EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
MILLERS AMERICAN GROUP, INC.
ARTICLE ONE
NAME. The name of the Corporation is Millers American Group, Inc.
ARTICLE TWO
TERM. The period of its duration is perpetual.
ARTICLE THREE
PURPOSE. The purpose for which the Corporation is organized is to
engage in the transaction of any or all lawful business for which a
corporation may be incorporated under the Texas Business Corporation Act.
ARTICLE FOUR
CAPITAL STOCK. The aggregate number of shares which the Corporation
shall have authority to issue is 51,000,000 shares of capital stock, of
which (1) 50,000,000 shares shall be common stock, having a par value of
$0.01 per share (the "Common Stock") and (2) 1,000,000 shares shall be
preferred stock, having a par value of $1.00 per share (the "Preferred
Stock"). The holders of Common Stock shall be entitled to one vote for
each share held in any shareholder vote in which any such shareholder is
entitled to participate.
The Board of Directors may determine the powers, designations,
preferences and relative, participating, optional or other special rights,
including voting rights, and the qualifications, limitations, or
restrictions thereof, of each class of capital stock and of each series
within any such class and may increase or decrease the number of shares
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within each such class or series; PROVIDED, HOWEVER, that the Board of
Directors may not decrease the number of shares within a class or series to
less than the number of shares within such class or series that are then
issued and may not increase the number of shares within a series above the
total number of authorized shares of the applicable class for which the
powers, designations, preferences and rights have not otherwise been set
forth herein.
A quorum shall be present at a meeting of shareholders only if the
holders of a majority of the shares of each class of capital stock entitled
to vote as a class thereat are represented at the meeting in person or by
proxy. No shareholder of the Corporation shall have the right of
cumulative voting at any election of directors or upon any other matter.
The Board of Directors, on behalf of the Corporation, may create and
issue, whether or not in connection with the issuance and sale of any of
the Corporation's shares or other securities, (1) rights or options
entitling the holders thereof to purchase or receive from the Corporation
any of its shares of any class, classes or series or other securities and
(2) indebtedness convertible into any of its shares of any class, classes
or series or other securities. Such rights, options or indebtedness shall
be evidenced in such manner as the Board of Directors shall in their sole
discretion approve and, shall set forth (a) in the case of rights or
options, the terms upon which, the time or times within which, and the
consideration, if any, for which, such shares may be purchased or received
from the Corporation upon the exercise of any such right or option, or (b)
in the case of convertible indebtedness, the terms and conditions upon
which, the time or times within which, and the conversion ratio or ratios
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at which, such indebtedness may be converted into such shares. Nothing in
these Articles of Incorporation shall be deemed to limit the Board of
Directors' authority to determine, in its sole discretion, the terms and
conditions of the rights, options, or convertible indebtedness issuable
pursuant to this Article Four, or to require the terms and conditions
thereof to be set forth in the Corporation's Articles of Incorporation.
ARTICLE FIVE
REGISTERED OFFICE AND AGENT. The street address of the initial
registered office of the Corporation is 300 Burnett Street, Fort Worth,
Texas 76102-2799, and the name of its initial registered agent at such
address is Alfred P. Chao.
ARTICLE SIX
DIRECTORS. The number of directors constituting the initial Board of
Directors shall be nine. Afterwards, the number of directors constituting
the Board of Directors shall be no less than nine and no greater than
twelve to be determined in accordance with the Bylaws of the Corporation.
