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UNITED STATES
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): November 30, 1999
LUFKIN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Texas 0-2612 75-0404410
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
601 South Raguet
Lufkin, Texas 75901
(Address of principal executive offices and zip code)
(409) 634-2211
(Registrant's telephone number, including area code)
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Item 5. Other Events
See Articles of Amendment to the Fourth Restated Articles of
Incorporation of Lufkin Industries, Inc. (the "Company"), Exhibit 3.1 and the
Restated Bylaws of the Company, Exhibit 3.2.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements and Business Acquired
None.
(b) Pro Forma Financial Information
None.
(c) Exhibits
Exhibit No. Description
- -------------------------- ----------------------------------------------------
*3.1 Articles of Amendment to Fourth Restated Articles of
Incorporation of Lufkin Industries, Inc.
*3.2 Restated Bylaws of Lufkin Industries, Inc.
- -----------------------
* Filed herewith.
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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.
LUFKIN INDUSTRIES, INC.
Date: December 7, 1999
By: /s/ Paul Perez
-----------------------------
Paul Perez
Secretary
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EXHIBIT INDEX
Exhibit No. Description
---------- ------------------------------------------------------
*3.1 Articles of Amendment to Fourth Restated Articles of
Incorporation of Lufkin Industries, Inc.
*3.2 Restated Bylaws of Lufkin Industries, Inc.
-4-
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Exhibit 3.1
ARTICLES OF AMENDMENT
TO
FOURTH RESTATED ARTICLES OF INCORPORATION
OF
LUFKIN INDUSTRIES, INC.
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, Lufkin Industries, Inc., a Texas corporation (the
"Corporation"), hereby adopts the following Articles of Amendment to the Fourth
Restated Articles of Incorporation of the Corporation.
ARTICLE ONE
The name of the Corporation is Lufkin Industries, Inc.
ARTICLE TWO
The first paragraph of Article IV of the Fourth Restated Articles of
Incorporation of the Corporation is hereby amended to read in its entirety as
follows:
"The aggregate number of shares of all classes of stock that the
Corporation shall have authority to issue is Sixty-Two Million
(62,000,000) shares, divided into Two Million (2,000,000) shares
of Preferred Stock without par value (the "Preferred Stock"), and
Sixty Million (60,000,000) shares of Common Stock $1.00 par value
(the "Common Stock")"
ARTICLE THREE
The amendment to the Articles of Incorporation was approved and
adopted by the directors of the Corporation by written consent and by the
shareholders of the Corporation at the Annual Meeting of Shareholders of the
Corporation held on May 5, 1999.
ARTICLE FOUR
The number of shares of the Corporation outstanding at the record
date for the Annual Meeting was 6,531,151 shares of Common Stock and the number
of shares entitled to vote on the amendment was 6,531,151 shares of Common
Stock. The total number of shares voted for such amendment and shares withheld
was 5,612,063 and the number of shares voted against such amendment was
1,675,844.
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IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 5th
day of May, 1999.
LUFKIN INDUSTRIES, INC.
By: /s/ C. James Haley, Jr.
-----------------------------
Name: C. James Haley, Jr.
Title: Secretary
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EXHIBIT 3.2
RESTATED
BYLAWS
OF
LUFKIN INDUSTRIES, INC.
Dated: November 20, 1991
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BYLAWS
INDEX
<TABLE>
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ARTICLE I.............................................................................. 1
Section 1. Principal Office......................................................... 1
Section 2. Registered Office........................................................ 1
Section 3. Other Offices............................................................ 1
ARTICLE II
MEETINGS OF SHAREHOLDERS............................................................. 1
Section 1. Place of Meetings........................................................ 1
Section 2. Shareholder Meetings..................................................... 2
Section 3. Special Meetings......................................................... 2
Section 4. Notice of Meetings....................................................... 2
Section 5. Voting Lists............................................................. 2
Section 6. Quorum................................................................... 3
Section 7. Organization............................................................. 3
Section 8. Proxies.................................................................. 4
Section 9. Voting of Shares......................................................... 4
Section 10. Voting of Shares by Certain Holders..................................... 5
Section 11. Election of Directors................................................... 6
Section 12. Notice of Shareholder Business and Nomination of Directors.............. 6
ARTICLE III
DIRECTORS............................................................................ 10
Section 1. Number and Qualification................................................. 10
Section 2. Election and Term of Office.............................................. 11
Section 3. Resignation.............................................................. 11
Section 4. Removal.................................................................. 11
Section 5. Vacancies................................................................ 11
Section 6. General Powers........................................................... 12
Section 7. Compensation............................................................. 12
Section 8. Retirement............................................................... 12
ARTICLE IV
MEETINGS OF THE BOARD................................................................ 12
Section 1. Place of Meetings........................................................ 12
Section 2. Annual Meeting........................................................... 13
Section 3. Regular Meetings......................................................... 13
</TABLE>
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<TABLE>
<CAPTION>
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Section 4. Special Meetings......................................................... 13
