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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
February 13, 1995
THE WESTERN COMPANY OF NORTH AMERICA
(Exact name of registrant as specified in its charter)
Delaware 1-7452 75-0763484
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) Number)
515 Post Oak Boulevard
Houston, Texas 77027
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 629-2600
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Item 5. Other Events
On February 13, 1995, the Board of Directors of the
Company amended Article II of the Company's Bylaws to
permit the Board of Directors to designate a date and
time for an annual meeting of stockholders other than
10:00 a.m. on the first Monday of May each year as
previously required.
A copy of the Bylaws of the Company which have been
restated to incorporate such amendments is attached to
this Report as Exhibit 3.
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Item 7. Financial Statements and Exhibits
(c) Exhibits Required by Item 601 of Regulation S-K
Exhibit Number Description
3 Bylaws of The Western Company of
North America
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Signatures
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
THE WESTERN COMPANY OF NORTH AMERICA
(Registrant)
By: /s/ Steven P. Beatty
-------------------------------
(Steven P. Beatty)
(Vice President and
Chief Accounting Officer)
Date: February 16, 1995
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BYLAWS
OF
THE WESTERN COMPANY OF NORTH AMERICA
ARTICLE I
Offices
The principal office shall be in the City of Wilmington,
County of New Castle, State of Delaware, and the name of the
resident agent in charge thereof is The Corporation Trust Company.
The Corporation may also have an office in the City of Fort
Worth, State of Texas, and also offices at such other places as the
Board of Directors may from time to time determine or the business
of the corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the transaction
of such other business as properly may come before such meeting
shall be held at ten o'clock in the forenoon on May 7, 1990 and
thereafter on the first Monday of May each year, if not a legal
holiday, or, if a legal holiday, then on the next succeeding day
not a legal holiday, or upon such other date, time and place as may
be designated by the Board of Directors in advance of such date.
Section 2. Special Meetings. A special meeting of the
stockholders may be called at any time by the Chairman of the
Board, the President or the Board of Directors, and shall be called
in accordance with applicable law by the Secretary of the
Corporation within 20 days after receipt by the Corporation of a
written request of stockholders of record holding in the aggregate
20% or more of the outstanding shares of Common Stock of the
Corporation entitled to vote thereat, such written request to state
the purpose or purposes of the meeting and to be delivered to the
Secretary. Such meeting shall be held on such date and at such
time as is specified in such notice, subject to applicable law,
provided that no such special meeting shall be held during the
60-day period preceding or the 45-day period succeeding the date
fixed for the annual meeting of stockholders.
Section 3. Place of Meetings. All meetings of the
stockholders shall be held at the office of the Corporation in Fort
Worth, Texas, or at such other place, within or without the
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State of Texas, as shall be determined from time to time by the
Board of Directors or the stockholders of the Corporation.
Section 4. [Intentionally Omitted].
Section 5. Notice of Meetings. Except as otherwise
required by statute, written or printed notice of each meeting of
the stockholders, whether annual or special, stating the place, day
and hour thereof and the purposes for which the meeting is called,
shall be given by or under the direction of the Secretary. With
respect to an annual meeting, such notice shall be given at least
10 days but not more than 60 days before the date fixed for such
meeting. With respect to either an annual or special meeting, such
notice shall be given to each stockholder entitled to vote at such
meeting of record at the close of business on the day fixed in
accordance with Section 10 of Article II of these bylaws as a
record date for the determination of the stockholders entitled to
vote at such meeting, by leaving such notice with him or at his
residence or usual place of business or by mailing it, postage
prepaid and addressed to him at his post office address as it
appears on the books of the Corporation. A waiver of such notice
in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be
deemed equivalent to such notice. Except as otherwise required by
statute, notice of any adjourned meeting of the stockholders shall
not be required.
Section 6. Quorum. Except as otherwise required by
statute, the presence at any meeting, in person or by proxy, of the
holders of record of a majority of the shares then issued and
outstanding and entitled to vote shall be necessary and sufficient
to constitute a quorum for the transaction of business. In the
absence of a quorum, a majority in interest of the stockholders
entitled to vote, present in person or by proxy, or, if no
stockholder entitled to vote is present in person or by proxy, any
officer entitled to preside or act as secretary of such meeting,
may adjourn the meeting from time to time for a period not
exceeding 20 days in any one case. At any such adjourned meeting
at which a quorum may be present, any business may be transacted
which might have been transacted at the meeting as originally
called.
