Treasurers |
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23 |
ARTICLE XXIV General Counsel and Assistant General Counsels |
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23 |
ARTICLE XXV Controller |
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24 |
ARTICLE XXVI Resignations and Removals |
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25 |
ARTICLE XXVII Vacancies |
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25 |
ARTICLE XXVIII Waiver of Notice |
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26 |
ARTICLE XXIX Certificates of Stock |
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26 |
ARTICLE XXX Transfer of Shares of Stock |
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27 |
ARTICLE XXXI Transfer Books: Record Date |
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27 |
ARTICLE XXXII Loss of Certificates |
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28 |
ARTICLE XXXIII Seal |
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28 |
ARTICLE XXXIV Execution of Papers |
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28 |
ARTICLE XXXV Fiscal Year |
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28 |
ARTICLE XXXVI Dividends |
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28 |
ARTICLE XXXVII Respecting Certain Contracts |
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29 |
ARTICLE XXXVIII Indemnification of Directors, Officers and Employees |
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29 |
ARTICLE XXXIX Amendments |
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30 |
AMENDED AND RESTATED
BYLAWS
OF
CABOT OIL & GAS CORPORATION
(THE “CORPORATION”)
ARTICLE I
Certificate
of Incorporation
The name, location of the
principal office or place of business in Delaware, and the objects or purposes of the Corporation shall be as set forth in its
Certificate of Incorporation. These Bylaws, the powers of the Corporation and of its directors and stockholders, and all matters
concerning the management of the business and conduct of the affairs of the Corporation shall be subject to such provisions in
regard thereto, if any, as are set forth in the Certificate of Incorporation; and the Certificate of Incorporation is hereby made
a part of these Bylaws. In these Bylaws, references to the Certificate of Incorporation mean the provisions of the Certificate
of Incorporation (as that term is defined in the General Corporation Law of the State of Delaware) of the Corporation as from time
to time in effect, and references to these Bylaws or to any requirement or provision of law mean these Bylaws or such requirement
or provision of law as from time to time in effect.
ARTICLE II
Annual
Meeting of Stockholders
The annual meeting of stockholders
shall be held at such date and time as the Board of Directors may designate. Purposes for which the annual meeting is to be held,
in addition to those prescribed by law, by the Certificate of Incorporation and by these Bylaws, may be specified by the chairman
of the board of directors, the president or by the board of directors.
If the election of directors
shall not be held on the day provided for by these Bylaws, the directors shall cause the election to be held as soon thereafter
as convenient, and to that end, if the election of directors shall not be held at the annual meeting, a special meeting of the
stockholders may be held in place of such omitted meeting or election, and any business transacted or election held at such special
meeting shall have the same effect as if transacted or held at the annual meeting, and in such cases all references in these Bylaws,
except in this Article II and in Article IV to the annual meeting of the stockholders, or to the annual election of directors,
shall be deemed to refer to or include such special meeting. Any such special meeting shall be called, and the purposes thereof
shall be specified in the call, as provided in Article III.
The Chairman of a meeting
of stockholders may adjourn the meeting from time to time. No notice of the time and place of adjourned meetings need be given
except as required by law. The stockholders present at a duly called meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Any previously scheduled
meeting of the stockholders may be postponed, by resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
ARTICLE III
Special
Meetings of Stockholders
A special meeting of the
stockholders may be called at any time only by the chairman of the board of directors, by the president or by the board of directors.
Such call shall state the time, place and purposes of the meeting.
ARTICLE IV
Place of Stockholders’ Meetings
The annual election of
directors, whether at the original or any adjourned session of the annual meeting of the stockholders or of a special meeting held
in place thereof, shall be held at such place as the board of directors shall fix for each such meeting. Sessions of such meetings
for any other purposes, and the original or any adjourned session of any other special meeting of the stockholders, shall be held
at such place within or without the State of Delaware as shall be stated in the call or in the vote of adjournment, as the case
may be.
ARTICLE V
Notice of Stockholders’ Meetings, Business and Nominations
Except as may be otherwise
required by law, by the Certificate of Incorporation or by other provisions of these Bylaws, a written notice of each meeting of
stockholders, stating the place, day and hour thereof and the purposes for which the meeting is called, shall be given, at least
10 days but no more than 60 days before the date of the meeting, to each stockholder entitled to vote thereat by leaving such notice
with him or her or at his or her residence or usual place of business, by mailing it, postage prepaid, addressed to such stockholder
at his or her address as it appears upon the books of the Corporation or by delivering it to such stockholder by a form of electronic
transmission consented to by such stockholder, to the fullest extent permitted by law. Such notice shall be given by the secretary
or an assistant secretary or in case of their death, absence, incapacity or refusal, by some other officer or by a person designated
by the board of directors.
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B. |
Annual Meetings of Stockholders. |
(1) Nominations of persons for election
to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders only (a) pursuant to the Corporation’s notice of meeting, (b) by or at the direction of the
Board of Directors, (c) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided
for in this Article V and on the record date for determination of stockholders entitled to vote at such meeting, who is entitled
to vote at the meeting and who complies with the notice procedures set forth in this Article V or (d) by an Eligible Stockholder
who meets the requirements of and complies with all of the procedures set forth in Section (E) of this Article V. Clauses (c) and
(d) of the immediately preceding sentence shall be the exclusive means for a stockholder to submit business or proposals (other
than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and included in the notice relating to the meeting given by or at the direction of the Board of Directors) before, or to make any
nomination of a person or persons for election as a director of the Corporation at, an annual meeting of stockholders of the Corporation.
Any business proposed to be brought before an annual meeting by a stockholder of the Corporation must be a proper matter for stockholder
action and be properly introduced at such meeting.
(2) For director nominations to be
properly brought before an annual meeting by a stockholder pursuant to clause (c) of Section (B)(1) of this Article V, in
addition to any other applicable requirements, the stockholder must have given timely advance notice thereof in writing to the
Secretary of the Corporation.
Any stockholder’s
advance notice to the Secretary of the Corporation pursuant to Section (B)(2), (C) or (E) of this Article V shall set
forth (i) as to each person whom such stockholder proposes to nominate for election or reelection as a director of the Corporation,
(a) the name, age, business address and residence address of such person, (b) the principal occupation or employment of such person,
(c) any other information relating to such person that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of directors of the Corporation in a contested election,
or would otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder (including, without limitation, the written consent of such person to having such person’s name placed in nomination
at the meeting and to serve as a director of the Corporation if elected), and (d) a description of all direct and indirect compensation
and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships,
between or among such stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made, and
their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee,
and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without
limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if such
stockholder and such beneficial owner, or any affiliate or associate thereof or person acting in concert
therewith, were the “registrant”
for purposes of such rule and the nominee were a director or executive officer of such registrant; and (ii) as to such stockholder
giving the notice, the beneficial owner, if any, on whose behalf the nomination is made and each proposed nominee, (a) the name
and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, if any, and the
name and address of any other stockholders known by such stockholder to be supporting such nomination, (b)(1) the class or series
and number of shares of capital stock of the Corporation which are, directly or indirectly, owned beneficially and of record by
such stockholder, such beneficial owner and such nominee, (2) any Derivative Instrument directly or indirectly owned beneficially
by such stockholder, such beneficial owner and such nominee and any other direct or indirect opportunity to profit or share in
any profit derived from any increase or decrease in the value of shares of capital stock of the Corporation, (3) any proxy, contract,
arrangement, understanding or relationship the effect or intent of which is to increase or decrease the voting power of such stockholder,
beneficial owner or nominee with respect to any shares of any security of the Corporation, (4) any pledge by such stockholder,
beneficial owner or nominee of any security of the Corporation or any short interest of such stockholder, beneficial owner or nominee
in any security of the Corporation, (5) any rights to dividends on the shares of capital stock of the Corporation owned beneficially
by such stockholder, beneficial owner and nominee that are separated or separable from the underlying shares of capital stock of
the Corporation, (6) any proportionate interest in shares of capital stock of the Corporation or Derivative Instruments held, directly
or indirectly, by a general or limited partnership in which such stockholder, beneficial owner or nominee is a general partner
or, directly or indirectly, beneficially owns an interest in a general partner and (7) any performance-related fees (other than
an asset-based fee) that such stockholder, beneficial owner or nominee is entitled to based on any increase or decrease in the
value of shares of capital stock of the Corporation or Derivative Instruments, if any, as of the date of such notice, including,
without limitation, for purposes of clauses (b)(1) through (b)(7) above, any of the foregoing held by members of such stockholder’s,
beneficial owner’s or nominee’s immediate family sharing the same household (which information shall be supplemented
by such stockholder, beneficial owner, if any, and nominee not later than 10 days after the record date for the meeting to disclose
such ownership as of the record date), (c) a representation that such stockholder intends to appear in person or by proxy at the
meeting to nominate the persons named in its notice, (d) a description of all agreements, arrangements and understandings between
such stockholder and beneficial owner, if any, and each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, and (e) any other information relating to such stockholder,
beneficial owner, if any, and nominee that would be required to be disclosed in a proxy statement or other filing required to be
made in connection with solicitations of proxies for election of directors of the Corporation in a contested election, or would
otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.