Section 5. Quorum and Action........................................................ 13
Section 6. Presumption of Assent to Action.......................................... 14
ARTICLE V
EXECUTIVE COMMITTEE.................................................................. 14
Section 1. Membership and Authorities............................................... 14
Section 2. Minutes.................................................................. 14
Section 3. Vacancies................................................................ 14
ARTICLE VI
OFFICERS............................................................................. 15
Section 1. Number................................................................... 15
Section 2. Election, Term of Office and Qualification............................... 15
Section 3. Subordinate Officers..................................................... 15
Section 4. Resignation.............................................................. 15
Section 5. Removal.................................................................. 16
Section 6. Vacancies................................................................ 16
Section 7. The Chairman of the Board................................................ 16
Section 8. The President............................................................ 17
Section 9. The Vice Presidents...................................................... 17
Section 10. The Secretary........................................................... 17
Section 11. Assistant Secretaries................................................... 18
Section 12. The Treasurer........................................................... 18
Section 13. Assistant Treasurers.................................................... 19
Section 14. Treasurer's Bond........................................................ 19
Section 15. The Chief Executive Officer............................................. 19
Section 16. The Chief Operating Officer............................................. 20
Section 17. Salaries................................................................ 20
Section 18. Retirement.............................................................. 20
ARTICLE VII
CORPORATE SHARES..................................................................... 20
Section 1. Share Certificates....................................................... 20
Section 2. Transfer of Shares....................................................... 21
Section 3. Ownership of Shares...................................................... 21
Section 4. Closing of Transfer Books................................................ 22
Section 5. Dividends................................................................ 23
ARTICLE VIII
GENERAL PROVISIONS................................................................... 23
Section 1. Waiver of Notice......................................................... 23
Section 2. Seal..................................................................... 23
</TABLE>
ii
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Section 3. Fiscal Year.............................................................. 23
Section 4. Reports of Situation and Amount of Business.............................. 23
Section 5. Checks, Notes, etc....................................................... 23
Section 6. Voting Upon Shares Held by the Corporation............................... 24
Section 7. Action of Board of Directors or any Executive Committee Without Meeting.. 24
ARTICLE IX
INDEMNIFICATION...................................................................... 24
Section 1. Indemnification.......................................................... 24
ARTICLE X
AMENDMENTS........................................................................... 26
Section 1. Amendments by Board of Directors and Shareholders........................ 26
</TABLE>
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LUFKIN INDUSTRIES, INC.
B Y L A W S
ARTICLE I
Offices
Section 1. Principal Office. The principal office of the
Corporation shall be in the City of Lufkin, County of Angelina, State of Texas.
Section 2. Registered Office. The registered office of the
Corporation required by the Texas Business Corporation Act to be maintained in
the State of Texas, may be, but need not be, identical with the principal
office, and the address of the registered office may be changed from time to
time by the Board of Directors.
Section 3. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Texas as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. The Board of Directors may designate
any place, either within or without the State of Texas, as the place of meeting
for any annual meeting or for any special meeting called by the Board. A waiver
of notice signed by all shareholders entitled to vote at a meeting may designate
any place, either within or without the State of Texas, as the place for the
holding of such meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the principal office of the
Corporation.
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Section 2. Shareholder Meetings. The annual meeting of shareholders
shall be held on the date and at the time filed, from time to time, by the Board
of Directors. Special meetings of shareholders shall be held on the date and at
the time fixed by the Board of Directors and set forth in the call of meeting.
Any previously scheduled annual or special meeting may be postponed by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting.
Section 3. Special Meetings. Special meetings of the shareholders
for any purpose or purposes, unless otherwise prescribed by law or by the
Articles of Incorporation, may be called by the Chairman of the Board, the
President, the Board of Directors or the holders of not less than one-tenth
(1/10) of all the shares entitled to vote at the meetings. Business transacted
at all special meetings shall be confined to the purpose or purposes stated in
the call.
Section 4. Notice of Meetings. Written or printed notice of all
meetings of shareholders stating the place, day and hour thereof, and in the
case of a special meeting the purpose or purposes for which the meeting is
called, shall be personally served upon or mailed to each shareholder of record
entitled to vote thereat at such address as appears on the stock transfer books
of the Corporation not less than ten (10) nor more than sixty (60) days before
the date of the meeting.
If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail addressed to the shareholder at his address as it
appears on the stock transfer books, with postage thereon prepaid.