Section 7. List of Stockholders Entitled to Vote. The
officer who has charge of the stock ledger of the Corporation shall
prepare and make, at least 10 days before every election of
directors, a complete list of the stockholders entitled to vote at
said election, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the
examination of any stockholder during ordinary business hours, for
a period of at least 10 days
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prior to the election, either at a place within the city, town or
village where the election is to be held and which place shall be
specified in the notice of the meeting, or, if not so specified, at
the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of election during the
whole time thereof, and subject to the inspection of any
stockholder who may be present.
Section 8. Voting. Except as otherwise provided by
statute or by the Restated Certificate of Incorporation, and
subject to the provisions of Section 4 of Article III and Section
10 of Article III of these Bylaws, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by
proxy for each share of the capital stock having voting power held
by such stockholder, but no proxy shall be voted after 3 years from
its date, unless the proxy provides for a longer period.
At all meetings of the stockholders, except as otherwise
required by statute, by the Restated Certificate of Incorporation,
or by these Bylaws, all matters shall be decided by the vote of a
majority in interest of the stockholders entitled to vote who are
present in person or by proxy.
Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held, and persons whose stock is
pledged shall be entitled to vote, unless through transfer by the
pledgor on the books of the Corporation he shall have expressly
empowered the pledgee to vote such stock, in which case only the
pledgee or his proxy may represent said stock and vote thereon.
Shares of the capital stock of the Corporation belonging to
the Corporation shall not be voted directly or indirectly.
Section 9. Consent of Stockholders in Lieu of Meeting.
Whenever the vote of stockholders at a meeting thereof is required
or permitted to be taken in connection with any corporate action,
by any provisions of the statutes or of the Restated Certificate of
Incorporation, the meeting and vote of stockholders may be
dispensed with if all the stockholders who would have been entitled
to vote upon the action if such meetings were held, shall consent
in writing to such corporate action being taken.
Section 10. Fixing Date for Determination of Stockholders of
Record. (a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board of Directors may
fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the
Board of Directors, and which
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record date shall not be more than sixty nor less than ten days
before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date,
which record date shall not precede, or be more than ten days
after, the date upon which the resolution fixing the record date is
adopted by the Board. Any stockholder of record seeking to have
the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the
Board to fix a record date. The Board of Directors shall within
ten days after the date on which such a request is delivered to, or
mailed and received at, the office of the Secretary at the
principal executive offices of the Corporation, adopt a resolution
fixing the record date. If no record date has been fixed by the
Board within ten days after the date on which such a request is
received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no
prior action by the Board is required by law, shall be the first
date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded (the "Custodian"). Delivery
made to the Corporation's registered office, principal place of
business or the Custodian, shall be by hand or certified or
registered mail, return receipt requested. If no record date has
been fixed by the Board and prior action by the Board is required
by law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall
be at the close of business on the date on which the Board adopts
the resolution taking such prior action.
Section 11. Procedures for Counting Consents. Within three
business days after receipt of the first dated consent delivered to
the Corporation in the manner provided by law and these bylaws or
the determination by the Board of Directors that the Corporation
should seek corporate action by written consent, as the case may
be, the Secretary shall engage nationally
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recognized independent inspectors of elections for the purpose of
performing a ministerial review of the validity of the consents and
revocations. The cost of retaining inspectors of elections shall
be borne by the Corporation.
Consents and revocations shall be delivered to the inspectors
upon receipt by the Corporation, the stockholder or stockholders
soliciting consents or soliciting revocations in opposition to
action by consent proposed by the Corporation (the "Soliciting
Stockholders") or their proxy solicitors or other designated
agents. As soon as consents and revocations are received, the
inspectors shall review the consents and revocations and shall
maintain a count of the number of valid and unrevoked consents.