Any such stockholder’s notice to the Secretary of the Corporation shall also include or be accompanied by, with respect to
each nominee for election or reelection to the Board of Directors, a completed and signed questionnaire, representation and agreement
required by the third paragraph of this Section (B)(2). The Corporation may require any proposed
nominee to furnish such other
information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as
an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence,
or lack thereof, of such nominee.
To be eligible to be a
nominee for election or reelection as a director of the Corporation, a person must deliver (in accordance with the time periods
prescribed for delivery of notice under this Article V, or, in the case of a Stockholder Nominee, the time periods prescribed
for delivery of a Notice of Proxy Access Nomination under Section (E) of this Article V)) to the Secretary at the principal executive
offices of the Corporation a written questionnaire with respect to the background and qualification of such person and the background
of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be in the form provided by
the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written
request) that such person (a) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has
not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation,
will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or
(2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of
the Corporation, with such person’s fiduciary duties under applicable law, (b) is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect
compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein,
and (c) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being
made, would be in compliance, if elected as a director of the Corporation, and will comply with all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
(3) For business, other than director
nominations (which are governed by Sections (B)(2) and (E) of this Article V), to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of Section (B)(1) of this Article V, in addition to any other applicable
requirements, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation.
Any stockholder’s
advance notice to the Secretary of the Corporation pursuant to this Section (B)(3) of this Article V shall set forth
as to each matter such stockholder proposes to bring before the annual meeting (i) a description of the proposal desired to be
brought before the annual meeting and the reasons for conducting such business at the annual meeting, together with the text of
the proposal or business (including the text of any resolutions proposed for consideration), (ii) as to such stockholder proposing
such business and the beneficial owner, if any, on whose behalf the proposal is made, (a) the name and address of such stockholder,
as they appear on the Corporation’s books, and of such beneficial owner, if any, and the name and address of any other stockholders
known by such stockholder to be supporting such business or proposal, (b)(1) the class or series and number of shares of capital
stock of the Corporation which are, directly or indirectly,
owned beneficially and of record by such stockholder and such beneficial
owner, (2) any Derivative Instrument directly or indirectly owned beneficially by such stockholder and by such beneficial owner
and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value
of shares of capital stock of the Corporation, (3) any proxy, contract, arrangement, understanding or relationship the effect or
intent of which is to increase or decrease the voting power of such stockholder or beneficial owner with respect to any shares
of any security of the Corporation, (4) any pledge by such stockholder or beneficial owner of any security of the Corporation or
any short interest of such stockholder or beneficial owner in any security of the Corporation, (5) any rights to dividends on the
shares of capital stock of the Corporation owned beneficially by such stockholder and by such beneficial owner that are separated
or separable from the underlying shares of capital stock of the Corporation, (6) any proportionate interest in shares of capital
stock of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such
stockholder or beneficial owner is a general partner or, directly or indirectly, beneficially owns an interest in a general partner
and (7) any performance-related fees (other than an asset-based fee) that such stockholder or beneficial owner is entitled to based
on any increase or decrease in the value of shares of capital stock of the Corporation or Derivative Instruments, if any, as of
the date of such notice, including, without limitation, for purposes of clauses (b)(1) through (b)(7) above, any of the foregoing
held by members of such stockholder’s or beneficial owner’s immediate family sharing the same household (which information
shall be supplemented by such stockholder and beneficial owner, if any, not later than 10 days after the record date for the meeting
to disclose such ownership as of the record date), and (c) any other information relating to such stockholder and beneficial owner,
if any, that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations
of proxies for the proposal, or would otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder; (iii) any material interest of such stockholder and beneficial owner, if any, in such business
or proposal, (iv) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring
such business before the meeting and (v) a description of all agreements, arrangements and understandings between such stockholder
and beneficial owner, if any, and any other person or persons (including their names) in connection with such business or proposal
by such stockholder.
(4) To be timely, a stockholder’s
notice pursuant to the first paragraph of Section (B)(2) (other than a Notice of Proxy Access Nomination, which must be delivered
or mailed to and received at the principal executive offices of the Corporation within the time periods provided in Section (E)
of this Article V) or the first paragraph of Section (B)(3) of this Article V shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of business on the 90th day nor earlier than the close
of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that
in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to such
annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or, if less than
100
days’ prior notice or public announcement
of the scheduled meeting date is given or made, the 10th day following the earlier of the day on which the notice of such meeting
was mailed to stockholders of the Corporation or the day on which such public announcement was made. In no event shall the public
announcement of an adjournment, postponement or deferral of an annual meeting commence a new time period for the giving of timely
notice as described above. Notwithstanding anything in the first sentence of this paragraph to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no prior notice or
public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of
Directors at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s
notice to nominate a director required by this Article V (other than a Notice of Proxy Access Nomination, which must be delivered
or mailed to and received at the principal executive offices of the Corporation within the time periods provided in Section (E)
of this Article V) shall also be considered timely, but only with respect to nominees for any new positions created by such increase,
if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business
on the 10th day following the earlier of the day on which the notice of such meeting was mailed to stockholders of the Corporation
or the day on which such public announcement was made.
(5) A stockholder providing
(a) notice of any director nomination proposed to be made at a meeting (including any Notice of Proxy Access Nomination) or (b)
notice of business proposed to be brought before a meeting shall further update and supplement such notice, if necessary, so that
the information provided or required to be provided in such notice pursuant to this Article V shall be true and correct as
of the record date for the meeting and as of the date that is 10 business days prior to the meeting or any adjournment or postponement
thereof, and such update and supplement shall be delivered to, or mailed and received at, the principal executive offices of the
Corporation not later than five business days after the record date for the meeting (in the case of the update and supplement required
to be made as of the record date), and not later than eight business days prior to the date for the meeting, if practicable (or,
if not practicable, on the first practicable date prior to the date for the meeting) or any adjournment or postponement thereof
(in the case of the update and supplement required to be made as of 10 business days prior to the meeting or any adjournment or
postponement thereof). In addition, a stockholder providing a notice described in clause (a) or (b) of the immediately preceding
sentence shall update and supplement such notice, and deliver such update and supplement to the principal executive offices of
the Corporation, promptly following the occurrence of any event that materially changes the information provided or required to
be provided in such notice pursuant to this Article V.
