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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
OEC COMPRESSION CORPORATION
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(Exact name of registrant as specified in its charter)
Oklahoma 73-1345732
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
2501 Cedar Springs Road, Suite 600
Dallas, Texas 75201
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class is
to be so registered to be registered
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Common Stock, $0.01 American Stock Exchange
par value per share
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box [x].
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d) check the following box [ ].
Securities Act registration statement file number to which this form
relates: n/a
Securities to be registered pursuant to Section 12(g) of the Act:
None
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
Under the Company's Certificate of Incorporation, the Company is authorized
to issue up to 60,000,000 shares of Common Stock, par value $.01 per share. At
August 7, 1998, there were approximately 29,381,211 shares of Common Stock
outstanding. Subject to any preferential rights of the holders of any
outstanding shares of preferred stock, the holder of outstanding shares of
Common Stock are entitled to receive dividends out of assets legally available
at such times and in such amounts as the Board of Directors may, from time to
time, determine. Holders of the Common Stock are entitled to share ratably in
the net assets of the Company upon liquidation or dissolution after payment or
provision for all liabilities and any preferential liquidation rights of any
outstanding shares of preferred stock. Holders of Common Stock are entitled to
one vote per share on matters voted upon by the stockholders. The Common Stock
has no preemptive rights and no subscription, redemption or conversion
privileges. The Common Stock does not have cumulative voting rights, which
means that the holders of a majority of shares voting for the election of
directors can elect all members of the Board of Directors subject to election.
All of the outstanding shares of Common Stock are fully paid and nonassessable.
PREFERRED STOCK
Under the Company's Certificate of Incorporation, the Board of Directors of
the Company is empowered, without further approval from the stockholders of the
Company, to issue up to 1,000,000 shares of preferred stock, par value $1.00 per
share ("Preferred Stock"), in one or more series and to establish the number of
shares to be included in each such series and the rights, powers, preferences
and limitations of each series. Because the Board of Directors has the power to
establish the preferences and rights of each series, it may afford to the
holders of any series of Preferred Stock preferences, powers and rights, voting
or otherwise, senior to the rights of holders of Common Stock. The issuance of
the Preferred Stock could have the effect of delaying or preventing a change in
control of the Company. No shares of Preferred Stock have ever been issued, and
the Company's Board of Directors has no present plans to issue any Preferred
Stock.
DIVIDENDS
The Company does not presently intend to declare or pay dividends on the
Common Stock. The Company currently intends to retain as much of its earnings
as possible for the expansion of its business and operations. Any dividends to
holders of Common Stock
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will be subject to the dividend preferences on any class of Preferred Stock
issued by the Company in the future having a dividend preference. It is
likely that any credit or loan agreements that the Company may enter into in
the future may limit, restrict or prohibit the payment of dividends on the
Common Stock. Payments of dividends in the future, if any, will depend on
the applicable legal and contractual restrictions, as well as the financial
conditions and requirements of the Company and general business conditions.
STOCKHOLDER ACTION
Pursuant to the Company's Bylaws, with respect to any act or action
required of or by the holders of Common Stock, the affirmative vote of the
holders of a majority of the issued and outstanding Common Stock entitled to
vote thereon, which are present in person or represented by proxy at the meeting
called for that purpose, is sufficient to authorize, affirm, ratify or consent
to such act or action, except as otherwise provided in the Bylaws or by law.
The Company's Bylaws provide that stockholders may take certain action
without the holding of a meeting by written consent or consents signed by the
holders of a majority of the outstanding shares of the capital stock of the
Company entitled to vote thereon. Prompt notice of the taking of any action
without a meeting by less than unanimous consent of the stockholders will be
given to those stockholders who do not consent in writing to such action. The
purposes of this provision are to facilitate action by stockholders and to
reduce the corporate expense associated with annual and special meetings of
stockholders. Pursuant to the rules and regulations of the Commission, if
stockholder action is taken by written consent, the Company will be required to
send to each stockholder entitled to vote on the matter acted upon, but whose
consent was not requested, an information statement containing information
substantially similar to that which would have been contained in a proxy
statement.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
The Company's authorized but unissued capital stock consists of
approximately 19,855,880 shares of Common Stock. One of the effects of the
existence of authorized by unissued capital stock may be to enable the Board of
Directors to render more difficult or to discourage an attempt to obtain control
of the Company by means of a merger, tender offer, proxy contest or otherwise,
and thereby to protect the continuity of the Company's management. If in the
due exercise of its fiduciary obligations, for example, the Board of Directors
were to determine that a takeover proposal was not in the Company's best
interests, authorized but unissued shares of Common Stock could be issued by the
Board of Directors, without stockholder approval, in one or more private
offerings or other
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transactions that might prevent or render more difficult or costly the
completion of the takeover transaction by diluting the voting or other rights
of the proposed acquiror or insurgent stockholder or stockholder group, by
creating a substantial voting block in institutional or other hands that
might undertake to support the position of the incumbent Board of Directors,
by effecting an acquisition that might complicate or preclude the takeover,
or otherwise. The Company's Certificate of Incorporation also grants the
Board of Directors broad power to establish the rights and preferences of
authorized by unissued Preferred Stock, one or more series of which could be
issued entitling holders to vote separately as a class on any proposed merger
or consolidation, to convert Preferred Stock into a larger number of shares
of Common Stock or other securities, to demand redemption at a specified
price under prescribed circumstances related to a change in control, or to
exercise other rights designed to impede a takeover. The issuance of
Preferred Stock pursuant to the Board's authority described above could
decrease the amount of earnings and assets available for distribution to
holders of Common Stock, and adversely affect the rights and powers,
including voting rights, of such holders, and may have the effect of
delaying, deferring or preventing a change in control of the Company. The
Board of Directors does not intend to seek stockholder approval prior to any
issuance of authorized but unissued Preferred or Common Stock, unless
otherwise required by law.
