**Exhibit 3.5**

 

AMENDED AND RESTATED BYLAWS

OF

WESTERN GAS RESOURCES, INC.

 

 

**ARTICLE I.**

 

OFFICES

 

Section 1.   The registered office of the corporation shall be in the City ofWilmington, County of New Castle, State of Delaware.

 

Section 2.   The corporation may also have offices at such other places, both withinand without the State of Delaware, as the Board of Directors may from time totime determine or the business of the corporation may require.

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**ARTICLE II.**

 

MEETINGS OFSTOCKHOLDERS

 

Section 1.   All meetings of the stockholders for the election of directors shall beheld at such place either within or without the State of Delaware as shall bedesignated from time to time by the Board of Directors and stated in the noticeof the meeting.  Meetings of stockholdersfor any other purpose may be held at such time and place, within or without theState of Delaware, as shall be stated in the notice of the meeting or in a dulyexecuted waiver of notice thereof.

 

Section 2.   (a)   Annual meetings of stockholdersshall be held at such date and time as shall be designated from time to time bythe Board of Directors and stated in the notice of the meeting, at whichstockholders shall elect a class of Directors and transact such other businessas may properly be brought before the meeting.

 

(b)   At each meeting of stockholders, the Chairman of the Board, or, in theabsence of the Chairman of the Board, the President, shall act aschairman.  The order of business at eachsuch meeting shall be as determined by the chairman of the meeting.  The chairman of the meeting shall have theright and authority to prescribe such rules, regulations and procedures and todo all such acts and things as are necessary or desirable for the properconduct of the meeting, including, without limitation, the establishment ofprocedures for the maintenance of order and safety, limitations on the timeallotted to questions or comments on the

 

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affairsof the corporation, restrictions on entry to such meeting after the timeprescribed for the commencement thereof, and the opening and closing of thevoting polls.  The chairman of themeeting shall announce at each such meeting the date and time of the openingand closing of the voting polls for each matter upon which the stockholders willvote at such meeting.

 

(c)   No busi­ness may be transacted at an annual meet­ing of stockhold­ers,other than business that is either (i) specified in the notice of meeting (orany supplement thereto) given by or at the direction of the Board of Directors(or any duly authorized committee thereof), (ii) otherwise properly broughtbefore the annual meeting by or at the direction of the Board of Directors (orany duly autho­rized commit­tee thereof) or (iii) otherwise properly broughtbefore the annual meeting by any stockholder of the corporation (A) who is astockholder of record on the date of the giving of the notice provid­ed for inthis By-law and on the record date for the determi­nation of stockholders enti­tledto vote at such annual meeting and (B) who complies with the notice proceduresset forth in this bylaw.

 

In addition to any other applicable require­ments,for business to be properly brought before an annual meeting by a stockholder,such stockholder must have given timely notice thereof in proper written formto the Secretary of the corporation.

 

To be timely, a stockholder’s notice to theSecretary must be delivered to or mailed and received at the principalexecutive offices of the corporation not less than ninety (90) days nor morethan one hundred-twenty (120) days prior to the anniversary date of theimmediately preceding annual meeting of stockholders; provided, however,that in the event that the annual meeting is called for a date that is notwithin twenty-five (25) days before or after such anniversary date, notice bythe stockholder in order to be timely must be so received not later than theclose of business on the tenth (10th) day following the day on which suchnotice of the date of the annual meeting was mailed or such public disclosureof the date of the annual meeting was made, whichever first occurs.

 

To be in proper written form, a stockholder’snotice to the Secretary must set forth as to each matter such stockholderproposes to bring before the annual meeting (i) a clear and concise statementof the business desired to be brought before the annual meeting and the reasonsfor conducting such business at the annual meeting, (ii) the name and recordaddress of such stockholder, (iii) the class and series and number of shares ofeach class and series of capital stock of the corpora­tion which are ownedbeneficially or of record by such stockholder, (iv) a description of allarrange­ments or understandings between such stockholder and any other personor persons (including their names) in con­nection with the proposal of suchbusiness by such stockholder and any material interest of such stockholder insuch business and (v) a representation that such stockholder is a holder ofrecord of stock of the corporation entitled to vote at such meeting and thatsuch stockholder intends to appear in person or by proxy at the annual meetingto bring such business before the meeting.

 

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In addition, notwithstanding anything in thisbylaw to the contrary, a stockholder intending to nominate one or more personsfor election as a director at an annual or special meeting of stockholders mustcomply with Article III, Section 4 of these bylaws for such nominations to beproperly brought before such meeting.

 

No business shall be conducted at the annualmeeting of stockholders except business brought before the annual meeting inaccordance with the procedures set forth in this bylaw; provided, however,that, once business has been properly brought before the annual meeting inaccordance with such procedures, nothing in this bylaw shall be deemed topreclude discussion by any stockholder of any such business.  If the Chairman of an annual meetingdetermines that business was not prop­erly brought before the annual meeting inaccordance with the foregoing procedures, the Chairman shall declare to themeeting that the business was not properly brought before the meeting and suchbusiness shall not be conducted at the meeting.

 

No business shall be conducted at a specialmeeting of stockholders except for such business as shall have been broughtbefore the meeting pursuant to the corporation’s notice of meeting.

 

(d)   Either the Board of Directors or, in the absence of an appointment ofinspectors by the Board, the Chairman of the Board or the President shall, inadvance of each meeting of the stockholders, appoint one or more inspectors toact at such meeting and make a written report thereof.  In connection with any such appointment, oneor more persons may, in the discretion of the body or person making suchappointment, be designated as alternate inspectors to replace any inspector whofails to act.   If no inspector oralternate is able to act at any meeting of stockholders, the chairman of suchmeeting shall appoint one or more inspectors to act at such meeting.  Each such inspector shall perform suchduties as are required by law and as shall be specified by the Board, thechairman of the board, the presi­dent or the chairman of the meeting.  Each such inspector, before entering uponthe discharge of his duties, shall take and sign an oath faithfully to executethe duties of inspector with strict impartiality and according to the best ofhis ability.  Inspectors need not bestockholders.   No director or nomineefor the office or director shall be appointed such an inspector.

