As filed with the Securities and Exchange Commission on April 28, 1999
Registration No. 333-____________
- -------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
MANNATECH, INCORPORATED
(Exact name of Registrant as specified in its charter)
Texas 75-2508900
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
600 S. Royal Lane, Suite 200
Coppell, Texas 75019
(Address of Principal (Zip Code)
Executive Offices)
MANNATECH, INCORPORATED
1997 Stock Option Plan
(Full title of the plan)
Charles E. Fioretti
600 S. Royal Lane, Suite 200
Coppell, Texas 75019
(Name and address of agent for service)
(972) 471-7400
(Telephone number, including area code, of agent for service)
______________________
CALCULATION OF REGISTRATION FEE
=========================================================================
Proposed
Maximum Proposed
Amount Offering Maximum
to be Price Aggregate Amount of
Title of Securities Registered Per Share Offering Registration
to be Registered (1) (2) Price (2) Fee
---------------- ---------- --------- --------- ------------
Common stock, par
value $0.0001 per
share (the "Common
Stock") . . . . . . 642,000 $17.47 $11,215,740 $3,118
=========================================================================
(1) Represents only a portion of the 2,000,000 shares of the Common
Stock subject to options issued under the 1997 Stock Option Plan.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended
(the "Securities Act"), and calculated on the basis of the average
of the high and low sales prices of the Common Stock on April 26,
1999, as reported on the Nasdaq National Market System.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting Part I of this Registration Statement on
Form S-8 (this "Registration Statement") will be sent or given to employees
of Mannatech, Incorporated (the "Company") as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, which contains audited financial statements for
the fiscal year ended December 31, 1998.
(b) The description of the Common Stock contained in the Company's
Registration Statement on Form S-1 (No. 333-63133) filed with the
Commission on September 10, 1998, as amended by Amendment No. 1 thereto
filed with the Commission on October 28, 1998.
No other reports pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), have been due or
filed since the end of the fiscal year covered by the Form 10-K referred to
in (a) above. All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company, a Texas corporation, is empowered by Article 2.02-1 of
the Texas Business Corporation Act (the "TBCA"), subject to the procedures
and limitations stated therein, to indemnify certain persons, including any
person who was, is or is threatened to be made a named defendant or
respondent in a threatened, pending, or completed action, suit or
proceeding because the person is or was a director or officer, against
judgments, penalties (including excise and similar taxes), fines,
settlements and reasonable expenses (including court costs and attorneys'
fees) actually incurred by the person in connection with the threatened,
pending, or completed action, suit or proceeding. The Company is required
by Article 2.02-1 to indemnify a director or officer against reasonable
expenses (including court costs and attorneys' fees) incurred by such
person in connection with a threatened, pending, or completed action, suit
or proceeding in which such person is a named defendant or respondent
because such person is or was a director or officer if such person has been
wholly successful, on the merits or otherwise, in the defense of the
action, suit or proceeding. Article 2.02-1 provides that indemnification
pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under the corporation's
articles of incorporation or any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise. The Second Amended and Restated
Bylaws, as amended, of the Company provide for indemnification by the
Company of its directors and officers to the fullest extent permitted by
the TBCA. In addition, the Company has, pursuant to Article 1302-7.06 of
the Texas Miscellaneous Corporation Laws Act, provided in its Articles
that, a director of the Company shall not be liable to the Company or its
shareholders for monetary damages for an act or omission in a director's
capacity as director of the Company.
Furthermore, the Company has entered into individual indemnification
agreements with each director of the Company that contractually obligate
the Company to provide indemnification to the directors for liabilities
such directors may incur in the performance of their duties and insurance
or self-insurance in lieu thereof.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits, attached hereto on page I-1.
Item 9. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(2) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (2)(i) and (2)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(3) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(4) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas on this
27th day of April, 1999.
MANNATECH, INCORPORATED
By:/s/ Charles E. Fioretti
----------------------------------------
Charles E. Fioretti
Chairman of the Board and Chief Executive
Officer
The undersigned directors and officers of Mannatech, Incorporated
hereby constitute and appoint Charles E. Fioretti, with full power of
substitution and resubstitution, our true and lawful attorney-in-fact with
full power to execute in our name and behalf in the capacities indicated
below any and all amendments (including post-effective amendments and
amendments thereto) to this Registration Statement and to file the same,
with all exhibits thereto and other documents in connection therewith with
the Commission and hereby ratify and confirm all that such attorney-in-fact
or his substitute shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Charles E. Fioretti Chairman of the Board April 27, 1999
- ---------------------------- and Chief Executive
Charles E. Fioretti Officer (Principal
Executive Officer)
/s/ Samuel L. Caster President and Director April 27, 1999
- ----------------------------
Samuel L. Caster
/s/ Patrick D. Cobb Vice President, April 27, 1999
- ---------------------------- Chief Financial
Patrick D. Cobb Officer and Director
(Principal Accounting
and Financial Officer)
/s/ Stephen D. Fenstermacher Vice President and April 27, 1999
- ---------------------------- Controller
Stephen D. Fenstermacher (Principal Accounting
Officer)
/s/ Chris T. Sullivan Director April 27, 1999
- ----------------------------
Chris T. Sullivan
/s/ Steven A. Barker Director April 27, 1999
- ----------------------------
Steven A. Barker
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
- ------- -----------------------
4.1 - 1997 Stock Option Plan dated May 20, 1997, incorporated
herein by reference to Exhibit 10.1 to the Company's Form S-
1 (File No. 333-63133) filed with the Commission on
September 10, 1998.
