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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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CARRIZO OIL & GAS, INC.
(Exact name of registrant as specified in its charter)
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TEXAS 76-0415919
(State of incorporation or organization) (I.R.S. Employer Identification No.)
14811 ST. MARY'S LANE, SUITE 148
HOUSTON, TEXAS 77079
(Address of principal executive offices) (Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
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<CAPTION>
Name of each exchange on which
Title of each class to be so registered each class is to be registered
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NONE NOT APPLICABLE
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If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933 pursuant to
General Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $.01 PER SHARE
(title of class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The authorized capital stock of Carrizo Oil & Gas, Inc., a Texas
corporation (the "Company"), consists of 40,000,000 shares of Common Stock and
10,000,000 shares of Preferred Stock. The following description of certain
provisions of the Company's Amended and Restated Articles of Incorporation (the
"Articles of Incorporation") and the Company's Amended and Restated Bylaws (the
"Bylaws") are necessarily general and do not purport to be complete and are
qualified in their entirety by reference to the Articles of Incorporation and
Bylaws, which are included as exhibits to this Registration Statement on Form
8-A.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share with
respect to all matters required by law to be submitted to shareholders of the
Company. Holders of Common Stock have no preemptive rights to purchase or
subscribe for securities of the Company, and the Common Stock is not
convertible or subject to redemption by the Company.
Subject to the rights of the holders of any class of capital stock of
the Company having any preference or priority over the Common Stock, none of
which are outstanding as of the date of the filing of this Registration
Statement on Form 8-A, the holders of the Common Stock are entitled to
dividends in such amounts as may be declared by the Board of Directors of the
Company from time to time out of funds legally available for such payments and,
in the event of liquidation, dissolution or winding up of the Company, to share
ratably in any assets of the Company remaining after payment in full of all
creditors and provisions for any liquidation preferences on any outstanding
stock ranking prior to the Common Stock.
American Securities Transfer & Trust, Inc. is the registrar and
transfer agent for the Common Stock.
PREFERRED STOCK
The Board of Directors, without further action by the shareholders, is
authorized to issue up to 10 million shares of Preferred Stock in one or more
series and to fix and determine as to any series all the relative rights and
preferences of shares in such series, including, without limitation,
preferences, limitations or relative rights with respect to such series. The
Company has no present intention to issue any Preferred Stock, but may
determine to do so in the future.
The issuance of shares of Preferred Stock, or the issuance of rights
to purchase such shares, could adversely affect the voting power of the Common
Stock, discourage an unsolicited acquisition proposal or make it more difficult
for a third party to gain control of the Company. For instance, the issuance
of a series of Preferred Stock might impede a business combination by including
class voting rights that would enable the holder to block such a transaction,
or facilitate a business combination by including voting rights that would
provide a required percentage vote of the
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shareholders. In addition, under certain circumstances, the issuance of
Preferred Stock could adversely affect the voting power of the holders of the
Common Stock. Although the Board of Directors is required to make any
determination to issue such stock based on its judgment as to the best
interests of the shareholders of the Company, the Board of Directors could act
in a manner that would discourage an acquisition attempt or other transaction
that some, or a majority, of the shareholders might believe to be in their best
interests or in which shareholders might receive a premium for their stock over
the then market price of such stock. The Board of Directors does not at
present intend to seek shareholder approval prior to any issuance of currently
authorized stock, unless otherwise required by law or the rules of the Nasdaq
National Market.
SPECIAL MEETINGS
Special Meetings of the shareholders of the Company may be called by
the chairman of the board, the president, the Board of Directors or by
shareholders holding not less than 50% of the outstanding voting stock of the
Company.
VOTING
Holders of Common Stock are entitled to cast one vote per share on
matters submitted to a vote of shareholders and do not have cumulative voting
rights. Each director will be elected annually. Because the Common Stock does
not have cumulative voting rights, the holders of more than 50% of the shares
may, if they choose to do so, elect all of the directors and, in that event,
the holders of the remaining shares will not be able to elect any directors.
Subject to any additional voting rights that may be granted to holders
of future classes or series of stock, the Company's Articles of Incorporation
and/or Texas law requires the affirmative vote of holders of 66 2/3% of the
outstanding shares entitled to vote thereon to approve any merger,
consolidation or share exchange, any disposition of the assets of the Company
or any dissolution of the Company and requires the affirmative vote of holders
of a majority of the outstanding shares entitled to vote thereon to approve any
amendment to the Articles of Incorporation or any other matter for which a
shareholder vote is required by the Texas Business Corporation Act. If any
class or series of shares is entitled to vote as a class with regard to the
above-described events, the vote required will be the affirmative vote of the
holders of a majority of the outstanding shares within each class or series of
shares entitled to vote thereon as a class and at least a majority of the
outstanding shares of capital stock otherwise entitled to vote thereon.
Approval of any other matter not described above that is submitted to
the shareholders requires the affirmative vote of the holders of a majority of
the shares of Common Stock entitled to vote on, and that voted for or against
or expressly abstained with respect to, that matter at a meeting at which a
quorum is present. The holders of a majority of the shares entitled to vote
will constitute a quorum at meetings of shareholders.
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The Company's Bylaws provide that shareholders who wish to nominate
directors or to bring business before a shareholders' meeting must notify the
Company and provide certain pertinent information at least 80 days before the
meeting date (or within ten days after public announcement pursuant to the
Bylaws of the meeting date, if the meeting date has not been publicly announced
at least 90 days in advance).
The Company's Articles of Incorporation and Bylaws provide that
following the Company's public offering of shares of its Common Stock pursuant
to the Registration Statement on Form S-1, as amended (Registration No.
333-29187), no director may be removed from office, except for cause and upon
the affirmative vote of the holders of a majority of the outstanding shares of
all capital stock of the Company entitled to vote generally in the election of
the Company's directors. The following constitute "cause": (i) such director
has been convicted, or is granted immunity to testify where another has been
convicted, of a felony; (ii) such director has been found to be grossly
negligent or guilty of willful misconduct in the performance of duties to the
Company by a court or by the affirmative vote of a majority of all other
directors; (iii) such director is adjudicated mentally incompetent; or (iv)
such director has been found by a court or by the affirmative vote of a
majority of all other directors to have breached his duty of loyalty to the
Company or its shareholders or to have engaged in a transaction with the
Company from which such director derived an improper personal benefit.
