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: May 1, 1998
(Date of earliest event reported)
GAINSCO, INC.
(Exact name of registrant as specified in its charter)
Texas 001-09828 75-1617013
_________________ ________________ __________________
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
500 Commerce Street, Fort Worth, Texas 76102
________________________________________ _________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(817)336-2500
ITEM 5.OTHER EVENTS.
On May 1, 1998, the Board of Directors of the Company canceled
the annual meeting of the shareholders set for May 18, 1998, and set
July 17, 1998, as the date for that meeting and set May 26, 1998, as
the record date for the determination of shareholders entitled to vote
at the annual meeting of the shareholders.
At the Board of Directors meeting on May 1, 1998, the Board also amended
the Company's bylaws and approved the Company's bylaws as
restated as of May 1, 1998.
On May 4, 1998, the Company issued a press release announcing the
postponement of the annual meeting of shareholders and the matters
which would come before that meeting. A copy of that press release is
filed herewith as an exhibit and is incorporated herein by reference.
A copy of the Company's bylaws as restated on May 1, 1998, is
also filed herewith as an exhibit and is also incorporated herein by
reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
No financial statements or pro forma financial statements are
required to be filed as a part of this report. The following is a
list of exhibits filed as part of this Current Report on Form 8-K:
Exhibit
No. Exhibit
_______ _________________________________________________________
99.3 Bylaws as restated as of May 1, 1998.
99.4 Press release dated May 4, 1998, issued by Registrant.
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.
GAINSCO, INC.
By: /S/ Sam Rosen
____________________________
Sam Rosen, Corporate Secretary
Dated: May 5, 1998
GAINSCO, INC.
EXHIBIT INDEX
NUMBER AND DESCRIPTION OF EXHIBITS *
Exhibit
No. Exhibit
____ __________________________________________________________
1 None.
2 None.
4 None.
16 None.
17 None.
20 None.
23 None.
24 None.
27 None.
99.3 Bylaws as restated as of May 1, 1998.
99.4 Press Release dated May 4, 1998.
_______________________
* Exhibits not listed are inapplicable.
EXHIBIT 99.3
BYLAWS
OF
GAINSCO, INC.
As amended as of May 1, 1998
Contents
Article 1: Offices
1.01 Registered Office and Agent
1.02 Other Offices
Article 2: Shareholders
2.01 Place of Meetings
2.02 Annual Meeting
2.03 Voting List
2.04 Special Meetings
2.05 Notice
2.06 Quorum
2.07 Majority Vote; Withdrawal of Quorum
2.08 Method of Voting
2.09 Record Date; Closing Transfer Books
2.10 Action Without Meeting
2.11 Order of Business at Meetings
2.12 Notice of Matters to be Considered
2.13 Nominations
Article 3: Directors
3.01 Management
3.02 Number; Qualifications; Election; and Term
3.03 Change in Number
3.04 Removal
3.05 Vacancies
3.06 Election of Directors
3.07 Place of Meetings
3.08 First Meeting
3.09 Regular Meetings
3.10 Special Meetings
3.11 Quorum; Majority Vote
3.12 Compensation
3.13 Procedure
3.14 Interested Directors and Officers
3.15 Action Without Meeting
3.16 Advisory Directors
Article 4: Notice and Attendance Through Use of Electronic
Equipment
4.01 Method
4.02 Waiver
4.03 Telephone and Similar Meetings
Article 5: Officers and Agents
5.01 Number; Qualification; Election; Term
5.02 Removal
5.03 Vacancies
5.04 Authority
5.05 Compensation
5.06 President
5.07 Vice Presidents
5.08 Secretary
5.09 Assistant Secretary
5.10 Treasurer
5.11 Assistant Treasurer
5.12 Chairman of the Board
5.13 Vice-Chairman of the Board
5.14 Second Vice Presidents
Article 6: Certificates and Shareholders
6.01 Certificates
6.02 Issuance
6.03 Payment for Shares
6.04 Subscriptions
6.05 Lien
6.06 Lost, Stolen or Destroyed Certificates
6.07 Registration of Transfer
6.08 Registered Shareholders
6.09 Denial of Preemptive Rights
Article 7: General Provisions
7.01 Dividends and Reserves
7.02 Books and Records
7.03 Annual Statement
7.04 Checks and Notes
7.05 Fiscal Year
7.06 Seal
7.07 Indemnification; Insurance
7.08 Resignation
7.09 Amendment of Bylaws
7.10 Construction
7.11 Table of Contents; Headings
7.12 Relation to Articles of Incorporation
Article 8: Committees
8.01 Designation
8.02 Number; Qualification; Term
8.03 Authority
8.04 Change in Number
8.05 Removal
8.06 Vacancies
8.07 Meetings
8.08 Quorum; Majority Vote
8.09 Compensation
<PAGE>
Article 1: Offices
1.01 Registered Office and Agent. The registered office of the
corporation shall be at 500 Commerce Street, Fort Worth, Texas 76102.