C. Special Meetings
of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting given by or at the direction of the Board of Directors of the
Corporation. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the Corporation’s notice of meeting (a) by or at the direction of the
Board of Directors or (b) if but only if the
Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is
a stockholder of record at the time of giving of notice provided for in this Article V and on the record date for determination
of stockholders entitled to vote at such meeting, who shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Article V, including Section (B)(2) hereof. Clause (b) of the immediately preceding sentence
shall be the exclusive means for a stockholder to make any nomination of a person or persons for election as a director of the
Corporation at a special meeting of stockholders of the Corporation. In the event the Corporation calls a special meeting of stockholders
for the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons
(as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s
notice required by Section (B)(2) of this Article V shall be delivered to the Secretary at the principal executive offices
of the Corporation not earlier than the close of business on the 120th day prior to such special meeting and not later than the
close of business on the 90th day prior to such special meeting; provided, however, that if less than 100 days’ prior notice
or public announcement of the scheduled meeting date and of the nominees proposed by the Board of Directors to be elected at such
meeting is given or made, notice by such stockholder, to be timely, must be so delivered not later than the close of business on
the 10th day following the earlier of the day on which the notice of such meeting was mailed to stockholders of the Corporation
or the day on which such public announcement was made. In no event shall the public announcement of an adjournment, postponement
or deferral of a special meeting commence a new time period for the giving of timely notice as described above. Nominations pursuant
to Section (E) of this Article V may not be made in connection with any special meeting of the stockholders.
D. General.
(1) Subject to such
rights of holders of shares of one or more outstanding series of preferred stock of the Corporation to elect one or more directors
of the Corporation under circumstances as shall be provided by or pursuant to the Certificate of Incorporation, only such persons
who are nominated in accordance with the procedures set forth in this Article V shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Article V. Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the Chairman of the meeting shall have the power and duty to determine whether a nomination or proposed nomination
or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures
set forth in this Article V and, if any proposed nomination or business is not in compliance with this Article V, to
so declare, and such defective proposal or nomination shall be disregarded.
(2) For purposes of
this Article V, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a document publicly filed or furnished by the
Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act or posted on the Corporation’s website at www.cabotog.com.
(3) For purposes of this Article V,
a “Derivative Instrument” shall include any option, warrant, convertible security, stock appreciation right or similar
right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of
shares of capital stock of the Corporation or with a value derived in whole or in part from the price, value or volatility of any
class or series of shares of capital stock of the Corporation or any derivative or synthetic arrangement having characteristics
of a long position in any class or series of shares of capital stock of the Corporation, whether or not such instrument or right
shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise.
(4) For purposes of this Article V,
a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the
value of the subject security.
(5) Notwithstanding the other provisions
of this Article V, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Article V. Nothing in this Article V shall be deemed
to affect any rights (a) of the holders of any series of preferred stock if and to the extent provided for under law, the
Certificate of Incorporation or these Bylaws or (b) of stockholders to request inclusion of proposals in the Corporation’s
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
E. Proxy Access for Director Nominations
(1) Whenever the Board of Directors
solicits proxies with respect to the election of directors at an annual meeting of the stockholders, subject to the provisions
of this Section (E), the Corporation shall include in its proxy statement for such annual meeting, in addition to any persons
nominated for election by the Board of Directors or any committee thereof, the name, together with the Required Information, of
any person or persons, as applicable, nominated for election (the “Stockholder Nominee(s)”) to the Board of Directors
by a stockholder or group of not more than 10 stockholders that satisfies the requirements of Section (E)(3) of this Article
V (the “Eligible Stockholder”), and who expressly elects at the time of providing the notice required by this Section
(E) (the “Notice of Proxy Access Nomination”) to have its nominee or nominees, as applicable, included in the Corporation’s
proxy materials pursuant to this Section (E). For purposes of this Section (E), the “Required Information” that
the Corporation will include in its proxy statement is the information provided to the Secretary concerning the Stockholder Nominee(s)
and the Eligible Stockholder that is required to be disclosed in the Corporation’s proxy statement by Section 14 of the Exchange
Act, and the rules and regulations promulgated thereunder, and, if the Eligible Stockholder so elects, a written statement, not
to exceed 500 words, in support of the candidacy of the Stockholder Nominee(s) (the “Statement”). Notwithstanding anything
to the contrary contained in this Section (E), the Corporation may omit from its proxy
materials any information or Statement (or
portion thereof) that it, in good faith, believes would violate any applicable law or regulation.
(2) To be timely for purposes of this
Section (E), the Notice of Proxy Access Nomination shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 120th day nor earlier than the close of business on the 150th day prior
to the first anniversary of the date (as specified in the Corporation’s proxy materials for its immediately preceding annual
meeting of shareholders) on which the Corporation first mailed its proxy materials for its immediately preceding annual meeting
of stockholders. In no event will an adjournment or postponement of an annual meeting of stockholders or the announcement thereof
commence a new time period for the giving of a Notice of Proxy Access Nomination as provided above.
(3) The maximum number of Stockholder
Nominees nominated by all Eligible Stockholders that will be included in the Corporation’s proxy materials with respect to
an annual meeting of stockholders shall not exceed 20% of the number of directors in office as of the last day on which a Notice
of Proxy Access Nomination may be delivered pursuant to and in accordance with this Section (E) (the “Final Proxy Access
Nomination Date”), or if such amount is not a whole number, the largest whole number below 20%. In the event that one or
more vacancies for any reason occurs on the board after the Final Proxy Access Nomination Date but before the date of the annual
meeting and the Board of Directors resolves to reduce the size of the board in connection therewith, the maximum number of Stockholder
Nominees included in the Corporation’s proxy materials shall be calculated based on the number of directors in office as
so reduced. Any individual nominated by an Eligible Stockholder for inclusion in the Corporation’s proxy materials pursuant
to this Section (E) whom the Board of Directors decides to nominate as a nominee for Director shall be counted as one of the Stockholder
Nominees for purposes of determining when the maximum number of Stockholder Nominees provided for in this Section (E) has been
reached. Any Eligible Stockholder submitting more than one Stockholder Nominee for inclusion in the Corporation’s proxy materials
pursuant to this Section (E) shall rank such Stockholder Nominees based on the order that the Eligible Stockholder desires such
Stockholder Nominees to be selected for inclusion in the Corporation’s proxy statement in the event that the total number
of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section (E) exceeds the maximum number of nominees
provided for in this Section (E). In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant
to this Section (E) exceeds the maximum number of nominees provided for in this Section (E), the highest ranking Stockholder Nominee
who meets the requirements of this Section (E) from each Eligible Stockholder will be selected for inclusion in the Corporation’s
proxy materials until the maximum number is reached, going in order of the number (largest to smallest) of shares of common stock
of the Corporation each Eligible Stockholder disclosed as owned in its respective Notice of Proxy Access Nomination submitted to
the Corporation. If the maximum number is not reached after the highest ranking Stockholder Nominee who meets the requirements
of this Section (E) from each Eligible Stockholder has been selected, this process will continue as many times as necessary, following
the same order each time, until the maximum number is reached.
Notwithstanding anything to the contrary contained
in this Section (E), if the Corporation receives notice pursuant to Section (B) of this Article V that any stockholder intends
to nominate for election at such meeting one or more persons, no Stockholder Nominees will be included in the Corporation’s
proxy materials with respect to such meeting pursuant to this Section (E).