Section 5. Voting Lists. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least ten (10)
days before each meeting of the shareholders, a complete list of shareholders
entitled to vote at such meeting or any adjournment
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thereof, arranged in alphabetical order, with the address of each and the number
of shares held by each, which list, for a period of ten (10) days prior to such
meeting, shall be kept on file at the registered office of the Corporation and
shall be subject to inspection by any shareholder at any time during usual
business hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
during the whole time of the meeting. The original stock transfer books shall be
prima-facie evidence as to who are the shareholders entitled to examine such
list or transfer books or to vote at any meeting of shareholders.
Section 6. Quorum. The holders of a majority of the shares entitled
to vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the shareholders for the transaction of business,
except as otherwise provided by law, by the Articles of Incorporation or by
these Bylaws. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or represented by proxy, shall have the power to adjourn the
meeting from time to time without notice other than announcement at the meeting
until a quorum shall be present or represented. At such adjourned meeting at
which a quorum shall be present or represented any business may be transacted
which might have been transacted at the meeting as originally notified.
In addition, any annual or special meeting of the shareholders may be
adjourned, whether or not a quorum is present, by the Chairman of the Board, the
President or pursuant to a resolution of the Board of Directors.
Section 7. Organization. The Chairman of the Board shall preside at
all meetings of the shareholders. In the absence of the Chairman of the Board,
the President shall preside. In the absence of the President, a Vice President
shall preside. In the absence of all of these officers any
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shareholder or the duly appointed proxy of any shareholder may call the meeting
to order and a chairman shall be elected from among the shareholders present.
The Secretary of the Corporation shall act as secretary at all
meetings of the shareholders. In his absence an Assistant Secretary shall so
act and in the absence of all of these officers the presiding officer may
appoint any person to act as secretary of the meeting.
Section 8. Proxies. At any meeting of the shareholders every
shareholder entitled to vote thereat shall be entitled to vote in person or by
proxy appointed by instrument in writing executed by such shareholder or by his
duly authorized attorney-in-fact. All proxies shall be filed with the Secretary
of the meeting before being voted on. No appointment of a proxy shall be valid
after the expiration of eleven (11) months from the date of its execution unless
such proxy otherwise provides. A proxy shall be revocable unless expressly
provided therein to be irrevocable or unless otherwise made irrevocable by law.
Section 9. Voting of Shares. Except as otherwise provided by law,
the Articles of Incorporation or these Bylaws, each shareholder shall have one
(1) vote for each share having voting rights registered in his name on the books
of the Corporation at the time of the closing of the stock transfer books (or at
the record date) for such meeting. When a quorum is present at any meeting the
vote of holders of a majority of the shares entitled to vote, present in person
or represented by proxy, shall decide any matter submitted to such meeting,
unless the matter is one upon which by law or by express provision of the
Articles of Incorporation or of these Bylaws the vote of a greater number is
required, in which case the vote of such greater number shall govern and control
the decision of such matter.
4
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Section 10. Voting of Shares by Certain Holders. Shares standing in
the name of another corporation may be voted by such officer, agent or proxy as
the bylaws of such corporation may authorize or, in the absence of such
authorization, as the board of directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may
be voted by him so long as such shares forming a part of an estate are in the
possession and form a part of the estate being served by him, either in person
or by proxy, without a transfer of such shares into his name. Shares standing
in the name of a trustee may be voted by him, either in person or by proxy, but
no trustee shall be entitled to vote shares held by him without a transfer of
such shares into his name as trustee.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority to do so
be contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to the Corporation, shares of its
own stock owned by another corporation the majority of the voting stock of which
is owned or controlled by the Corporation, and shares of its own stock held by
the Corporation in a fiduciary capacity shall not be voted, directly or
indirectly, at any meeting, and shall not be counted in determining the total
number of outstanding shares at any given time.
5
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Section 11. Election of Directors. At each election for Directors
each shareholder entitled to vote thereat shall, unless otherwise provided by
the Articles of Incorporation or by applicable law, have the right to vote the
number of shares owned by him for as many persons as there are to be elected
and for whose election he has a right to vote. No shareholder shall ever have
the right or be permitted to cumulate his votes on any basis, any and all rights
of cumulative voting being expressly prohibited.
Section 12. Notice of Shareholder Business and Nomination of
Directors.
(a) Annual Meetings of Shareholders. (i) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the shareholders shall only be made at an annual
meeting of shareholders (A) by or at the direction of the Board of Directors or
(B) by any shareholder of the Corporation who was a shareholder of record at the
time of giving of notice provided for in this Bylaw, who is entitled to vote at
the meeting and who has complied with the notice procedures set forth in this
Section 12.