4.2 - Amended and Restated Articles of Incorporation of the
Company, incorporated herein by reference to Exhibit 3.1 to
the Company's Form S-1 (File No. 333-63133) filed with the
Commission on September 10, 1998.
4.3* - Second Amended and Restated Bylaws of the Company.
4.4 - Specimen Certificate for shares of the common stock,
par value $0.0001 per share, of the Company, incorporated
herein by reference to Exhibit 4.1 to the Company's
Amendment No. 1 to Form S-1 (File No. 333-63133) filed with
the Commission on October 28, 1998.
5* - Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1* - Consent of PricewaterhouseCoopers LLP.
23.2* - Consent of Belew Averitt LLP
23.3* - Consent of Akin, Gump, Strauss, Hauer & Feld L.L.P.
(included in its opinion filed as Exhibit 5 to this
Registration Statement)
24* - Power of Attorney (included on signature page of this
Registration Statement).
* Filed herewith
EXHIBIT 4.3
SECOND AMENDED AND RESTATED BYLAWS
OF
MANNATECH, INCORPORATED
A TEXAS CORPORATION
DATE OF ADOPTION:
April 27, 1999
SECOND AMENDED AND RESTATED BYLAWS
OF
MANNATECH, INCORPORATED
A TEXAS CORPORATION
ARTICLE I
REGISTERED OFFICE
The registered office of the Corporation required by the Texas
Business Corporation Act (the "TBCA") to be maintained in the State of
Texas shall be the registered office named in the Amended and Restated
Articles of Incorporation of the Corporation or such other office (which
need not be a place of business of the Corporation) as may be designated
from time to time by the Board of Directors in the manner provided by law.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the shareholders shall
be held at the principal place of business of the Corporation or at such
other place within or without the State of Texas as shall be specified or
fixed in the notices or waivers of notice thereof; provided that any or all
shareholders may participate in any such meeting by means of conference
telephone or similar communications equipment pursuant to Article II,
Section 12 of these bylaws.
SECTION 2. QUORUM; REQUIRED VOTE FOR SHAREHOLDER ACTION; ADJOURNMENT OF
MEETINGS.
(a) Quorum. A quorum shall be present at a meeting of shareholders if the
holders of a majority of the shares entitled to vote are represented at the
meeting in person or by proxy.
(b) Voting on Matters Other than the Election of Directors. With respect
to any matter, other than the election of directors or a matter for which
the affirmative vote of the holders of a specified portion of the shares
entitled to vote is required by the TBCA, the affirmative 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 of shareholders at which a
quorum is present shall be the act of the shareholders, unless otherwise
provided in the Amended and Restated Articles of Incorporation or these
bylaws in accordance with the TBCA.
(c) Voting in the Election of Directors. Subject to any agreements among
shareholders now or hereafter existing regarding the election of directors,
directors shall be elected only if the director receives the vote of the
holders of a majority of the shares entitled to vote in the election of
directors.
(d) Adjournment. Notwithstanding the other provisions of the Amended and
Restated Articles of Incorporation or these bylaws, the chairman of the
meeting or the holders of a majority of the shares entitled to vote that
are represented in person or by proxy at any meeting of shareholders,
whether or not a quorum is present, shall have the power to adjourn such
meeting from time to time, without any notice other than announcement at
the meeting of the time and place of the holding of the adjourned meeting.
If such meeting is adjourned by the shareholders, such time and place shall
be determined by a vote of the holders of a majority of the shares entitled
to vote that are represented in person or by proxy in such meeting. Upon
the resumption of such adjourned meeting, any business may be transacted
that might have been transacted at the meeting as originally called.
SECTION 3. ANNUAL MEETINGS. An annual meeting of the shareholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, within or without the State of Texas, on such
date and at such time as the Board of Directors shall fix and set forth in
the notice of the meeting, which date shall be within 13 months subsequent
to the last annual meeting of shareholders.
SECTION 4. SPECIAL MEETINGS. Special meetings of the shareholders for
any proper purpose or purposes may be called at any time by (a) the
Chairman of the Board; (b) the President; or (c) the Secretary, on written
request of any two directors, and (d) the holders of at least ten percent
of all the shares entitled to vote at the proposed special meeting. The
record date for determining shareholders entitled to call a special meeting
is the date any shareholder first signs the notice of that meeting. Only
business within the purpose or purposes described in the notice (or waiver
thereof required by these bylaws) may be conducted at a special meeting of
the shareholders.
SECTION 5. CLOSING SHARE TRANSFER RECORDS; RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or 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 purpose, the Board of Directors of the Corporation may provide that
the share transfer records shall be closed for a stated period but not to
exceed, in any case, 60 days. If the share transfer records shall be
closed for the purpose of determining shareholders entitled to notice of or
to vote at a meeting of shareholders, such records shall be closed for at
least ten days immediately preceding such meeting.
In lieu of closing the share transfer records, the Board of Directors
may fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than 60 days and, in the
case of a meeting of shareholders, not less than ten days, prior to the
date on which the particular action requiring such determination of
shareholders is to taken.