The inspectors shall keep such count confidential and shall not
reveal the count to the Corporation, the Soliciting Stockholders or
their representatives or any other person. As soon as practicable
after the earlier of (i) sixty days after the date of the earliest
dated consent delivered to the Corporation in the manner provided
by law and these bylaws or (ii) a written request therefor by the
Corporation or the Soliciting Stockholders, whichever is soliciting
consents (which request may be made no earlier than the
commencement of the applicable solicitation of consents and notice
of which request shall be given to the party opposing the
solicitation of consents, if any), which request shall state that
the Corporation or the Soliciting Stockholders, as the case may be,
have a good faith belief that the requisite number of valid and
unrevoked consents to authorize or take the action specified in the
consents has been received in accordance with these bylaws, the
inspectors shall issue a preliminary report to the Corporation and
the Soliciting Stockholders stating: (i) the number of valid
consents; (ii) the number of valid revocations; (iii) the number of
valid and unrevoked consents; (iv) the number of invalid consents;
(v) the number of invalid revocations; and (vi) whether, based on
their preliminary count, the requisite number of valid and
unrevoked consents has been obtained to authorize or take the
action specified in the consents. For purposes of this Section 11,
to the extent that a proxy statement or an information statement is
required by law to be furnished to the Corporation's stockholders,
a consent solicitation shall be deemed to have commenced when a
proxy statement or information statement containing the information
required by law is first furnished to the Corporation's
stockholders.
Unless the Corporation and the Soliciting Stockholders shall
agree to a shorter or longer period, the Corporation and the
Soliciting Stockholders shall have forty-eight hours to review the
consents and revocations and to advise the inspectors and the
opposing party in writing as to whether they intend to challenge
the preliminary report of the inspectors. If no written notice of
an intention to challenge the preliminary
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report is received within forty-eight hours after the inspectors'
issuance of the preliminary report, the inspectors shall issue to
the Corporation and the Soliciting Stockholders their final report
containing the information from the inspectors' determination with
respect to whether the requisite number of valid and unrevoked
consents was obtained to authorize and take the action specified in
the consents. If the Corporation or the Soliciting Stockholders
issue written notice of an intention to challenge the inspectors'
preliminary report within forty-eight hours after the issuance of
that report, a challenge session shall be scheduled by the
inspectors as promptly as practicable. A transcript of the
challenge session shall be recorded by a certified court reporter.
Following completion of the challenge session, the inspectors shall
as promptly as practicable issue their final report to the
Soliciting Stockholders and the Corporation, which report shall
contain the information included in the preliminary report, plus
all changes in the vote totals as a result of the challenge and a
certification of whether the requisite number of valid and
unrevoked consents was obtained to authorize or take the action
specified in the consents. A copy of the final report of the
inspectors shall be included in the book in which the proceedings
of meetings of stockholders are recorded.
The Corporation shall give prompt notice to the stockholders
of the results of any consent solicitation or the taking of the
corporate action without a meeting.