(4) For purposes of this Section
(E), an Eligible Stockholder shall be deemed to “own” only those outstanding shares of common stock of the Corporation
as to which the stockholder possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full
economic interest in (including the opportunity for profit from and risk of loss on) such shares; provided, that the number of
shares calculated in accordance with clauses (i) and (ii) shall not include any shares (x) sold by such stockholder or any of its
affiliates in any transaction that has not been settled or closed, (y) borrowed by such stockholder or any of its affiliates for
any purposes or purchased by such stockholder or any of its affiliates pursuant to an agreement to resell or (z) subject to any
option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such stockholder
or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional
amount or value of shares of outstanding common stock of the Corporation, in any such case which instrument or agreement has, or
is intended to have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such stockholder’s
or its affiliates’ full right to vote or direct the voting of any such shares, and/or (2) hedging, offsetting or altering
to any degree any gain or loss realized or realizable from maintaining the full economic ownership of such shares by such stockholder
or affiliate. For purposes of this Section (E), a shareholder shall “own” shares held in the name of a nominee or other
intermediary so long as the shareholder retains the right to instruct how the shares are voted with respect to the election of
directors and possesses the full economic interest in the shares. A stockholder’s ownership of shares shall be deemed to
continue during any period in which the stockholder has delegated any voting power by means of a proxy, power of attorney or other
instrument or arrangement which is revocable at any time by the stockholder. The terms “owned,” “owning”
and other variations of the word “own” shall have correlative meanings. Whether outstanding shares of the common stock
of the Corporation are “owned” for these purposes shall be determined by the Board of Directors or any committee thereof.
For purposes of this Section (E), the term “affiliate” or “affiliates” shall have the meaning ascribed
thereto under the general rules and regulations under the Exchange Act.
(5) In order to make a nomination pursuant
to this Section (E), an Eligible Stockholder must have owned the Required Ownership Percentage of the Corporation’s outstanding
common stock (the “Required Shares”) continuously for the Minimum Holding Period as of both the date the Notice of
Proxy Access Nomination is delivered to or mailed to and received by the Secretary in accordance with this Section (E) and the
record date for determining the shareholders entitled to vote at the annual meeting and must continue to own the Required Shares
through the meeting date. For purposes of this Section (E), the “Required Ownership Percentage” is 5% or more, and
the “Minimum Holding Period” is 3 years. Within the time period specified in this Section (E) for delivering the Notice
of Proxy Access Nomination, an Eligible
Stockholder must provide the following information
in writing to the Secretary: (i) one or more written statements from the record holder of the shares (and from each intermediary
through which the shares are or have been held during the Minimum Holding Period) verifying that, as of a date within seven calendar
days prior to the date the Notice of Proxy Access Nomination is delivered to or mailed to and received by the Secretary, the Eligible
Shareholder owns, and has owned continuously for the Minimum Holding Period, the Required Shares, and the Eligible Shareholder’s
agreement to provide, within five business days after the record date for the annual meeting, written statements from the record
holder and intermediaries verifying the Eligible Shareholder’s continuous ownership of the Required Shares through the record
date; (ii) a copy of the Schedule 14N that has been filed with the Securities and Exchange Commission as required by Rule 14a-18
under the Exchange Act; (iii) the information, representations and agreements that are the same as those that would be required
to be set forth in a shareholder’s notice of nomination with respect to each Stockholder Nominee pursuant to Section (B)
of this Article V; (iv) the consent of each Stockholder Nominee to being named in the proxy statement as a nominee and to serving
as a Director if elected; (v) a representation that the Eligible Stockholder (a) acquired the Required Shares in the ordinary course
of business and not with the intent to change or influence control at the corporation, and does not currently have such intent,
(b) currently intends to maintain qualifying ownership of the Required Shares through the date of the annual meeting, (c) has not
engaged and will not engage in, and has not and will not be a “participant” in another person’s, “solicitation”
within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a Director at the annual
meeting other than its Stockholder Nominee(s) or a nominee of the Board of Directors, (d) agrees to comply with all applicable
laws and regulations applicable to the use, if any, of soliciting material, and (e) will provide facts, statements and other information
in all communications with the Corporation and its stockholders that are or will be true and correct in all material respects and
do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading; (vi) a representation as to the Eligible Stockholder’s intentions with respect
to maintaining qualifying ownership of the Required Shares for at least one year following the annual meeting; (vi) an undertaking
that the Eligible Stockholder agrees to (a) assume all liability stemming from any legal or regulatory violation arising out of
the Eligible Stockholder’s communications with the stockholders of the Corporation or out of the information that the Eligible
Stockholder provided to the Corporation and (b) indemnify and hold harmless the Corporation and each of its directors, officers
and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or
proceeding, whether legal, administrative or investigative, against the corporation or any of its directors, officers or employees
arising out of any nomination submitted by the Eligible Stockholder pursuant to this Section (E).
(6) Within the time period specified
in this Section (E) for delivering the Notice of Proxy Access Nomination, each Stockholder Nominee must deliver to the Secretary
the representations, agreements and other information required by Section (B) of this Article V.
(7) In the event that any information
or communications provided by the Eligible Stockholder or any Stockholder Nominees to the Corporation or its stockholders ceases
to be true and correct in all material respects or omits a material fact necessary to make the statements made, in light of the
circumstances under which they were made, not misleading, each Eligible Stockholder or Stockholder Nominee, as the case may be,
shall promptly notify the Secretary of any defect in such previously provided information and of the information that is required
to correct any such defect.
(8) The Corporation
shall not be required to include, pursuant to this Section (E), a Stockholder Nominee in its proxy materials for any meeting of
stockholders (i) for which the Secretary receives a notice that a stockholder has nominated such Stockholder Nominee for election
to the Board of Directors pursuant to the advance notice requirements for stockholder nominees for director set forth in Section
(B) of this Article V, (ii) if the Eligible Stockholder that has nominated such Stockholder Nominee has engaged in or is currently
engaged in, or has been or is a “participant” in another person’s, “solicitation” within the meaning
of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a Director at the annual meeting other
than its Stockholder Nominee(s) or a nominee of the Board of Directors, (iii) if the Stockholder Nominee is or becomes a party
to any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than the
Corporation, or is receiving or will receive any such compensation or other payment from any person or entity other than the Corporation,
in each case in connection with service as a Director of the Corporation, (iv) who is not independent under the listing standards
of each principal U.S. exchange upon which the common stock of the Corporation is listed, any applicable rules of the Securities
and Exchange Commission and any publicly disclosed standards used by the Board of Directors in determining and disclosing independence
of the Corporation’s directors, in each case as determined by the Board of Directors, (v) whose election as a member of the
Board of Directors would cause the Corporation to be in violation of these Bylaws, the Certificate of Incorporation, the rules
and listing standards of the principal U.S. exchanges upon which the common stock of the Corporation is traded, or any applicable
state or federal law, rule or regulation, (vi) who is or has been, within the past fiscal year, an officer or director of a competitor,
as defined in Section 8 of the Clayton Antitrust Act of 1914, (vii) who is a named subject of a pending criminal proceeding (excluding
traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past 10 years, (viii)
who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933,
as amended, (ix) if such Stockholder Nominee or the applicable Eligible Stockholder shall have provided information to the Corporation
in respect to such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to
make the statement made, in light of the circumstances under which they were made, not misleading, as determined by the Board of
Directors or any committee thereof, or (x) if the Eligible Stockholder or applicable Stockholder Nominee fails to comply with its
obligations pursuant to this Section (E).
(9) Notwithstanding
anything to the contrary set forth herein, the Board of Directors or the presiding officer of the annual meeting of stockholders
shall
declare a nomination by an Eligible Stockholder
to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received
by the Corporation, if (i) the Stockholder Nominee(s) and/or the applicable Eligible Stockholder shall have breached its or their
obligations under this Section (E), as determined by the Board of Directors or such presiding officer or (ii) the Eligible Stockholder
(or a qualified representative thereof) does not appear at the meeting of stockholders to present any nomination pursuant to this
Section (E).
(10) Any
Stockholder Nominee who is included in the Corporation’s proxy materials for a particular annual meeting of stockholders
but either (i) withdraws from or becomes ineligible or unavailable for election at the annual meeting, or (ii) does not receive
at least 25% of the votes cast in favor of such Stockholder Nominee’s election, will be ineligible to be a Stockholder Nominee
pursuant to this Section (E) for the next two annual meetings. For the avoidance of doubt, this Section (E) shall not prevent any
stockholder from nominating any person to the Board of Directors pursuant to and in accordance with Section (B) of this Article
V.
