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EXHIBIT 3.1
BYLAWS
OF
SOUTHDOWN, INC.
ARTICLE I
Shareholders
Section 1 - Place of Holding Meetings
All meetings of the shareholders shall be held at the principal business office
of the corporation in New Orleans, Louisiana, or at such other place as may be
specified in the notice of the meeting.
Section 2 - Annual Election of Directors
An annual meeting of shareholders for the election of directors shall be held in
each calendar year on such date as the board of directors may determine but not
later than 18 months after the date of the annual meeting held the preceding
year, at such time as may be specified in the notice of the meeting.
Section 3 - Voting
(a) On demand of any shareholder, the vote for directors, or on any
questions before a meeting, shall be by ballot. All elections shall be
had by plurality, and all questions decided by majority, of the votes
cast, except as otherwise provided by the articles or by law.
(b) At each meeting of shareholders, a list of the shareholders entitled to
vote, arranged alphabetically and certified by the transfer agent,
showing the number and class of shares held by each such shareholder on
the record date for the meeting, shall be produced on the request of
any shareholder.
(c) The date and time of the opening and the closing of the polls for each
matter on which the shareholders will vote at any meeting of the
shareholders shall be announced at the meeting by the chairman of the
meeting. The Board of Directors of the corporation (or any committee
designated by it for that purpose) may, to the extent not prohibited by
law, adopt by resolution such rules, regulations and procedures for the
conduct of any meeting of shareholders as it may deem appropriate or
convenient. Except to the extent inconsistent with such rules,
regulations and procedures as adopted by the Board of Directors or any
such committee, the chairman of any meeting has the right and authority
to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of the chairman, are appropriate or convenient
for the conduct of any meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or any such committee or
prescribed
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by the chairman of any meeting, may, to the extent not prohibited by
law, include, without limitation, establishment of the following: (1)
an agenda or order of business for the meeting; (2) rules, regulations
and procedures for maintaining order at the meeting and the safety of
those present; (3) limitations on attendance at or participation in the
meeting to shareholders of record of the corporation, their duly
authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine; (4) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (5)
limitations on the time allotted to questions or comments by
participants at the meeting. Unless, and to the extent, determined by
the Board of Directors, by a duly appointed committee or by the
chairman of the meeting, meetings of shareholders are not required to
be held in accordance with the rules of parliamentary procedure.
Section 4 - Quorum
Except as provided herein, any number of shareholders, together holding at least
a majority of the outstanding shares entitled to vote thereat, who are present
in person or represented by proxy at the meeting, constitute a quorum for the
transaction of business despite the subsequent withdrawal or refusal to vote of
any shareholder. If notice of any meeting is mailed to the shareholders entitled
to vote at the meeting, stating the purpose or purposes of the meeting and that
the previous meeting failed for lack of a quorum, then any number shareholders,
present in person or represented by proxy and together holding at least
one-fourth of the outstanding shares entitled to vote thereat, constitute a
quorum at such meeting.
Section 5 - Adjournment of Meeting
If less than a quorum is in attendance at any time for which a meeting is
called, the meeting may be adjourned by a majority in interest of the
shareholders present or represented and entitled to vote thereat.
Section 6 - Special Meeting: How Called
Special Meetings of the shareholders for any purpose or purposes may be called
in the manner set forth in the Restated Articles of Incorporation.
Section 7 - Notice of Shareholders' Meetings
Written or printed notice, stating the place and time of any meeting, and, if a
special meeting, the general nature of the business to be considered, shall be
given to each shareholder entitled to vote thereat, at his last known address,
at least ten days before the meeting.
Section 8 - Form of Proxies
Without limiting the manner in which a shareholder may authorize another person
or persons to act for him as proxy, the following shall constitute a valid means
by which a shareholder may grant such authority:
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(a) A shareholder may execute a writing authorizing another person or
persons to act for him or her as proxy. Execution may be accomplished
by the shareholder or his or her authorized officer, director, employee
or agent signing such writing or causing his or her signature to be
affixed to such writing by any reasonable means including, but not
limited to, by facsimile signature.