The name of the registered agent at such address is Joseph D. Macchia.
Anything in these Bylaws to the contrary notwithstanding revision of
the registered office or the registered agent of the corporation in
accordance with the provisions of the Texas Business Corporation Act
shall automatically and without further action amend this section to
name such newly adopted office or registered agent.
1.02 Other Offices. The corporation may have offices at other
places both within and without the State of Texas as the board of
directors may determine or as the business of the corporation may
require.
Article 2: Shareholders
2.01 Place of Meetings. All meetings of the shareholders shall
be held at such time and place, in or out of the State of Texas, as
shall be stated in the notice of the meting or in a waiver of notice.
2.02 Annual Meeting. An annual meeting of the shareholders shall
be held each year at a time and on a day as may be selected by the
board of directors. At the meeting, the shareholders shall elect
directors and transact such other business as may properly be brought
before the meeting.
2.03 Voting List. At least ten days before each meeting of
shareholders, a complete list of the shareholders entitled to vote at
the meeting, arranged in alphabetical order, with the address of each
and the number of voting shares held by each, shall be prepared by the
officer or agent having charge of the stock transfer books. The list,
for a period of ten days prior to the 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.
The list shall also be produced and kept open at the time and place of
the meeting during the whole time thereof, and shall be subject to the
inspection of any shareholder during the whole time of the meeting.
2.04 Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or by
the articles of incorporation, may be called by the president, the
Board of Directors, or the holders of not less than twenty-five
percent of all of the shares entitled to vote at the meetings.
Business transacted at a special meeting shall be confined to the
objects stated in the notice of the meeting.
2.05 Notice. Written or printed notice stating the place, day
and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be
delivered not less than ten nor more than fifty days before the date
of the meeting, either personally or by mail, by or at the direction
of the president, the secretary, or the officer or person calling the
meeting, to each shareholder of record entitled to vote at 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 of the
corporation, with postage thereon prepaid.
2.06 Quorum. At all meetings of the shareholders, the presence
in person or by proxy of the holders of a majority of the shares
issued and outstanding and entitled to vote will be necessary and
sufficient to constitute a quorum for the transaction of business
except as otherwise provided by law, the articles of incorporation or
these bylaws. If a quorum is not present or represented at a meeting
of the shareholders, the shareholders entitled to vote, present in
person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice (other than announcement at
the meeting of the time and place at which the meeting is to be
reconvened) until a quorum is present or represented. At such
adjourned meeting at which a quorum is present or represented, any
business may be transacted which might have been transacted at the
meeting as originally notified. For purposes of determining the
presence or absence of a quorum under this bylaw 2.06, abstentions and
broker non-votes (as such terms are defined in bylaw 2.07) shall be
treated as shares present and entitled to vote.
2.07 Majority Vote; Withdrawal of Quorum. When a quorum is
present at any meeting of the shareholders, the vote of the holders of
a majority of the shares entitled to vote, present in person or
represented by proxy and voting "for" or "against" any question brought
before the meeting shall decide such question, unless the question is
one upon which, by express provision of law, the articles of
incorporation or these bylaws, a different vote is required in which
case such express provision shall govern and control the decision of
such question but if such other express provision does not specify
that the affirmative vote of a given percent of outstanding shares are
required, the matter shall be approved or adopted if the required
percent of the shares entitled to vote, present in person or
represented by proxy and voting "for" or "against" such matter has voted
"for". Abstentions and broker non-votes are not counted (even though
such shares are considered present and entitled to vote for purposes
of determining a quorum pursuant to bylaw 2.06). The term
"abstentions" shall refer to shares which are not voted "for" or
"against" a particular question by a holder or holders present in
person or by proxy at a meeting and entitled to vote such shares on
such question. The term "broker non-vote" shall refer to shares held
by brokers or nominees as to which instructions have not been received
from the beneficial owners or persons entitled to vote and that the
broker or nominee does not have discretionary power to vote on the
particular question on which the vote is being counted. Anything
herein to the contrary notwithstanding, any alteration, amendment, or
repeal of bylaws 2.07, 3.02, 3.03, 3.04, 3.05, 3.11 and 7.09, or
adoption of any provision inconsistent therewith, by the shareholders
shall require the vote of the holders of two-thirds (2/3) of the
shares having voting power. The shareholders present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less
than a quorum.