(ii) For nominations or other business to be properly brought before
an annual meeting by a shareholder pursuant to clause (c) of paragraph (a)(i) of
this Section 12, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not less than 60 days nor more than 90 days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced by
more than 30 days or delayed by more than 60 days from such anniversary date,
notice by the shareholder to be timely must be so delivered not earlier than the
90th day prior to such annual meeting and not later than the close of business
on the later of (x) the 60th
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day prior to such annual meeting and (y) the 10th day following the day on which
public announcement of the date of such meeting is first made. Such
shareholder's notice shall set forth: (A) as to each person whom the shareholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected; (B) as
to any other business that the shareholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any material
interest in such business of such shareholder and the beneficial owner, if any,
on material interest in such business of such shareholder and the beneficial
owner, if any, on whose behalf the proposal is made; (C) as to the shareholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (I) the name and address of such shareholder, as
they appear on the Corporation's books, and of such beneficial owner and (II)
the class and number of shares of the Corporation which are owned beneficially
and of record by such shareholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of paragraph
(a)(ii) of this Section 12 to the contrary, in the event that any person
nominated by the Board of Directors of the Corporation for election as a
director (other than a person nominated to fill a vacancy created by the death
of a director) was not a director or nominee named (A) in the Corporation's
proxy statement for the preceding annual meeting or (B) in a public announcement
made by the Corporation at least 70 days prior to the first anniversary of the
preceding year's annual meeting (a "New Nominee"),
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a shareholder's notice required by this Section 12 shall also be considered
timely if it shall be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which public announcement is first
made by the Corporation of the election or nomination of such New Nominee to the
Board of Directors.
(iv) The Corporation shall set forth in its proxy statement for each
annual meeting of shareholders a summary of the notice provisions of these
Bylaws relating to annual meetings of shareholders.
(b) Special Meeting of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the notice of meeting. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
shareholders at which directors are to be elected pursuant to the notice of
meeting (i) by or at the direction of the Board of Directors or (ii) by any
shareholder of the Corporation who (A) is a shareholder of record at the time of
giving of the notice provided for in this Section 12, (B) is entitled to vote at
the meeting and (C) complies with the notice procedures set forth in this
Section 12. Shareholders, who are not the shareholders calling the special
meeting of shareholders, if any, desiring to nominate persons for election to
the Board of Directors at such a special meeting of shareholders shall deliver
the shareholder's notice required by paragraph (a) (ii) of this Section 12 to
the Secretary of the Corporation at the principal executive offices of the
Corporation not earlier than the 90th day prior to such special meeting and not
later than the close of business on the later of (x) the 60th day prior to such
special meeting and (y) the 10th day following the day on which public
announcement is first made of the date of the special meeting and
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of the nominees proposed by the Board of Directors, if any, to be elected at
such meeting. A shareholder or shareholders who are the beneficial owners of not
less than one-tenth (1/10) of all the shares entitled to vote at such meeting
desiring to call a special meeting of shareholders shall deliver the
shareholder's notice required by paragraph (a)(ii) of this Section 12,
accompanied by information which reasonably demonstrates that such shareholder
or shareholders fulfill the ownership requirement for a shareholder to be
entitled to call a special meeting of the shareholders, to the Secretary of the
Corporation at the principal executive offices of the Corporation. If the
information required by the preceding sentence is properly supplied as required
by such sentence, the Board of Directors shall (1) within 30 days of receipt of
such notice establish a record date for shareholders entitled to notice of and
to vote at such meeting in accordance with these Bylaws, (2) establish a date
for such meeting within 90 days of the date of receipt of such notice in
accordance with these Bylaws and (3) direct the President or Secretary to
provide notice of such meeting, or direct the shareholders which delivered the
notice to the Corporation requesting such meeting to provide notice of such
meeting, to each shareholder of record entitled to vote thereat in accordance
with the reasonable directions of the Board of Directors and these Bylaws.
(c) General. (i) Only persons who are nominated in accordance with
the procedures set forth in this Section 12 shall be eligible to serve as
directors. Only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 12. The chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this Section 12 and, if
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any proposed nomination or business is not in compliance with this Section 12,
to declare that such defective proposal shall be disregarded.
(ii) For purposes of this Section 12, "public announcement" shall mean
disclosure (i) in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service, (ii) in a notice contained
in the Wall Street Journal or other comparable national financial newspaper,
(iii) in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act or
(iv) in a general mailing by the Corporation to its shareholders of record given
in accordance with these Bylaws.
(iii) Notwithstanding the foregoing provisions of this Section 12,
a shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 12.
ARTICLE III
DIRECTORS
Section 1. Number and Qualification. The property, business and
affairs of the Corporation shall be managed and controlled by a Board of eleven
(11) Directors that shall be elected annually. Directors need not be residents
of the State of Texas or shareholders of the Corporation. The number of
Directors constituting the Board of Directors of the Corporation may be
increased or decreased from time to time by resolution adopted by the
affirmative votes of eighty percent (80%) of the members of the entire Board.