(b) Any copy, facsimile telecommunication or other reliable reproduction of
the writing created under subsection (a) of this section 8 may be
substituted or used in place of the original writing for any and all
purposes for which the original writing could be used, including filing
with the secretary of the corporation at or before the meeting,
provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original
writing.
ARTICLE II
Directors
Section 1 - Number of Directors
Subject to the provisions of the Restated Articles of Incorporation, as amended,
the number of directors is twelve (12).
Section 2 - Place of Holding Meetings
Meetings of the directors, regular or special, may be held at any place, within
or outside Louisiana, as the board may determine.
Section 3 - Meeting After Annual Meeting
A meeting of the Board of Directors shall be held immediately following the
annual meeting of shareholders, and no notice of such meeting shall be necessary
to the directors, whether or not newly elected, in order legally to constitute
the meeting, provided a quorum is present; or they may meet at such time and
place as fixed by the consent in writing of all of the directors, or by notice
given by the majority of the remaining directors. At such meeting, or at any
subsequent meeting called for the purpose, the directors shall elect the
officers of the corporation.
Section 4 - Regular Directors' Meeting
Any regular meeting of the directors may be held without notice, if a calendar
of regular meeting dates including the date of such meeting has been established
by the directors at least two weeks prior to such meeting, at the principal
business office of the corporation or at any other location specified in such
calendar of regular meeting dates. Any regular meeting of the directors may be
held in the absence of establishment of such calendar of regular meeting dates,
or at a location other
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than the principal business office of the corporation or location specified in
such calendar, by the given notice as required for special directors' meetings.
Any proposed agenda for such regular meetings shall not be exclusive of other
matters properly brought before the meeting.
Section 5 - Special Directors' Meeting: How Called
Special meetings of the directors may be called at any time by the board of
directors or by the executive committee, if one be constituted, by the chairman
of the board of directors, or by the president, or in writing, with or without a
meeting, by a majority of the directors or of the members of the executive
committee. Special meetings may be held at such place or places within or
outside Louisiana as may be designated by the person or persons calling the
meeting.
Section 6 - Notice of Special Directors' Meetings
Notice of the place and time of every special meeting of the board of directors
(and of the first meeting of the newly-elected board, if held on notice) (i) if
given by telephone or telegraph shall be delivered to each director at his
residence or usual place of business at least 3 days before the date of the
meeting, and (ii) if given by a means other than telephone or telegraph shall be
sent to each director at his residence or usual place of business at least 5
days before the date of the meeting. Any proposed agenda or statement of purpose
or purposes for a special meeting of directors shall not be exclusive of other
matters properly brought before the meeting.
Section 7 - Quorum
At all meetings of the board, a majority of the directors in office constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors, unless the concurrence of a greater proportion is
required for such action by law, the articles of the bylaws. If a quorum is not
present at any meeting of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present. If a quorum be present, the directors
present may continue to act by vote of a majority of a quorum until adjournment,
notwithstanding the subsequent withdrawal of enough directors to leave less than
a quorum or the refusal of any directors present to vote.
Section 8 - Remuneration to Directors
Directors, as such, shall not receive any stated salary for their services, but
by resolution of the Board, expenses of attendance, if any, and except as to
salaried officers or employees of the corporation or an affiliated company, a
fixed fee for the performance of their duties as directors, as may be determined
from time to time by resolution of the Board, may be allowed to directors, but
this Section does not preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
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Section 9 - Powers of Directors
The board of directors has the management of the business of the corporation,
and subject to any restrictions imposed by law, the articles or these bylaws,
may exercise all the powers of the corporation. Without prejudice to such
general powers, the directors have the following specific powers:
(a) From time to time, to devolve the powers and duties of any officer upon
any other person for the time being.
(b) To confer upon any officer the power to appoint, remove and suspend,
and fix and change the compensation of, subordinated officers, agents
and factors.