2.08 Method of Voting. Each outstanding share shall be entitled
to one vote on each matter submitted to a vote at a meeting of
shareholders. At any meeting of the shareholders, every shareholder
having the right to vote may vote either in person, or by proxy
executed in writing by the shareholder or by his duly authorized
attorney-in-fact. No proxy shall be valid after seven months from the
date of its execution, unless otherwise provided in the proxy. Each
proxy shall be revocable unless expressly provided therein to be
irrevocable and unless otherwise made irrevocable by law. Each proxy
shall be filed with the secretary of the corporation prior to or at
the time of the meeting. Voting for directors shall be in accordance
with Section 3.06 of these bylaws. Any vote may be taken by voice or
by show of hands unless someone entitled to vote objects, in which
case, written ballots shall be used.
2.09 Record Date; Closing Transfer Books. The board of directors
may fix in advance a record date for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of the
shareholders, the record date to be not less than ten (10) nor more
than sixty (60) days prior to the meeting; or the board of directors
may close the stock transfer books for such purpose for a period of
not less than ten nor more than sixty (60) days prior to such meeting.
In the absence of any action by the board of directors, the date upon
which the notice of the meeting is mailed shall be the record date.
2.10 Action Without Meeting. Any action required by statute to
be taken at a meeting of the shareholders, or any action which may be
taken at a meeting of the shareholders, may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be
signed by all of the shareholders entitled to vote with respect to the
subject matter thereof and such consent shall have the same force and
effect as a unanimous vote of the shareholders. The consent may be in
more than one counterpart so long as each shareholder signs one of the
counterparts. The consent shall be placed in the Minute Book.
2.11 Order of Business at Meetings. The order of business at
annual meetings and so far as practicable at other meetings of
shareholders shall be as follows unless changed by the board of
directors:
(1) call to order
(2) proof of due notice of meeting
(3) determination of quorum and examination of proxies
(4) announcement of availability of voting list (see Bylaw
2.03)
(5) announcement of distribution of annual statement (see
Bylaw 8.03)
(6) reading and disposing of minutes of last meeting of
shareholders
(7) reports of officers and committees
(8) appointment of voting inspectors
(9) unfinished business
(10) new business
(11) nomination of directors
(12) opening of polls for voting
(13) recess
(14) reconvening; closing of polls
(15) report of voting inspectors
(16) other business
(17) adjournment
2.12 Notice of Matters to be Considered. At an annual meeting of
the shareholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought
before an annual meeting, business must be specified in the notice of
meeting (or any supplement thereto) given by or at the direction of
the board of directors, otherwise properly brought before the meeting
by or at the direction of the board of directors, or otherwise
properly brought before the meeting by a shareholder. In addition to
any other applicable requirements, for business to be properly brought
before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the secretary of the
corporation. To be timely, a shareholder's notice must be delivered
to or mailed and received at the principal executive offices of the
corporation not less than fifty (50) days nor more than seventy-five
(75) days prior to the meeting; provided, however, that in the event
that less than sixty-five (65) days' notice or prior public disclosure
of the date of the meeting is given or made to shareholders, notice by
the shareholder to be timely must be so received not later than the
close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such pubic
disclosure was made. A shareholder's notice to the secretary shall
set forth as to each matter the shareholder proposes to bring before
the annual meeting (i) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (ii) the name and record address
of the shareholder proposing such business, (iii) the class and number
of shares of the corporation which are beneficially owned by the
shareholder, and (iv) any material interest of the shareholder in such
business.
Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at the annual meeting except in accordance
with the procedures set forth in this Section 2.12; provided, however,
that nothing in this Section 2.12 shall be deemed to preclude
discussion by any shareholder of any business properly brought before
the annual meeting in accordance with said procedure.
The chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this
Section 2.12, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the
meeting shall not be transacted.
2.13 Nominations. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
directors of the corporation may be made at a meeting of shareholders
by or at the direction of the board of directors by any nominating
committee or person appointed by the board of directors or by any
shareholder of the corporation entitled to vote for the election of
directors at the meeting who complies with the notice procedures set
forth in this Section 2.13. Such nominations, other than those made
by or at the direction of the board of directors, shall be made
pursuant to timely notice in writing to the secretary of the
corporation. To be timely, a shareholder's notice shall be delivered
to or mailed and received at the principal executive offices of the
corporation not less than fifty (50) days nor more than seventy-five
(75) days prior to the meeting; provided, however, that in the event
that less than sixty-five (65) days' notice or prior public disclosure
of the date of the meeting is given or made to shareholders, notice by
the shareholder to be timely must be so received not later than the
close of business on the 15th day following the date on which such
notice of the date of the meeting was mailed or such pubic disclosure
was made. Such shareholder's notice to the secretary shall set forth
(a) as to each person whom the shareholder proposes to nominate for
election or re-election as a director, (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of
shares of capital stock of the corporation which are beneficially
owned by the person, and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies
for election of directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended; and (b) as to the
shareholder giving the notice, (i) the name and record address of the
shareholder and (ii) the class and number of shares of capital stock
of the corporation which are beneficially owned by the shareholder.
The corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as a
director of the corporation. No person shall be eligible for election
as a director of the corporation unless nominated in accordance with
the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Article 3: Directors
3.01 Management. The business and affairs of the corporation
shall be managed by the board of directors who may exercise all such
powers of the corporation and do all such lawful acts and things as
are not (by statute or by the articles of incorporation or by these
bylaws) directed or required to be exercised or done by the
shareholder.
3.02 Number; Qualifications; Election; and Term. The board of
directors shall consist of nine (9) directors until the annual meeting
of shareholders to be held in May 1998 at which time the number of
directors shall be reduced to eight (8) directors until thereafter
changed by resolution adopted by the board of directors pursuant to
Bylaw 3.03. None of the members of the board of directors need to be
shareholders or residents of the State of Texas. The directors shall
be elected at the annual meeting of the shareholders, except as
provided in Bylaws 3.03 and 3.05. Each director shall hold office
until his successor shall be elected and shall qualify.
3.03 Change in Number. The number of directors may be increased
or decreased from time to time by resolution adopted by the Board of
Directors but no decrease shall have the effect of shortening the term
of any incumbent director.
3.04 Removal. Any director may be removed either for or without
cause at any special or annual meeting of shareholders, by the
affirmative vote of over two-thirds in number of shares of the
shareholders present in person or by proxy at such meeting and
entitled to vote for the election of such director if notice of
intention to act upon such matter shall have been given in the notice
calling such meeting.
3.05 Vacancies. Any vacancy occurring in the board of directors
(by death, resignation or removal) may be filled by an affirmative
vote of a majority of the remaining directors though less than a
quorum of the board of directors. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office.
Any directorship to be filled by reason of an increase in the number
of directors shall be filled either (i) by election at an annual
meeting or at a special meeting of shareholders called for that
purpose or (ii) by the Board, provided the Board may not fill more
than two such directorships during the period between any two
successive annual meetings of shareholders.
3.06 Election of Directors. Directors shall be elected by
plurality vote. Cumulative voting shall not be permitted.
3.07 Place of Meetings. Meetings of the board of directors,
regular or special, may be held either within or without the State of
Texas.
3.08 First Meeting. The first meeting of each newly elected
board shall be held without further notice immediately following the
annual meeting of shareholders, and at the same place, unless (by
unanimous consent of the directors then elected and serving) such time
or place shall be changed.
3.09 Regular Meetings. Regular meetings of the board of
directors may be held without notice at such time and place as shall
from time to time be determined by the board.
3.10 Special Meetings. Special meetings of the board of
directors may be called by the president on three days' notice to each
director, either personally or by mail or by telegram. Special
meetings shall be called by the president or secretary in like manner
and on like notice on the written request of a majority of the
directors. Except as otherwise expressly provided by statute, or by
the articles of incorporation, or by these bylaws, neither the
business to be transacted at, nor the purpose of, any special meeting
need be specified in a notice or waiver of notice.
3.11 Quorum; Majority Vote. At all meetings of the board of
directors, a majority of the board of directors fixed by these Bylaws
shall constitute a quorum for the transaction of business. The act of
a majority of the directors present at any meeting at which a quorum
is present shall be the act by the board of directors, except as
otherwise specifically provided by statute, by the Articles of
Incorporation or by these Bylaws. Anything herein to the contrary not
withstanding, any alteration, amendment, or repeal of Bylaws 2.07,
3.02, 3.03, 3.04, 3.05, 3.11 and 7.09, or adoption of any provision
inconsistent therewith, by the board of directors shall require the
affirmative vote of two-thirds (2/3) of the board of directors of the
corporation. If a quorum is not present at a meeting of the board 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.
3.12 Compensation. By resolution of the board of directors, the
directors may be paid their expenses, if any, of attendance at each
meeting of the board of directors and may be paid a fixed sum for
attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving
compensation therefor. Members of the Executive Committee or of
special or standing committees may, by resolution of the board of
directors, be allowed like compensation for attending committee
meetings.
3.13 Procedure. The board of director shall keep regular minutes
of its proceedings. The minutes shall be placed in the minute book of
the corporation.
3.14 Interested Directors and Officers.
(a)An otherwise valid contract or transaction between the
corporation and one or more of its directors or officers, or between
the corporation and any other corporation, partnership or other entity
in which one or more of the directors or officers are directors or
officers or have a financial interest, shall be valid notwithstanding
that the director or officer is present at or participates in the
meeting of the board of directors or committee thereof which
authorizes the contract or transaction, or solely because his or their
votes are counted for such purposes, if:
(1)The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are
known to the board of directors or the committee, and the board of
directors or committee in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum; or
(2)The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are
known to the shareholders entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by vote of the
shareholders; or
(3)The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved, or ratified by
the board of directors, a committee thereof, or the shareholders.