Section 12. Actions to be Taken at an Annual Meeting of
Stockholders. No business shall be transacted at an annual meeting
of stockholders, except such business as shall be (a) specified in
the notice of meeting given as provided in Section 5 of Article II
of these bylaws, (b) otherwise brought before the meeting by or at
the direction of the Board of Directors, (c) brought before the
meeting in compliance with the last sentence of the first paragraph
of Article THIRTEENTH of the Restated Certificate of Incorporation
of the Corporation and the fifth sentence of this Section 12, or
(d) otherwise brought before the meeting by a stockholder of record
of the Corporation entitled to vote at the meeting, in compliance
with the procedure set forth in this Section 12. For business to
be brought before an annual meeting by a stockholder pursuant to
(d) above, the stockholder must have given timely notice in writing
to the Secretary. To be timely, a stockholder's notice shall be
delivered to, or mailed and received at, the principal executive
offices of the Corporation not less than sixty days nor more than
ninety days prior to the meeting; provided, however, that in the
event that less than seventy days' notice or prior public
disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth day
following the day on which such notice of the date of the
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meeting or such public disclosure was made. Notice shall be deemed
to have been given more than seventy days in advance of the annual
meeting if the annual meeting is called on the date indicated by
Section 1 of Article II of these bylaws without regard to when
public disclosure thereof is made. Notice of actions to be brought
before the annual meeting pursuant to (c) or (d) above shall set
forth as to each matter the stockholder proposes to bring before
the annual meeting (a) a brief description of the business desired
to be brought before the annual meeting and the reasons for
bringing such business before the annual meeting, and (b) as to the
stockholder giving the notice, (i) the name and address, as they
appear on the Corporation's books, of such stockholder, (ii) the
classes and number of shares of the Corporation which are
beneficially owned by such stockholder, and (iii) any material
interest of such stockholder in such business other than his
interest as a stockholder of the Corporation. Notwithstanding
anything in these bylaws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the
provisions set forth in this Section 12. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the
meeting that any business was not properly brought before the
meeting in accordance with the provisions prescribed by these
bylaws and, if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 13. Period for Consent of Stockholders. Any
corporate action proposed to be taken by written consent of the
stockholders without a meeting shall be taken in accordance with
the provisions of applicable law, the Restated Certificate of
Incorporation and these bylaws; accordingly, no such action by
written consent of the stockholders without a meeting may be taken
in the period fixed by the date of the annual meeting of
stockholders during which the Restated Certificate of Incorporation
prohibits the holding of a special meeting.
Section 14. Datagrams. Proxies or written consents of
stockholders that are delivered or signed by means of a datagram,
proxygram, telex or other means of telegraphic communication (other
than facsimile communication showing both sides of the proxy card),
shall be ineffective and invalid for all purposes.
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ARTICLE III
Board of Directors
Section 1. General Powers. The business of the
Corporation shall be managed by the Board of Directors, except as
otherwise provided by statute or by the Restated Certificate of
Incorporation.
Section 2. Number, Classification, Qualifications, Term,
Removal and Resignation. The number of directors which shall
constitute the whole board shall not be less than 3 nor more than
15. Within such limits, the number of directors shall be
determined by resolution of the Board of Directors or by the
stockholders at the annual meeting or at a special meeting. The
directors shall be elected at the annual stockholders' meetings or
at a special meeting, except as provided in Section 3 of this
Article. Directors need not be stockholders. The directors shall
be divided into three classes, each consisting of one- third of
such directors as nearly as may be. At each annual stockholders'
meeting, beginning in 1990, successors to the class of directors
whose term expires at such annual meeting shall be elected for a
three-year term. If the number of such directors is changed, any
increase or decrease in such directors shall be apportioned among
the classes so as to maintain the number of directors comprising
each class as nearly equal as possible, and any additional
directors of any class shall hold office for a term which shall
coincide with the remaining term of such class. A director shall
hold office until the annual meeting for the year in which his term
expires subject, however, to prior death, resignation, retirement,
disqualification, or removal from office. At any annual or special
meeting of stockholders, any director or the entire Board of
Directors may be removed with or without cause, by the vote of
holders of record of a majority of the shares of capital stock then
entitled to vote at the election of directors; provided,
however, that if such removal is without cause, no such removal may
occur more frequently than once in any 12-month period. A proposal
for removal without cause of one or more directors at an annual
meeting of stockholders shall only be considered at such meeting if
written notice thereof is received by the Secretary of the
Corporation not less than 90 days prior to the date provided in
these Bylaws for such meeting to be held. Amendment or deletion of
this Section 2 of this Article III shall require the affirmative
vote of the holders of at least 66 2/3% of the shares of capital
stock entitled to vote thereon.
Section 3. Vacancies. If any vacancy occurs in the Board
of Directors caused by death, resignation, retirement,
disqualification or removal from office of any director, or
otherwise, or any new directorship is created by an increase in the
authorized number of directors, a majority of the directors
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hen in office, though less than a quorum, may choose a successor or
successors to fill the newly created directorship. If such vacancy
results from the removal by the stockholders of one or more
directors, it may be filled by the stockholders at the annual or
special meeting at which such director or directors are removed.
Any director elected to fill a vacancy shall have the same
remaining term as that of his predecessor. Amendment or deletion
of this Section 3 of this Article III shall require the affirmative
vote of the holders of at least 66 2/3% of the shares of capital
stock entitled to vote thereon.