The directors shall be divided into three classes as nearly equal in number
as possible and one class shall be elected at each annual meeting of
shareholders to hold office for a three-year term. The names and addresses
of the persons who are to serve as the initial directors and the annual
meeting dates on which the respective terms of such directors shall expire,
are as follows:
TERM
NAME ADDRESS EXPIRES
---- ------- -------
Frank G. Dunham, Jr. 300 Burnett Street 2000
Fort Worth, Texas 76102-2799
Joy J. Keller 300 Burnett Street 2001
Fort Worth, Texas 76102-2799
Frank A. Bailey, III 300 Burnett Street 1999
Fort Worth, Texas 76102-2799
Thomas L. Carlisle 300 Burnett Street 2001
Fort Worth, Texas 76102-2799
Catherine B. Fryer 300 Burnett Street 2000
Fort Worth, Texas 76102-2799
F. George Dunham, III 300 Burnett Street 2000
Fort Worth, Texas 76102-2799
Lamar C. Smith 300 Burnett Street 1999
Fort Worth, Texas 76102-2799
Frank C. Wilson 300 Burnett Street 2001
Fort Worth, Texas 76102-2799
David N. Thompson 300 Burnett Street 1999
Fort Worth, Texas 76102-2799
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ARTICLE SEVEN
PREEMPTIVE RIGHTS. The preemptive right of any shareholder of the
Corporation to acquire additional, unissued or treasury shares of the
Corporation, or securities of the Corporation convertible into or carrying
a right to subscribe to or acquire shares of the Corporation, is hereby
denied; PROVIDED, HOWEVER, that nothing herein shall preclude the
Corporation from granting preemptive rights by contract or agreement to any
person, corporation or other entity.
ARTICLE EIGHT
INDEMNIFICATION. 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, arbitrative, or investigative, any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that could
lead to such an action, suit, or proceeding (whether or not by or in the
right of the Corporation), by reason of the fact that such person 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, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another corporation, partnership, joint venture, sole proprietorship,
trust, non-profit entity, employee benefit plan, or other enterprise,
against all judgments, penalties (including excise and similar taxes),
fines, settlements, and reasonable expenses (including attorneys' fees and
court costs) actually and reasonably incurred by such person in connection
with such action, suit or proceeding to the fullest extent permitted by any
applicable law, and such indemnity shall inure to the benefit of the heirs,
executors and administrators of any such person so indemnified pursuant to
this Article Eight. The right to indemnification under this Article Eight
shall be a contract right and shall include, with respect to directors and
officers, the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its disposition; provided,
however, that if the Texas Business Corporation Act requires, the payment
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of such expenses incurred by a director or officer in advance of the final
disposition of a proceeding shall be made only upon delivery to the
Corporation of (i) a written affirmation by such director or officer of his
good faith belief that he has met the standard of conduct necessary for
indemnification under this Article Eight or otherwise and (ii) a written
undertaking by or on behalf of such director or officer to repay all
amounts so advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under this Article Eight or
otherwise. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article Eight shall not be deemed exclusive of
any right to which those seeking indemnification or advancement of expenses
may be entitled under any law, bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
ARTICLE NINE
LIMITATION OF DIRECTOR LIABILITY. To the fullest extent permitted by
any applicable law, as the same exists or may hereafter be amended, a
director of the Corporation shall not be liable to the Corporation or its
shareholders for monetary damages for an act or omission in the director's
capacity as a director.
ARTICLE TEN
BYLAWS. The Bylaws of the Corporation may be amended or repealed by
the affirmative vote of either:
(A) the holders of at least two-thirds of the outstanding shares
of capital stock entitled to vote thereon, or
(B) the majority of the directors present at any meeting of the
Board of Directors at which a quorum is present.
ARTICLE ELEVEN
CAPITAL. The Corporation shall not commence business until it has
received for the issuance of its shares of capital stock consideration of
the value of at least one thousand dollars ($1,000.00), consisting of
money, labor done or property actually received.
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ARTICLE TWELVE
SHAREHOLDER ACTIONS. All actions of the shareholders that may be
taken at an annual or special meeting of shareholders may be taken without
a meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action so taken shall be signed by
the holder or holders of all the shares entitled to vote with respect to
the action that is the subject of the consent.
ARTICLE THIRTEEN
INCORPORATOR. The name and address of the incorporator is as follows:
NAME ADDRESS
---- -------
Terry M. Schpok, P.C. Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4675
IN WITNESS WHEREOF, the incorporator has executed these Articles of
Incorporation on the 24th day of February, 1999.
INCORPORATOR
/S/ TERRY M. SCHPOK
---------------------------------
Terry M. Schpok, P.C.