(b)Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of
directors.
3.15 Action Without Meeting. Any action required or permitted to
be taken at a meeting of the board of directors may be taken without a
meeting if a consent in writing, setting forth the action so taken, is
signed by all members of the board of directors. Such consent shall
have the same force and effect as a unanimous vote at a meeting and
may be stated as such in any document or instrument filed with the
Secretary of State.
3.16 Advisory Directors. The board of directors, by resolution
adopted by not less than a majority of the directors then in office,
may from time to time appoint such number of individuals as it may
deem appropriate to serve as advisory directors at the pleasure of the
board of directors. Advisory directors may be given such designations
(including without limitation "advisory director," "director emeritus"
or "honorary director") as the board of directors may from time to time
determine. Advisory directors are not, and shall not have the duties
and responsibilities of, directors of the corporation, and the terms
"director" or "member of the board of directors" as used in these Bylaws
shall not be deemed to mean or include advisory directors. Without
limiting the generality of the foregoing, advisory directors shall not
be entitled (a) to receive any notice of any meeting of the board of
directors, (b) to attend any meeting of the board of directors except
at the invitation of the board of directors, (c) to vote on any matter
presented for action by the board of directors or, except at the
invitation of the board of directors, to participate in the
consideration of any such matter or the formulation or determination
of corporate policy, (d) to receive any non-public information
regarding the business or affairs of the corporation or any matters
presented for action or consideration by the board of directors, or
(e) to receive any compensation for serving as an advisory director
except as the board of directors may otherwise determine by
resolution.
Article 4: Notice and Attendance Through Use of Electronic Equipment
4.01 Method. Whenever by statute or the articles of
incorporation or these bylaws, notice is required to be given to any
director or shareholder, and no provision is made as to how the notice
shall be given, it shall not be construed to mean personal notice, but
any such notice may be given (a) in writing, by mail, postage prepaid,
addressed to the director or shareholder at the address appearing on
the books of the corporation, or (b) in any other method permitted by
law. Any notice required or permitted to be given by mail shall be
deemed given at the time when the same is thus deposited in the United
States mails.
4.02 Waiver. Whenever, by statute or the articles of
incorporation or these bylaws, 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 in such notice, shall be equivalent to the giving of such
notice. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director attends for
the express purpose of objecting to the transaction of any business on
the ground that the meeting is not lawfully called or convened.
4.03 Telephone and Similar Meetings. Shareholders, directors and
committee members may participate in and hold a meeting by means of
conference telephone or similar communications equipment by means of
which all persons participating in the meeting shall constitute
presence in person at the meeting, except where a person participates
in the 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.
Article 5: Officers and Agents
5.01 Number; Qualification; Election; Term.
(a) The corporation shall have:
(1) a president, a vice president, a secretary and a
treasurer, and
(2) such other officers (including a chairman of the
board and additional vice presidents) and assistant officers and
agents as the board of directors may think necessary.
(b) No officer or agent need be a shareholder, a director
or a resident of Texas.
(c) Officers named in Section 5.01(a)(1) shall be elected
by the board of directors on the expiration of an officer's term or
whenever a vacancy exists. Officers and agents named in Section
5.01(a)(2) may be elected by the board at any meeting.
(d) Unless otherwise specified by the board at the time of
election or appointment, or in any employment contract approved by the
board, each officer's and agent's term shall end at the first meeting
of directors after the next annual meeting of shareholders. He shall
serve until the end of his term or, if earlier, his death, resignation
or removal.
(e) Any two or more offices may be held by the same
person, except that the president and the secretary shall not be the
same person.
5.02 Removal. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever
in its judgment the best interests of the corporation will be served
thereby. Such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of
an officer or agent shall not of itself create contract rights.
5.03 Vacancies. Any vacancy occurring in any office of the
corporation (by death, resignation, removal or otherwise) maybe filled
by the board of directors.
5.04 Authority. Officers and agents shall have such authority
and perform such duties in the management of the corporation as are
provided in these bylaws or as may be determined by resolution of the
board of directors not inconsistent with these bylaws.
5.05 Compensation. The compensation of officers and agents shall
be fixed from time to time by the board of directors.
5.06 President. The president shall be the chief executive
officer of the corporation; he shall preside at all meetings of the
shareholders and the board of directors, shall have general and active
management of the business and affairs of the corporation, shall see
that all orders and resolutions of the board are carried into effect.
He shall perform such other duties and have such other authority and
powers as the board of directors may from time to time prescribe.
5.07 Vice Presidents. The vice presidents, in the order of their
seniority unless otherwise determined by the board of directors,
shall, in the absence or disability of the president, perform the
duties and have the authority and exercise the powers of the
president. They shall perform such other duties and have such other
authority and powers as the board of directors may from time to time
prescribe or as the president may from time to time delegate.