CERTIFICATE OF INCORPORATION AND BYLAWS
Under Oklahoma law, the exclusive power to adopt, amend and repeal bylaws
is conferred solely upon the stockholders unless the corporation's certificate
of incorporation also confers such power upon its board of directors. Under the
Company's Certificate of Incorporation, the Board of Directors has been granted
this power. Under the Company's Bylaws, the Board of Directors is divided into
three classes of directors serving staggered terms. One class of directors is
elected at each annual meeting of stockholders for a three-year term. These
provisions, in addition to the existence of authorized but unissued capital
stock, may have the effect, either alone or in combination with each other, of
making more difficult or discouraging an acquisition of the Company deemed
undesirable by the Board of Directors.
OKLAHOMA TAKEOVER STATUTE
The Company is subject to Section 1090.3 of the Oklahoma General
Corporation Act. In general, Section 1090.3 prevents an "interested
stockholder" from engaging in a "business combination" with an Oklahoma
corporation for three years following the date such person became an interested
stockholder, unless (i) prior to the date such person became an interested
stockholder, the board of directors of the corporation approved the transaction
in which the interested stockholder became an interested stockholder or approved
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the business combination; (ii) upon consummation of the transaction that
resulted in the interested stockholder's becoming an interested stockholder, the
interested stockholder owns at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding stock held (y) by
directors who are also officers of the corporation and (z) by employee stock
plans that do not provide employees with the rights to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange
offer); or (iii) on or subsequent to the date of the transaction in which such
person became an interested stockholder, the business combination is approved by
the board of directors of the corporation and authorized at a meeting of
stockholders by the affirmative vote of the holders of two-thirds of the
outstanding voting stock of the corporation not owned by the interested
stockholder. Under Section 1090.3, the restrictions described above do not
apply to certain business combinations proposed by an interested stockholder
following the announcement or notification of one of a number of extraordinary
transactions involving the corporation and a person who had not been an
interested stockholder during the previous three years or who became an
interested stockholder with the approval of a majority of the corporation's
directors, if such extraordinary transaction is approved or not opposed by a
majority of the directors who were directors prior to any person becoming an
interested stockholder during the previous three years or were recommended for
election or elected to succeed such directors by a majority of such directors.
Section 1090.3 defines a "business combination" to include (i) any merger
or consolidation involving the corporation and an interested stockholder, (ii)
any sale, transfer, pledge or other disposition involving an interested
stockholder of 10% or more of assets of the corporation, (iii) subject to
certain exceptions, any transaction which results in the issuance or transfer by
the corporation of any stock of the corporation to an interested stockholder,
(iv) any transaction involving the corporation which has the effect of
increasing the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder, (v) the receipt by
an interested stockholder of any loans, guarantees, pledges or other financial
benefits provided by or through the corporation or (vi) any share acquisition by
the interested stockholder from the corporation pursuant to Section 1090.1 of
the Oklahoma General Corporation Act. In addition, an "interested stockholder"
is defined generally as any entity or person beneficially owning 15% or more of
the outstanding voting stock of the corporation and any entity or person
affiliated with or controlling or controlled by such an entity or person.
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STOCKHOLDER REPORTS
The Company will furnish to its stockholders annual reports containing
audited consolidated financial statements reported on by independent public
accountants for each fiscal year and, upon request, quarterly reports containing
unaudited consolidated financial information for the first three quarters of
each fiscal year.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholders Services.
ITEM 2. EXHIBITS
Listed below are all exhibits filed as part of the registration statement:
3.1. Certificate of Incorporation of the Corporation. Previously filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-8 (File No.
333-23925), which Exhibit is incorporated herein by reference.
3.2 Amendment to Certificate of Incorporation. Previously filed as
Exhibit 3.2 to the Company Registration Statement on Form S-8 (File No.
333-23925), which Exhibit is incorporated herein by reference.