BUSINESS COMBINATION LAW
The Company will be subject to Part Thirteen (the "Business
Combination Law") of the Texas Business Corporation Act, which takes effect
September 1, 1997. In general, the Business Combination Law prevents an
"affiliated shareholder" (defined generally as a person that is or was within
the preceding three-year period the beneficial owner of 20% or more of a
corporation's outstanding voting shares) or its affiliates or associates from
entering into or engaging in a "business combination" (defined generally to
include (i) mergers or share exchanges, (ii) dispositions of assets having an
aggregate value equal to 10% or more of the market value of the assets or of
the outstanding common stock or representing 10% or more of the earning power
or net income of the corporation, (iii) certain issuances or transactions by
the corporation that would increase the affiliated shareholder's number of
shares of the corporation, (iv) certain liquidations or dissolutions, and (v)
the receipt of tax, guarantee, loan or other financial benefits by an
affiliated shareholder other than proportionately as a shareholder of the
corporation) with an "issuing public corporation" (defined generally as a Texas
corporation with 100 or more shareholders, any voting shares registered under
the Securities Exchange Act of 1934 or any voting shares qualified for trading
in a national market system) during the three-year period immediately following
the affiliated shareholder's acquisition of shares unless (a) before the date
such person became an affiliated shareholder, the board of directors of the
issuing public corporation approves the business combination or the acquisition
of shares made by the affiliated shareholder on such date or (b) not less than
six months after the date such person became an affiliated shareholder, the
business combination is approved by the affirmative vote of holders of at least
two-thirds of the issuing public corporation's outstanding voting shares not
beneficially owned by the affiliated shareholder or its
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affiliates or associates. The Business Combination Law does not apply to a
business combination of an issuing public corporation that elects not be
governed thereby through either its original articles of incorporation or bylaws
or by an amendment thereof. The Company's original articles and bylaws do not
so provide, nor does the Company currently intend to make any such amendments.
As a result of the approval of the Board of Directors of the acquisition of
shares by the current shareholders of the Company, none of Steven A. Webster,
Douglas A. P. Hamilton, Paul B. Loyd, Jr. or Frank A. Wojtek (those shareholders
of the Company owning 20% or more of the outstanding voting shares prior to the
Company's public offering of shares of its Common Stock pursuant to the
Registration Statement on Form S-1, as amended (Registration No. 333-29187), and
the Combination Transactions described therein) will be subject to the
restrictions imposed on affiliated shareholders by the Business Combination Law.
LIMITATION OF DIRECTOR LIABILITY AND INDEMNIFICATION ARRANGEMENTS
The Articles of Incorporation of the Company contain a provision that
limits the liability of the Company's directors as permitted by the Texas
Business Corporation Act. The provision eliminates the personal liability of a
director to the Company and its shareholders for monetary damages for an act or
omission in the director's capacity as a director. The provision does not
change the liability of a director for breach of his duty of loyalty to the
Company or to shareholders, acts or omissions not in good faith that involve
intentional misconduct or a knowing violation of law, an act or omission for
which the liability of a director is expressly provided for by an applicable
statute, or in respect of any transaction from which a director received an
improper personal benefit. Pursuant to the Articles of Incorporation, the
liability of directors will be further limited or eliminated without action by
shareholders if Texas law is amended to further limit or eliminate the personal
liability of directors.
The Company's Bylaws provide for the indemnification of its officers
and directors, and the advancement to them of expenses in connection with
proceedings and claims, to the fullest extent permitted by the Texas Business
Corporation Act. The Company has also entered into indemnification agreements
with each of its directors and certain of its officers that contractually
provide for indemnification and expense advancement and include related
provisions meant to facilitate the indemnitee's receipt of such benefits. In
addition, the Company may purchase directors' and officers' liability insurance
policies for its directors and officers in the future. The Bylaws and such
agreements with directors and officers provide for indemnification for amounts
(i) in respect of the deductibles for such insurance policies, (ii) that exceed
the liability limits of such insurance policies and (iii) that are available,
were available or become available to the Company or are generally available to
companies comparable to the Company but which the officers or directors of the
Company determine is inadvisable for the Company to purchase, given the cost
involved of the Company. Such indemnification may be made even though
directors and officers would not otherwise be entitled to indemnification under
other provisions of the Bylaws or such agreements.
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ITEM 2. EXHIBITS
The following exhibits are filed as part of this Registration
Statement on Form 8-A:
*3.1 Amended and Restated Articles of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of the
Registration Statement on Form S-1 (Registration No. 333-
29187)).
3.2 Amended and Restated Bylaws of the Company, as amended by Amendment
No. 1.
*4.1 Form of certificate representing Common Stock (incorporated herein by
reference to Exhibit 4.1 of the Registration Statement on
Form S-1 (Registration No. 333-29187)).
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* Incorporated by reference as indicated pursuant to Rule 12b-32.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
CARRIZO OIL & GAS, INC.
Date: July 31, 1997 By: /s/ FRANK A. WOJTEK
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Frank A. Wojtek
Chief Financial Officer
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INDEX TO EXHIBITS
Exhibit
Number Description
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*3.1 Amended and Restated Articles of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of the
Registration Statement on Form S-1 (Registration No. 333-
29187)).
3.2 Amended and Restated Bylaws of the Company, as amended by Amendment
No. 1.
*4.1 Form of certificate representing Common Stock (incorporated herein by
reference to Exhibit 4.1 of the Registration Statement on
Form S-1 (Registration No. 333-29187)).
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* Incorporated by reference as indicated pursuant to Rule 12b-32.
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Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
CARRIZO OIL & GAS, INC.
The following Amended and Restated Bylaws, adopted by the
Board of Directors of Carrizo Oil & Gas, Inc. (the "Corporation") as of June
4, 1997, shall govern the business of the Corporation, except as the same may
be afterwards amended:
ARTICLE I
CAPITAL STOCK
Section 1. Certificates Representing Shares. The Corporation
shall deliver certificates representing all shares to which shareholders are
entitled. Such certificates shall be signed by the President or a Vice
President and either the Secretary or any Assistant Secretary or such other
officer or officers as the Board of Directors shall designate, and shall bear
the seal of the Corporation or a facsimile thereof. The signatures of such
officers upon a certificate may be facsimiles. In case any officer who has
signed or whose facsimile signature has been placed upon such certificate shall
have ceased to be such officer before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer at
the date of its issuance.
Section 2. Shareholders of Record. The Board of Directors of
the Corporation may appoint one or more transfer agents or registrars of any
class of stock of the Corporation. Unless and until such appointment is made,
the Secretary of the Corporation shall maintain among other records a stock
transfer book, the stubs in which shall set forth the names and addresses of
the holders of all issued shares of the Corporation, the number of shares held
by each, the certificate numbers representing such shares, the date of issue of
the certificates representing such shares, and whether or not such shares
originate from original issues or from transfer. The names and addresses of
shareholders as they appear on the stock transfer book shall be the official
list of shareholders of record of the Corporation for all purposes. The
Corporation shall be entitled to treat the holder of record of any shares of
the Corporation as the owner thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or any
rights deriving from such shares, on the part of any other person, including
(but without limitation) a purchaser, assignee or transferee, unless and until
such other person becomes the
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holder of record of such shares, whether or not the Corporation shall have
either actual or constructive notice of the interest of such other person.
Section 3. Transfer of Shares. The shares of the Corporation
shall be transferable on the stock transfer books of the Corporation by the
holder of record thereof, or his duly authorized attorney or legal
representative, upon endorsement and surrender for cancellation of the
certificates for such shares. All certificates surrendered for transfer shall
be canceled, and no new certificate shall be issued until a former certificate
or certificates for a like number of shares shall have been surrendered and
canceled, except that in the case of a lost, destroyed or mutilated
certificate, a new certificate may be issued therefor upon such conditions for
the protection of the Corporation and any transfer agent or registrar as the
Board of Directors or the Secretary or any other officer may prescribe.