If the share transfer records are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders, or shareholders entitled to receive a
distribution (other than a distribution involving a purchase or redemption
by the Corporation of any of its own shares) or a share dividend, the date
on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such distribution or share
dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders.
When a determination of shareholders entitled to vote at any meeting
of shareholders has been made as provided herein, such determination shall
also apply to any adjournment thereof except where the determination has
been made through the closing of share transfer records and the stated
period of closing has expired.
SECTION 6. NOTICE OF MEETINGS. Written or printed notice 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 ten nor more than 60 days before the date of the meeting,
either personally or by mail, by or at the direction of the President, the
Secretary or the officer or person calling the meeting, to each shareholder
entitled to vote at such meeting. If mailed, any 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 share transfer
records of the Corporation, with postage thereon prepaid.
SECTION 7. VOTING LIST. The officer or agent having charge of the
share transfer records of the Corporation shall make, at least ten 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 ten days prior to such meeting, shall be
kept on file at the registered office or principal place of business 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 share transfer records shall be prima facie evidence as to who are
the shareholders entitled to examine such list or transfer records or to
vote at any meeting of shareholders. Failure to comply with the
requirements of this Section shall not affect the validity of any action
taken at such meeting.
SECTION 8. PROXIES. A shareholder may vote either in person or by
proxy executed in writing by the shareholders. A telegram, telex,
cablegram, telecopy or similar transmission by the shareholder, or a
photographic, photostatic, facsimile or similar reproduction of a writing
executed by the shareholder shall be treated as an execution in writing for
purposes of this Section. Proxies for use at any meeting of shareholders
or in connection with the taking of any action by written consent shall be
filed with the Secretary, or such other officer as the Board of Directors
may from time to time determine by resolution, before or at the time of the
meeting or execution of the written consent as the case may be. No proxy
shall be valid after 11 months from the date of its execution unless
otherwise provided in the proxy.
SECTION 9. VOTING; INSPECTORS; ELECTIONS. Unless otherwise required by
law or provided in the Amended and Restated Articles of Incorporation, each
outstanding share, regardless of class, shall be entitled to one vote on
each matter submitted to a vote at a meeting of shareholders.
At any meeting at which a vote is taken, the chairman of the meeting
may appoint one or more inspectors, each of whom shall subscribe an oath or
affirmation to execute faithfully the duties of inspector at such meeting
with strict impartiality and according to the best of such person's
ability. Such inspector shall receive the ballots, count the votes and
make and sign a certificate of the result thereof. The chairman of the
meeting may appoint any person to serve as inspector, except no candidate
for the office of director shall be appointed as an inspector.
SECTION 10. CONDUCT OF MEETINGS. All meetings of the shareholders shall
be presided over by the chairman of the meeting, who shall be the Chairman
of the Board, or if the Chairman of the Board is not present, the President
or if neither the Chairman of the Board nor President is present, a
chairman elected at the meeting. The Secretary of the Corporation, if
present, shall act as secretary of such meetings, or if the Secretary is
not present an Assistant Secretary (if any) shall so act; if neither the
Secretary nor an Assistant Secretary (if any) is present then a secretary
shall be appointed by the chairman of the meeting. The chairman of any
meeting of shareholders shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting
and the conduct of discussion as seem to the chairman of the meeting in
order.
SECTION 11. TREASURY SHARES. Neither the Corporation nor any other
person shall vote, directly or indirectly, at any meeting, Treasury Shares,
as defined in the TBCA, shares of the Corporation's own stock owned by
another corporation the majority of the voting stock of which is owned or
controlled by the Corporation, and shares of the Corporation's own stock
held by the Corporation in a fiduciary capacity; and such shares shall not
be counted in determining the total number of outstanding shares at any
given time.
SECTION 12. ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE. Any
action required or permitted to be taken at a meeting of shareholders, may
be taken without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all of the shareholders entitled to
vote with respect to the subject matter thereof, and the consent shall have
the same force and effect as a unanimous vote of the shareholders. Such
writing, which may be in counterparts, shall be manually executed if
practicable; provided, however, that if circumstances so require, effect
shall be given to written consent transmitted by telegraph, telex, telecopy
or similar means of visual data transmission. Meetings of the shareholders
of the Corporation may be conducted by means of conference telephone or
similar communications equipment whereby all persons participating in the
meeting can hear and speak to each other.
SECTION 13. FIXING RECORD DATES FOR CONSENTS TO ACTION. Whenever action
by shareholders is proposed to be taken by consent in writing without a
meeting of shareholders, the Board of Directors may fix a record date for
the purpose of determining shareholders entitled to consent to that action,
which record date shall not precede, and shall not be more than ten days
after, the date upon which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board
of Directors and the prior action of the Board of Directors is not required
by law or these bylaws, the record date for determining shareholders
entitled to consent to action in writing without a meeting shall be the
first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation by delivery to its
registered office, its principal place of business, or an officer or agent
of the Corporation having custody of the books in which proceedings of
meetings of shareholders are recorded. Delivery shall be by hand or by
certified or registered mail, return receipt requested. Delivery to the
Corporation's principal place of business shall be addressed to the
President or the chief executive officer of the Corporation. If no record
date shall have been fixed by the Board of Directors and prior action of
the Board of Directors is required by the TBCA or these bylaws, the record
date for determining shareholders entitled to consent to action in writing
without a meeting shall be at the close of business on the date on which
the Board of Directors adopts a resolution taking such prior action.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWER; NUMBER; TERM OF OFFICE; ELECTION. The powers of the
Corporation shall be exercised by or under the authority of, and the
business and affairs of the Corporation shall be managed by its Board of
Directors except as the Board of Directors shall delegate the power to so
manage to the Executive Committee or other committee. Directors need not
be residents of the State of Texas or shareholders of the Corporation.