In no case shall the Board of Directors be composed of less than nine (9) nor
more than fifteen (15) members. No decrease in the number of Directors shall
have the effect of shortening the term of any incumbent Director.
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Section 2. Election and Term of Office. The Directors shall be
elected in classes as provided in the Third Restated Articles of Incorporation.
Each Director so elected shall hold office until his successor shall be elected
or until his death or until he shall resign or be removed in the manner
hereinafter provided.
Section 3. Resignation. Any Director may resign at any time by
giving written notice to the Chairman of the Board, President or Secretary.
Such resignation shall take effect at the time specified therein and unless
otherwise specified therein the acceptance of such resignation shall not be
necessary to make it effective.
Section 4. Removal. Any Director or Directors, including the entire
Board, may be removed for cause by the affirmative votes of the holders of a
majority of the shares of the Corporation entitled to vote in the election of
Directors at any special meeting of shareholders called expressly for that
purpose; shareholders may not remove any Director without cause. The Board may
not remove any Director for or without cause, and no recommendation by the Board
that a Director be removed for cause may be made to the shareholders except upon
the affirmative vote of not less than 80% of the members of the entire Board.
Section 5. Vacancies. Vacancies in the Board of Directors, whether
arising through death, resignation or removal of a Director, may be filled by
the affirmative vote of a majority of the remaining Directors though less than a
quorum. A Director elected to fill a vacancy shall be elected for the unexpired
term of his predecessor in office. A directorship to be filled by reason of an
increase in the number of Directors may be filled by the Board of Directors but
only for a term of office continuing until the election of one or more Directors
by the shareholders; provided that the Board of Directors may not fill more than
two such directorships during the period between any two
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successive annual meetings of shareholders. No decrease in the number of
Directors constituting the Board shall shorten the term of any incumbent
Director.
Section 6. General Powers. In addition to the powers and
authorities expressly conferred upon them by these Bylaws, the Board of
Directors may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by law or by the Articles of Incorporation or by
these Bylaws directed or required to be exercised or done by the shareholders.
Section 7. Compensation. Directors as such shall not receive any
stated salary for their services but by resolution of the Board a fixed
honorarium or retainer or other expenses of attendance, if any, may be allowed
for attendance at any regular or special meeting of the Board provided that
nothing herein contained shall be construed to preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 8. Retirement. No person may be nominated for election or
reelection as a Director of the Corporation who has attained the age of 70 years
or more on or prior to the date fixed for the meeting of stockholders or
Directors of the Corporation to be held for the purpose of electing or
reelecting such Director.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. Place of Meetings. The Directors of the Corporation may
hold their meetings, both regular and special, either within or without the
State of Texas.
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Section 2. Annual Meeting. A regular meeting of the Board shall be
held without other notice than this Bylaw immediately after and at the same
place as the annual meeting of shareholders.
Section 3. Regular Meetings. The Board of Directors may provide,
by resolution, the time and place, either within or without the State of Texas,
for the holding of additional regular meetings without other notice than such
resolution.
Section 4. Special Meetings. Special meetings of the Board may be
called by the Chairman of the Board or the President on three (3) days' notice
to each Director given either personally, by mail or by telegram. Special
meetings shall be called by the Chairman of the Board, President or Secretary in
like manner and on like notice on the written request of two (2) Directors.
Neither the purpose of nor the business to be transacted at any special meeting
of the Board of Directors need be specified in the notice or waiver of notice of
such meeting. 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. Quorum and Action. At all meetings of the Board the
presence of a majority of the Directors shall be necessary and sufficient to
constitute a quorum for the transaction of business and the act of a majority of
the Directors at any meeting at which a quorum is present shall be the act of
the Board of Directors unless the act of a greater number is required by law,
the Articles of Incorporation or these Bylaws. If a quorum shall not be 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 shall be present.
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Section 6. Presumption of Assent to Action. A Director who is
present at a meeting of the Board at which action on any corporate matter is
taken shall be presumed to have assented to the action taken 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 secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Director who voted in favor of such
action.
ARTICLE V
EXECUTIVE COMMITTEE
Section 1. Membership and Authorities. The Board of Directors, by
resolution adopted by a majority of the whole Board, may designate two (2) or
more Directors to constitute an Executive Committee, which Committee to the
extent provided in such resolution, shall have and may exercise all of the
authority of the Board of Directors in the business and affairs of the
Corporation, except where action of the Board of Directors is specified by
applicable law, but the designation of such Committee and the delegation thereto
of authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law.