(c) To determine who shall be entitled to vote, or to assign and transfer
any shares of stock, bonds, debentures or other securities of other
corporations held by this corporation.
(d) To delegate any of the powers of the board to any standing or special
committee or to any officer or agent (with power to sub-delegate) upon
such terms as they deem fit.
Section 10 - Resignations
The resignation of a director shall take effect on receipt thereof by the
president or secretary, or on any later, date, not more than thirty days after
such receipt, specified therein.
Section 11 - Term of Office
Each director of the corporation shall hold office for the full term of office
to whom he shall have been elected and until his successor shall have been
elected and shall qualify, or until his death, resignation or removal. The Board
of Directors may remove a director and declare vacant the office of such
director who:
(a) has been interdicted or adjudicated an incompetent,
(b) has become incapacitated by illness or other infirmity so that, in the
sole opinion of the Board of Directors, he is unable to perform his
duties for a period of six months or longer, or
(c) has ceased at any time to have the qualifications required by law, the
Restated Articles of Incorporation or these Bylaws.
The remaining directors may fill any vacancy on the Board of Directors for an
unexpired term (including any vacancy resulting from an increase in the
authorized number of directors, or from the failure of the shareholders to elect
the full number of authorized directors).
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Section 12 - Participation in Meetings
Directors may participate in and be present at any meeting of the board by means
of conference telephone or similar communications equipment if all persons
participating in such meeting can hear and communicate with each other.
Section 13 - Chairman of the Board
The board of directors shall elect one of its members to be chairman of the
board, to serve in such capacity at the pleasure of the board. In his capacity
as chairman of the board, he shall not be an officer of the corporation. The
chairman of the board shall preside at meetings of the board of directors and
shareholders and perform such other duties as from time to time may be assigned
to him by the board.
Section 14 - Vice Chairman of the Board
The board of directors may elect one of its members to be vice chairman of the
board to serve in such capacity at the pleasure of the board. In his capacity as
vice chairman of the board, he shall not be an officer of the corporation. In
the absence of the chairman of the board, the vice chairman of the board shall
preside at meetings of the board of directors and shareholders and perform such
other duties as from time to time may be assigned to him by the board.
Section 15 - Qualifications for Office
(a) No person shall be eligible for election or reelection as a director
after having attained the age of seventy prior to or on the day of
election or reelection. A director who attains the age of seventy
during his or her term of office shall be eligible to serve only until
the annual meeting of shareholders of the corporation next following
such director's seventieth birthday, at which meeting the shareholders
of the corporation shall elect such director's successor in accordance
with Article I of these bylaws.
(b) To be eligible for nomination or election or to continue to hold office
as a director, a person must during each immediately preceding 12 month
period during his term of office have attended at least two-thirds of
the aggregate number of meetings of the Board of Directors and
Committees of which he was a member, unless the failure to attend
resulted from illness or other reason determined by the Board of
Directors to excuse the failure to attend. A director who ceases to
meet this attendance qualification shall continue in office until the
expiration of his then current term or unless his office is declared
vacant by the Board of Directors under the preceding Section 11.
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ARTICLE III
Committees
Section 1 - Executive Committee
The board may appoint an executive committee, which, when the board is not in
session, to the full extent of the powers of the board shall have and may
exercise the powers of the board in the management of the business and affairs
of the corporation and may have power to authorize the seal of the corporation
to be affixed to documents, provided that the executive committee shall not have
the power to make or alter bylaws, fill vacancies on the board or the executive
committee, or change the membership of the executive committee.
Section 2 - Minutes of Meeting of Committees
Any committees designated by the board shall keep regular minutes of their
proceedings, and shall report the same to the board when required, but no
approval by the board of any action properly taken by a committee shall be
required.
Section 3 - Procedure
If the Board fails to designate the chairman of a committee, the Chairman of the
Board, if a member, shall be Chairman. Each committee shall meet at such times
as it shall determine, and at any time on call of the chairman. A majority of a
committee constitutes a quorum, and the committee may take action by vote of a
majority of the members present at any meeting at which there is a quorum. The
Board has power to change the members of any committee at any time, to fill
vacancies, and to discharge any committee at any time.