 

Section 3.   Written notice of the annual meeting stating the place, date and hour ofthe meeting shall be given to each stockholder entitled to vote at such meetingnot less than ten nor more than sixty days before the date of the meeting.

 

Section 4.   The officer who has charge of the stock ledger of the corporation shallprepare and make, at least ten days before each annual meeting of stockholders,a complete list of the stockholders entitled to vote at the meeting, arrangedin alphabetical order, and showing the address of each stockholder and thenumber of shares registered in the name of each stockholder.  Such list shall be open to the examinationof any stockholder, for any purpose germane to the meeting, during ordinarybusiness hours, for a period of at least ten days prior to the meeting, eitherat a place within the city where the meeting is to be held, which place shallbe

 

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specifiedin the notice of the meeting, or, if not so specified, at the place where themeeting is to be held.  The list shallalso be produced and kept at the time and place of the meeting during the wholetime thereof, and may be inspected by any stockholder who is present.

 

Section 5.   Special meetings of the stockholders, for any purpose or purposes,unless otherwise prescribed by statute or by the Certificate of Incorporation,may be called by the Chairman of the Board or by the President of thecorporation or by the Board of Directors or by written order of a majority ofthe directors and shall be called by the President or the Secretary at therequest in writing of stockholders owning twenty-five percent in amount of theentire capital stock of the corporation issued and outstanding and entitled tovote.  Such request shall state thepurposes of the proposed meeting.  TheChairman of the Board or the President of the corpora­tion or directors socalling, or the stockholders so requesting, any such meeting shall fix the timeand any place, either within or without the State of Delaware, as the place forholding such meeting.

 

Section 6.   Written notice of a special meeting stating the place, date and hour ofthe meeting and the purpose or purposes for which the meeting is called, shallbe given not less than ten nor more than sixty days before the date of themeeting, to each stockholder entitled to vote at such meeting.

 

Section 7.   Business transacted at any special meeting of stockholders shall belimited to the purposes stated in the notice.

 

Section 8.   The holders of a majority of the stock issued and outstanding andentitled to vote thereat, present in person or represented by proxy, shallconstitute a quorum at all meetings of the stockholders for the transaction ofbusiness except as otherwise provided by statute or by the certificate ofincorporation.  If, however, such quorumshall not be present or represented at any meeting of the stockholders, thestockholders entitled to vote thereat, present in person or represented byproxy, shall have power to adjourn the meeting from time to time, withoutnotice other than announcement at the meeting, until a quorum shall be presentor represented.  At such adjournedmeeting, at which a quorum shall be present or represented, any business may betransacted which might have been transacted at the meeting as originallynotified.  If the adjournment is formore than thirty days, or if after the adjournment a new record date is fixedfor the adjourned meeting, a notice of the adjourned meeting shall be given toeach stockholder of record entitled to vote at the meeting.

 

Section 9.   When a quorum is present at any meeting, the vote of the holders of amajority of the stock having voting power present in person or represented byproxy shall decide any question (other than the election of directors) broughtbefore such meeting, unless the question is one upon which by express provisionof the statutes or of the certificate of incorporation a different vote isrequired, in which case such express provision shall govern and control thedecision of such question.  Directorsshall be elected by plurality vote.

 

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Section 10.    Each stockholder shall at every meeting of the stockholders beentitled to one vote in person or by proxy for each share of the capital stockhaving voting power held by such stockholder, but no proxy shall be voted onafter three years from its date, unless the proxy provides for a longer period.

 

**ARTICLE III.**

 

DIRECTORS

 

Section 1.   The business and affairs of the corporation shall be managed by or underthe direction of the Board of Directors, which may exercise all such powers ofthe corporation and do all such lawful acts and things as are not by law or bythe certificate of incorporation or these bylaws directed or required to beexercised or done by the stockholders.

 

Section 2.   Except as otherwise provided in any resolution or resolutions adopted bythe Board of Directors pursuant to the provisions of Article IV of thecertificate of incorporation relating to the rights of holders of any class orseries of stock having a preference over the common stock as to dividends orupon liquida­tion, the number of directors of the corporation shall be ten(10), which number shall be reduced to nine (9) upon the conclusion of theannual meeting of stockholders held on May 16, 2003.  Each class of directors of the corporation shall consist, asnearly as may be possible of one-third of the total number of directorsconstituting the entire Board of Directors. If the number of directors is changed, any increase or decrease shall beapportioned among the classes so as to maintain the number of directors in eachclass as nearly as equal as possible, and any additional director of any classelected to fill a vacancy resulting from an increase in such class shall holdoffice for a term that coincide with the remaining term of that class, but inno case will a decrease in the number of directors shorten the term of anyincumbent director.

 

Section 3.   Vacancies and newly created directorships resulting from any increase inthe authorized number of directors may be filled by the directors then inoffice, or by a sole remaining director, and the directors so chosen shall holdoffice until the expiration of the terms of the directorships whose vacancy isbeing filled and until their successors are duly elected and qualified, unlesssooner displaced.  If there are nodirectors in office, then an election of directors may be held in the mannerprovided by statute.