Section 4. Election and Term of Office. Except as
otherwise provided in this Article III, the directors shall be
elected annually by the stockholders, and shall hold office until
their successors are respectively elected and qualified. At each
election of directors, each holder of shares of capital stock
entitled to vote thereat shall have the right to vote the number of
shares of such class or series of stock owned by such holder for as
many persons as there are directors to be elected at such election
by holders of such class or series of stock, or to cumulate such
votes and give one candidate as many votes as the number of
directors to be elected at such election by holders of such class
or series of stock multiplied by the number of shares of such class
or series of stock owned by such stockholder, or to distribute such
votes on the same principle among as many candidates as such
stockholder shall think best.
Section 5. Compensation. The members of the Board of
Directors may receive an annual retainer for their services
established by resolution of the Board of Directors, and may be
paid a fee together with expenses of attendance for attendance at
all annual, regular, special and adjourned meetings of the Board
established by resolution of the Board of Directors. No such fee
shall be paid any director if absent. Any director of the
Corporation may also serve the Corporation in any other capacity,
and receive compensation therefor in any form. Members of special
standing committees may be allowed like compensation for
attendingmmittee meetings.
Section 6. Nomination for Elections of Directors at an
Annual Meeting. Only persons who are nominated in accordance with
the provisions set forth in these bylaws shall be eligible to serve
as directors. Nominations of persons for election to the Board of
Directors may be made at an annual meeting of stockholders (a) by
or at the direction of the Board or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of
notice provided for in this Section 6, who shall be entitled to
vote for the election of directors at the meeting and who complies
with the notice procedures set forth in this Section 6. Such
nominations, other than those made by or at the direction of the
Board, shall be made pursuant to timely notice in writing to the
Secretary. To
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be timely, a stockholder's notice shall be delivered to or mailed
and received at the principal executive offices of the Corporation
not less than sixty days nor more than ninety days prior to the
meeting; provided, however, that in the event that less than
seventy days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder
to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of
the date of the meeting or such public disclosure was made. Notice
shall be deemed to have been given more than seventy days in
advance of the annual meeting if the annual meeting is called on
the date indicated by Section 1 of Article II of these bylaws
without regard to when public disclosure thereof is made. Such
stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a
director, information relating to such person similar in substance
to that required to be disclosed in solicitations of proxies for
election of directors pursuant to Items 7(a) and (b) of Regulation
14A under the Securities Exchange Act of 1934, as amended, and such
person's written consent to being named as a nominee and to serving
as a director if elected, and (b) as to the stockholder giving the
notice, (i) the name and address, as they appear on the
Corporation's books, of such stockholder and (ii) the class and
number of shares of the Corporation which are owned of record, and
beneficially owned by such stockholder. At the request of the
Board, any person nominated by the Board for election as a director
shall furnish to the Secretary that information required to be set
forth in a stockholder's notice of nomination which pertains to the
nominee. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made
in accordance with the provisions prescribed by these bylaws and,
if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
ARTICLE IV
Meetings of Board of Directors
Section 1. Regular Meetings. A regular meeting of the
Board of Directors may be held without call or formal notice
immediately after and at the same place as the annual meeting of
the stockholders or any special meeting of the stockholders at
which a Board of Directors is elected. Other regular meetings of
the Board of Directors may be held without call or formal notice at
such places within or without the State of Texas and at such times
as the Board may by vote from time to time determine.
Section 2. Special Meetings. Special meetings of the
Board of Directors may be held at any place either within or
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without the State of Texas at any time when called by the Chairman
of the Board, the President, Treasurer, Secretary or two or more
directors. Notice of the time and place thereof shall be given to
each director at least 3 days before the meeting if by mail or at
least 24 hours if in person or by telephone or telegraph. A waiver
of such notice in writing, signed by the person or persons entitled
to said notice, either before or after the time stated therein,
shall be deemed equivalent to such notice. Notice of any adjourned
meeting of the Board of Directors need not be given.