Section 4 - Participation in Meetings
Members of a committee may participate in and be present at any meeting of the
committee by means of conference telephone or similar communications equipment
if all person participating in such meeting can hear and communicate with each
other.
ARTICLE IV
Officers
Section 1 - Titles
The officers of the corporation shall be a president, one or more
vice-presidents, a treasurer, a secretary and such other officers, including a
chief executive officer and chief operating officer, as may, from time to time,
be elected or appointed by the board or appointed by the president. Any two
offices may be combined in the same person, provided that no person holding more
than one office may sign, in more than one capacity, any certificate or other
instrument required by law to be signed by two officers. No officer need be a
director.
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Section 2 - President
The president shall be the chief executive officer of the corporation. Subject
to the direction of the board of directors, he shall have the responsibility for
the management and control of the business and affairs of the corporation; he
shall see that all orders and resolutions of the board are carried into effect
and direct the other officers in the performance of their duties; and he shall
perform all duties and have all powers that are commonly incident to the office
of chief executive or that are assigned to him by the board of directors. In the
absence of the chairman of the board and the vice chairman of the board, he
shall preside at shareholders' meetings and at directors' meetings.
Section 3 - Vice Presidents
Each vice president shall have such powers, and shall perform such duties, as
shall be assigned to him by the directors, by the chairman of the board, or by
the president, and, in the order determined by the board, shall, in the absence
or disability of the chairman and president, perform their duties and exercise
their powers.
Section 4 - Treasurer
The treasurer has custody of all funds, securities, evidences of indebtedness
and other valuable documents of the corporation. He shall receive and give, or
cause to be given, receipts and acquittances of moneys paid in on account of the
corporation, and shall pay out of the funds on hand all just debts of the
corporation of whatever nature, when due. He shall enter, or cause to be
entered, in books of the corporation to be kept for that purpose, full and
accurate accounts of all moneys received and paid out on account of the
corporation, and, whenever required by the president or the directors, he shall
render a statement of his accounts. He shall keep or cause to be kept such books
as will show a true record of the expenses, gains, losses, assets and
liabilities of the corporation; and he shall perform all of the other duties
incident to the office of treasurer. If required by the board, he shall give the
corporation a bond for the faithful discharge of his duties and for restoration
to the corporation, upon termination of his tenure, of all property of the
corporation under his control.
Section 5 - Secretary
The secretary shall give, or cause to be given, notice of all meetings of
shareholders, directors and committees, and all other notices required by law or
by these bylaws, and in case of his absence or refusal or neglect so to do, any
such notice may be given by the shareholders or directors upon whose request the
meeting is called as provided in these bylaws. He shall record all of the
proceedings of the meetings of the shareholders, of the directors, and of
committees in a book to be kept for that purpose. Except as otherwise determined
by the directors, he has charge of the original stock books, transfer books and
stock ledgers, and shall act as transfer agent in respect of the stock and other
securities issued by the corporation. He has custody of the seal of the
corporation, and shall affix it to all instruments requiring it; and he shall
perform such other duties as may be assigned to him by the directors, the
chairman of the board of directors, or the president.
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Section 6 - Assistants
Assistant secretaries or treasurers shall have such duties as may be assigned to
them by the directors, by the chairman of the board, or by the president, and as
may be delegated to them by the secretary and treasurer respectively.
ARTICLE V
Capital Stock
Section 1 - Certificates of Stock
Certificates of Stock, numbered and with the seal of the corporation affixed or
imprinted, signed by the Chairman of the Board of Directors, or the President or
Vice President, and the Treasurer or Secretary, shall be issued to each
shareholder, certifying the number of shares owned by him in the corporation.
Where such certificate is countersigned (1) by a transfer agent other than the
corporation or its employee, or (2) by a registrar other than the corporation or
its employee, any other signature on the certificate may be a facsimile.