Unless otherwise provided in the Amended and Restated Articles of
Incorporation, the number of directors that shall constitute the entire
Board of Directors, which shall be not less than three, shall be determined
from time to time by resolution of the Board of Directors (provided that no
decrease in the number of directors that would have the effect of
shortening the term of an incumbent director may be made by the Board of
Directors). As of the time of adoption of these Second Amended and
Restated Bylaws, the number of directors shall be five. Each director
shall hold office for the term for which he is elected and thereafter until
his successor shall have been elected and qualified, or until his earlier
death, resignation or removal.
The directors shall be divided into three classes as nearly equal in
number as possible and one class of directors shall be elected by plurality
vote at each annual meeting of shareholders to hold office for a three-year
term. Each director, including a director elected to fill a vacancy, shall
hold office until the expiration of the term for which elected and until a
successor has been elected and qualified. No decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director.
SECTION 2. ADVISORS TO THE BOARD. The Board of Directors may appoint
certain individuals to the position of "Advisory Director." There may be
any number of Advisory Directors named or elected by the Board of Directors
to advise said Board. Advisory Directors shall not be members of the Board
of Directors and shall not be entitled to vote, nor in any way direct or
affect the affairs of the Corporation coming before the Board of Directors,
except by advice or suasion of the voting Directors. The presence or
absence of an Advisory Director shall not affect the constitution of a
quorum.
SECTION 3. QUORUM; REQUIRED VOTE FOR DIRECTOR ACTION. Unless
otherwise required by law, a majority of the total number of directors
fixed by, or in the manner provided in, these bylaws shall constitute a
quorum for the transaction of business of the Board of Directors, and the
act of a majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors.
SECTION 4. MEETINGS; ORDER OF BUSINESS; NOTICE. Meetings of the
Board of Directors, regular or special, may be held within or outside the
State of Texas. At all meetings of the Board of Directors, business shall
be transacted in such order as shall from time to time be determined by the
Chairman of the Board, or in absence by the President (if the President is
a director), or by resolution of the Board of Directors.
Notice of any special meeting shall be given at least two days prior
thereto by written notice delivered personally or mailed to each director
at his business address, or by telecopy or similar means of visual data
transmission.
Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as shall be designated
from time to time by resolution of the Board of Directors. Notice of such
regular meetings shall not be required.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President or, on
the written request of any two directors, by the Secretary, in each case on
at least 24 hours personal, written, telegraphic, cable or wireless notice
to each director. Such notice, or any waiver thereof pursuant to
Article VIII, Section 3 hereof, need not state the purpose or purposes of
such meeting, except as may otherwise be required by law or these bylaws.
SECTION 7. VACANCIES; INCREASES IN THE NUMBER OF DIRECTORS. Any
vacancy occurring in the Board of Directors other than by reason of an
increase in the number of directors may be filled (a) by election at an
annual or special meeting of the shareholders called for that purpose or
(b) by the affirmative vote of a majority of the remaining directors though
less than a quorum of the Board of Directors. A director elected to fill a
vacancy occurring other than by reason of an increase in the number of
directors shall be elected for the unexpired term of his predecessor in
office. A vacancy shall be deemed to exist by reason of the death or
resignation of the person elected, or upon the failure of shareholders to
elect directors to fill the unexpired terms of directors removed in
accordance with the provisions of Section 7 of this Article III.
Any directorship to be filled by reason of an increase in the number
of directors may be filled (a) by the Board of Directors for a term of
office continuing only until the next election of one or more directors by
the shareholders; PROVIDED, HOWEVER, that during the period between any two
successive annual meetings of shareholders, the Board of Directors may not
fill more than two such directorships; or (b) by election at an annual or
special meeting of shareholders entitled to vote in the election of such
directors called for that purpose.
SECTION 8. REMOVAL. At any meeting of shareholders at which a quorum
of shareholders is present called expressly for that purpose, or pursuant
to a written consent adopted pursuant to Article II, Section 12 hereof, any
director may be removed from office but only for cause, by vote of the
holders of issued and outstanding shares representing a majority of the
votes entitled to be cast for the election of such director.
SECTION 9. COMPENSATION. The Board of Directors shall have the
authority to fix the compensation, if any, of directors.
SECTION 10. PRESUMPTION OF ASSENT. A director who is present at a
meeting of the Board of Directors at which action on any corporate matter
is taken shall be presumed to have assented to the action unless his
dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as secretary
of the meeting before the adjournment thereof or shall forward such dissent
by registered mail to the Secretary immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director who voted
in favor of such action.