Section 2. Minutes. The Executive Committee shall keep regular
minutes of its proceedings and report the same to the Board when required.
Section 3. Vacancies. The Board of Directors shall have the power
at any time to fill vacancies in, to change the membership of, or to dissolve,
the Executive Committee.
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ARTICLE VI
OFFICERS
Section 1. Number. The officers of the Corporation shall be a
Chairman of the Board, a President, a Vice President, a Secretary and a
Treasurer. The Board of Directors may also choose additional Vice Presidents
and one or more Assistant Secretaries and/or Assistant Treasurers. One person
may hold any two or more of said offices except those of President and
Secretary.
Section 2. Election, Term of Office and Qualification. The Officers
of the Corporation shall be elected by the Board of Directors at its first
meeting after each annual meeting of shareholders. The Board shall elect a
Chairman of the Board, a President, one or more Vice Presidents, a Secretary and
a Treasurer, none of whom, except the Chairman of the Board or the President,
need be a member of the Board. Each officer so elected shall hold office until
his successor shall have been duly chosen and qualified or until his death or
his resignation or removal in the manner hereinafter provided.
Section 3. Subordinate Officers. The Board of Directors may appoint
such other officers and agents as it shall deem necessary who shall hold their
offices for such term, have such authority and perform such duties as the Board
of Directors may from time to time determine. The Board of Directors may
delegate to any committee or officer the power to appoint any such subordinate
officer or agent.
Section 4. Resignation. Any officer may resign at any time by
giving written notice thereof to the Board of Directors or to the Chairman of
the Board, to the President or Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein and unless otherwise
specified therein the acceptance of such resignation shall not be necessary to
make it
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effective. Acceptance of such resignation shall be without prejudice to the
contract rights of the Corporation in regard to the employment of such person.
Section 5. Removal. Any officer elected or appointed by the Board
of Directors may be removed by the Board at any time with or without cause, but
such removal shall be without prejudice to the employment contract rights, if
any, of the person so removed. Any other officer may be removed at any time
with or without cause by the Board of Directors or by any committee or superior
officer upon whom such power of removal may be conferred by the Board of
Directors.
Section 6. Vacancies. A vacancy in any office shall be filled for
the unexpired portion of the term by the Board of Directors, but in case of a
vacancy occurring in an office filled in accordance with the provisions of
Section 3 of this Article, such vacancy may be filled by any committee or
superior officer upon whom such power may be conferred by the Board of
Directors.
Section 7. The Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the shareholders and at all meetings of the
Board of Directors at which he is present; shall be ex officio a member of all
standing committees; shall perform such other duties, responsibilities and
authorities as shall be assigned to him by the Board of Directors from time to
time and shall see that all orders and resolutions of the Board of Directors are
carried into effect. He may sign, with any other proper officer, certificates
for shares of the Corporation and any deeds, bonds, mortgages, contracts and
other documents which the Board of Directors has authorized to be executed,
except where required by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors or these Bylaws, to some other officer or agent of the
Corporation.
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Section 8. The President. The President shall, in the absence of
the Chairman of the Board, preside at all meetings of the shareholders and at
all meetings of the Board of Directors; shall be ex officio a member of all
standing committees; shall perform such other duties, responsibilities and
authorities as shall be assigned to him by the Board of Directors from time to
time and by the Chairman of the Board and shall see that all orders and
resolutions of the Board of Directors are carried into effect. He may sign,
with any other proper officer, certificates for shares of the Corporation and
any deeds, bonds, mortgages, contracts and other documents which the Board of
Directors has authorized to be executed, except where required by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors or these Bylaws, to some
other officer or agent of the Corporation.
Section 9. The Vice Presidents. Vice Presidents shall perform the
duties as are given to them by these Bylaws and as may from time to time be
assigned to them by the Board of Directors, the Chairman of the Board or the
President and may sign, with any other proper officer; certificates for shares
of the Corporation. In the absence of the Chairman of the Board and of the
President, the Vice President designated as the executive Vice President by the
Board of Directors (or in the absence of such designation, the senior Vice
President) shall perform the duties and exercise the powers of the President.
The Board of Directors may from time to time add to the title of "Vice
President" such additional descriptive prefix and/or suffix as may in their
opinion indicate the services or duties to be performed by the person serving in
such office.
Section 10. The Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of the shareholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose
and shall perform like duties for the Executive Committee and
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standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the Board of
Directors as required by law or by these Bylaws, be custodian of the corporate
records and have general charge of the stock books of the Corporation and shall
perform such other duties as may be prescribed by the Board of Directors, the
Chairman of the Board or the President, under whose supervision he shall be. He
may sign, with any other proper officer, certificates for shares of the
Corporation and shall keep in safe custody the seal of the Corporation, and,
when authorized by the Board, affix the same to any instrument requiring it and,
when so affixed, it shall be attested by his signature or by the signature of
the Treasurer or an Assistant Secretary.