 

Section 4.   Only persons who are nominated in accordance with the followingprocedures shall be eligible for election as directors of the corporation,subject to the rights of holders of any class or series of stock having apreference over the Common Stock as to dividends or upon liquidation to electdirectors under specified circumstances. Nominations of persons for election to the board of directors may bemade at any annual meeting of stockholders, or at any special meeting ofstockholders called for the purpose of electing directors, (i) by or at thedirection of the Board of Directors (or any duly authorized committee thereof)or (ii) by any stockholder of the corporation (A) who is a stockholder ofrecord on the date of the giving of the

 

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noticeprovid­ed for in this bylaw and on the record date for the determi­nation ofstockhold­ers entitled to vote at such meet­ing and (B) who complies with thenotice pro­cedures set forth in this bylaw.

 

In addition to any other applicable require­ments,for a nomination to be made by a stockholder, such stockholder must have giventimely notice thereof in proper written form to the Secretary of thecorporation.

 

To be timely, a stockholder’s notice to theSecretary must be delivered to or mailed and received at the principalexecutive offices of the corporation (a) in the case of an annual meeting, notless than ninety (90) days nor more than one hundred-twenty (120) days prior tothe anniver­sary date of the immediately preceding annual meeting ofstockholders; provided, however, that in the event that theannual meeting is called for a date that is not within twenty-five (25) daysbefore or after such anniversary date, notice by the stockholder in order to betimely must be so received not later than the close of business on the tenth(10th) day following the day on which such notice of the date of the annualmeeting was mailed or such public disclosure of the date of the annual meetingwas made, whichever first occurs; and (b) in the case of a special meeting ofstockholders called for the purpose of electing directors, not later than theclose of busi­ness on the seventh (7th) day fol­lowing the day on which noticeof the date of the special meeting was mailed or public disclo­sure of the dateof the special meeting was made, whichever first occurs.

 

To be in proper written form, a stockholder’snotice to the Secretary must set forth (a) as to each person whom thestockholder proposes to nominate for election as a director (i) the name, age,business ad­dress and residence address of the person, (ii) the principaloccupation and employment of the person, (iii) the class and series and numberof shares of each class and series of capital stock of the corpora­tion whichare owned beneficially or of record by the person and (iv) any otherinformation relating to the person that would be required to be disclosed in aproxy statement or other filings required to be made in connection withsolicitations of proxies for election of directors pursuant to Section 14 ofthe Securities Ex­change Act of 1934, as amended (the “Exchange Act”) (or inany law or statute replacing such section), and the rules and regulationspromulgated thereunder; and (b) as to the stockholder giving the notice (i) thename and record address of such stockholder, (ii) the class and series andnumber of shares of each class and series of capital stock of the corporationwhich are owned beneficially or of record by such stockholder, (iii) adescription of all arrangements or understandings between such stockholder andeach proposed nominee and any other person or persons (including their names)pursuant to which the nomination(s) are to be made by such stockholder, (iv) arepresentation that such stockholder is a holder of record of stock of thecorporation entitled to vote at such meeting and that such stockholder intendsto appear in person or by proxy at the meeting to nominate the person orpersons named in its notice and (v) any other information relating to suchstockholder that would be required to be disclosed in a proxy statement orother filings required to be made in connec­tion with solicitations of proxiesfor election of direc­tors pursuant to Section 14 of the Exchange Act (or inany law or statute

 

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replacing such section) and the rules and regulations promulgatedthereunder.  Such notice must beaccompanied by a written consent of each proposed nominee to being named as anominee and to serve as a director if elected.

 

No person shall be eligible for election as adirector of the corporation unless nominated in accordance with the proceduresset forth in this bylaw.  If theChairman of the meeting determines that a nomination was not made in accordancewith the foregoing procedures, the Chairman shall declare to the meeting thatthe nomination was defective and such defective nomination shall be disregardedand not placed upon the ballot.

 

Section 5.   The Board of Directors may adopt and from time to time amend and repealsuch rules and regulations not inconsistent with the applicable provisions oflaw, the certificate of incorporation or these bylaws for the conduct of itsmeetings and the management of the affairs of the corporation as the Board maydeem proper.

 

MEETINGS OF THE BOARD OF DIRECTORS

 

Section 6.   The Board of Directors of the corporation may hold meetings, bothregular and special, either within or without the State of Delaware.

 

Section 7.   An annual meeting of the Board of Directors shall be held immediatelyfollowing and at the same place as the annual meeting of stockholders and nonotice of such meeting shall be necessary to the newly elected directors inorder legally to constitute the meeting, provided a quorum shall bepresent.  In the event such meeting isnot held at such time and place, the meeting may be held at such time and placeas shall be specified in a notice given as hereinafter provided for specialmeetings of the Board of Directors, or as shall be specified in a writtenwaiver signed by all of the directors.

 

Section 8.   Regular meetings of the Board of Directors may be held without notice atsuch time and at such place as shall from time to time be determined by theBoard.

 

Section 9.   A special meeting of the Board of Directors may be called by theChairman of the Board of Directors or by the President of the corporation andshall be called by the Secretary on the written request of any twodirectors.  The Chairman or President socalling, or the directors so requesting, any such meeting shall fix the timeand any place, either within or without the State of Delaware, as the place forholding such meeting.  In the event thatthe Board of Directors elects a Chief Operating Officer different from thePresident in accordance with these Bylaws, the Chief Operating Officer shallhave the same powers, as aforesaid, to call a meeting as the President of thecorporation.

 

Section 10.    A majority of the Board of Directors shall constitute a quorumfor the transaction of business of any meeting of the Board of Directors, andthe act of a majority of the full sitting Board of Directors shall be the actof the Board of Directors, except as may be

 

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otherwisespecifically provided by statute, by the Certificate of Incorporation or bythese bylaws.  If a quorum shall not bepresent at any meeting of the Board of Directors, the directors present thereatmay adjourn the meeting from time to time, without notice other thanannouncement at the meeting, until a quorum shall be present.