Section 4. Restrictions on Transfer of Combination Common
Stock.
(a) Reference is made to (i) the Combination Agreement
(the "Combination Agreement") dated as of June 6, 1997 among Carrizo Oil & Gas,
Inc., Carrizo Production, Inc., Carrizo Partners Ltd., Encinitas Partners Ltd.,
La Rosa Partners Ltd. and each of Paul B. Loyd, Jr., Steven A. Webster,
Sylvester P. Johnson, IV, Douglas A. P. Hamilton and Frank A. Wojtek. A
shareholder that receives shares of the Corporation's common stock pursuant to
the Combination Agreement and the Combination Transactions (as defined in the
Combination Agreement) is referred to herein as a "Combination Shareholder" and
such shares of common stock are referred to herein as "Combination Common
Stock." Prior to any proposed transfer (whether by sale, assignment, pledge or
otherwise) of Combination Common Stock, the proposed transferor (the
"Transferor") will give written notice to the Corporation of his intention to
effect such transfer. Each such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall be
accompanied by a written opinion of legal counsel who shall be reasonably
satisfactory to the Corporation, addressed to the Corporation, to the effect
that the proposed transfer of the securities in question may be effected
without registration under the Securities Act of 1933, as amended (the
"Securities Act"), and that such proposed transfer does not call into question
the exemption from registration under which such Combination Common Stock were
initially issued by the Corporation. Any such legal opinion must be reasonably
satisfactory to the Corporation and must state that it may also be relied upon
by any transfer agent, stock exchange or counsel to the Corporation. As a
condition to the transfer, the Corporation may also require a certificate of
the Transferor that certifies as to matters that assist the Corporation in
establishing compliance with securities laws at the time of the original
issuance of the Combination Common Stock as well as at the time of the proposed
transfer (including without limitation a certificate containing the
representations set forth in Exhibit B to the Combination Agreement). Upon
compliance with the terms of these Bylaws to the satisfaction of the
Corporation, the Transferor shall be entitled to transfer such securities in
accordance with the terms of the notice delivered by the Transferor to the
Corporation. Each certificate evidencing the Combination Common Stock so
transferred shall bear an appropriate restrictive legend reasonably deemed
appropriate by the Corporation, including any appropriate legend relating to
the restrictions and obligations under this Bylaw. The Transferor must, prior
to any transfer (unless such transfer is made pursuant to
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Rule 144 or an effective registration statement under the Securities Act),
cause any transferee of the Shares, to enter into an agreement with the
Corporation that the transferee will take and hold such securities subject to
the provisions and upon the conditions specified herein. Without limiting the
generality of any other provision hereof, the provisions of this Section 4(a)
shall be binding on successive transferees.
(b) Any sale or transfer, or purported sale or transfer,
of Combination Common Stock shall be null and void, and the Corporation shall
have no obligation to effect any transfer unless the terms, conditions and
provisions of this Section 4 are strictly observed and followed or are waived
by the Corporation. The Corporation may issue stop transfer instructions to
any transfer agent for the Corporation's common stock in order to implement any
restriction on transfer contemplated by this Bylaw.
(c) In addition to any other legend, the certificates
representing Combination Common Stock shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO
THE CORPORATION AS TO THE AVAILABILITY OF AN EXEMPTION FROM
REGISTRATION, THAT SUCH REGISTRATION IS NOT REQUIRED AND THAT ANY
PROSPECTUS DELIVERY REQUIREMENTS ARE NOT APPLICABLE. THE SHARES WERE
(1) ISSUED PURSUANT TO AN AGREEMENT AND (2) ARE SUBJECT TO PROVISIONS
OF THE BYLAWS OF THE CORPORATION, BOTH OF WHICH INCLUDE ADDITIONAL
RESTRICTIONS ON THEIR TRANSFER AND COPIES OF SUCH AGREEMENT AND BYLAWS
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
(d) If any provision or provisions of this Section 4 of
the Amended and Restated Bylaws shall be held to be invalid, illegal or
unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby; and, to the fullest extent possible, the provisions of this
Section 4 of the Amended and Restated Bylaws shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
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ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of shareholders
shall be held at the registered office of the Corporation, or at such other
place within or without the State of Texas as may be designated by the Board of
Directors or officer calling the meeting.
Section 2. Annual Meeting. Annual meetings of the
shareholders shall be held during each calendar year on a date and at a time
designated by the Board of Directors or as may otherwise be set forth in the
notice of the meeting, and on any subsequent day or days to which such meeting
may be adjourned, for the purposes of electing directors and of transacting
such other business as may properly come before the meeting. Failure to
designate a time for the annual meeting or to hold the annual meeting at the
designated time shall not work a dissolution of the Corporation.
Section 3. Special Meetings. Special meetings of the
shareholders may be called by the Chairman of the Board, the President or the
Board of Directors. Special meetings of shareholders shall be called by the
Secretary upon the written request of the holders of shares entitled to cast
not less than the following specified percentages of all the votes entitled to
be cast at such meeting: (a) prior to the date (the "Public Status Date") of
the closing of the Corporation's first offering of the Common Stock to the
general public registered under a registration statement filed by the
Corporation with the Securities and Exchange Commission, 10% and (b) on and
after the Public Status Date, 50%. Such request shall state the purpose or
purposes of such meeting and the matters proposed to be acted on thereat. Upon
receipt of such request and any notice required by Sections 8 and/or 9 of
Article II, the Board of Directors shall set a date for the special meeting,
set a record date in accordance with Article II, Section 5, and shall cause an
appropriate officer of the Corporation to give the notice required under
Article II, Section 4.
Section 4. Notice of Meeting. Written notice of all meetings
stating the place, day and hour of the meeting and in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than 10 nor more than 60 days before the meeting to the
shareholders of record entitled to vote at such meeting unless the Board of
Directors is seeking shareholder approval of a plan of merger or exchange, in
which case notice shall be delivered not less than 20 nor more than 60 days
before the meeting to all shareholders whether or not entitled to vote. If
mailed, such notice shall be deemed to be delivered when deposited in the
United States mail addressed to the shareholder at his address as it appears on
the stock transfer books of the Corporation, with postage thereon prepaid. Any
notice required to be given to any shareholder under any provision of the Texas
Business Corporation Act or any successor statutory provision, as from time to
time amended (the "TBCA"), the Amended and Restated Articles of Incorporation
or these Amended and Restated Bylaws need not be given to the shareholder if
(1) notice of two consecutive annual meetings and all notices of meetings held
during the period between those annual meetings, if any, or (2) all (but in no
event less than two) payments (if sent by first class mail) of distributions or
interest on securities during a 12-month period have been
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mailed to that person, addressed at his address as shown on the records of the
Corporation, and have been returned undeliverable. Any action or meeting taken
or held without notice to such a person shall have the same force and effect as
if the notice had been duly given. If such a person delivers to the
Corporation a written notice setting forth his then current address, the
requirement that notice be given to that person shall be reinstated.