(11) Whenever
the Eligible Stockholder consists of a group of more than one stockholder, each provision in this Section (E) that requires the
Eligible Stockholder to provide any written statements, representations, undertakings, agreements or other instruments or to meet
any other conditions shall be deemed to require that each stockholder that is a member of such group to provide such written statements,
representations, undertakings, agreements or other instruments and to meet such other conditions. No person may be a member of
more than one group of stockholders constituting an Eligible Stockholder with respect to any annual meeting.
(12) This
Section (E) shall be the exclusive method for stockholders to include nominees for Director in the Corporation’s proxy materials.
ARTICLE VI
Quorum and Action
of Stockholders
At any meeting of the stockholders,
a quorum for the election of any director or for the consideration of any question shall consist of a majority in interest of all
stock issued and outstanding and entitled to vote for the election of such director or upon such question, respectively, except
in any case where a larger quorum is required by law, by the Certificate of Incorporation or by these Bylaws. Stock owned by the
Corporation, if any, shall not be deemed outstanding for this purpose. In any case, any meeting may be adjourned from time to time
by a majority of the votes properly cast upon the question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
Each director shall be
elected by the affirmative vote of the holders of the majority of the votes cast at a meeting for the election of directors at
which a quorum is present; provided, however, that the directors shall be elected by a plurality of the voting power of the stock
of the Corporation present at any meeting for which the number of
candidates for election as directors exceeds
the number of directors to be elected, with the determination thereof being made by the Secretary of the Corporation as of the
tenth day preceding the date the Corporation first mails or delivers its notice of meeting for such meeting to stockholders. For
purposes of this paragraph, a majority of votes cast shall mean that the number of shares voted “for” a director’s
election exceeds the number of shares voted “against” such director’s election. Votes cast shall exclude abstentions
with respect to that director’s election.
The Board of Directors
shall have the power to establish procedures with respect to the resignation of continuing directors who are not reelected as provided
above.
When a quorum for the consideration
of a question is present at any meeting, the affirmative vote of the holders of a majority of the voting power of the stock of
the Corporation which is present at the meeting shall decide the quorum, except in any case where a larger vote is required by
law, by the Certificate of Incorporation or by these Bylaws.
ARTICLE VII
Proxies and Voting
Except as otherwise may
be provided in the Certificate of Incorporation and subject to the provisions of Article XXXI of these Bylaws, each stockholder
at every meeting of the stockholders shall be entitled to one vote in person or by proxy for each share of the capital stock held
by such stockholder, but no proxy shall be voted after six months from its date, unless the proxy provides for a longer period;
and except where the transfer books of the Corporation shall have been closed or a date shall have been fixed as a record date
for the determination of the stockholders entitled to vote, as provided in Article XXXI, no share of stock shall be voted at any
election for directors which has been transferred on the books of the Corporation within the twenty days preceding such election
of directors. Shares of the capital stock of the Corporation belonging to the Corporation shall not be voted upon directly or indirectly.
Persons holding stock in
a fiduciary capacity shall be entitled to vote the shares so held, or to give any consent permitted by law, and persons whose stock
is pledged shall be entitled to vote, or to give any consent permitted by law, unless in the transfer by the pledgor on the books
of the Corporation he or she shall have expressly empowered the pledgee to vote thereon, in which case only the pledgee or his
or her proxy may represent said stock and vote thereon or give any such consent.
The secretary shall prepare
or cause to be prepared, at least ten days before every election of directors, a complete list of the stockholders entitled to
vote at said election, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of any stockholder during ordinary business hours,
at the place where such election meeting is to be held, or such other place as may be specified in the notice of the meeting, within
the city, town or village where the election meeting is to be held,
for said ten days, and shall be produced and
kept at the time and place of the election meeting for the duration of the election meeting, and be subject to the inspection of
any stockholder who may be present. The original or duplicate stock ledger shall conclusively list and identify the stockholders
entitled to examine such list or to vote in person or by proxy at such election.
ARTICLE VIII
Action by Written Consent
A. In
order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting,
the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which date shall not be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the Secretary, request the Board of Directors to fix a
record date. The Board of Directors shall promptly, but in all events within 10 days after the date on which such a request is
received, adopt a resolution fixing the record date. If no record date has been fixed by the Board of Directors within 10 days
of the date on which such a request is received, the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the
first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation
by delivery to its principal place of business or to any officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be at the close of business on the date on which the Board of Directors
adopts the resolution taking such prior action.
B. Every
written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within 60 days of the record date established in accordance with Section
(A) of this Article VIII, a written consent or consents signed by a sufficient number of holders to take such action are delivered
to the corporation in the manner prescribed in Section (A) of this Article VIII.
C. In
the event of the delivery, in the manner provided by this Article VIII, to the corporation of the requisite written consent or
consents to take corporate action and/or any related revocation or revocations, the corporation shall engage nationally recognized
independent inspectors of elections for the purpose of promptly performing a ministerial review of the validity of the consents
and revocations. For the purpose of permitting a prompt ministerial review by the independent inspectors, no action by written
consent
without a meeting shall be effective until
the earlier of (i) five business days following delivery to the corporation of consents signed by the holders of the requisite
minimum number of votes that would be necessary to take such action, which delivery shall be accompanied by a certification by
the stockholder of record (or his or her designee) who delivered, in accordance with Section (A) above, the written notice to the
Secretary requesting the Board of Directors to fix a record date or (ii) such date as the independent inspectors certify to the
corporation that the consents delivered to the corporation in accordance with this Article represent at least the minimum number
of votes that would be necessary to take the corporate action. Nothing contained in this paragraph shall in any way be construed
to suggest or imply that the Board of Directors or any stockholder shall not be entitled to contest the validity of any consent
or revocation thereof, whether during or after such five business day period, or to take any other action (including, without limitation,
the commencement, prosecution or defense of any litigation with respect thereto).
ARTICLE IX
Board of Directors
The number of directors
which constitute the whole board of directors shall be neither less than three nor more than 20. Within the limits above specified,
the number of directors shall be determined by resolution of the board of directors. The directors shall be elected at the annual
meeting of the stockholders, except as provided elsewhere in these Bylaws, and each director elected shall hold office until a
successor is elected and qualified, or until he or she sooner dies, resigns or is removed or replaced. Directors need not be stockholders.
Newly-created directorships resulting from any increase in the authorized number of directors voted by the board of directors between
annual meetings may be filled, at the discretion of the board, by an election at a meeting of stockholders held for that purpose,
or by an election at a meeting of the board of directors, by vote of a majority of the directors then in office though less than
a quorum, and each director so chosen shall hold office until the next annual meeting of the stockholders. No decrease in the number
of directors shall have the effect of shortening the term of any incumbent director.
At each annual meeting
of stockholders, all directors shall be elected to hold office for a term expiring at the next succeeding annual meeting of stockholders
and until their successors have been elected and shall qualify.
ARTICLE X
Powers of the Board
of Directors
The board of directors
shall have and may exercise all the powers of the Corporation, except such as are conferred exclusively upon the stockholders by
law, by the Certificate of Incorporation or by these Bylaws.
ARTICLE XI
Executive Committee
The board of directors,
by a resolution adopted by a majority of the whole board, may from its own number elect an executive committee of the board of
directors, to consist of not less than two members, and may from time to time designate or alter, within the limits permitted by
this Article XI, the duties and powers of such committee, or change its membership. The chairman of the board of directors shall
be an ex officio member of the executive committee.
Such executive committee
shall be vested with power to take any action which the board itself could take, except as hereinafter provided, with respect to
the conduct and management of the business of the Corporation, including declaring dividends, designating and altering the duties,
powers and compensation of the officers and agents of the Corporation, electing or appointing the officers and agents other than
the chairman of the board of directors, president, treasurer and secretary, filling vacancies other than those vacancies occurring
within the board of directors and executive committee, and authorizing or ratifying all purchases, sales, contracts, offers, conveyances,
transfers, negotiable instruments, powers of attorney, bonds, and other transactions and instruments of every kind, as well as
authorizing the seal of the Corporation to be affixed to all papers which may require it.