 

Section 11.    Unless otherwise restricted by the certificate of incorporationor these bylaws, any action required or permitted to be taken at any meeting ofthe Board of Directors or of any committee thereof may be taken without ameeting, if one hundred percent of the members of the Board or one hundredpercent of the members of the committee, as the case may be, consent thereto inwriting and such writing is filed with the minutes of the proceedings of theBoard or committee, as the case may be.

 

Section 12.    The members of the Board of Directors or any committee thereofmay participate in a meeting of the Board or committee utilizing conferencetele­phone or similar communications equipment by means of which all personspartici­pating in the meeting can hear each other and such participation shallconstitute presence in person at such meeting.

 

COMMITTEES OF DIRECTORS

 

Section 13.    There shall be an Executive Committee of the Board of Directorsof the Corporation consisting of at least two (2) but not more than four (4)members of the Board of Directors, elected to such committee by the Board on anannual basis.  The Executive Committeeshall have and may exercise, between meetings of the Board of Directors, allthe power and authority of the board in the management of the business affairsof the corporation; provided, however, that the Executive Committee shall nothave the power or authority to do any of the follow­ing:

 

(a)                                  amend the certificate ofincorporation of the corporation;

 

(b)                                 adopt an agreement of merger orconsolidation involving the corporation;

 

(c)                                  recommend to the stockholders thesale, lease or exchange of all or substantially all of the property and assetsof the corpora­tion;

 

(d)                                 recommend to the stockholders adissolution of the corpora­tion or a revocation of a dissolution;

 

(e)                                  adopt, amend or repeal any bylaw;

 

(f)                                    fill vacancies on the Board ofDirectors or on any committee of the Board, including the Executive Committee;

 

(g)                                 amend or repeal any resolution ofthe Board of Directors;

 

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(h)                                 declare a dividend; or

 

(i)                                     authorize the issuance of stock ofthe corporation.

 

Section 14.    The Executive Committee shall, subject to the provisions of lawand any other provision of these bylaws, have the authority and power to causethe corporation to do the following:

 

(a)                                  To deal in real and personalproperty of the corporation; to create and/or contribute property of thecorporation to any entity or business organization formed by the corporation,either alone or with third parties; to pay rom the corporation’s funds any andall expenses and fees; to obtain and maintain insurance coverage concerning theproperty of the corporation.

 

(b)                                 To execute and deliver on behalf ofthe corporation all leases, bills of sales, assignments, deeds, unitizationagreements, contracts, farm-outs and other instruments of transfer; all checks,drafts and other orders for the payment of corporation funds; all contracts orinstruments concerning the acquisition, construction, management, operation ordisposition of corpo­rate assets; all bonds, promissory notes, mortgages, deedsof trust, security agreements and other similar documents; and all otherinstruments, documents, contracts or agreements of any kind or characterrelating to the affairs of the corporation; and to delegate in writing to theofficers of  the corporation theauthority to sign such instruments, notes, deeds, contracts, agreements anddocuments.

 

(c)                                  To exercise all rights, powers andauthority as is necessary or prudent in the operation and maintenance of thebusiness of the corporation.

 

(d)                                 To directly, or by delegation ofauthority to the officers of the corporation, appoint, employ, remove, suspendand discharge any of the following:

 

(1)                                  Managers, assistants, independentcontractors, geolo­gists, geophysicists, land men, employees and agents as fromtime to time may be deemed advisable and to determine the duties and fix andchange the salaries and other terms of employment of such persons.

 

(2)                                  Qualified technical personneltemporarily employed or to be employed on specific problems incident to theoperation of the corporation and its businesses.

 

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(3)                                  Attorneys, architects, engineers,accountants, contrac­tors, consultants, advertising agencies, sales represen­tativesand all such other agents or independent con­tractors as such officers shalldeem necessary or advis­able for the furtherance of the corporation’s purposesand operations.

 

Notwithstanding the above, in no event shallthe Executive Committee have the authority to approve: (i) with respect to gaspurchase and sale agreements, any agreement that provides for the sale orpurchase in any single year of gas in excess of Thirty-Five Million Dollars($35,000,000); (ii) with respect to the purchase of operating supplies, capitalexpenditures or general and administrative expenditures, any single expenditureor group of related expenditures in excess of Ten Million Dollars($10,000,000); or (iii) any business transaction with an affiliate of thecorporation, without the approval of the Board of Directors.  The term “affiliate” as used herein shallmean a person or entity, of any kind or nature, controlling, con­trolled by orunder common control with the corporation and shall include, withoutlimitation, any subsidiaries of the corporation and any person or entityowning, directly or indirectly, five percent or more of the capital stock ofthe corporation.

 

Section 15.    There shall be an Audit Committee of the Board of Directors ofthe corporation consisting of at least two members of the Board of Directorselected to such committee by the board on an annual basis.  The initial members of the Audit Committeeshall be the two directors named in the certificate of incorporation who arenot officers or employees of the corporation or of any party to a subscriptionagreement with the corporation.  Themembers of the audit committee elected hereafter shall be eligible to servethereon under the rules of the New York Stock Exchange as in effect from timeto time.

 

Section 16.    The Board of Directors may designate one or more additionalcommittees, each committee to consist of two or more directors of thecorporation.  The Board may designateone or more directors as alternate members of any commit­tee, who may replaceany absent or disqualified member at any meeting of the committee.  Any such committee, to the extent providedin the resolution, shall have and may exercise the powers of the Board ofDirectors in the management of the business and affairs of the corporation, andmay authorize the seal of the corporation to be affixed to all papers which mayrequire it.  Such committee orcommittees shall have such name or names as may be determined from time to timeby resolution adopted by the Board of Directors.