Section 5. Fixing of Record Date. The Board of Directors
shall fix and shall have the exclusive authority to fix, in advance, a date as
the record date for the purpose of determining shareholders entitled to notice
of or to vote at any annual or special meeting of shareholders or any
adjournment thereof, or shareholders entitled to receive a distribution by the
Corporation (other than a distribution involving a purchase or redemption by
the Corporation of any of its own shares) or a share dividend, or in order to
make a determination of shareholders for any other proper purpose. Such date,
in any case, shall be not more than 60 days, and in the case of a meeting of
shareholders not less than 10 days (20 days if voting on a plan of merger or
exchange), prior to the date on which the particular action requiring such
determination of shareholders is to be taken.
Section 6. Voting List. The officer or agent having charge
of the stock transfer books of the Corporation shall make, at least 10 days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of 10 days prior to such meeting, shall be kept on
file at the registered office of the Corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such
list shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting. The original stock transfer books shall be prima facie
evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meeting of shareholders. Failure to comply
with any requirements of this Section 6 shall not affect the validity of any
action taken at such meeting.
Section 7. Voting. Except to the extent otherwise provided
in the Amended and Restated Articles of Incorporation, each holder of shares of
the Corporation entitled to vote shall be entitled to one vote for each such
share, either in person or by proxy executed in writing by him or by his duly
authorized attorney-in-fact. No proxy shall be valid after 11 months from the
date of its execution unless otherwise provided in the proxy. Each proxy shall
be revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest.
Section 8. Nomination of Directors. (a) The provisions of
subsection (b) hereof shall become effective upon (and, notwithstanding any
other provision of these Amended and Restated Bylaws, shall not be effective
with respect to any action specified in subsection (b) hereof to be taken on
any date prior to) the Public Status Date.
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(b) Subject to the rights of holders of any class or series of
stock having a preference over Common Stock of the Corporation as to dividends
or upon liquidation to elect directors under specified circumstances,
nominations of persons for election to the Board of Directors may be made only
(a) by the Board of Directors or a committee appointed by the Board of
Directors or (b) by any shareholder who is a shareholder of record at the time
of giving of the shareholder's notice provided for in this Section 8, who shall
be entitled to vote at such meeting and who complies with the notice procedures
set forth in this Section 8. A shareholder wishing to nominate one or more
individuals to stand for election in the election of members of the Board of
Directors at an annual or special meeting must provide written notice thereof
to the Board of Directors not less than 80 days in advance of such meeting;
provided, however, that in the event that the date of the meeting was not
publicly announced by the Corporation by a mailing to shareholders, a press
release or a filing with the Securities and Exchange Commission pursuant to
Section 13(a) or 14(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), more than 90 days prior to the meeting, such notice, to be
timely, must be delivered to the Board of Directors not later than the close of
business on the tenth day following the day on which the date of the meeting
was publicly announced. A shareholder's notice shall set forth (i) the name
and address, as they appear on the Corporation's books, of the shareholder
making the nomination or nominations; (ii) such information regarding the
nominee(s) proposed by such shareholder as would be required to be included in
a proxy statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had the nominee(s) been nominated or intended to be
nominated by the Board of Directors; (iii) a representation of the shareholder
as to the class and number of shares of capital stock of the Corporation that
are beneficially owned by such shareholder, and the shareholder's intent to
appear in person or by proxy at the meeting to propose such nomination; and
(iv) the written consent of the nominee(s) to serve as a member of the Board of
Directors if so elected. No shareholder nomination shall be effective unless
made in accordance with the procedures set forth in this Section 8. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a shareholder nomination was not made in accordance with the
provisions of these Amended and Restated Bylaws, and if the chairman should so
determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
Section 9. Proposals of Shareholders. (a) The provisions of
subsection (b) hereof shall become effective upon (and, notwithstanding any
other provision of these Amended and Restated Bylaws, shall not be effective
with respect to any action specified in subsection (b) hereof to be taken on
any date prior to) the Public Status Date.
(b) At any meeting of shareholders, there shall be conducted
only such business as shall have been brought before the meeting (a) by or at
the direction of the Board of Directors or (b) by any shareholder of the
Corporation who is a shareholder of record at the time of giving of the
shareholder's notice provided for in this Section 9, who shall be entitled to
vote at such meeting and who complies with the notice procedure set forth in
this Section 9. For business to be properly brought before a meeting of
shareholders by a shareholder, the shareholder shall have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice shall be delivered to or mailed and received at the
principal executive offices
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of the Corporation not less than 80 days in advance of such meeting; provided,
however, that in the event that the date of the meeting was not publicly
announced by the Corporation by a mailing to shareholders, a press release or a
filing with the Securities and Exchange Commission pursuant to Section 13(a) or
14(a) of the Exchange Act, more than 90 days prior to the meeting, such notice,
to be timely, must be delivered to the Board of Directors not later than the
close of business on the tenth day following the day on which the date of the
meeting was first so publicly announced. A shareholder's notice shall set
forth as to each matter proposed to be brought before the meeting: (1) a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and, in the event that such
business includes a proposal regarding the amendment of either the Amended and
Restated Articles of Incorporation or these Amended and Restated Bylaws of the
Corporation, the language of the proposed amendment; (2) the name and address,
as they appear on the Corporation's books, of the shareholder proposing such
business; (3) a representation of the shareholder as to the class and number of
shares of capital stock of the Corporation that are beneficially owned by such
shareholder, and the shareholder's intent to appear in person or by proxy at
the meeting to propose such business; and (4) any material interest of such
shareholder in such proposal or business. Notwithstanding anything in these
Amended and Restated Bylaws to the contrary, no business shall be conducted at
a shareholders meeting unless brought before the meeting in accordance with the
procedure set forth in this Section 9. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
these Amended and Restated Bylaws, and if the chairman should so determine, the
chairman shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Section 10. Quorum and Voting of Shareholders. The holders
of a majority of shares entitled to vote on a matter, represented in person or
by proxy, shall constitute a quorum as to that matter at a meeting of
shareholders, but, if a quorum is not present or represented, a majority in
interest of those present or represented may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the meeting as originally notified. With respect to any
matter, other than a matter for which the affirmative vote of the holders of a
specified portion of the shares entitled to vote is required by law, the
Amended and Restated Articles of Incorporation, or these Amended and Restated
Bylaws, the vote of the holders of a majority of the shares entitled to vote on
that matter and represented in person or by proxy at a meeting at which a
quorum is present or represented shall be the act of the shareholders' meeting.
Section 11. Officers. The President, shall, if present,
preside at and be the chairman of, and the Secretary shall keep the records of,
each meeting of shareholders. In the absence, or failure or refusal to
perform, of such person, his duties shall be performed by an officer or
Director of the Corporation appointed by the Board of Directors or appointed at
the meeting.
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Section 12. Conduct of Meetings. The chairman of a meeting
of shareholders shall have the power to appoint inspectors of election and to
establish and interpret rules for the conduct of the meeting.