SECTION 11. ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE. Any
action permitted or required by the TBCA, the Amended and Restated Articles
of Incorporation or these bylaws to be taken at a meeting of the Board of
Directors or any committee designated by the Board of Directors may be
taken without a meeting if a consent in writing, setting forth the action
to be taken, is signed by all the members of the Board of Directors or
committee, as the case may be. Such consent shall have the same force and
effect as a unanimous vote at a meeting and may be stated as such in any
document or instrument filed with the Secretary of State, and the execution
of such consent shall constitute attendance or presence in person at a
meeting of the Board of Directors or any such committee, as the case may
be. Subject to the requirement of the TBCA or these bylaws for notice of
meetings, members of the Board of Directors, or members of any committee
designated by the Board of Directors, may participate in and hold a meeting
of the Board of Directors or any committee of directors, as the case may
be, by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each
other, and participation in such meeting shall constitute attendance and
presence in person at such meeting, except where a person participates in
the meeting for the express purpose of objecting to the transaction of any
business on the wound that the meeting is not lawfully called or convened.
ARTICLE IV
COMMITTEES
SECTION 1. DESIGNATION; POWERS. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate from
among its members one or more committee, each of which shall be comprised
of one or more of its members, and may designate one or more of its members
as alternate members of any committee, who may, subject to any limitations
imposed by the Board of Directors, replace absent or disqualified members
at any meeting of that committee. Committee members may be removed from
committees, with or without cause, by the Board of Directors. Any such
committee, to the extent provided in such resolution or in the Amended and
Restated Articles of Incorporation or bylaws shall have and may exercise
all of the authority of the Board of Directors, subject to the limitations
set forth in the TBCA or below.
No committee of the Board of Directors shall have the authority of the
Board of Directors in reference to:
(1) amending the Articles of Incorporation, except that a committee may,
to the extent provided in the resolution designating that committee or
in the Articles of Incorporation or these bylaws, exercise the
authority of the Board of Directors vested in it in accordance with
Article 2.13 of the TBCA;
(2) proposing a reduction in the stated capital of the Corporation in the
manner permitted by Article 4.12 of the TBCA;
(3) approving a plan of merger or share exchange of the Corporation;
(4) recommending to the shareholders the sale, lease or exchange of all or
substantially all of the property and assets of the Corporation
otherwise than in the usual and regular course of its business;
(5) recommending to the shareholders the sale, lease or exchange of all or
substantially all of the property and assets of the Corporation
other than in the usual and regular course of its business;
(6) amending, altering or repealing the bylaws of the Corporation or
adopting new bylaws of the Corporation;
(7) filling vacancies in the Board of Directors;
(8) filling vacancies in or designating alternate members of any such
committee;
(9) filling any directorship to be filled by reason of an increase in the
number of directors;
(10) electing or removing officers of the Corporation or members or
alternate members of any such committee;
(11) fixing the compensation of any member, or alternate members of such
committee; or
(12) altering or repealing any resolution of the Board of Directors that by
its terms provided that it shall not be so amendable or repealable.
Unless the resolution designating a particular committee, the Amended and
Restated Articles of Incorporation or these bylaws expressly so provide, no
committee of the Board of Directors shall have the authority to authorize a
distribution (as such term is defined in the TBCA) or to authorize the
issuance of shares of the Corporation.
SECTION 2. PROCEDURE; MEETINGS; QUORUM. Any committee designated
pursuant to Section 1 of this Article shall choose its own chairman and
secretary, shall keep regular minutes of its proceedings and report the
same to the Board of Directors when requested, shall fix its own rules or
procedures, and shall meet at such times and at such place or places as may
be provided by such rules, or by resolution of such committee or of the
Board of Directors. At every meeting of any such committee, the presence
of a majority of all the members thereof shall constitute a quorum, and the
affirmative vote of a majority of the members shall be necessary for the
adoption by it of any resolution.
SECTION 3. DISSOLUTION. The Board of Directors may dissolve any
committee at any time, unless otherwise provided in the Amended and
Restated Articles of Incorporation or these bylaws.
ARTICLE V
OFFICERS
SECTION 1. NUMBER, TITLES AND TERMS OF OFFICE. The officers of the
Corporation shall be a Chairman of the Board, Chief Executive Officer, a
President and a Secretary and such other officers as the Board of Directors
may from time to time elect or appoint. Each officer shall hold office
until his successor shall be duly elected and shall qualify or until his
death or until he shall resign or shall have been removed in the manner
hereinafter provided. Any number of offices may be held by the same
person. Except for the Chairman of the Board, no officer need be a
director.
SECTION 2. SALARIES. The salaries or other compensation, if any, of
the officers of the Corporation shall be fixed from time to time by the
Board of Directors.
SECTION 3. REMOVAL. Any officer or agent may be removed, either with
or without cause, 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. VACANCIES. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
SECTION 5. POWERS AND DUTIES OF THE CHAIRMAN OF THE BOARD. The
Chairman of the Board shall preside at all meetings of the shareholders and
of the Board of Directors and shall have such other powers and duties as
designated in these bylaws and as from time to time may be assigned to that
office by the Board of Directors.