 

Section 17.    Regular meetings of the Executive Committee or any othercommittee of the Board of Directors, of which no notice shall be necessary, maybe held at such times and places as shall be fixed by resolution adopted by amajority of the members thereof. Special meetings of the Executive Committee or any other committee ofthe Board shall be called at the request of any member thereof.  Any special meeting of the ExecutiveCommittee or any other committee of the Board shall be a legal meeting, withoutany notice thereof having been given, if all of the members thereof shall bepresent or if notice thereof shall have been given to each

 

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memberon the day prior to the day on which the meeting is to be held.  The Execu­tive Committee or any othercommittee may adopt such rules and regulations not inconsistent with theprovisions of law, the certificate of incorporation or these bylaws for theconduct of its meetings as such committee may deem proper.  The majority of the Executive Committee orany other committee of the Board shall constitute a quorum for the transactionof business at any meeting, and the vote of the majority of the members thereofpresent at any meeting at which a quorum is present shall be the act of suchcommittee.  The Executive Committee orany other commit­tee of the Board of Directors shall keep written minutes ofits proceedings and shall report on such proceedings to the Board.

 

COMPENSATION OF DIRECTORS

 

Section 18.    The Board of Directors shall have the authority to adopt resolu­tionsfixing the compensation to be paid to directors for service as a director ofthe corporation.  The directors may bepaid their expenses, if any, of attendance at each meeting of the Board ofDirectors and may be paid a fixed sum for attendance at each meeting of theBoard of Directors or a stated salary as a director.  No such payment shall preclude any director from serving thecorporation in any other capacity and receiving compensation therefor.  Members of special or standing committeesmay be allowed like compensation for attending committee meetings.

 

**ARTICLE IV.**

 

NOTICES

 

Section 1.   Whenever, under statutory provisions or pursuant to the certificate ofincorporation or these bylaws, notice is required to be given to any directoror stockholder, it shall not be construed to require personal notice, but suchnotice may be given in writing, by mail, addressed to such director orstockholder, at his address as it appears on the records of the corporation,with postage thereon prepaid, and such notice shall be deemed to be given atthe time when the same shall be deposited in the United States mail.  Notice to directors may also be given byprepaid telegram.

 

Section 2.   Whenever any notice is required to be given under statutory provisionsor pursuant to the certificate of incorporation or these bylaws, a waiverthereof in writing, signed by the person or persons entitled to said notice,whether before or after the time stated therein, shall be deemed equivalentthereto.

** **

**ARTICLE V.**

 

OFFICERS

 

Section 1.   The officers of the corporation shall be a Chairman of the Board, aPresident, one or more Vice Presidents, any one or more of which may bedesignated Executive Vice

 

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Presidentor Senior Vice President, a Secretary and a Treasurer.  The Board of Directors may appoint suchother officers and agents, including a Vice Chairman of the Board of Directors,a Chief Operating Officer, a Chief Executive Officer different from the President,Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers, ineach case as the Board of Directors shall deem necessary, who shall hold theiroffices for such terms and shall exercise such powers and perform such dutiesas shall be determined by the Board. The Chairman of the Board and the Vice Chairman of the Board (ifprovision is made therefor by the Board of Directors) shall be elected fromamong the directors.  With the foregoingexceptions, none of the other officers need to be a director, and none of theofficers need be a stockholder of the corporation.

 

Section 2.   The officers of the corporation shall be elected annually by the Boardof Directors at its first regular meeting held after the annual meeting ofstockholders or as soon thereafter as conveniently possible.  Each officer shall hold office until hissuccessor shall have been chosen and shall have qualified or until his death orthe effective date of his resignation or removal, or until he shall cease to bea director in the case of the Chairman or the Vice Chairman.

 

Section 3.   The Board of Directors may appoint such other officers and agents as itshall deem necessary, who shall hold their offices for such terms and shallexercise such powers and perform such duties as shall be determined from timeto time by the Board of Directors.

 

Section 4.   The salaries of all officers and agents of the corporation shall befixed by the Board of Directors or pursuant to its direction; and no officershall be prevented from receiving such salary by reason of his also being adirector.

 

Section 5.     Except as may be otherwise provided by the Board of Directorsor in these bylaws, each officer of the corporation shall hold office until thefirst meeting of directors after the next annual meeting of stockholdersfollowing his election or appointment and until his successor is chosen andqualified.  Any officer elected orappointed by the Board of Directors may be removed at any time by the Board ofDirectors.  If the office of any officerbecomes vacant for any reason, the vacancy shall be filled by the Board ofDirectors.

 

THE CHAIRMAN OF THE BOARD

 

Section 6.   (a)   The Chairman of the Boardshall preside at all meetings of the Board of Directors or of the stockholdersof the corporation.  The Chairman shallformulate and submit to the Board of Directors or the Executive Committeematters of general policy for the corporation and shall perform such otherduties and powers as usually appertain to the office or as may be prescribed bythe Board of Directors or the Executive Committee.  The Chairman of the Board shall report as to the opera­tions ofthe corporation to the Board of Directors and, with the chief executive officerof the corporation designated as such by the Board of Directors, to thestockholders at or prior to each annual meeting of the stockholders, and heshall from time to

 

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timereport to the Board of Directors matters within his knowledge which theinterest of the corporation may require to be so reported.

 

(b)   The Board of Directors may, in its discretion, elect a Vice Chairman ofthe Board of Directors of the corporation, and the Vice Chairman shall performsuch other duties and have such other powers as may be prescribed herein or bythe Board of Directors.  In the absenceof the Chairman of the Board of Directors or in the event of his inability orrefusal to act, the Vice Chairman shall perform the duties of the Chairman, andwhen so acting, the Vice Chairman of the Board of Directors shall have all thepowers of and be subject to all of the restrictions upon the Chairman of theBoard of Directors.