Section 13. Consent of Shareholders in Lieu of Meeting.
Prior to the Public Status Date, any action required or permitted to be taken
at any annual or special meeting of shareholders of the Corporation may be
taken without a meeting, without prior notice and without a vote, if a consent
or counterpart consents in writing, setting forth the action so taken, shall be
signed by the holder or holders of shares having not less than the minimum
number of votes that would be necessary to take such action at a meeting at
which the holders of all shares entitled to vote on the action were present and
voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those shareholders who
did not consent in writing to the action.
ARTICLE III
DIRECTORS
Section 1. Number and Tenure. The business and affairs of
the Corporation shall be managed by a Board of Directors initially consisting
of five directors as of the date of the adoption of these Amended and Restated
Bylaws. Subject to any limitations contained in the Amended and Restated
Articles of Incorporation, the number of directors may be increased or
decreased from time to time by resolution of the Board of Directors or by due
election of that number of directors by the shareholders, but no decrease by
the Board of Directors shall have the effect of shortening the term of any
incumbent director. Unless sooner removed in accordance with these Amended and
Restated Bylaws, members of the Board of Directors shall hold office until the
next annual meeting of shareholders and until their successors shall have been
elected and qualified. The Board of Directors, in its discretion, may elect
from the directors a Chairman of the Board who, if present, shall preside at
meetings of the Board of Directors.
Section 2. Qualifications. Directors need not be
shareholders of the Corporation.
Section 3. Vacancies. Any vacancy occurring in the Board of
Directors or any directorship to be filled by reason of an increase in the
number of directors may be filled by election at an annual or special meeting
of shareholders called for that purpose or by the affirmative vote of a
majority of the remaining directors, though less than a quorum of the entire
Board; provided, however, that any directorship to be filled by the Board of
Directors by reason of an increase in the number of directors may be filled for
a term of office continuing only until the next election of one or more
directors by the shareholders; and provided, further, that the Board of
Directors may not fill more than two directorships to be filled by reason of an
increase in the number of directors during the period between any two
successive annual meetings of shareholders. Subject to the foregoing, a
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
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Section 4. Place of Meeting. Meetings of the Board of
Directors may be held either within or without the State of Texas, at whatever
place is specified by the officer calling the meeting. In the absence of
specific designation, the meetings shall be held at the principal office of the
Corporation.
Section 5. Regular Meetings. The Board of Directors shall
meet each year immediately following the annual meeting of the shareholders, at
the place of such meeting, for the transaction of such business as may properly
be brought before it. No notice of annual meetings need be given to either
existing or newly elected members of the Board of Directors. Regular meetings
may be held at such other times as shall be designated by the Board of
Directors.
Section 6. Special Meetings. Special meetings of the Board
of Directors may be held at any time upon the call of the Chairman of the
Board, the President or any two directors of the Corporation. Notice of special
meetings shall be given to each director, and may be given by any of the
following methods: (a) by mail or telegram sent to the last known business or
residence address of such director at least four days before the meeting, (b)
by facsimile to the last known business or residence facsimile number of such
director transmitted at least two days before the meeting or (c) orally at
least one day before the meeting. For purposes of the foregoing sentence,
notice shall be deemed given (i) by mail, when deposited in the U.S. mail,
postage prepaid, or by telegram, when the telegram is delivered to the
telegraph company for transmittal, (ii) by facsimile, when transmittal is
confirmed by the sending facsimile machine and (iii) orally, when communicated
in person or by telephone to the director or to a person at the business or
residence of the director who may reasonably be expected to communicate it to
the director. In calculating the number of days' notice received by a
director, the date the notice is given by any of the foregoing methods shall be
counted, but the date of the meeting to which the notice relates shall not be
counted. Notice of the time, place and purpose of a special meeting may be
waived in writing before or after such meeting, and shall be equivalent to the
giving of notice. Attendance of a director at such meeting shall also
constitute a waiver of notice thereof, except where the director attends for
the announced purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened. Except as
otherwise herein provided, neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 7. Quorum. One-half of the number of directors fixed
in the manner provided in these Amended and Restated Bylaws as from time to
time amended shall constitute a quorum for the transaction of business, but a
smaller number may adjourn from time to time until they can secure the
attendance of a quorum. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board of
Directors. Any regular or special directors' meeting may be adjourned from
time to time by those present, whether a quorum is present or not.
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Section 8. Committees. The Board of Directors, by resolution
or resolutions passed by a majority of the whole Board of Directors, may
designate one or more members of the Board of Directors to constitute an
Executive Committee and one or more other committees, which shall in each case
consist of such number of directors as the Board of Directors may determine.
The Executive Committee shall have and may exercise, subject to such
restrictions as may be contained in the Amended and Restated Articles of
Incorporation or that may be imposed by law, all of the authority of the Board
of Directors, including without limitation the power and authority to declare a
dividend and to authorize the issuance of shares of the Corporation. Each
other committee shall have and may exercise such powers of the Board in the
management of the business and affairs of the Corporation, including without
limitation the power and authority to declare a dividend and to authorize the
issuance of shares of the Corporation, as the Board of Directors may determine
by resolution and specify in the respective resolutions appointing them,
subject to such restrictions as may be contained in the Amended and Restated
Articles of Incorporation or that may be imposed by law. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors. A majority of all the members
of any such committee may fix its rules of procedure, determine its action and
fix the time and place, whether within or without the State of Texas, of its
meetings and specify what notice thereof, if any, shall be given, unless the
Board of Directors shall provide otherwise by resolution. The Board of
Directors shall have power to change the membership of any such committee at
any time, to fill vacancies therein and to disband any such committee, either
with or without cause, at any time. Each committee shall keep regular minutes
of its proceedings and report the same to the Board of Directors when required.
Section 9. Compensation. Directors may be paid their
expenses, if any, of attendance at each regular or special meeting of the Board
of the Directors or any committee thereof, and a salary as director as may be
fixed by the Board of Directors from time to time; provided, that nothing
contained herein shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 10. Removal. No director of the Corporation shall be
removed from such office by vote or other action of the shareholders of the
Corporation or otherwise, except by the affirmative vote of holders of at least
a majority of the then outstanding Voting Stock (as defined below), voting
together as a single class. The term "Voting Stock" shall mean all outstanding
shares of all classes and series of capital stock of the Corporation entitled
to vote generally in the election of directors of the Corporation, considered
as one class; and, if the Corporation shall have shares of Voting Stock
entitled to more or less than one vote for any such share, each reference in
these Bylaws to a proportion or percentage in voting power of Voting Stock
shall be calculated by reference to the portion or percentage of votes entitled
to be cast by holders of such shares generally in the election of directors of
the Corporation. Prior to the Public Status Date, any such removal of a
director of the Corporation may be with or without cause. On and after the
Public Status Date, no director of the Corporation shall be removed from such
office, except for cause, which shall be deemed to exist only if: (i) such
director has been convicted, or such director is granted immunity to testify
where another has been convicted, of a felony by a court of competent
jurisdiction (and such conviction is no longer subject to direct appeal); (ii)
such director has been found by a court
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of competent jurisdiction (and such finding is no longer subject to direct
appeal) or by the affirmative vote of at least a majority of the Whole Board
(as defined below) at any regular or special meeting of the board of directors
called for such purpose to have been grossly negligent or guilty of willful
misconduct in the performance of his duties to the Corporation in a matter of
substantial importance to the Corporation; (iii) such director has been
adjudicated by a court of competent jurisdiction to be mentally incompetent,
which mental incompetency directly affects his ability to perform as a director
of the Corporation; or (iv) such director has been found by a court of
competent jurisdiction (and such finding is no longer subject to direct appeal)
or by the affirmative vote of at least a majority of the Whole Board at any
regular or special meeting of the board of directors called for such purpose to
have breached such director's duty of loyalty to the Corporation or its
shareholders or to have engaged in any transaction with the Corporation from
which such director derived an improper personal benefit. No director of the
Corporation so removed may be nominated, re-elected or reinstated as a director
of the Corporation so long as the cause for removal continues to exist. The
term "Whole Board" shall mean the total number of authorized directors of the
Corporation whether or not there exist any vacancies in previously authorized
directorships. This paragraph shall be subject to the rights, if any, of
holders of any class or series of stock to elect directors and remove directors
elected by them.