Section 3. Quorum. The presence, at any meeting, of
one-third of the total number of directors, but in no case less
than two directors, shall be necessary and sufficient to constitute
a quorum for the transaction of business. Except as otherwise
required by statute or by the Restated Certificate of
Incorporation, 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. In the absence of a quorum, a majority of the
directors present at the time and place of any meeting may adjourn
such meeting from time to time until a quorum be present.
Section 4. Consent of Directors in Lieu of Meeting.
Unless otherwise restricted by the Restated Certificate of
Incorporation, any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be
taken without a meeting, if prior to such action a written consent
thereto is signed by all members of the board or committee, and
such written consent is filed with the minutes of proceedings of
the board or committee.
Section 5. Telephone Meetings. At any meeting of the
Board, a member may attend by telephone, radio, television or
similar means of communication which permits him to participate in
the meeting, and a director so attending shall be deemed present at
the meeting for all purposes including the determination of whether
a quorum is present.
ARTICLE V
Committees of Board of Directors
The Board of Directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each
committee to consist of two or more of the directors of the
Corporation, which, to the extent provided in the resolution, shall
have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers
which may require it. Such committee or committees shall have such
name or names as may be determined
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from time to time by resolution adopted by the Board of Directors.
The committees of the Board of Directors shall keep regular
minutes of their proceedings and report the same to the Board of
Directors when required.
ARTICLE VI
Officers
Section 1. Number. The Corporation shall have a Chairman
of the Board, a President, one or more Vice Presidents, a Secretary
and a Treasurer, and such other officers, agents and factors as may
be deemed necessary. One person may hold any two offices except
the offices of President and Vice President and the offices of
President and Secretary.
Section 2. Election, Term of Office and Qualifications.
The officers specifically designated in Section 1 of this Article
VI shall be chosen annually by the Board of Directors and shall
hold office until their successors are chosen and qualified. No
officer need be a director.
Section 3. Subordinate Officers. The Board of Directors
from time to time may appoint other officers and agents, including
one or more Assistant Secretaries and one or more Assistant
Treasurers, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in these
Bylaws or as the Board of Directors from time to time may
determine. The Board of Directors may delegate to any officer the
power to appoint any such subordinate officers, agents and factors
and to prescribe their respective authorities and duties.
Section 4. Removals and Resignations. The Board of
Directors may at any meeting called for the purpose, by vote of a
majority of their entire number, remove from office, with or
without cause, any officer or agent of the Corporation, or any
member of any committee appointed by the Board of Directors.
Neither the Chairman of the Board nor the President of the Company
shall have the authority to terminate any officer of the Company
chosen by the Board of Directors, or the President of any division
or subsidiary of the Company whose appointment or election was
affirmed by the Board of Directors, without the prior approval of
the Board of Directors.
The Board of Directors may at any meeting, by vote of a
majority of the directors present at such meeting, accept the
resignation of any officer of the Corporation.
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Section 5. Vacancies. Any vacancy occurring in the office
of Chairman of the Board, President, Vice President, Secretary,
Treasurer or any other office by death, resignation, removal, or
otherwise shall be filled for the unexpired portion of the term in
the manner prescribed by these Bylaws for the regular election or
appointment of such office.
Section 6. Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the Board of Directors and
shall be ex officio chairman of all meetings of the stockholders,
and shall do and perform such additional duties as shall be ordered
by the Board of Directors.
Section 7. Chief Executive Officer. The Chief Executive
Officer of the Corporation, subject to the approval or direction or
authorization of the Board of Directors while the Board is not in
session, shall have general executive charge of the business and
property of the Corporation, execute all authorized contracts and
agreements, sign all certificates of stock, and do and perform such
additional duties as shall be ordered by the Board of Directors.
Either the Chairman of the Board or the President of the
Corporation shall be chosen Chief Executive Officer by the Board.
Section 8. President. In the absence of the Chairman of
the Board, or in the event of his inability or refusal to act, the
President shall perform the duties of the Chairman of the Board,
and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Chairman of the Board. The President
shall perform such other duties as from time to time may be
assigned to him by the Chairman of the Board, if the President is
not the Chief Executive Officer, or by the Board of Directors.