Section 2 - Lost Certificates
A new certificate of stock may be issued in place of any certificate theretofore
issued by the corporation, alleged to have been lost, stolen, mutilated or
destroyed or mailed and not received, and the directors may in their discretion
require the owner of the replaced certificate to give the corporation a bond,
unlimited as to stated amount, to indemnify the corporation against any claim
which may be made against it on account of the replacement of the certificate or
any payment made or other action taken in respect thereof.
Section 3 - Transfer of Shares
Shares of stock of the corporation are transferrable only on its books, by the
holders thereof in person or by their duly authorized attorneys or legal
representatives, and upon such transfer, the old certificate shall be
surrendered to the person in charge of the stock transfer records, by whom they
shall be cancelled, and new certificates shall thereupon be issued. A record
shall be made of each transfer, and whenever a transfer is made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer. The board may make regulations concerning the transfer of shares, and
may in their discretion authorize the transfer of shares from the names of
deceased persons whose estates are not administered, upon receipt of such
indemnity as they may require.
Section 4 - Record Dates
The board may fix a record date for determining shareholders of record for any
purpose, such date to be not more than sixty days and, if fixed for the purpose
of determining shareholders entitled to notice of and to vote at a meeting, not
less than ten days, prior to the date of the action for which the date is fixed.
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Section 5 - Transfer Agents, Registrars
The board may appoint and remove one or more transfer agents and registrars for
any stock. If such appointments are made, the transfer agents shall effect
original issuances of stock certificate and transfers of shares, record and
advise the corporation and one another of such issuances and transfers,
countersign and deliver stock certificates, and keep the stock, transfer and
other pertinent records; and the registrars shall prevent over-issues by
registering and countersigning all stock certificates issued. A transfer agent
and registrar may be identical.
ARTICLE VI
Miscellaneous Provisions
Section 1 - Corporation Seal
The Corporate seal is circular in form, and contains the name of the corporation
and the words "SEAL, LOUISIANA". The seal may be used by causing it, or a
facsimile thereof, to be impressed or affixed or otherwise reproduced.
Section 2 - Checks, Drafts, Notes
All checks, drafts, other orders for the payment of money, and notes or other
evidences of indebtedness, issued in the name of the corporation, shall be
signed by such officer or officers, agent or agents of the corporation and in
such manner as shall, from time to time, be determined by the board.
Section 3 - Fiscal Year
The fiscal year of the corporation begins on January 1.
Section 4 - Notice
Whenever any notice is required by these bylaws to be given, personal notice is
not meant unless expressly so stated; any notice is sufficient if given by
depositing the same in a mail receptacle in a sealed post-paid envelope
addressed to the person entitled thereto at his last known address as it appears
on the records of the corporation; and such notice is deemed to have been given
on the day of such mailing.
Section 5 - Waiver of Notice
Whenever any notice of the time, place or purpose of any meeting of
shareholders, directors or committee is required by law, the articles or these
bylaws, a waiver thereof in writing, signed by the person or persons entitled to
such notice and filed with the records of the meeting before or after the
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holding thereof, or actual attendance at the meeting of shareholders in person
or by proxy or at the meeting of directors or committee in person, is equivalent
to the giving of such notice except as otherwise provided by law.
Section 6 - Indemnification and Insurance.
(a) Except as prohibited by law as the same exists or may hereafter be
amended (but, in the case of any amendment, only to the extent that
such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to
provide prior to such amendment), the corporation shall indemnify each
person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative or investigative (including any action by or
in the right of the corporation) (hereinafter 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 is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans maintained or sponsored by the
corporation, whether the basis of such proceeding is alleged action in
an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or
agent, against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as
provided in paragraph (c) of this Bylaw, the corporation shall
indemnify any such person seeking indemnification in connection with a
Proceeding (or part thereof) initiated by such person only if such
Proceeding (or part thereof) was authorized by the Board of Directors.