 

THE PRESIDENT

 

Section 7.   (a)   The President shall, in theabsence of the election by the Board of Directors of a Chief Executive Officer,be the chief executive officer of the corporation and, subject to the controlof the Board of Directors, shall in general supervise and control the businessand affairs of the corporation.  In theabsence of the Chairman of the Board, the Vice Chairman of the Board (if one iselected by the Board of Directors) or the Chief Executive Officer (if one is soelected), the Presi­dent shall preside at all meetings of the Board ofDirectors of the stockholders.  He mayalso preside at any such meeting attended by the Chairman if he is sodesignated by the Chairman.  He shallhave the power to appoint and remove subordinate officers, agents andemployees, except those elected or appointed by the Board of Directors.  The President shall keep the Board ofDirectors and the Executive Committee fully informed and shall consult themconcerning the business of the corporation. He may sign with the Secretary or any other officer of the corporationthereunto authorized by the Board of Directors, certificates for shares of thecorpora­tion and any deeds, bonds, mortgages, contracts, checks, notes, drafts,or other instruments that the Board of Directors has authorized to be executed,except in cases where the signing and execution thereof has been expresslydelegated by these bylaws or by the Board of Directors to some other officer oragent of the corporation, or shall be required by law to be otherwiseexecuted.  He shall vote, or give aproxy to any other officer of the corporation to vote, all shares of stock ofany other corporation standing in the name of the corporation and in general heshall perform all other duties normally incident to the office of President andsuch other duties as may be prescribed by the Board of Directors or theExecutive Committee from time to time.

 

(b)   The Board of Directors may, in its discretion, elect a Chief ExecutiveOfficer of the corporation, and the Chief Executive Officer, rather than thePresident, shall be the chief executive officer of the corporation and, subjectto the control of the Board of Directors, shall in general perform such otherduties and have such other powers as may be prescribed herein or by the Boardof Directors.  The Board of Directors,in connection with the election of a Chief Executive Officer, may assign none,some or all of the President’s duties to the Chief Executive Officer, all ofthe foregoing as the Board of Directors may prescribe from time to time.

 

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(c)   The Board of Directors may, in its discretion, elect a Chief OperatingOfficer of the corporation, and the Chief Operating Officer, subject to thecontrol of the Board of Directors, shall in general perform such duties andhave such other powers as may be prescribed herein or by the Board ofDirectors.

 

(d)   The Board of Directors may, in its discretion, provide for the relativeauthority of each of the Chairman of the Board of Directors, the ChiefExecutive Officer, the President and the Chief Operating Officer, all as theBoard of Directors may prescribe from time to time.

 

THE SENIOR VICE PRESIDENT,

VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS

 

Section 8.   In the absence of the president or in the event of his inability orrefusal to act, the senior vice president (or in the event there be more thanone senior vice president, the senior vice presidents in the order designated,or in the absence of any designation, then in the order of their election)shall perform the duties of the president, and when so acting, shall have allthe powers of and be subject to all the restrictions upon the president.  The senior vice presidents shall performsuch other duties and have such other powers as the Board of Directors may fromtime to time prescribe.

 

Section 9.   The vice president or anyassistant vice president, or if there be more than one, the vice presidents andassistant vice presidents in the order deter­mined by the Board of Directors(or if there be no such determination, then in the order of their election),shall in the absence of any senior vice president or in the event of theinability or refusal to act of any senior vice president, perform the dutiesand exercise the powers of such senior vice president and shall perform suchother duties and have such other powers as the Board of Directors may from timeto time prescribe.

 

THE SECRETARYAND ASSISTANT SECRETARIES

 

Section 10.    The secretary shall attend all meetings of the Board ofDirectors and all meetings of the stockholders and record all the proceedingsof the meetings of the stockholders and of the Board of Directors in a book tobe kept for that purpose and shall perform like duties for the standingcommittees when required.  He shallgive, or cause to be given, notice of all meetings of the stockholders andspecial meetings of the Board of Directors, and shall perform such other dutiesas may be prescribed by the Board of Directors, the president or the chairmanof the board, under whose supervision he shall be.  He shall have custody of the corporate seal of the corporationand he, or an assistant secretary, shall have authority to affix the same toany instrument requiring it and when so affixed it may be attested by hissignature or by the signature of such assistant secretary.  The Board of Directors may give generalauthority to any other officer to affix the seal of the corporation and toattest the affixing by his signature.

 

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Section 11.    The assistant secretary, or if there bemore than one, the assistant secretaries in the order determined by the Boardof Directors (or if there be no such determination, then in the order of theirelection), shall, in the absence of the secre­tary or in the event of hisinability or refusal to act, perform the duties and exercise the powers of thesecretary and shall perform such other duties and have such other powers as theBoard of Directors may from time to time prescribe.

 

THE TREASURER AND ASSISTANT TREASURERS

 

Section 12.    The treasurer shall have custody of the corporate funds andsecurities of the corporation and shall keep full and accurate accounts ofreceipts and disbursements in books belonging to the corporation and shalldeposit all moneys and other valuable effects in the name and to the credit ofthe corporation in such depositories as may be designated by the Board ofDirectors.

 

Section 13.    The treasurer shall disburse the funds of the corporation asmay be ordered by the Board of Directors, taking proper vouchers for suchdisbursements, and shall render to the president and the Board of Directors, atits regular meetings, or when the Board of Directors so requires, an account ofall his transactions as treasurer and of the financial condition of thecorporation.

 

Section 14.    If required by the Board of Directors, the treasurer shall givethe corporation a bond (which shall be renewed every six years) in such sum andwith such surety or sureties as shall be satisfactory to the Board of Directorsfor the faithful performance of the duties of his office and for therestoration to the corpora­tion, in case of his death, resignation, retirementor removal from office, of all books, papers, vouchers, money and otherproperty of whatever kind in his possession or under his control belonging tothe corporation.