If an executive committee
is elected, each member of such executive committee shall hold office until the first meeting of the board of directors following
the next annual meeting of the stockholders and until his or her successor is elected and qualified, or until he or she sooner
dies, resigns, is removed, is replaced by change of membership or becomes disqualified by ceasing to be a director.
One-half of the members
of the executive committee then in office, but in no case less than two members, shall constitute a quorum for the transaction
of business, but any meeting may be adjourned from time to time by affirmative vote of a majority of the votes cast upon the question,
whether or not a quorum is present, and upon such majority consent to adjourn, the meeting may be adjourned without further notice.
All minutes of proceedings of the executive committee shall be kept by the secretary or an assistant secretary and shall be available
to the board of directors upon its verbal or written request. The executive committee may make rules not inconsistent herewith
for the holding and conducting of its meetings, but unless otherwise provided in such rules, its meetings shall be held and conducted
in the same manner, as nearly as may be, as is provided in these Bylaws for meetings of the board of directors. The board of directors
shall have power and authority to rescind any vote or resolution of the executive committee, but no such rescission shall have
retroactive effect.
ARTICLE XII
Committees
The board of directors
may at any time and from time to time, by resolution adopted by a majority of the whole board of directors, appoint, designate,
change the membership of or terminate the existence of one or more committees, each committee to consist of two or more of the
directors of the Corporation. Each such committee shall have such name as may be determined from time to time by resolution adopted
by the board of directors and shall have and may exercise such powers of the board of directors in the management of the business
and affairs of the Corporation, including the power to authorize the seal of the Corporation to be affixed to all papers which
may require it, as may be determined from time to time by resolution adopted by a majority of the whole board. One-half of the
members of each such committee then in office, but in no case less than two members, shall constitute a quorum for the transaction
of business, but any meeting may be adjourned from time to time by affirmative vote of a majority of the votes cast upon the question,
whether or not a quorum is present, and upon such majority consent to adjourn, the meeting may be adjourned without further notice.
All minutes of proceedings of committees shall be kept by the secretary or an assistant secretary and shall be available to the
board of directors upon its verbal or written request.
ARTICLE XIII
Meetings of the Board of Directors
Regular meetings of the
board of directors may be held without call or formal notice at such places either within or without the State of Delaware and
at such times as the board may from time to time determine. A regular meeting of the board of directors may be held without call
or formal notice immediately after and at the same place as the annual meeting of the stockholders.
Special meetings of the
board of directors may be held at any time and at any place either within or without the State of Delaware when called by the chairman
of the board, the president, the chief financial officer or two or more directors, reasonable notice thereof being given to each
director by the secretary or an assistant secretary, or in the case of the death, absence, incapacity or refusal of the secretary
or an assistant secretary, by the officer or directors calling the meeting, or without call or formal notice if each director then
in office is either present at the special meeting or waives notice before or after such meeting. A waiver of notice in writing,
signed by a director entitled to such notice shall be deemed to satisfy such notice requirement whether such written waiver of
notice were signed before or after the time of the meeting. In any case it shall be deemed sufficient notice to a director to send
notice addressed to him or her at his or her usual or last known business or residence address by postage paid mail at least forty-eight
hours before the meeting, or by telegram, telex or facsimile transmission at least twenty-four hours before the meeting, or to
give notice to him or her in person at least twenty-four hours before the meeting either by telephone, or by handing him or her
a written notice.
ARTICLE XIV
Quorum and Action
of Directors
At any meeting of the board
of directors, except in any case where a larger quorum or the vote of a larger number of directors is required by law, by the Certificate
of Incorporation or by these Bylaws, a quorum for any election or for the consideration of any question shall consist of one-half
of the directors then in office, but in no case less than two directors, but any meeting may be adjourned from time to time by
a majority of the votes cast upon the question, whether or not a quorum is present, and upon such majority consent to adjournment,
the meeting may be adjourned without further notice. When a quorum is present at any meeting, the votes of a majority of the directors
present and voting shall be requisite and sufficient to elect any officer, and a majority of the directors present and voting shall
decide any questions brought before such meeting, except in any case where a larger vote is required by law, by the Certificate
of Incorporation or by these Bylaws.
ARTICLE XV
Restrictions on Stock
Transfer
The board of directors
by resolution or resolutions may from time to time, in connection with any employee stock option or purchase plan, fix limitations
and restrictions on the transfer of any or all of the authorized but unissued shares or treasury shares of the Corporation made
available for such stock option or purchase plan, such restrictions to take effect upon the issue, sale or transfer of such shares.
If such shares are represented by a certificate or certificates, no such limitation or restriction shall be valid unless notice
thereof is given on the certificate or certificates representing such shares.
ARTICLE XVI
Compensation of Directors
The directors may be paid
their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be paid like
compensation for attending committee meetings.
ARTICLE XVII
Officers and Agents
The officers of the Corporation
shall be chosen by the board of directors and shall consist of a chairman of the board, a president, one or more vice presidents,
a secretary, a treasurer and such other officers as the board shall deem necessary or appropriate. The
board of directors, in its discretion,
may choose a chief financial officer, one or more executive vice presidents, senior vice presidents, assistant secretaries and
assistant treasurers. Two or more offices may be held by the same person, except that when one person holds the offices of both
president and secretary such person shall not hold any other office.
The board of directors
at its first meeting after each annual meeting of stockholders shall choose the corporate officers, of whom only the chairman of
the board and the president must be board members. At any time as it shall deem necessary, the board of directors may choose any
other officers and agents, who shall hold their offices for such terms, and shall exercise such powers, and perform such duties,
as the board shall determine from time to time.
Any vacancies occurring
in any office of the Corporation shall be filled by the board of directors.
ARTICLE XVIII
Chairman of the
Board of Directors
The chairman of the
board, who may be the chief executive officer of the Corporation, shall perform all duties commonly incident to his or her office
and shall perform such other duties as the board of directors shall from time to time designate. The chairman of the board shall
preside at all meetings of the stockholders and of the board of directors at which he or she is present, except as otherwise voted
by the board of directors.
The chief executive
officer, in addition to his or her other duties, shall have general and active management authority of corporate business and shall
ensure that all orders and resolutions of the board of directors are carried into effect.
ARTICLE XIX
President
The president, who may
be the chief executive officer or the chief operating officer of the Corporation, shall have such duties and powers as shall be
designated from time to time by the chairman of the board or the board of directors. The president shall have all the powers and
shall discharge all the duties, other than those as a director, of the chairman of the board or the chief executive officer during
his or her absence or his or her inability or incapacity to act. The president shall preside at all meetings of the stockholders
and the board of directors, except when the chairman of the board or the chief executive officer is present at such meetings.
The chief operating
officer shall have general responsibility for the daily operations of the Corporation and shall have such duties and powers as
shall be designated from time to time by the chairman of the board, the chief executive officer or the board of directors.
ARTICLE XX
Executive Vice Presidents,
Senior Vice Presidents and Vice Presidents
Any executive vice president,
any senior vice president or, if they are not available, any available vice president, shall have all the powers and shall discharge
all the duties of the president during his or her absence or his or her inability or incapacity to act, and each such vice president
shall further have such powers and discharge such duties as are imposed upon them by these Bylaws or may be from time to time conferred
or imposed upon them by the chairman of the board, the chief executive officer, the president, the chief operating officer or the
board of directors. Any executive vice president or senior vice president may be the chief operating officer of the Corporation.