The right to indemnification conferred in this Bylaw shall be a
contract right and shall include the right to be paid by the
corporation the expenses incurred in defending any such Proceeding in
advance of its final disposition upon receipt of an undertaking by or
on behalf of the Indemnitee to repay such amount if it shall ultimately
be determined that Indemnitee is not entitled to be indemnified by the
corporation as authorized in this Bylaw or otherwise, such advances to
be paid by the corporation within 20 days after the receipt by the
corporation of a statement or statements from the Indemnitee requesting
such advance or advances from time to time.
(b) To obtain indemnification under this Bylaw, a claimant shall submit to
the corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what
extent the claimant is entitled to indemnification. Upon written
request by a claimant for indemnification pursuant to the first
sentence of this paragraph (b), a determination, if required by
applicable law, with respect to the claimant's entitlement thereto
shall be made as follows: (i) if requested by the claimant, by
Independent Counsel (as hereinafter defined), or (ii) if no request is
made by the claimant for a determination by Independent Counsel, (A) by
the Board of Directors by a majority vote of a quorum consisting of
Disinterested
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Directors (as hereinafter defined), or (B) if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so directs,
by Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to the claimant, or (C) if a quorum
of Disinterested Directors so directs, by the shareholders of the
corporation. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of
the claimant, the Independent Counsel shall be selected by the Board of
Directors unless there shall have occurred within two years prior to
the date of the commencement of the action, suit or proceeding for
which indemnification is claimed a Change in Control in which case the
Independent Counsel shall be selected by the claimant unless the
claimant shall request that such selection be made by the Board of
Directors. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within 10 days
after such determination.
(c) If a claim under paragraph (a) of this Bylaw is not paid in full by the
corporation within 30 days after a written claim pursuant to paragraph
(b) of this Bylaw has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or
in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the
required undertaking has been tendered to the corporation) that the
claimant has not met the standard of conduct (limited only by the last
clause of Section 83E of the Louisiana Business Corporation Law) which
makes it permissible under Louisiana Law to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall be on
the corporation. Neither the failure of the corporation (including its
Board of Directors, Independent Counsel or shareholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth under
Louisiana Law, nor an actual determination by the corporation
(including its Board of Directors, Independent Counsel or shareholders)
that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(d) If a determination shall have been made pursuant to paragraph (b) of
this Bylaw that the claimant is entitled to indemnification, the
corporation shall be bound by such determination in any judicial
proceeding commenced pursuant to paragraph (c) of this Bylaw.
(e) The corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to paragraph (c) of this Bylaw that the
procedures and presumptions of this Bylaw are not valid, binding and
enforceable and shall stipulate in such proceeding that the corporation
is bound by all the provisions of this Bylaw.
(f) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in
this Bylaw shall not be exclusive of any other
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right which any person may have or hereafter acquire under any statute,
provision of the Articles Of Incorporation, Bylaws, agreement, vote of
shareholders or Disinterested Directors or otherwise. No repeal or
modification of this Bylaw shall in any way diminish or adversely
affect the rights of any director, officer, employee or agent of the
corporation hereunder in respect of any occurrence or matter arising
prior to any such repeal or modification.
(g) The corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, 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 Louisiana Law. To the extent that the
corporation maintains any policy or policies providing such insurance,
each such director or officer, and each such agent or employee to which
rights to indemnification have been granted as provided in paragraph
(h) of this Bylaw, shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the
coverage thereunder for any such director, officer, employee or agent.
(h) The corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be
paid by the corporation the expenses incurred in defending any
proceeding in advance of its final disposition, to any employee or
agent of the corporation to the fullest extent of the provisions of
this Bylaw with respect to the indemnification and advancement of
expenses of directors and officers of the corporation.