 

Section 15.    The assistant treasurer, or if there shall be more than one,the assistant treasurers in the order determined by the Board of Directors (orif there be no such determination, then in the order of their election), shall,in the absence of the treasurer or in the event of his inability or refusal toact, perform the duties and exercise the powers of the treasurer and shallperform such other duties and have such other powers as the Board of Directorsmay from time to time prescribe.

** **

**ARTICLE VI.**

 

CERTIFICATESOF STOCK

 

Section 1.   Every holder of stock in the corporation shall be entitled to have acertificate, signed in the name of the corporation, by the chairman of theboard, the president or a vice president and the treasurer or an assistanttreasurer, or the secre­tary or an assistant secretary, certifying the numberof shares owned by him in the corporation.

 

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Section 2.   Where a certificate is countersigned (1) by a transfer agent other thanthe corporation or its employee, or (2) by a registrar other than thecorporation or its employee, any signature on the certificate may befacsimile.  In case any officer,transfer agent or registrar who has signed or whose facsimile signature hasbeen placed upon a certificate shall have ceased to be such officer, transferagent or registrar before such certificate is issued, it may be issued by thecorporation with the same effect as if he were such officer, transfer agent orregistrar at the date of issue.

 

LOST CERTIFICATES

 

Section 3.   The Board of Directors may direct a new certificate or certificates tobe issued in place of any certificate or certificates theretofore issued by thecorporation alleged to have been lost, stolen or destroyed, upon the making ofan affidavit of that fact by the person claiming the certificate of stock to belost, stolen or destroyed.  Whenauthorizing such issue of a new certificate or certificates, the Board ofDirectors may, in its discretion and as a condition precedent to the issuancethereof, require the owner of such lost, stolen or destroyed certificate orcertificates, or his legal representative, to advertise the same in such manneras it shall require and/or to give the corporation a bond in such sum as it maydirect as indemnity against any claim that may be made against the corporationwith respect to the certificate alleged to have been lost, stolen or destroyed.

 

TRANSFERS OF STOCK

 

Section 4.   Upon surrender to the corporation or the transfer agent of thecorporation of a certificate for shares duly endorsed or accompanied by properevidence of succession, assignment or authority to transfer, it shall be theduty of the corporation to issue a new certificate to the person entitledthereto, cancel the old certificate and record the transaction upon its books.

 

FIXING RECORD DATE

 

Section 5.   In order that the corporation may determine the stockholders entitled tonotice of and to vote at any meeting of stockholders or any adjournmentthereof, or to express consent to corporate action in writing without ameeting, or entitled to receive payment of any dividend or other distributionor allotment of any rights, or entitled to exercise any rights in respect ofany change, conversion or exchange of stock or for the purpose of any otherlawful action, the Board of Direc­tors may fix, in advance, a record date,which shall not be more than sixty nor less than ten days before the date ofsuch meeting, nor more than sixty days prior to any other action.  A determination of stockholders of recordentitled to notice of and to vote at a meeting of stockholders shall apply toany adjournment of the meeting; provided, however, that the Board of Directorsmay fix a new record date for the adjourned meeting.

 

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REGISTEREDSTOCKHOLDERS

 

Section 6.   The corporation shall be entitled to recognize the exclusive right of aperson registered on its books as the owner of shares to receive dividends, andto vote as such owner, and to hold liable for calls and assessments a personregistered on its books as the owner of shares, and shall not be bound torecognize any equita­ble or other claim to or interest in such share or shareson the part of any other person, whether or not it shall have express or othernotice thereof, except as otherwise provided by the laws of Delaware.

** **

**ARTICLE VII.**

 

GENERALPROVISIONSINDEMNIFICATION OF OFFICERS AND DIRECTORS

 

Section 1.   (a)   The corporation shallindemnify any officer or director who was or is a party or is threatened to bemade a party to any threatened, pending or completed action, suit orproceeding, whether civil, criminal, administrative or investigative (otherthan an action by or in the right of the corporation) by reason of the factthat he is or was a director, officer, employee or agent of the corporation, oris or was serving at the request of the corporation as a director, officer,employee or agent of another corporation, partnership, joint venture, trust orother enterprise, against expenses (including attorneys’ fees), judgments,fines and amounts paid in settlement actually and reasonably incurred by him inconnection with such action, suit or proceeding if he acted in good faith andin a manner he reasonably believed to be in or not opposed to the bestinterests of the corporation, and with respect to any criminal action orproceeding, had no reasonable cause to believe his conduct was unlawful.  The termination of any action, suit orproceeding by judgment, order, settlement, conviction or upon a plea of nolocontenders or its equivalent, shall not, of itself, create a presumption thatthe person did not act in good faith and in a manner which he reasonablybelieved to be in or not opposed to the best interests of the corporation, and,with respect to any criminal action or proceeding, had reason­able cause tobelieve that his conduct was unlawful.

 

(b)   The corporation shall indemnify any officer or director who was or is aparty or is threatened to be made a party to any threatened, pending or com­pletedaction or suit by or in the right of the corporation to procure a judgment inits favor by reason of the fact that he is or was a director,  officer, employee or agent of thecorporation, or is or was serving at the request of the corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure, trust or other enterprise against expenses (including attorneys’ fees)actually and reasonably incurred by him in connection with the defense orsettlement of such action or suit if he acted in good faith and in a manner hereasonably believed to be in or not opposed to the best interests of thecorporation and except that no indemnification shall be made in respect of anyclaim, issue or matter as to which such person shall have been adjudged to beliable to the corporation unless and only to the extent that the Court ofChancery or the court in  which such

 

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actionor suit was brought shall determine upon application that, despite theadjudication of liability but in view of all the circum­stances of the case,such person is fairly and reasonably entitled to indemnity for such expenseswhich the Court of Chancery or such other court shall deem proper.