Section 9. Vice President. In the absence of the Chairman
of the Board and the President, or in the event of their inability
or refusal to act, the Vice President (or in the event there be
more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order
of their election) shall perform the duties of the Chairman of the
Board and the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Chairman
of the Board and the President. Any Vice President shall perform
such other duties as from time to time may be assigned to him by
the Chairman of the Board, President or Board of Directors.
Section 10. Secretary. The Secretary shall
(a) record all the proceedings of the meetings of the
Corporation and directors in a book to be kept for that purpose;
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(b) have charge of the stock ledger (which may, however, be
kept by any transfer agent or agents of the Corporation under the
direction of the Secretary), an original or duplicate of which
shall be kept at the principal office or place of business of the
Corporation in the State of Texas;
(c) prepare and make, at least 10 days before every election
of directors, a complete list of the stockholders entitled to vote
at said election, arranged in alphabetical order;
(d) see that all notices are duly given in accordance with
the provisions of these Bylaws or as required by statute;
(e) be custodian of the records of the Corporation and the
Board of Directors, and of the seal of the Corporation, and see
that the seal is affixed to all stock certificates prior to their
issuance and to all documents the execution of which on behalf of
the Corporation under its seal shall have been duly authorized;
(f) see that all books, reports, statements, certificates and
the other documents and records required by law to be kept or filed
are properly kept or filed; and
(g) in general, perform all duties and have all powers
incident to the office of Secretary and perform such other duties
and have such other powers as from time to time may be assigned to
him by these Bylaws or by the Board of Directors or the Chairman of
the Board or the President.
Section 11. Treasurer. The Treasurer shall
(a) have supervision over the funds, securities, receipts,
and disbursements of the Corporation;
(b) cause all moneys and other valuable effects of the
Corporation to be deposited in its name and to its credit, in such
depositories as shall be selected by the Board of Directors or
pursuant to authority conferred by the Board of Directors;
(c) cause the funds of the Corporation to be disbursed by
checks or drafts upon the authorized depositories of the
Corporation, when such disbursements shall have been duly
authorized;
(d) cause to be taken and preserved proper vouchers for all
moneys disbursed;
(e) cause to be kept at the principal office of the
Corporation correct books of account of all its business and
transactions;
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(f) render to the Chairman of the Board, to the President or
the Board of Directors, whenever requested, an account of the
financial condition of the Corporation and of his transactions as
Treasurer;
(g) be empowered to require from the officers or agents of
the Corporation reports or statements giving such information as he
may desire with respect to any and all financial transactions of
the Corporation; and
(h) in general, perform all duties and have all powers
incident to the office of Treasurer and perform such other duties
and have such other powers as from time to time may be assigned to
him by these Bylaws or by the Board of Directors, the Chairman of
the Board or the President.
Section 12. Assistant Secretaries and Assistant Treasurers.
The Assistant Secretaries and Assistant Treasurers shall have such
duties as from time to time may be assigned to them by the Chairman
of the Board, the Board of Directors or the President.
Section 13. Salaries. The salaries of the officers of the
Corporation shall be fixed from time to time by the Board of
Directors, except that the Board of Directors may delegate to any
person the power to fix the salaries or other compensation of any
officers or agents appointed in accordance with the provisions of
Section 3 of this Article VI. No officer shall be prevented from
receiving such salary by reason of the fact that he is also a
director of the Corporation.
Section 14. Surety Bond. The Board of Directors may secure
the fidelity of any or all of the officers of the Corporation by
bond or otherwise.
ARTICLE VII
Execution of Instruments
Section 1. Execution of Instruments Generally. All
documents, instruments or writings of any nature shall be signed,
executed, verified, acknowledged and delivered by such officer or
officers or such agent or agents of the Corporation and in such
manner as the Board of Directors from time to time may determine.
Section 2. Checks, Drafts, Etc. All notes, drafts,
acceptances, checks, endorsements, and all evidence of indebtedness
of the Corporation whatsoever, shall be signed by such officer or
officers or such agent or agents of the Corporation and in such
manner as the Board of Directors from time to time may determine.