5.08 Secretary.
(a) The secretary shall attend all meetings of the board
of directors and all meetings of the shareholders and record the
minutes of all proceedings in a book to be kept for that purpose.
(b) The secretary shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the board
of directors.
(c) The secretary shall keep in safe custody the seal of
the corporation and, when authorized by the board of directors or the
executive committee, affix the same to any instrument requiring it.
(d) The secretary shall be under the supervision of the
president and shall perform such other duties and have such other
authority and powers as the board of directors may from time to time
prescribe or as the president may from time to time delegate.
5.09 Assistant Secretary. The assistant secretary shall, in the
absence or disability of the secretary, perform the duties and have
the authority and exercise the powers of the secretary. He shall
perform such other duties and have such other powers as the board of
directors may from time to time prescribe or as the president may from
time to time delegate.
5.10 Treasurer.
(a) The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of
receipts and disbursements of the corporation and shall deposit all
monies 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.
(b) 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 president and directors, at the
regular meetings of the board, or whenever they may require it, an
account of all his transactions as treasurer and of the financial
condition of the corporation.
(c) If required by the board of directors, he shall give
the corporation a bond in such form, 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.
(d) He shall perform such other duties and have such other
authority and powers as the board of directors may from time to time
prescribe or as the president may from time to time delegate.
5.11 Assistant Treasurer. The assistant treasurer shall, in the
absence or disability of the treasurer, perform the duties and have
the authority and exercise the powers of the treasurer. He shall
perform such other duties and have such other powers as the board of
directors may from time to time prescribe or the president may from
time to time delegate.
5.12 Chairman of the Board. The chairman of the board shall have
such duties as may be assigned to him from time to time by the board
of directors.
5.13 Vice-Chairman of the Board. The vice chairman of the board
shall act as a liaison between the board of directors and the
shareholders of the corporation and shall keep the shareholders fully
advised with regard to progress of the corporation and with regard to
any major policy decisions made by the board of directors.
5.14 Second Vice Presidents. The board of directors may
designate vice presidents to serve in the absence of the vice
president in charge of any area of responsibility and, in such event,
to perform the duties and have the authority of such absent vice
president. Additionally, a second vice president shall perform such
other duties and have such other authority and powers as the board of
directors may from time to time prescribe.
Article 6: Certificates and Shareholders
6.01 Certificates. Certificates in the form determined by the
board of directors shall be delivered representing all shares to which
shareholders are entitled. Certificates shall be consecutively
numbered and shall be entered in the books of the corporation or its
agents as they are issued. Each certificate shall state on its face
the holder's name, the number and class of shares, the par value of
shares or a statement that such shares are without par value, and such
other matters as may be required by law. They shall be signed by the
president or a vice president and such other officer or officers as
the board of directors shall designate, and may be sealed with the
seal of the corporation or a facsimile thereof. If any certificate is
countersigned by a transfer agent or registered by a registrar (either
of which is other than the corporation or an employee of the
corporation), the signature of any such officer may be facsimile. In
case any officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of its
issuance.
6.02 Issuance. Shares (both treasury and authorized but
unissued) may be issued for such consideration (not less than par
value) and to such persons as the board of directors may determine
from time to time. Shares may not be issued until the full amount of
the consideration, fixed as provided by law, has been paid.
6.03 Payment for Shares.
(a) Kind. The consideration for the issuance of shares
shall consist of money paid, labor done (including services actually
performed for the corporation) or property (tangible or intangible)
actually received. Neither promissory notes nor the promise of future
services shall constitute payment for shares.
(b) Validation. In the absence of fraud in the
transaction, the judgment of the board of directors as to the value of
consideration received shall be conclusive.
(c) Effect. When consideration, fixed as provided by law,
has been paid, the shares shall be deemed to have been issued and
shall be considered fully paid and nonassessable.
(d) Allocation of Consideration. The consideration
received for shares shall be allocated by the board of directors in
accordance with law, between stated capital and capital surplus
accounts.
6.04 Subscriptions. Unless otherwise provided in the
subscription agreement, subscriptions for shares, whether made before
or after organization of the corporation, shall be paid in full at
such time or in such installments and at such times as shall be
determined by the board of directors. Any call made by the board of
directors for payment on subscriptions shall be uniform as to all
shares of the same series. In case of default in the payment on any
installment or call when payment is due, the corporation may proceed
to collect the amount due in the same manner as any debt due to the
corporation.
6.05 Lien. For any indebtedness of a shareholder to the
corporation, the corporation shall have a first and prior lien on all
shares of its stock owned by him and on all dividends or other
distributions declared thereon.