SECTION 6. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER. The
Chairman or other officer shall be the chief executive officer of the
Corporation unless the Board of Directors designates the Chairman of the
Board or other officer as chief executive officer. Subject to the control
of the Board of Directors, the chief executive officer shall have general
executive charge, management and control of the properties, business and
operations of the Corporation with all such powers as may be reasonably
incident to such responsibilities; subject to any limitations placed by the
Board of Directors, the chief executive officer may agree upon and execute
on behalf of the Corporation leases, contracts, evidences of indebtedness
and other obligations in the name of the Corporation and may sign
certificates for shares of capital stock of the Corporation. The chief
executive officer shall have such other powers and duties as designated in
accordance with these bylaws and as from time to time may be assigned by
the Board of Directors.
SECTION 7. POWERS AND DUTIES OF THE PRESIDENT. Unless the Board of
Directors otherwise determines, the President shall have the authority,
subject to any limitations placed by the Board of Directors, to agree upon
and execute leases, contracts, evidences of indebtedness and other
obligations in the name of the Corporation; and, unless the Board of
Directors otherwise determines, the President shall, in the absence of the
Chairman of the Board or if there be no Chairman of the Board, preside at
all meetings of the shareholders and (should he be a director) of the Board
of Directors; and the President shall have such other powers and duties as
designated in accordance with these bylaws and as from time to time may be
assigned by the Board of Directors.
SECTION 8. VICE PRESIDENTS. The Vice President(s), if any, shall
perform such duties and have such powers as the Board of Directors may from
time to time prescribe. In addition, in the absence of the Chairman of the
Board or President, or in the event of their inability or refusal to act,
(a) a Vice President designated by the Board of Directors or (b) in the
absence of such designation, the Vice President who is present and who is
senior in terms of rank (or in the absence of a senior rank, time) as a
Vice President of the Corporation, shall perform the duties of the Chairman
of the Board, or the President as the case may be, and when so acting shall
have all the powers of and be subject to all the restrictions upon the
Chairman of the Board, or the President; provided that such person shall
not preside at meetings of the Board of Directors unless such person is a
director.
SECTION 9. TREASURER. The Treasurer, if any, shall have responsibility
for the custody and control of all the funds and securities of the
Corporation, and shall have such other powers and duties as designated in
these bylaws and as from time to time may be assigned by the Board of
Directors. The Treasurer shall perform all acts incident to the position
of Treasurer subject to the control of the chief executive officer and the
Board of Directors; and the Treasurer shall, if required by the Board of
Directors, give such bond for the faithful discharge of the Treasurer's
duties in such form as the Board of Directors may require.
SECTION 10. ASSISTANT TREASURERS. The Assistant Treasurers shall assist
the Treasurer and shall exercise the powers of the Treasurer during that
officer's absence or inability or refusal to act. Each Assistant
Treasurer, if any, shall have such other powers and duties as designated by
these bylaws and as from time to time may be assigned by the chief
executive officer, the Board of Directors or the Treasurer.
SECTION 11. SECRETARY. The Secretary shall keep the minutes of all
meetings of the Board of Directors, and the minutes of all meetings of the
shareholders, in books provided for that purpose; shall attend to the
giving and serving of all notices; may in the name of the Corporation affix
the seal (if any) of the Corporation to all contracts of the Corporation
and attest thereto; may sign with the other appointed offices all
certificates for shares of capital stock of the Corporation; shall have
charge of the certificate books, transfer books and stock ledgers, and such
other books and papers as the Board of Directors may direct, all of which
shall at all reasonable times be open to inspection of any director upon
application at the office of the Corporation during business hours. The
Secretary shall have such other powers and duties as designated in these
bylaws and as from time to time may be assigned by the chief executive
officer or the Board of Directors; and shall in general perform all duties
incident to the office of Secretary, subject to the control of the chief
executive officer of the Board of Directors.
SECTION 12. ASSISTANT SECRETARIES. The Assistant Secretary shall assist
the Secretary and shall exercise the power of the Secretary during that
officer's absence or inability or refusal to act. Each Assistant
Secretary, if any, shall have such other powers and duties as designated by
these bylaws and as from time to time to be assigned by the chief executive
officer, the Board of Directors or the Secretary.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
SECTION 1. RIGHT TO INDEMNIFICATION. Subject to the limitations and
conditions as provided in this Article VI, and in Section 2.02-1 of the
TBCA (relating among other matters to liability for receipt of an improper
personal benefit or liability to the Corporation), as from time to time
amended, each person who was or is made a party or is threatened to be made
a party to or is involved in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative (hereinafter a "proceeding"), or any appeal in such a
proceeding or any inquiry or investigation that could lead to such a
proceeding, by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or while a director or 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 shall be
indemnified by the Corporation to the fullest extent permitted by the TBCA
as the same exists or may hereafter be amended against judgments, penalties
(including excise and similar taxes and punitive damages), fines,
settlements and reasonable expenses (including, without limitation,
attorneys' fees) actually incurred by such person in connection with such
proceeding, and indemnification under this Article VI shall continue as to
a person who has ceased to serve in the capacity which initially entitled
such person to indemnity hereunder. The rights granted pursuant to this
Article VI shall be deemed contract rights, and no amendment, modification
or repeal of this Article VI shall have the effect of limiting or denying
any such rights with respect to actions taken or proceedings arising prior
to any such amendment, modification or repeal. It is expressly
acknowledged that the indemnification provided in this Article VI could
involve indemnification for negligence or under theories of strict
liability.