 

(c)   To the extent that a director, officer, employee or agent of thecorporation has been successful on the merits or otherwise in defense of anyaction, suit or proceeding referred to in subsection (a) or (b), or in defenseof any claim, issue or matter therein, he shall be indemnified against expenses(including attorneys, fees) actually and reasonably incurred by him inconnection therewith.

 

(d)   Any indemnification under subsection (a) or (b) (unless ordered by acourt) shall be made by the corporation only as authorized in the specific caseupon a determination that indemnification of the director, officer, employee oragent is proper in the circumstances because he has met the applicable standardof conduct set forth in subsections (a) and (b).  Such determination shall be made (1) by the Board of Directors bya majority vote of a quorum consisting of directors who were not parties tosuch action, suit or proceeding, or (2) if such a quorum is not obtain­able,or, even if obtainable a quorum of disinterested directors so directs, by inde­pendentlegal counsel in a written opinion, or (3) by the stockholders.

 

(e)   Expenses (including attorneys’ fees incurred in defending any civil,criminal, administrative or investigative action, suit or proceeding shall bepaid by the corporation in advance of the final disposition of such action,suit or proceed­ing upon receipt of an undertaking by or on behalf of thedirector, officer, employee or agent to repay such amount if it shallultimately be determined that he is not entitled to be indemnified by thecorporation as authorized in this section.

 

(f)   The indemnification and advancement of expenses provided by or grantedpursuant to this section shall not be deemed exclusive of any other rights towhich those seeking indemnification or advancement of expenses may be entitledunder the certificate of incorporation or any agreement, vote of stockholdersor disinterested directors or otherwise, both as to action in his officialcapacity and as to action in another capacity while holding such office, andshall 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 andadministrators of such a person.

 

(g)   The corporation shall have power to purchase and maintain insurance onbehalf of any officer or director who is or was a director, officer, employeeor agent of the corporation, or is or was serving at the request of thecorporation as a director, officer, employee or agent of another corporation,partner­ship, joint venture, trust or other enterprise against any liabilityasserted against him and incurred by him in any such capacity, or arising outof his status as such, whether or not the corporation would have the power toindemnify him against such liability under the provisions or this section.

 

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(h)   For purposes of this section, references to “the corporation” shallinclude, in addition to the resulting corporation, any constituent corporation(includ­ing any constituent of a constituent) absorbed in a consolidation ormerger which, if its separate existence had continued, would have had power andauthority to indem­nify its directors, officers, and employees or agents, sothat any officer or director who is or was a director, officer, employee oragent of such constituent corporation, or is or was serving at the request ofsuch constituent corporation as a director, officer, employee or agent ofanother corporation, partnership, joint venture, trust or other enterprise,shall stand in the same position under the provisions of this section withrespect  to the resulting or surviving corporationas he would have with respect to such constituent corporation if its separateexistence had continued.

 

INTERESTED DIRECTORS AND OFFICERS; QUORUM

 

Section 2.   No contract or transaction between the corporation and one or more ofits directors or officers, or between the corporation and any other corpora­tion,partnership, association or other organization in which one or more of itsdirectors or officers are directors or officers or have a financial interest,shall be void or voidable solely for this reason, or solely because the directoror officer is present at or participates in the meeting of the Board ofDirectors or committee thereof which authorizes the contract or transaction, orsolely because his or their votes are counted for such purpose, if (i) thematerial facts as to his relationship or interest and as to the contract ortransaction are disclosed or are known to the Board or the committee, and theBoard or committee in good faith authorizes the contract or transaction by theaffirmative votes of a majority of the disinterested directors, even though thedisinterested directors be less than a quorum; or (ii) the material facts as tohis relationship or interest and as to the contract or transaction aredisclosed or are known to the stockholders entitled to vote thereon, and thecontract or transaction is specifically approved in good faith by vote of thestockholders; or (iii) the contract or transaction is fair as to thecorporation as of the time it is authorized, approved or ratified by the Board,a committee thereof or the stockholders. Common or inter­ested directors may be counted in determining thepresence of a quorum at a meeting of the Board or of a committee whichauthorizes the contract or transaction.

 

DIVIDENDS

 

Section 3.   Dividends upon the capital stock of the corporation, subject to theprovisions of the certificate of incorporation, may be declared by the Board ofDirectors 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 certificateof incorporation.

 

Section 4.   Before payment of any dividend, there may be set aside out of any fundsof the corporation available for dividends such sum or sums as the directorsfrom time to time, in their absolute discretion, think proper as a reserve orreserves to meet contingencies, or for equalizing dividends, or for repairingor maintaining any property of the corporation, or for such

 

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otherpurpose as the directors shall think conducive to the interest of thecorporation, and the directors may modify or abolish any such reserve in themanner in which it was created.

 

CHECKS

 

Section 5.   All checks or demands for money and notes of the corporation shall besigned by such officer or officers or such other person or persons as autho­rizedby these bylaws or the Board of Directors may from time to time designate.

 

FISCAL YEAR

 

Section 6.   The fiscal year of the corporation shall be fixed by resolution of theBoard of Directors.

 

SEAL

 

Section 7.   The corporate seal shall have inscribed thereon the name of thecorporation and shall be in such form as may be approved from time to time bythe Board of Directors.  The seal may beused by causing it or a facsimile thereof to be impressed, affixed, imprintedor in any manner reproduced.

** **

**ARTICLE VIII.**

 

AMENDMENTS

 

These bylaws may be altered, amended orrepealed or new bylaws may be adopted by the stockholders or by the Board ofDirectors at any regular meeting of the stockholders or of the Board ofDirectors or at any special meeting of the stock­holders or of the Board ofDirectors if notice of such alteration, amendment, repeal or adoption of newbylaws be contained in the notice of such special meeting.

 

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