ARTICLE XXI
Chief Financial
Officer
The chief financial
officer, if such officer is appointed, or if not, the treasurer, shall be responsible for developing, recommending and implementing
financial policies of the Corporation and shall have general responsibility for protecting the Corporation’s financial position.
He or she shall keep and maintain or cause to be kept and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements,
gains, losses capital, retained earnings and shares. He or she shall represent the Corporation in its transactions with banks and
other financial institutions.
ARTICLE XXII
Secretary and Assistant
Secretaries
The secretary or an
assistant secretary shall attend all meetings of the stockholders and all meetings of the board of directors and its committees,
and shall record all the proceedings of the meetings of the stockholders and of the board of directors and its committees in a
book or books to be kept for that purpose. He or she shall give, or cause to be given, notice of all meetings of the stockholders
and meetings of the board of directors and shall perform such other duties as may be prescribed by the chairman of the board, the
president or by the board of directors, under whose supervision the secretary shall work. The secretary shall keep in safe custody
the seal of the Corporation and when authorized by the chairman of the board, the president, the board of directors, or these Bylaws,
affix the same to any instrument requiring it and, when so affixed, the secretary or an assistant secretary shall attest the seal
by signing his or her name to the sealed document. The secretary shall be responsible for the stock ledger (which may, however,
be kept by any transfer agent or agents of the Corporation under the direction of the secretary).
The assistant secretary,
or if there are more than one, the assistant secretaries, in the order determined by the secretary, shall in the absence or disability
of the secretary
perform the duties and exercise the powers of the secretary, and shall perform such other duties and have such
other powers as the chairman of the board, the president, the board of directors and the secretary may from time to time prescribe.
ARTICLE XXIII
Treasurer and Assistant
Treasurers
The treasurer shall
have custody of the corporate funds and securities and shall keep, or cause to be kept, full and accurate account of receipts and
disbursements in books belonging to the Corporation, and shall deposit or cause to be deposited all monies and other valuable effects
in the name and to the credit of the Corporation in such depositories as may be designated by the board of directors. The treasurer
shall invest surplus funds in such investments as he or she shall deem appropriate in consultation with the chief financial officer
and pursuant to this authority may buy and sell securities on behalf of the Corporation from time to time. He or she shall disburse
or cause to be disbursed the funds of the Corporation as may be ordered by the board of directors, the chairman of the board or
such other officer as the chairman of the board may from time to time designate, taking proper vouchers for such disbursements.
The treasurer shall work under the supervision of the chief financial officer, if the board of directors has appointed such an
officer.
If required by the board
of directors, the treasurer shall give the Corporation a bond (which shall be renewed every six years) in such sum and with such
surety or sureties as shall be satisfactory to the board of directors for the faithful performance of his or her office and for
the restoration to the Corporation in case of his or her death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.
The assistant treasurer, if any, shall in the absence or disability of the treasurer, perform the duties and exercise the powers
of the treasurer and shall perform such other duties and have such other powers as the chairman of the board, the president, the
board of directors and the treasurer may from time to time prescribe and shall be responsible to and shall report to the treasurer.
ARTICLE XXIV
General Counsel
and Assistant General Counsels
The general counsel,
if the board of directors appoints such an officer, shall be the chief counseling officer of the Corporation in all legal matters,
and, subject to the control by the board of directors, he or she shall have charge of all matters of legal import to the Corporation.
His or her relationship to the Corporation shall in all respects be that of an attorney to a client. The general counsel shall
have charge of all litigation of the Corporation and keep himself or herself advised of the progress of all legal proceedings and
claims by and against the Corporation, or in which the Corporation is interested by reason of its ownership and control of other
Corporations. The general counsel shall maintain records of all lawsuits and actions of every nature in which the Corporation may
be a party, or in which it is interested, with sufficient data to show the nature of the case and the proceedings therein, and
such records and the papers relating thereto shall be open at all times to the inspection of the directors and the executive officers
of the Corporation.
The general counsel
shall give to the board of directors and to any officer of the Corporation, whenever requested to do so, his or her opinion upon
any question affecting the interests of the Corporation and when requested by the chairman of the board, the president, a vice
president, or by the board of directors or the executive committee, give his or her opinion upon any subject that may be referred
to him or her.
The general counsel
may, in his or her discretion, on behalf of the Corporation, retain such independent attorneys, or law firms, in any and all parts
of the world, as he or she may deem necessary to assist him or her in the performance of his or her duties and to protect and further
the interests of the Corporation.
The general counsel
shall have power and authority to execute in the name of the Corporation any and all bonds or stipulations for costs or other purposes
connected with legal proceedings in any of the courts of justice, for the protection or enforcement of the rights and interests
of this Corporation; and, by instrument in writing, he or she may delegate to any such authority appropriate power and authority
to execute such bonds or stipulations.
The assistant general
counsel, or, if there are more than one, the assistant general counsels, shall, in the order determined by the general counsel,
in the absence or disability of the general counsel, perform his or her duties and exercise his or her powers and shall perform
such other duties and have such other powers as the chairman of the board, the president, the board of directors and the general
counsel may from time to time prescribe.
ARTICLE XXV
Controller
The controller, if the
board of directors elects such an officer, shall be the chief accounting officer of the Corporation, shall keep its books of account
and accounting records, and shall be in charge of the Corporation’s accounting policies and procedures. The controller shall
work under the supervision of the chief financial officer. The controller shall, with the approval of the board of directors, arrange
for annual audits by independent public accountants.
If required by the board
of directors, the controller shall give the Corporation a bond (which shall be renewed every six years) in such sum and with such
surety or sureties as shall be satisfactory to the board of directors for the faithful performance of his or her office and for
the restoration to the Corporation in case of his or her death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and
other property of whatever kind in his or her possession
or under his or her control belonging to the Corporation.
The assistant controller, if any, shall
in the absence or disability of the controller perform the duties and exercise the powers of the controller, and shall perform
such other duties and have such other powers as the chairman of the board, the president, the board of directors and the controller
may from time to time prescribe, and shall be responsible to and shall report to the controller.
ARTICLE XXVI
Resignations and Removals
Any director or officer may resign at any
time by delivering his or her resignation in writing to the chairman of the board, the president or the secretary, or to a meeting
of the board of directors. Such resignation shall take effect at the time stated in the resignation, or if no time be so stated
therein, immediately upon its delivery, and without the necessity of its being accepted unless the resignation shall so state.
The stockholders may remove any director
from office, by vote of a majority in interest of the stock issued and outstanding and entitled to vote for such removal, at any
meeting called for that purpose. The board of directors may at any time, by vote of a majority of the directors then in office,
remove from office the chairman of the board, the president, any executive vice president, any vice president, the chief financial
officer, the treasurer, the secretary, the general counsel or the controller at a special meeting called for that purpose. Any
other officer, agent or employee may be removed from office, agency or employment by (i) vote of the board of directors at any
meeting thereof, or (ii) in the case of any officer, agent or employee not elected to his or her position by the board of directors,
by any committee or officer upon whom such power may be conferred by the board of directors.
No director or officer resigning, and (except
where a right to receive compensation for a definite future period shall be expressly provided in a written agreement with the
Corporation duly approved by the board of directors) no director or officer being removed shall have any right to any compensation
as such director or officer for any period following his or her resignation or removal, or any right to damages on account of such
removal, whether his or her compensation be by the month or by the year or otherwise.
ARTICLE XXVII
Vacancies
If the office of any director becomes vacant,
by reason of death, resignation or removal, a successor may be elected by the board of directors by vote of a majority of the remaining
directors then in office whether or not the remaining directors constitute a quorum. If the office of any officer becomes vacant,
by reason of death, resignation,
removal or disqualification, a successor may be
elected or appointed by the board of directors by vote of a majority of the directors present and voting. Each such successor shall
hold office for the unexpired terms, and until his or her successor shall be elected or appointed and qualified, or until he or
she sooner dies, resigns, is removed or replaced or becomes disqualified. The board of directors shall have and may exercise all
its powers notwithstanding the existence of one or more vacancies in its number as fixed by the board of directors, subject to
any requirements of law or of these Bylaws as to the number of directors required for a quorum or for any vote, resolution or other
action.