SECTION 2. ADVANCE PAYMENT. The right to indemnification conferred in
this Article VI shall include the right to be paid or reimbursed by the
Corporation the reasonable expenses incurred by a person of the type
entitled to be indemnified under Section 1 who was, is or is threatened to
be made a named defendant or respondent in a proceeding in advance of the
final disposition of the proceeding and without any determination as to the
person's ultimate entitlement to indemnification; provided, however, that
the payment of such expenses incurred by any such person in advance of the
final disposition of a proceeding, shall be made only upon delivery to the
Corporation of a written affirmation by such director or officer of his or
her good faith belief that he or she has met the standard of conduct
necessary for indemnification under this Article VI and a written
undertaking, by or on behalf of such person, to repay all amounts so
advanced if it shall ultimately be determined that such indemnified person
is not entitled to be indemnified under this Article VI or otherwise.
SECTION 3. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation,
by adoption of a resolution of the Board of Directors, may (but shall not
be required to) indemnify and advance expenses to an employee or agent of
the Corporation to the same extent and subject to the same conditions under
which it may indemnify and advance expenses to directors and officers under
this Article VI; and, the Corporation may (but shall not be required to)
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 and or other
enterprise against any liability asserted against that person and incurred
by that person in such a capacity or arising out of such individual's
status as such a person to the same extent that it may indemnify and
advance expenses to directors under this Article VI.
SECTION 4. APPEARANCE AS A WITNESS. Notwithstanding any other
provision of this Article VI, the Corporation may pay or reimburse expenses
incurred by a director or officer in connection with his or her appearance
as a witness or other participation in a proceeding at a time when he or
she is not a named defendant or respondent in the proceeding.
SECTION 5. NONEXCLUSIVITY OF RIGHTS. The right to indemnification and
the advancement and payment of expenses conferred in this Article VI shall
not be exclusive of any other right which a director or officer or other
person indemnified pursuant to Section 3 of this Article VI may have or
hereafter acquire under any law (common or statutory), provision of the
Amended and Restated Articles of Incorporation or these bylaws, agreement,
vote of shareholders or disinterested directors or otherwise.
SECTION 6. INSURANCE. The Corporation may purchase and maintain
insurance and, to the extent permitted by the TBCA, similar arrangements,
at its expense, to protect itself and any person who is or was serving as 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 foreign or domestic corporation, partnership, joint venture,
proprietorship, employee benefit plan, trust or other enterprise against
any expense, liability or loss, whether or not the Corporation would have
the power to indemnify such person against such expense, liability or loss
under this Article VI.
SECTION 7. SHAREHOLDER NOTIFICATION. To the extent required by law,
any indemnification of or advance of expenses to a director or officer in
accordance with this Article VI shall be reported in writing to the
shareholders with or before the notice or waiver of notice of the next
shareholder's meeting or with or before the next submission to shareholders
of a consent to action without a meeting.
SECTION 8. SAVINGS CLAUSE. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify and hold harmless each
director, officer or any other person indemnified pursuant to this
Article VI as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action,
suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by any applicable portion of
this Article VI that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE VII
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK. The certificates for shares of the
capital stock of the Corporation shall be in such form, consistent with
that required by law and the Amended and Restated Articles of
Incorporation, as shall be approved by the Board of Directors. The
Chairman of the Board, President or a Vice President (if any) shall cause
to be issued to each shareholder one or more certificates, which shall be
signed by (a) one of the Chairman of the Board, President, or a Vice
President and (b) one of the Secretary, an Assistant Secretary, the
Treasurer or an Assistant Treasurer certifying the number of shares (and,
if the stock of the Corporation shall be divided into classes or series,
the class and series of such shares) owned by such shareholder in the
Corporation; provided however, that any or all of the signatures on the
certificate may be facsimile. If the Board of Directors shall have
provided for a seal, such certificates shall bear such seal or a facsimile
thereof. The stock record books and the blank stock certificate books
shall be kept by the Secretary, or at the office of such transfer agent or
transfer agents as the Board of Directors may from time to time by
resolution determine. In case any officer, transfer agent or registrar who
shall have signed or have ceased to be such officer, transfer agent or
registrar before such certificate is issued by the Corporation, such
certificate may nevertheless be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at
the date of issue. The stock certificates shall be consecutively numbered
and shall be entered in the books of the Corporation as they are issued and
shall exhibit the holder's name and number of shares.
SECTION 2. TRANSFER OF SHARES. The shares of stock of the Corporation
shall be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal
representatives, upon surrender and cancellation of certificates for a like
number of shares (or upon compliance with the provisions of Section 4 of
this Article VII, if applicable). Upon such surrender to the Corporation
or a transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer (or upon compliance with the provisions of Section 4
of this Article VII, if applicable) and of compliance with any transfer
restrictions applicable thereto contained in an agreement to which the
Corporation is a party or of which the Corporation has knowledge by reason
of legend with respect thereto placed on any such surrendered stock
certificate, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
SECTION 3. REGULATIONS REGARDING CERTIFICATES. The Board of Directors
shall have the power and authority to make all such rules and regulations
as they may deem expedient concerning the issuance, transfer and
registration or the replacement of certificates for shares of capital stock
of the Corporation.