Section 11. Action Without a Meeting. Any action required or
permitted to be taken at a meeting of directors or any committee may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors or members of the committee, as the
case may be, and such consent shall have the same force and effect as a
unanimous vote at a meeting.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the Corporation shall
be elected by the Board of Directors, and shall consist of a President and a
Secretary. The Board of Directors, in its discretion, may also elect a Chief
Executive Officer, a Chief Financial Officer, a Chief Operating Officer, one or
more Vice Presidents, a Treasurer and such other officers as the Board of
Directors may from time to time designate, all of whom shall hold office until
their successors are elected and qualified. Any two or more offices may be
held by the same person. The Board of Directors may designate which of such
officers are to be treated as executive officers for purposes of these Amended
and Restated Bylaws or for any other purpose.
The salaries of the officers shall be determined by the Board
of Directors, and may be altered by the Board of Directors from time to time
except as otherwise provided by contract. All officers shall be entitled to be
paid or reimbursed for all costs and expenditures incurred in the Corporation's
business.
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Section 2. Vacancies. Whenever any vacancies shall occur in
any office by death, resignation, increase in the number of officers of the
Corporation, or otherwise, the same shall be filled by the Board of Directors,
and the officer so elected shall hold office until his successor is chosen and
qualified.
Section 3. Removal. Any officer or agent elected or
appointed by the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the Corporation will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
Section 4. Chief Executive Officer. The Chief Executive
Officer, if there is one, shall be subject to the control of the Board of
Directors, and shall in general supervise and control all business and affairs
of the Corporation. The Chief Executive Officer may sign, with the Secretary
or any other proper officer of the Corporation thereunto authorized by the
Board of Directors, certificates for shares of the Corporation, any deeds,
mortgages, bonds, contracts or other instruments which the Board of Directors
has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Amended and Restated Bylaws to some other officer or agent of the Corporation,
or shall be required by law to be otherwise signed and executed; and in general
shall perform all duties incident to the office of Chief Executive Officer and
such other duties as may be prescribed by the Board of Directors from time to
time. In the absence of the Chairman, or if the directors neglect or fail to
elect a Chairman, then the Chief Executive Officer of the Corporation, if he is
a member of the Board of Directors, shall automatically serve as Chairman of
the Board of Directors.
Section 5. President. In the absence of the Chief Executive
Officer, or in the event of his death or inability to act or refusal to act,
the President shall perform the duties of the Chief Executive Officer and when
so acting shall have all of the powers of and be subject to all of the
restrictions upon the Chief Executive Officer. In general, he shall perform
all duties incident to the office of President and such other duties as may be
prescribed by the Chief Executive Officer or the Board of Directors from time
to time.
Section 6. Chief Operating Officer. The Chief Operating
Officer shall, subject to the control of the Board of Directors, the Chief
Executive Officer, the President and the Chairman of the Board, if there is
one, in general assist the chief executive officer, and shall perform all
duties relating to the general management and operation of the Corporation
incident to the office of Chief Operating Officer and such other duties as may
be prescribed by the Board of Directors from time to time.
Section 7. Chief Financial Officer. The Chief Financial
Officer shall, subject to the control of the Board of Directors, the President,
the Chief Executive Officer and the Chairman of the Board, if there is one, in
general assist the chief executive officer, and shall perform all duties
relating to the general management and operation (with specific attention to
financial
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matters) of the Corporation incident to the office of Chief Financial Officer
and such other duties as may be prescribed by the Board of Directors from time
to time.
Section 8. Vice President. Any Vice President may perform
the usual and customary duties that pertain to such office (but no unusual or
extraordinary duties or powers conferred by the Board of Directors upon the
President) and, under the direction and subject to the control of the Board of
Directors, such other duties as may be assigned to a Vice President.
Section 9. Secretary. It shall be the duty of the Secretary
to attend all meetings of the shareholders and Board of Directors and record
correctly the proceedings had at such meetings in a book suitable for that
purpose. It shall also be the duty of the Secretary to attest with his
signature and the seal of the Corporation all stock certificates issued by the
Corporation and to keep a stock ledger in which shall be correctly recorded all
transactions pertaining to the capital stock of the Corporation. The Secretary
shall also attest with his signature and the seal of the Corporation all deeds,
conveyances or other instruments requiring the seal of the Corporation. The
person holding the office of Secretary shall also perform, under the direction
and subject to the control of the Board of Directors, such other duties as may
be assigned to the Secretary. The duties of the Secretary may also be
performed by any Assistant Secretary.
Section 10. Treasurer. The Treasurer shall keep such moneys
of the Corporation as may be entrusted to his keeping and account for the same.
The Treasurer shall be prepared at all times to give information as to the
condition of the Corporation and shall make a detailed annual report of the
entire business and financial condition of the Corporation. The person holding
the office of Treasurer shall also perform, under the direction and subject to
the control of the Board of Directors, such other duties as may be assigned to
the Treasurer. The duties of the Treasurer may also be performed by any
Assistant Treasurer.
Section 11. Other Officers. Assistant Secretaries, if any,
and Assistant Treasurers, if any, shall have the duties set forth in Sections 9
and 10, respectively, of this Article IV. Any officer whose duties are not set
forth in Sections 4 through 10 of this Article IV shall have such duties as the
Board of Directors, the Chief Executive Officer or the President may prescribe.
Section 12. Delegation of Authority. In the case of any
absence of any officer of the Corporation or for any other reason that the
Board may deem sufficient, the Board of Directors may delegate some or all of
the powers or duties of such officer to any other officer or to any director,
employee, shareholder or agent for whatever period of time seems desirable.