6.06 Lost, Stolen or Destroyed Certificates. The corporation
shall issue a new certificate in place of any certificate for shares
previously issued if the registered owner of the certificate:
(a) Claim. Makes proof in affidavit form that it has been
lost, destroyed or wrongfully taken; and
(b) Timely Request. Requests the issuance of a new
certificate before the corporation has notice that the certificate has
been acquired by a purchaser for value in good faith and without
notice of an adverse claim; and
(c) Bond. Gives a bond in such form, and with such surety
or sureties, with fixed or open penalty, as the corporation may
direct, to indemnify the corporation (and its transfer agent and
registrar, if any) against any claim that may be made on account of
the alleged loss, destruction or theft of the certificate; and
(d) Other Requirements. Satisfies any other reasonable
requirements imposed by the corporation.
When a certificate has been lost, apparently destroyed or wrongfully
taken, and the holder of record fails to notify the corporation within
a reasonable time after he has notice of it, and the corporation
registers a transfer of the shares represented by the certificate
before receiving such notification, the holder of record is precluded
from making any claim against the corporation for the transfer or for
a new certificate.
6.07 Registration of Transfer. The corporation shall register
the transfer of a certificate for shares presented to it for transfer
if:
(a) Endorsement. The certificate is properly endorsed by
the registered owner or by his duly authorized attorney; and
(b) Guarantee and Effectiveness of Signature. The
signature of such person has been guaranteed by a national banking
association or member of the New York Stock Exchange, and reasonable
assurance is given that such endorsements are effective; and
(c) Adverse Claims. The corporation has no notice of an
adverse claim or has discharged any duty to inquire into such a claim;
and
(d) Collection of Taxes. Any applicable law relating to
the collection of taxes has been complied with.
6.08 Registered Shareholders. The corporation shall be entitled
to treat the holder of record of any share or shares of stock 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 person, whether or not it has express
or other notice thereof, except as otherwise provided by law.
6.09 Denial of Preemptive Rights. No shareholder of corporation
nor other person shall have any preemptive rights whatsoever.
Article 7: General Provisions
7.01 Dividends and Reserves.
(a) Declaration and Payment. Subject to statute and the
articles of incorporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash,
in property or in shares of the corporation. The declaration and
payment shall be at the discretion of the board of directors.
(b) Record Date. The board of directors may fix in
advance a record date for the purpose of determining shareholders
entitled to receive payment of any dividend, the record date to be not
more than fifty days prior to the payment date of such dividend, or
the board of directors may close the stock transfer books for such
purpose for a period of not more than fifty days prior to the payment
date of such dividend. In the absence of any action by the board of
directors, the date upon which the board of directors adopts the
resolution declaring the dividend shall be the record date.
(c) Reserves. By resolution the board of directors may
create such reserve or reserves out of the earned surplus of the
corporation as the directors from time to time, in their discretion,
think proper to provide for contingencies, or to equalize dividends,
or to repair or maintain any property of the corporation, or for any
other purpose they think beneficial to the corporation. The directors
may modify or abolish any such reserve in the manner in which it was
created.
7.02 Books and Records. The corporation shall keep correct and
complete books and records of account and shall keep minutes of the
proceedings of its shareholders and board of directors, and shall keep
at its registered office or principal place of business, or at the
office of its transfer agent or registrar, a record of its
shareholders, giving the names and addresses of all shareholders and
the number and class of the shares held by each.
7.03 Annual Statement. The board of directors shall present at
each annual meeting of shareholders a full and clear statement of the
business and condition of the corporation, including a reasonably
detailed balance sheet, income statement and surplus statement.
7.04 Checks and Notes. 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.
7.05 Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
7.06 Seal. The corporation seal (of which there may be one or
more) shall contain the name of the corporation and the name of the
state of incorporation. The seal may be used by impressing it or
reproducing a facsimile of it, or otherwise.
7.07 Indemnification; Insurance.
The corporation shall indemnify to the full extent permitted by
law any person who is made a named defendant or respondent in any
action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative, or in any appeal in such action, suit or
proceeding, by reason of the fact that he or she is or was a director
or officer of the corporation, against all expenses (including
attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such director or officer in
connection with any such action, suit or proceeding. The corporation
may indemnify other persons, as permitted by law. The corporation may
advance expenses to directors, officers or other persons, as permitted
by law. The corporation may purchase and maintain insurance on behalf
of the directors, officers or other persons, against any liability
asserted against such persons in their capacities as directors,
officers or otherwise, of the corporation, whether or not the
corporation would have the power to indemnify such directors, officers
or other persons against such liability.