Endorsements for deposit to the
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credit of the Corporation in any of its duly authorized
depositories shall be made in such manner as the Board of Directors
from time to time may determine.
Section 3. Proxies. Proxies to vote with respect to
shares of stock of other corporations owned by or standing in the
name of the Corporation may be executed and delivered from time to
time on behalf of the Corporation by the Chairman of the Board, the
President or a Vice President and the Secretary or an Assistant
Secretary of the Corporation or by any other person or persons duly
authorized by the Board of Directors.
ARTICLE VIII
Capital Stock
Section 1. Certificates of Stock. Every holder of stock
in the Corporation shall be entitled to have a certificate, signed
in the name of the Corporation by the Chairman or Vice Chairman of
the Board of Directors, the President or a Vice President and by
the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of
shares owned by him in the Corporation; provided, however, that
where such certificate is signed by a transfer agent or an
assistant transfer agent or by a transfer clerk acting on behalf of
the Corporation and a registrar, the signature of any such Chairman
or Vice Chairman of the Board of Directors, President, Vice
President, Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary may be facsimile. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall
have been used on, any such certificate or certificates shall cease
to be such officer or officers of the Corporation, whether because
of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or
persons who signed such certificate or certificates, or whose
facsimile signature or signatures shall have been used thereon, had
not ceased to be such officer or officers of the Corporation, and
any such delivery shall be regarded as an adoption by the
Corporation of such certificate or certificates.
Certificates of stock shall be in such form as shall, in
conformity to law, be prescribed from time to time by the Board of
Directors.
Section 2. Transfer of Stock. Shares of stock of the
Corporation shall only be transferred on the books of the
Corporation by the holder of record thereof or by his attorney duly
authorized in writing, upon surrender to the Corporation of
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the certificates for such shares endorsed by the appropriate person
or persons, with such evidence of the authenticity of such
endorsement, transfer, authorization and other matters as the
Corporation may reasonably require, and accompanied by all
necessary stock transfer tax stamps. In that event 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 on its books.
Section 3. Rights of Corporation with Respect to
Registered Owners. Prior to the surrender to the Corporation of
the certificates for shares of stock with a request to record the
transfer of such shares, the Corporation may treat the registered
owner as the person entitled to receive dividends, to vote, to
receive notifications, and otherwise to exercise all the rights and
powers of an owner.
Section 4. Lost, Destroyed and Stolen Certificates. Where
the owner of a certificate for shares claims that such certificate
has been lost, destroyed or wrongfully taken, the Corporation shall
issue a new certificate in place of the original certificate if the
owner (a) so requests before the Corporation has notice that the
shares have been acquired by a bona fide purchaser; (b) files with
the Corporation a bond sufficient to indemnify it against claims
with respect to the shares or, if approved by the Board of
Directors, agrees to personally indemnify the Corporation against
such claims; and (c) satisfies such other reasonable requirements,
including evidence of such loss, destruction, or wrongful taking,
as may be imposed by the Corporation.
ARTICLE IX
Seal
The corporate seal, subject to alteration by the Board of
Directors, shall be in the form of a circle and shall bear the name
of the Corporation and the year of its incorporation and shall
indicate its formation under the laws of the State of Delaware.
Such seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE X
Fiscal Year
Except as from time to time otherwise provided by the Board of
Directors, the fiscal year of the Corporation shall be the calendar
year.
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ARTICLE XI
Amendments
Section 1. By the Stockholders. Except as otherwise
provided in the Restated Certificate of Incorporation or in these
Bylaws, these Bylaws may be amended or repealed or new Bylaws may
be made and adopted, by a majority vote of all the stock of the
Corporation issued and outstanding and entitled to vote at any
annual or special meeting of the stockholders, provided that notice
of intention to amend shall have been contained in the notice of
meeting.
Section 2. By the Directors. Except as otherwise provided
in the Restated Certificate of Incorporation or in these Bylaws,
these Bylaws including amendments adopted by the stockholders may
be amended or repealed by a majority vote of the whole Board of
Directors at any regular or special meeting of the Board provided
that the stockholders may from time to time specify particular
provisions of the Bylaws which shall not be amended by the Board of
Directors.
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