SECTION 4. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. The
Board of Directors may determine the conditions upon which a new
certificate of stock may be issued in place of a certificate that is
alleged to have been lost, stolen, destroyed or mutilated; and may, in its
discretion, require the owner of such certificate or his legal
representative to give bond, with sufficient surety, to indemnify the
Corporation and each transfer agent and registrar against any and all
losses or claims which may arise by reason of the issuance of a new
certificate in the place of the one so lost, stolen, destroyed or
mutilated.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall be
such as established from time to time by the Board of Directors.
SECTION 2. CORPORATE SEAL. The Board of Directors may provide a
suitable seal, containing the name of the Corporation. The Secretary shall
have charge of the seal (if any). If and when so directed by the Board of
Directors, duplicates of the seal may be kept and used by the Treasurer, if
any, or by any Assistant Secretary or Assistant Treasurer.
SECTION 3. NOTICE AND WAIVER OF NOTICE. Whenever any notice is
required to be given by law, the Amended and Restated Articles of
Incorporation or these bylaws, except with respect to notices of meetings
of shareholders (with respect to which the provisions of Article II,
Section 6 apply) and except with respect to notices of special meetings of
directors (with respect to which the provisions of Article II, Section 6
apply), said notice shall be deemed to be sufficient if given (a) by
telegraphic, cable, telecopy or wireless transmission or (b) by deposit of
same in a post office box in a sealed prepaid wrapper addressed to the
person entitled thereto at his address as it appears on the records of the
Corporation, and such notice shall be deemed to have been given on the day
of such transmission or mailing, as the case may be.
Whenever notice is required to be given by law, the Amended and
Restated Articles of Incorporation or these bylaws, a written waiver
thereof, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice.
SECTION 4. RESIGNATIONS. Any director, member of a committee or
officer may resign at any time. Such resignation 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 or
Secretary. The acceptance of a resignation shall not be necessary to make
it effective, unless expressly so provided in the resignation.
SECTION 5. FACSIMILE SIGNATURES. In addition to the provisions for the
use of facsimile signatures elsewhere specifically authorized in these
bylaws, facsimile signatures of any officer or officers of the Corporation
may be used whenever and as authorized by the Board of Directors.
SECTION 6. BOOKS AND RECORDS. The Corporation shall keep books and
records of account and shall keep minutes of the proceedings of its
shareholders, its Board of Directors and each committee of its Board of
Directors. The Corporation shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of the original issuance of shares issued by the
Corporation and a record of each transfer of those shares that have been
presented to the Corporation for registration of transfer. Such records
shall contain the names and addresses of all past and current shareholders
of the Corporation and the number and class of shares issued by the
Corporation held by each of them. Any books, records, minutes and share
transfer records may be in written form or in any other form capable of
being converted into written form within a reasonable time.
ARTICLE IX
AMENDMENTS
The power to alter, amend or repeal the bylaws or adopt new bylaws
shall be vested in the Board of Directors.
Exhibit 5
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
ATTORNEYS AT LAW
a registered limited liability partnership
including professional corporations
1700 PACIFIC AVENUE
SUITE 4100
DALLAS, TEXAS 75201
(214) 969-2800
FAX (214) 969-4343
www.akingump.com
April 27, 1999
Mannatech, Incorporated
600 S. Royal Lane, Suite 200
Coppell, Texas 75019
Ladies and Gentlemen:
We have acted as counsel to Mannatech, Incorporated, a Texas
corporation (the "Company"), in connection with the proposed registration
of 642,000 shares of the Company's common stock, par value $0.0001 per
share (the "Common Stock"), as described in a registration statement on
Form S-8 (the "Registration Statement") relating to a portion of the shares
of the Common Stock to be issued under the Company's 1997 Stock Option Plan
(the "Plan"), which Registration Statement is to be filed with the
Securities and Exchange Commission.
We have, as counsel, examined such corporate records, certificates and
other documents and reviewed such questions of law as we have deemed
necessary, relevant or appropriate to enable us to render the opinions
listed below. In rendering such opinions, we have assumed the genuineness
of all signatures and the authenticity of all documents examined by us. As
to various questions of fact material to such opinions, we have relied upon
representations of the Company.
Based upon such examination and representations, we advise you that,
in our opinion:
A. The shares of Common Stock to be issued under the Plan that are
to be registered pursuant to the Registration Statement have been duly and
validly authorized by the Company.
B. The shares of Common Stock to be issued under the Plan that are
to be registered pursuant to the Registration Statement, when issued and
delivered in accordance with the Plan (and assuming an option exercise
price at least equal to the par value of the Common Stock), will be validly
issued, fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
/s/ Akin, Gump, Strauss, Hauer & Feld, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 19, 1999,
except as to Note 6, which is as of March 16, 1999, which appears on page F-
2 of Mannatech, Incorporated's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998 (File No. 000-24657) filed with the Securities
and Exchange Commission on March 31, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Dallas, Texas
April 27, 1999
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated August 21, 1997,
which appears on page F-3 of Mannatech, Incorporated's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998 (File No. 000-24657)
filed with the Securities and Exchange Commission on March 31, 1999.
/s/ Belew Averitt LLP
Belew Averitt LLP
Dallas, Texas
April 28, 1999