Section 11. Assistant Secretaries. The Assistant Secretaries shall
perform the duties as are given to them by these Bylaws or as may from time to
time be assigned to them by the Board of Directors or by the Secretary. At the
request of the Secretary, or in his absence or disability, the Assistant
Secretary designated by the Secretary (or in the absence of such designation the
senior Assistant Secretary) shall perform the duties and exercise the powers of
the Secretary.
Section 12. The Treasurer. The Treasurer shall have the custody and
be responsible for all corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. He shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board, the President and
Directors, at the regular meetings of the Board, or whenever they
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may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. He may sign, with any other proper
officer, certificates for shares of the Corporation.
Section 13. Assistant Treasurers. The Assistant Treasurers shall
perform the duties as are given to them by these Bylaws or as may from time to
time be assigned to them by the Board of Directors or by the Treasurer. At the
request of the Treasurer, or in his absence or disability, the Assistant
Treasurer designated by the Treasurer (or in the absence of such designation the
senior Assistant Treasurer) shall perform the duties and exercise the powers of
the Treasurer.
Section 14. Treasurer's Bond. If required by the Board of
Directors, the Treasurer and any Assistant Treasurer shall give the Corporation
a bond in such sum and with such surety or sureties as shall be satisfactory to
the Board for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
Section 15. The Chief Executive Officer. The Chief Executive
Officer shall have supervision of and exercise general executive powers relating
to all of the operations and business of the Corporation, shall from time to
time assign all of the officers of the Corporation their respective duties and
responsibilities and shall exercise all such other powers and duties as from
time to time may be conferred upon or assigned to him by the Board of Directors.
The Board of Directors may from time to time designate by resolution the
Chairman of the Board or the President as the Chief Executive Officer but in the
absence of such resolution, the Chairman of the Board shall be the Chief
Executive Officer.
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Section 16. The Chief Operating Officer. The Chief Operating
Officer shall, under the supervision of the Chief Executive Officer, manage the
day to day operations of the Corporation and in general shall assist the Chief
Executive Officer and perform such other duties as may be assigned to him by the
Chief Executive Officer ox by the Board of Directors. The Board of Directors
may designate by resolution either the President or any Vice President as the
Chief Operating Officer but in the absence of such a resolution, the President
shall be the Chief Operating Officer.
Section 17. Salaries. The salary or other compensation of officers
shall be fixed from time to time by the Board of Directors. The Board of
Directors may delegate to any committee or officer the power to fix from time to
time the salary or other compensation of officers and agents appointed in
accordance with the provisions of Section 3 of this Article.
Section 18. Retirement. No person may be elected or reelected as an
officer of the Corporation who has attained the age of 70 years or more at the
normal time for election for officers.
ARTICLE VII
CORPORATE SHARES
Section 1. Share Certificates. The certificates representing shares
of the Corporation shall be in such form, not inconsistent with statutory
provisions and the Articles of Incorporation, as shall be approved by the Board
of Directors. The certificates shall be signed by the Chairman of the Board,
the President or a Vice President, and either the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer of the Corporation, and
sealed with the corporate seal or a facsimile thereof. The signatures of the
Chairman of the Board, the President or Vice President, Secretary or Assistant
Secretary, Treasurer or Assistant Treasurer upon a certificate may be
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facsimiles, if the certificate is countersigned by a transfer agent, or
registered by a registrar, either of which is other than the Corporation itself
or an employee of the Corporation. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued with the same
effect as if he were such officer at the date of its issuance.
All certificates shall be consecutively numbered and the name of the
person owning the shares represented thereby, with the number of such shares and
the date of issue, shall be entered on the Corporation's books.
All certificates surrendered to the Corporation shall be canceled, and
no new certificate shall be issued until the former certificate for the same
number of shares shall have been surrendered and canceled, except that in case
of a lost, destroyed or mutilated certificate a new one may be issued therefor
upon such terms and indemnity to the Corporation as the Board of Directors may
prescribe.
Section 2. Transfer of Shares. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, 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. Ownership of Shares. The Corporation shall be entitled
to treat the holder of record of any share or shares as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other
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person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Texas.
Section 4. Closing of Transfer Books. 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 payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any case, sixty (60)
days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the stock transfer books, 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 sixty
(60) days and, in case of a meeting of shareholders, not less than ten (10) days
prior to the date on which the particular action, requiring such determination
of shareholders is to be taken, and the determination of shareholders on such
record date shall apply with respect to the particular action requiring the same
notwithstanding any transfer of shares on the books of the Corporation after
such record date.