ARTICLE XXVIII
Waiver of Notice
Whenever any notice is required to be given
by law or under the provisions of the Certificate of Incorporation or of these Bylaws, a written waiver of notice, signed by the
person or persons entitled to such notice shall be deemed to satisfy such notice requirement, whether such waiver was signed and
delivered before or after the meeting or other event for which notice is waived.
ARTICLE XXIX
Certificates of Stock
Shares of capital stock of the Corporation
may be certificated or uncertificated, as permitted by applicable law. Every holder of stock in the Corporation shall be entitled,
upon written request, to have a certificate, signed in the name of the Corporation, by the chairman of the board, the president
or a vice president and by the treasurer or an assistant treasurer or the secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by him or her in the Corporation; provided, however, that where any such certificate is countersigned
by a transfer agent, other than the Corporation or its employee, or by a registrar, other than the Corporation or its employee,
any other signature on such certificate may be a facsimile, engraved, stamped or printed. In case any officer or officers who shall
have signed, or whose facsimile signature or signatures shall have been used on any such certificate or certificates shall cease
to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate
or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile
signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation, and any such issue
and delivery shall be regarded as an adoption by the Corporation of such certificate or certificates. Any certificates of stock
that may be used shall be in such form as shall, in conformity to law, be prescribed from time to time by the board of directors
or an officer of the Corporation.
ARTICLE XXX
Transfer of Shares of Stock
Subject to applicable restrictions upon
transfer, if any, (1) title to a certificate of stock and to the shares represented thereby shall be transferred only by delivery
of the certificate properly endorsed, or by delivery of the certificate accompanied by a written assignment of the same, or a written
power of attorney to sell, assign or transfer the same or the shares represented thereby, properly executed by the holder thereof,
and (2) title to uncertificated shares of stock shall be transferred only upon instructions properly executed by the holder thereof.
The person registered on the books of the Corporation as the owner of shares shall have the exclusive right to receive dividends
thereon and, except as provided in Article VII with respect to stock which has been pledged, to vote thereon as such owner or to
give any consent permitted by law, and shall be held liable for such calls and assessments, if any, as may lawfully be made thereon,
and except only as may be required by law, may in all respects be treated by the Corporation as the exclusive owner thereof. It
shall be the duty of each stockholder to notify the Corporation of his or her post office or mailing address and to furnish to
the Corporation such other information as the Corporation may by law be required to obtain.
ARTICLE XXXI
Transfer Books: Record Date
The board of directors shall have power
to close the stock transfer books of the Corporation for a period not exceeding sixty days preceding the date of any meeting of
stockholders or the date for payment of any dividend or the date for the allotment of rights or the date when any change or conversion
or exchange of capital stock shall go into effect or for a period of not exceeding sixty days in connection with obtaining the
consent of stockholders for any purpose; provided, however, that in lieu of closing the stock transfer books as aforesaid, the
board of directors may fix in advance a date, not exceeding sixty days preceding the date of any meeting of stockholders, or any
other of the above-mentioned events, or a date in connection with obtaining such consent, as a record date for the determination
of the stockholders entitled to notice of, and to vote at, any such meeting and any adjournment thereof, or entitled to receive
payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect to any such change, conversion
or exchange of capital stock, or to give such consent, and in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, or to give
such consent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record
date fixed as aforesaid.
ARTICLE XXXII
Loss of Certificates
In the case of the alleged loss or destruction
or the mutilation of a certificate of stock, a duplicate certificate may be issued in place thereof upon such terms in conformity
with law as the board of directors may prescribe; provided, however, that if such shares are no longer certificated, a new certificate
shall be issued only upon a written request as contemplated by Article XXIX.
ARTICLE XXXIII
Seal
The corporate seal of the Corporation shall,
subject to alteration by the board of directors, consist of a flat-faced circular die with the word “Delaware”, together
with the name of the Corporation and the year of its organization, cut or engraved thereon. The corporate seal of the Corporation
may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE XXXIV
Execution of Papers
Unless the board of directors generally
or in particular cases authorizes the execution thereof in some other manner, all deeds, leases, transfers, sales of securities,
contracts, proxies, bonds, notes, checks, drafts and other obligations, agreements and undertakings made, accepted or endorsed
by the Corporation, shall be signed by the chairman of the board, the president or by one of the vice presidents, and, if such
papers require a seal, the seal of the Corporation shall be affixed thereto and attested by the secretary or an assistant secretary.
ARTICLE XXXV
Fiscal Year
Except as from time to time otherwise provided
by the board of directors, the fiscal year of the Corporation shall commence on the first day of January of each year, commencing
January 1, 1991.
ARTICLE XXXVI
Dividends
Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of
Incorporation. Before payment of any dividend,
there may be set aside, out of any funds of the Corporation available for dividends, such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends,
or for repairing or maintaining any property of the Corporation, or for such other purpose as the directors shall think conducive
to the interests of the Corporation, and the directors may modify or abolish any such reserve in the manner in which it was created.
ARTICLE XXXVII
Respecting Certain Contracts
The directors of the Corporation are likely
to be connected with other corporations, partnerships, associations or firms with which from time to time this Corporation may
have business dealings. No contract or other transaction between the Corporation and any other corporation, partnership, association
or firm and no act of the Corporation shall be affected by the fact that directors of this Corporation are pecuniarily or otherwise
interested in, or are directors, members or officers of such other corporation, partnership, association or firm. Any director
individually, or any firm of which such director may be a member, may be a party to or may be pecuniarily or otherwise interested
in any contract or transaction of the Corporation, provided that the fact that he or she or such firm is so interested shall be
disclosed or shall have been known to the board of directors or a majority thereof that approves such contract or transaction.
Every contract, act or transaction which at any annual meeting of the stockholders, or at any meeting of the stockholders called
for that purpose, among others, of considering such contract, act or transaction, shall be authorized, approved or ratified by
vote of the holders of a majority of the shares in the capital stock of the Corporation present in person or represented by proxy
at such meeting (provided that a quorum of stockholders be there present or represented by proxy) shall be as valid and binding
upon the Corporation and upon all its stockholders as though such a contract, act or transaction had been expressly authorized,
approved and ratified by every stockholder of the Corporation.
ARTICLE XXXVIII
Indemnification of Directors, Officers and Employees
The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (and whether or not by or in the right of the Corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another company, partnership, joint venture, trust or other enterprise or is or was
serving as a fiduciary of any employee benefit plan, fund or program sponsored by the Corporation or such other company, partnership,
joint venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, to the extent and under
the
circumstances permitted by the General Corporation
Law of the State of Delaware as amended from time to time. Such indemnification (unless ordered by a court) shall be made as authorized
in a specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standards of conduct set forth in the General Corporation Law of the State of Delaware. Such
determination shall be made (1) by the board of directors by vote of a majority of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such quorum is not obtainable, or even if obtainable a quorum of disinterested
directors so directs by independent legal counsel in a written opinion, or (3) by the stockholders. The foregoing right of indemnification
shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
ARTICLE XXXIX
Amendments
These Bylaws may be altered, amended or
repealed by (i) the affirmative vote of the holders of a majority of the voting power of the issued and outstanding stock of the
Corporation or (ii) the affirmative vote of the majority of the directors then holding office at any annual, regular or special
stockholders or directors meeting, called for that purpose, the notice of which shall specify the subject matter of the proposed
alteration, amendment or repeal and the articles to be affected thereby. Any bylaw, whether made, altered, amended or repealed
by the stockholders or directors, may be repealed, amended, further amended or reinstated, as the case may be, by either the stockholders
or the directors as aforesaid.
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