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ARTICLE V
INDEMNITY
Section 1. Indemnification of Directors and Executive
Officers. Each person who at any time shall serve, or shall have served, as a
director or executive officer of the Corporation, or any person who, while a
director or executive officer of the Corporation, 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 foreign
or domestic corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise (each such person referred to
herein as an "Indemnitee"), shall be entitled to indemnification as and to the
fullest extent permitted by Article 2.02-1 of the TBCA. The foregoing right of
indemnification shall not be deemed exclusive of any other rights to which
those to be indemnified may be entitled as a matter of law or under any
agreement, other provision of these Amended and Restated Bylaws, vote of
shareholders or directors, or other arrangement. The Corporation may enter
into indemnification agreements with its officers and directors that
contractually provide to them the benefits of the provisions of this Article V
and include related provisions meant to facilitate the Indemnitees' receipt of
such benefits and such other indemnification protections as may be deemed
appropriate.
Section 2. Advancement or Reimbursement of Expenses. The
rights of Indemnitee provided under the preceding section shall include, but
not be limited to, the right to be indemnified and to have expenses advanced in
all proceedings to the fullest extent permitted by Article 2.02-1 of the TBCA.
In the event that an Indemnitee is not wholly successful, on the merits or
otherwise, in a proceeding but is successful, on the merits or otherwise, as to
any claim in such proceeding, the Corporation shall indemnify Indemnitee
against all expenses actually and reasonably incurred by him or on his behalf
relating to each claim. The termination of a claim in a proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result
as to such claim. In addition, to the extent an Indemnitee is, by reason of
his corporate status, a witness or otherwise participates in any proceeding at
a time when he is not named a defendant or respondent in the proceeding, he
shall be indemnified against all expenses actually and reasonably incurred by
him or on his behalf in connection therewith. The Corporation shall pay all
reasonable expenses incurred by or on behalf of Indemnitee in connection with
any proceeding or claim, whether brought by the Corporation or otherwise, in
advance of any determination respecting entitlement to indemnification pursuant
to this Article V within 10 days after the receipt by the Corporation of a
written request from Indemnitee reasonably evidencing such expenses and
requesting such payment or payments from time to time, whether prior to or
after final disposition of such proceeding or claim; provided that the
Indemnitee undertakes and agrees in writing that he will reimburse and repay
the Corporation for any expenses so advanced to the extent that it shall
ultimately be determined by a court, in a final adjudication from which there
is no further right of appeal, that Indemnitee is not entitled to be
indemnified against such expenses.
Section 3. Determination of Request. Upon written request to
the Corporation by an Indemnitee for indemnification pursuant to these Amended
and Restated Bylaws, a
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determination, if required by applicable law, with respect to Indemnitee's
entitlement thereto shall be made in accordance with Article 2.02-1 of the TBCA
provided, however, that notwithstanding the foregoing, if a Change in Control
shall have occurred, such determination shall be made by Independent Counsel
selected by the Indemnitee, unless the Indemnitee shall request that such
determination be made in accordance with Article 2.02-1F (1) or (2). The
Corporation shall pay any and all reasonable fees and expenses of Independent
Counsel incurred in connection with any such determination. If a Change in
Control shall have occurred, the Indemnitee shall be presumed (except as
otherwise expressly provided in this Article) to be entitled to indemnification
under this Article upon submission of a request to the Corporation for
indemnification, and thereafter the Corporation shall have the burden of proof
in overcoming that presumption in reaching a determination contrary to that
presumption. The presumption shall be used by Independent Counsel, or such
other person or persons determining entitlement to indemnification, as a basis
for a determination of entitlement to indemnification unless the Corporation
provides information sufficient to overcome such presumption by clear and
convincing evidence or the investigation, review and analysis of Independent
Counsel or such other person or persons convinces him or them by clear and
convincing evidence that the presumption should not apply.
Section 4. Effect of Certain Proceedings. The termination of
any proceeding or of any claim in a proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Article) by itself adversely
affect the right of Indemnitee to indemnification or create a presumption that
Indemnitee did conduct himself in good faith and in a manner that he reasonably
believed in the case of conduct in his official capacity, that was in the best
interests of the Corporation or, in all other cases, that was not opposed to
the best interests of the Corporation or, with respect to any criminal
proceeding, that Indemnitee had reasonable cause to believe that his conduct
was unlawful and Indemnitee shall be deemed to have been found liable in
respect of any claim only after he shall have been so adjudged by a court of
competent jurisdiction after exhaustion of all appeals therefrom.
Section 5. Expenses of Enforcement of Article. In the event
that Indemnitee, pursuant to this Article V, seeks a judicial adjudication to
enforce his rights under, or to recover damages for breach of, rights created
under or pursuant to this Article, Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation against, any and
all expenses actually and reasonably incurred by him in such judicial
adjudication but only if he prevails therein. If it shall be determined in
said judicial adjudication that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication shall be
reasonably prorated in good faith by counsel for Indemnitee. Notwithstanding
the foregoing, if a Change in Control shall have occurred, Indemnitee shall be
entitled to indemnification under this Section 5 regardless of whether
Indemnitee ultimately prevails in such judicial adjudication.
Section 6. Indemnification of other Officers, Employees and
Agents. The Corporation, by adoption of a resolution of the Board of
Directors, may indemnify and advance expenses to an officer who is not an
executive officer, an employee or agent of the Corporation
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to the same extent and subject to the same conditions (or to such lesser extent
and/or with such other conditions as the Board of Directors may determine)
under which it may indemnify and advance expenses to an Indemnitee under this
Article V; and the Corporation may indemnify and advance expenses to persons
who are not or were not directors, officers, employees or agents of the
Corporation, but who are or were serving at the request of the Corporation as
a director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in
such a capacity or arising out of his status as such a person to the same
extent and subject to the same conditions (or to such lesser extent and/or with
such other conditions as the Board of Directors may determine) that it may
indemnify and advance expenses to Indemnitees under this Article V.
Section 7. Insurance and Self-Insurance Arrangements. The
Corporation may, but is not required to, procure or maintain insurance or other
similar arrangements, at its expense, to protect itself and any person,
including any Indemnitee, who is or was a director, officer, employee, agent or
fiduciary of the corporation or who 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, trust, employee benefit plan or other enterprise, against any
expense, liability or loss asserted against or incurred by such person, in such
a capacity or arising out of his status as such a person, whether or not the
Corporation would have the power to indemnify such person against such expense
or liability. In considering the cost and availability of such insurance, the
Corporation, (through the exercise of the business judgment of its directors
and officers), may from time to time, purchase insurance which provides for any
and all of (i) deductibles, (ii) limits on payments required to be made by the
insurer, or (iii) coverage exclusions and/or coverage which may not be as
comprehensive as that which might otherwise be available to the Corporation but
which otherwise available insurance the officers or directors of the
Corporation determine is inadvisable for the Corporation to purchase given the
cost involved. The purchase of insurance with deductibles, limits on payments
and coverage exclusions and/or noncomprehensive insurance will be deemed to be
in the best interest of the Corporation but may not be in the best interest of
the Indemnitees. As to the Corporation, purchasing insurance with deductibles,
limits on payments and coverage exclusions and/or noncomprehensive insurance is
similar to the Corporation's practice of self-insurance in other areas. In
order to protect Indemnitees who would otherwise be more fully or entirely
covered under such policies, the Corporation shall indemnify and hold
Indemnitees harmless to the extent (i) of such deductibles, (ii) of amounts
exceeding payments required to be made by an insurer or (iii) of coverage under
policies of officer's and director's liability insurance that are available,
were available or which became available to the Corporation or which are
generally available to companies comparable to the Corporation but which the
officers or directors of the Corporation determine is inadvisable for the
Corporation to purchase, given the cost involved. The obligation of the
Corporation in the preceding sentence shall be without regard to whether the
Corporation would otherwise be entitled to indemnify such officer or director
under the other provisions of these Amended and Restated Bylaws, or under any
law, agreement, vote of shareholders or directors or other arrangement.