If the Board of Directors does not provide for closing of the transfer
books or does not set a record date, relative to a particular meeting, then in
such event the record time and date for the determination of shareholders
entitled to notice of and to vote at such meeting shall be the close of business
on the 30th day immediately preceding such meeting.
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Section 5. Dividends. The Board of Directors may, from time to
time, declare, and the Corporation may pay, dividends on its outstanding shares
in the manner and upon the terms and conditions provided by law and the Articles
of Incorporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Waiver of Notice. Whenever, under the provisions of
applicable law or of the Articles of Incorporation or of these Bylaws, any
notice is required to be given to any shareholder or Director, a waiver thereof
in writing signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be equivalent to the giving of
such notice.
Section 2. Seal. The corporate seal shall have inscribed thereon
the name of the Corporation and shall be in such form as may be approved by the
Board of Directors. Said seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any manner reproduced.
Section 3. Fiscal Year. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
Section 4. Reports of Situation and Amount of Business. The Board
of Directors shall, when requested by the holders of at least one-third of the
outstanding shares of the Corporation, present written reports of the situation
and amount of business of the Corporation.
Section 5. Checks, Notes, etc. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
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Section 6. Voting Upon Shares Held by the Corporation. Unless
otherwise ordered by the Board of Directors, the Chairman of the Board and in
the alternative the President shall have full power and authority on behalf of
the Corporation to attend and to act and to vote at any meeting of shareholders
of any Corporation in which this Corporation may hold shares and at any such
meeting shall possess and may exercise any and all of the rights and powers
incident to the ownership of such shares and which, as the owner thereof, the
Corporation might have possessed and exercised, if present. The Board of
Directors by resolution from time to time may confer like powers upon any other
person or persons.
Section 7. Action of Board of Directors or any Executive Committee
Without Meeting. Any action required by any provisions of law or of the
Articles of Incorporation or these Bylaws to be taken at a meeting of the Board
of Directors, or any executive committee, may be taken without a meeting if
consent in writing setting forth the action so taken shall be signed by all of
the members of the Board of Directors or the executive committee, as the case
may be. Such consent shall have the same force and effect as a unanimous vote
at a meeting.
ARTICLE IX
INDEMNIFICATION
Section 1. Indemnification.
(A) The Corporation shall indemnify, to the fullest extent permitted
by Texas law, every person who is or was a director of the Corporation and any
person who, while a director 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
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enterprise with respect to all costs and expenses incurred by such person as a
result of such person being made or threatened to be made a defendant or
respondent in a proceeding by reason of his holding a position named above in
this paragraph.
(B) The Corporation shall indemnify, to the fullest extent that
indemnification for directors is permitted by Texas law, every person who is or
was an officer of the Corporation and any person who, while an 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
with respect to all costs and expenses incurred by such person as a result of
such person being made or threatened to be made a defendant or respondent in a
proceeding by reason of his holding a position named above in this paragraph.
(C) The Corporation shall advance expenses to any person named in
paragraph (A) or (B) of this Section who was, is, or is threatened to be made a
party in a proceeding by reason of his holding a position named in paragraph (A)
or (B), to the fullest extent permitted by Texas law.
(D) It is the intent of the Corporation to indemnify the persons
referred to in this Section to the fullest extent permitted by law. The
indemnification provided by this Section shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
law, the Corporation's articles of incorporation, agreement, vote of
shareholders or directors, or otherwise, or under any policy or policies of
insurance purchased and maintained by the Corporation on behalf of any such
person, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to
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be a director or officer, and shall inure to the benefit of the heirs, executors
and administrators of such a person.
The indemnification provided herein shall be applicable whether or not
negligence or gross negligence of the person seeking indemnification is alleged
or proven.
(E) The indemnification provided by this Section shall be subject to
all valid and applicable laws, including, without limitation, Article 2.02-1 of
the Texas Business Corporation Act, and, in the event this Section or any of the
provisions hereof, or the indemnification contemplated hereby are found to be
inconsistent with or contrary to any such valid laws, the latter shall be deemed
to control and this Section shall be regarded as modified accordingly, and, as
so modified, to continue in full force and effect.
ARTICLE X
AMENDMENTS
Section 1. Amendments by Board of Directors and Shareholders. The
Directors, by the affirmative vote of a majority of the Directors and without
the assent or vote of the stockholders, may at any meeting, provided the
substance of the proposed amendment shall have been stated in the notice of the
meeting, alter, amend, or repeal these Bylaws or adopt new Bylaws. The
shareholders shall not repeal or change any of the provisions of these Bylaws
except by the vote of the holders of not less than 80 percent of the total
voting power of all shares of stock of the Corporation entitled to vote in the
election of Directors, considered for purposes of this Article X as one class.
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