7.08 Resignation. Any director, officer or agent may resign by
giving written notice to the president or the secretary. The
resignation shall take effect at the time specified therein, or
immediately if no time is specified therein. Unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
7.09 Amendment of Bylaws. These Bylaws may be altered, amended
or repealed or new Bylaws may be adopted by the board of directors
(subject to the shareholders repealing or changing the action of the
board of directors, or making new Bylaws, at an annual or special
meeting called and held as provided in these Bylaws) at any meeting at
which a quorum is present.
7.10 Construction. Whenever the context so requires, the
masculine shall include the feminine and neuter, and the singular
shall include the plural, and conversely. If any portion of these
bylaws shall be invalid or inoperative, then, so far as is reasonable
and possible:
(a) The remainder of these bylaws shall be considered
valid and operative, and
(b) Effect shall be given to the intent manifested by the
portion held invalid or inoperative.
7.11 Table of Contents; Headings. The table of contents and
headings used in these bylaws have been inserted for convenience only
and do not constitute matter to be construed in interpretation.
7.12 Relation to Articles of Incorporation. These bylaws are
subject to and governed by the articles of incorporation.
Article 8: Committees
8.01 Designation. The board of directors may, by resolution
adopted by a majority of the whole board, designate from among its
members an executive committee and one or more such other committees
as it may determine necessary.
8.02 Number; Qualification; Term. The executive committee and
any other designated committees shall consist of two or more
directors, not less than a majority of whom in each case shall be
directors who are not officers or employees of the Company. The
committees shall serve at the pleasure of the board of directors.
8.03 Authority. Each committee, to the extent provided in such
resolution, shall have and may exercise all of the authority of the
board of directors in the management of the business and affairs of
the corporation, except in the following matters and except where
action of the full board of directors is required by statute or by the
articles of incorporation:
(a) Amending the articles of incorporation;
(b) Amending, altering or repealing the bylaws of the
corporation or adopting new bylaws;
(c) Approving and/or recommending or submitting to
shareholders:
(1) merger
(2) consolidation
(3) sale, lease (as Lessor), exchange or other
disposition of all or substantially all the property and assets of the
corporation;
(4) dissolution;
(d) Filling vacancies in the board of directors or any
such committee;
(e) Electing or removing officers of the corporation or
members of any such committee;
(f) Fixing compensation of any person who is a member of
any such committee;
(g) Declaring dividends;
(h) Altering or repealing any resolution of the board of
directors.
8.04 Change in Number. The number of committee members may be
increased or decreased (but not below two) from time to time by
resolution adopted by a majority of the whole board of directors.
8.05 Removal. Any committee member may be removed by the board
of directors by the affirmative vote of a majority of the whole board,
whenever in its judgment the best interests of the corporation will be
served thereby.
8.06 Vacancies. A vacancy occurring in any committee (by death,
resignation, removal or otherwise) may be filled by the board of
directors in the manner provided for original designation in paragraph
8.01.
8.07 Meetings. Time, place and notice (if any) of all committee
meetings shall be determined by the respective committee. (see also
paragraph 4.03).
8.08 Quorum; Majority Vote. At meetings of any committee, a
majority of the number of members designated by the board of directors
shall constitute a quorum for the transaction of business. The act of
a majority of the members present at any meeting at which a quorum is
present shall be the act of the committee, except as otherwise
specifically provided by statute or by the articles of incorporation
or by these bylaws. If a quorum is not present at a meeting of the
committee, the members present thereat may adjourn the meeting from
time to time, without notice other than an announcement at the meeting
until a quorum is present.
8.09 Compensation. Compensation of committee members shall be
fixed pursuant to the provisions of paragraph 3.12 of these bylaws.
EXHIBIT 99.4
GAINSCO, INC. RESCHEDULES
ANNUAL MEETING DATE
FORT WORTH, TX, May 4, 1998 -- GAINSCO, INC. (NYSE:GNA) today
announced that the annual meeting of shareholders has been rescheduled
for July 17, 1998 and the record date for the meeting will be May 26,
1998.
New proxy materials will be circulated which will disclose that
the matters to be considered at the meeting are the election of eight
incumbent directors, including Glenn W. Anderson, who was recently
added to the Board in place of Joseph D. Macchia, who retired,
approval of a corporate compensation plan and the approval of the
continuance of KPMG Peat Marwick, LLP as the company's auditors.
Proxies for the meeting originally scheduled for May 18, 1998 are no
longer valid and may be discarded.
GAINSCO, INC. is a vertically integrated property and casualty
insurance holding company specializing in underwriting excess and
surplus lines. Its insurance companies are all rated "A+" by A.M.
Best. GAINSCO's insurance service subsidiaries offer premium
financing programs and computer software systems for general agents.
Release Date: May 4, 1998 -- FOR IMMEDIATE RELEASE
Company Contacts: Richard Buxton, Vice President (817) 336-2500 or
Fred Roberts, Manger IR (817) 336-2500
email address: [email protected]
Website: www.gainsco.com