Notwithstanding the foregoing provision of
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this Section 7, an Indemnitee shall not be entitled to indemnification for the
results of his conduct that is intentionally adverse to the interests of the
Corporation. This Section 7 is authorized by Section 2.02-1(R) of the TBCA as
in effect on the date of adoption of these Amended and Restated Bylaws, and
further, is intended to establish an arrangement of self-insurance pursuant to
that section.
Section 8. Severability. If any provision or provisions of
this Article shall be held to be invalid, illegal or unenforceable for any
reason whatsoever, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby; and, to the
fullest extent possible, the provisions of this Article shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 9. Definitions. The following terms are used herein
as follows:
"Change in Control" means a change in control of the
Corporation occurring after the date of adoption of these Amended and
Restated Bylaws of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form)
promulgated under the Exchange Act, whether or not the Corporation is
then subject to such reporting requirement; provided, however, that,
without limitation, such a Change in Control shall be deemed to have
occurred if at any time after the date of adoption of these Amended
and Restated Bylaws (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 40% or more
of the combined voting power of the Corporation's then outstanding
securities without the prior approval of at least two-thirds of the
members of the Board of Directors in office immediately prior to such
person attaining such percentage interest; (ii) the Corporation is a
party to a merger, consolidation, share exchange, sale of assets or
other reorganization, or a proxy contest, as a consequence of which
members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of
Directors thereafter or (iii) during any 15-month period, individuals
who at the beginning of such period constituted the Board of Directors
(including for this purpose any new director whose election or
nomination for election by the Corporation's shareholders was approved
by a vote of at least two- thirds of the directors then still in
office who were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board of
Directors.
"Corporate status" means the status of a person who is or was
a director, officer, partner, employee, agent or fiduciary of the
Corporation or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person is
or was serving at the request of the Corporation.
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"Disinterested Director" means a director of the Corporation
who is not a named defendant or respondent to the proceeding or
subject to a claim in respect of which indemnification is sought by
Indemnitee.
"Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
contemporaneously is, nor in the five years theretofore has been,
retained to represent: (a) the Corporation or Indemnitee in any
matter material to either such party, (b) any other party to the
proceeding giving rise to a claim for indemnification hereunder or (c)
the beneficial owner, directly or indirectly, of securities of the
Corporation representing 40% or more of the combined voting power of
the Corporation's then outstanding voting securities. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include any
person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing
either the Corporation or Indemnitee in an action to determine
Indemnitee's rights to indemnification under these Amended and
Restated Bylaws.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 1. Amendments. These Amended and Restated Bylaws may
be amended or repealed, or new bylaws adopted, (a) by the Board of Directors,
unless the shareholders in amending, repealing or adopting a particular bylaw
expressly provide that the Board of Directors may not amend or repeal that
bylaw or unless the Amended and Restated Articles of Incorporation or the TBCA
reserves the power to take such action to the shareholders in whole or part or
(b) by the shareholders, unless the Amended and Restated Articles of
Incorporation or a bylaw adopted by the shareholders provides otherwise as to
all or some portion of these Amended and Restated Bylaws; provided that any
amendment or repeal of these Amended and Restated Bylaws by the shareholders
may only be effected at a shareholders meeting for which notice has been given
pursuant to Article II, Section 9 of these Amended and Restated Bylaws.
Section 2. Waiver. Whenever any notice is required to be
given to any shareholder, director or committee member under the provisions of
any law, the Amended and Restated Articles of Incorporation or these Amended
and Restated Bylaws, a waiver thereof in writing signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be equivalent to the giving of such notice.
Section 3. Conference Telephone Meetings. Meetings of
shareholders, directors, or any committee thereof, may be held by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this Section 3 shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose
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of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened.
Section 4. Offices. The principal office of the Corporation
shall be located in Houston, Texas, unless and until changed by resolution of
the Board of Directors. The Corporation may also have offices at such other
places as the Board of Directors may from time to time designate, or as the
business of the Corporation may require.
Section 5. Resignations. Any director or officer may resign
at any time. Such resignations shall be made in writing and shall take effect
at the time specified therein, or, if no time be specified, at the time of its
receipt by the Chief Executive Officer, President or Secretary. The acceptance
of a resignation shall not be necessary to make it effective, unless expressly
so provided in the resignation.
Section 6. Seal. The seal of the Corporation shall be
circular in form with a five pointed star in the center and the name of the
Corporation around the margin thereof, or in such other form as may be fixed by
resolution of the Board of Directors.
Section 7. Fiscal Year. The fiscal year of the Corporation
shall be the calendar year, or such other fiscal year as shall be fixed by the
resolution of the Board of Directors.
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AMENDMENT NO. 1
TO
THE
AMENDED AND RESTATED
BYLAWS
OF
CARRIZO OIL & GAS, INC.
The following Amendment No. 1 to the Amended and Restated
Bylaws, is adopted by the Board of Directors of Carrizo Oil & Gas, Inc. (the
"Corporation") as of July 28, 1997:
1. Article II, Section 10 of the Amended and Restated Bylaws is
amended and replaced in its entirety by the following:
Section 10. Quorum and Voting of Shareholders. The holders
of a majority of shares entitled to vote at a meeting of shareholders,
represented in person or by proxy, shall constitute a quorum as to any
matter to be presented at that meeting, but, if a quorum is not
present or represented, a majority in interest of those present or
represented may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified.
With respect to any matter, other than a matter for which the
affirmative vote of the holders of a specified portion of the shares
entitled to vote is required by law, the Amended and Restated Articles
of Incorporation, or these Amended and Restated Bylaws, the vote of
the holders of a majority of the shares entitled to vote on and that
voted for or against or expressly abstained with respect to that
matter at a meeting at which a quorum is present shall be the act of
the shareholders' meeting. Unless otherwise provided in the Amended
and Restated Articles of Incorporation or these Amended and Restated
Bylaws, members of the Board of Directors that are elected by
shareholders shall be elected by a plurality of the votes cast by the
holders of shares entitled to vote in the election of directors at a
meeting of shareholders at which a quorum is present.
2. The following definition is added as a new final paragraph of
Article V, Section 9 of the Amended and Restated Bylaws:
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"Other enterprise" shall include, but shall not be limited to,
an "other entity" as defined in Section 1.01 of the TBCA (including
any amendment that may from time to time be made to such Section).
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