(i) If any provision or provisions of this Bylaw shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of
this Bylaw (including, without limitation, each portion of any
paragraph of this Bylaw containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be
invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent possible, the
provisions of this Bylaw (including, without limitation, each such
portion of any paragraph of this Bylaw containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
(j) For purposes of this Bylaw:
(1) A "Change in Control" shall be conclusively deemed to have
occurred if (and only if) any of the following shall have taken place:
(i) a change in control is reported by the corporation in response to
either Item 5(f) of Schedule 14A of Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended ("Exchange Act"), or
Item 1 of Form 8-K promulgated under the Exchange Act; (ii) any person
(as such term is used in Sections 13(d) and 14(d)(2) of the Exchange
Act) is or becomes the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
corporation representing forty percent or more of the combined voting
power of the corporation's then outstanding securities; or (iii)
following the election or removal of
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directors, a majority of the Board of Directors consists of individuals
who were not members of the Board of Directors two years before such
election or removal, unless the election of each director who was not a
director at the beginning of such two-year period has been approved in
advance by directors representing at least a majority of the directors
then in office who were directors at the beginning of the two-year
period.
(2) "Disinterested Director" means a director of the
corporation who is not and was not a party to the matter in respect of
which indemnification is sought by the claimant.
(3) "Independent Counsel" means a law firm, a member of a law
firm, or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable
standards of professional conduct then prevailing, would not have a
conflict of interest in representing either the corporation or the
claimant in an action to determine the claimant's rights under this
Bylaw.
(k) Any notice, request or other communication required or permitted to be
given to the corporation under this Bylaw shall be in writing and
either delivered in person or sent by telecopy, telex, telegram,
overnight mail or courier service, or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary of the
corporation and shall be effective only upon receipt by the Secretary.
Section 7 - Redemption of Control Shares
In accordance with Section 140.1 of the Louisiana Business Corporation Law, the
Company may redeem any or all control shares acquired in a control share
acquisition with respect to which either:
(a) no acquiring person statement has been filed with the Company in
accordance with Section 137 of the Louisiana Business Corporation Law;
or
(b) the control shares are not accorded full voting rights by the
shareholders of the Company as provided in Section 140 of the Louisiana
Business Corporation Law.
A redemption pursuant to subparagraph (a) hereof may be made at any time during
the period ending sixty (60) days after the last acquisition of control shares
by an acquiring person. A redemption pursuant to subparagraph (b) hereof may be
made at any time during the period ending two (2) years after the shareholder
vote with respect to the voting rights of such control shares. Any redemption
pursuant to this Paragraph shall be made at the fair value of the control shares
and pursuant to such procedures as may be adopted by resolution of the Board of
Directors of the Company.
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ARTICLE VII
Amendments
The Board of Directors is expressly authorized to make, alter or repeal the
bylaws of the corporation by the affirmative vote of 80% of the entire Board of
Directors. Such bylaws may be adopted, amended or repealed by the affirmative
vote of the holders of 80% of the corporation's stock outstanding and entitled
to vote at the meeting at which any bylaw is adopted, amended or repealed.
ARTICLE VIII
La. R.S. 12:132 et. seq.
Any business combination (as that term is defined in Section 132 of the
Louisiana Business Corporation Law ("LBCL") (La. R.S. 12:132)) involving the
corporation shall be subject to the restrictions and other provisions of Section
133 of the LBCL (La. R.S. 12:133) and the related provisions of Sections132 and
134 of the LBCL (La. R.S. 12:132 and 134), notwithstanding that the corporation
may have had on January1, 1985, an interested shareholder (as that term is
defined in Section132 of the LBCL (La. R.S. 12:132)), and any such business
combination shall be made only if it does not violate the terms and provisions
of Sections 132, 133 and 134 of the LBCL; provided, however, that nothing
contained herein shall prevent the board of directors of the corporation from
making any election or granting any exemption permitted under the provisions of
Sections 132 through 134 of the LBCL, including exempting by resolution one or
more business combinations specifically, generally or generally by type, from
the requirements of Section 133 of the LBCL as is permitted under Section
134C(1). The provisions of Sections 135 through 140.2 of the LBCL do not apply
to control share acquisitions of shares of the Company.
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