*3.3 Second Amendment to Certificate of Incorporation.
*3.4 Amended and Restated Bylaws of Corporation.
* Filed herewith.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
OEC COMPRESSION CORPORATION
By: /s/ Jack Brannon
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Name: Jack Brannon
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Title: Executive Vice-President
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Date: August 7, 1998
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Exhibit 3.3
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
EQUITY COMPRESSION SERVICES CORPORATION
(FORMERLY KNOWN AS HAWKINS ENERGY CORPORATION)
TO: THE SECRETARY OF STATE OF OKLAHOMA
State Capitol Building
Oklahoma City, Oklahoma 73105
The undersigned Oklahoma corporation, for the purpose of amending its
Certificate of Incorporation as field on June 30, 1989, and as amended on
December 19, 1996, as provided by Section 1077 of the Oklahoma General
Corporation Act, hereby certifies:
1. That the name of the corporation is:
Equity Compression Services Corporation
2. The name of the corporation has been changed to
OEC Compression Corporation
3. The first sentence of Article Fourth of the Certificate of
Incorporation is hereby amended to read as follows:
"The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is 61,000,000,
60,000,000 of which shall be Common Stock of the par value of
$.01 per share (hereinafter called 'Common Stock') and 1,000,000
of which shall be Preferred Stock of the par value of $1.00 per
share (hereinafter called 'Preferred Stock')."
4. All other remaining provisions of the Certificate of Incorporation not
amended hereby shall remain unchanged and in full force and effect.
That the Board of Directors, acting by unanimous written consent without a
meeting pursuant to Section 1027 of the Oklahoma General Corporation Act,
approved and adopted the foregoing amendment to the Certificate of Incorporation
of said corporation (the "Amendment"), declaring the Amendment to be advisable
and calling a meeting of the shareholder of said corporation for consideration
thereof.
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That thereafter, pursuant to said resolution of the Board of Directors of
said corporation, the shareholders of said corporation, approved and adopted the
proposed Amendment pursuant to written Consent signed by, the holders of a
majority of the outstanding shares of Common Stock pursuant to Section 1073 of
Oklahoma General Act.
IN WITNESS WHEREOF, said HAWKINS ENERGY CORPORATION, has caused its
corporate seal to be affixed hereto and this Amendment to be signed by its
President and Secretary this 11th day of March, 1998.
EQUITY COMPRESSION SERVICES
CORPORATION
ATTEST:
By: /s/ Jack D. Brannon By: /s/ Matthew S. Ramsey
Jack D. Brannon MATTHEW S. RAMSEY
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AMENDED AND RESTATED
BYLAWS
OF
EQUITY COMPRESSION SERVICES CORPORATION
Effective as of May 21, 1997
ARTICLE I
OFFICES
Section 1.1 The registered office shall be in the City of Tulsa, County
of Tulsa, State of Oklahoma.
Section 1.2 The corporation may also have offices at such other places
both within and without the State of Oklahoma 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 2.1 PLACE OF MEETINGS. Meetings of shareholders for any purpose
may be held at such time and place, within or without the State of Oklahoma, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2.2 ANNUAL MEETINGS. Annual meetings of shareholders, commencing
with the year 1990, shall be held on the third Tuesday in May, if not a legal
holiday, and if a legal holiday, then on the next secular day following, at
10:00 a.m., at which they shall elect by a plurality vote by written ballot a
board of directors, and transact such other business as may be properly brought
before the meeting.
Section 2.3 NOTICE OF ANNUAL MEETINGS. Written notice of the ANNUAL
meeting, stating the place, date and hour of such meeting, shall be given to
each shareholder entitled to vote thereat not less than ten (10) days nor more
than sixty (60) days before the date of the meeting unless otherwise required by
law.
Section 2.4 LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer who has
charge of the stock ledger of the corporation shall prepare and make, at least
ten (10) days before every meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting, arranged in alphabetical order,
showing the address of and the number of shares registered in the name of each
shareholder. Such list shall be open to the examination of any shareholder, for
any purpose germane to the meeting, during ordinary business hours, either at a
place within the city where the meeting is to be held as specified in the notice
of the meeting, or, if not specified, at the place where the meeting is to
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be held, and the list shall be produced and kept at the time and place of the
meeting during the whole time thereof, and subject to the inspection of any
shareholder who may be present.
Section 2.5 SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by law or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or Secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of shareholders owning a
majority in the amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 2.6 NOTICE OF SPECIAL MEETING. Written notice of a special meeting
of shareholders, stating the place, date, hour and the purpose or purposes
thereof, shall be given to each shareholder entitled to vote thereat, not less
than ten (10) nor more than sixty (60) days before the date fixed for the
meeting.
Section 2.7 PURPOSE OF SPECIAL MEETINGS. Business transacted at any
special meeting of the shareholders shall be limited to the purposes stated in
the notice.
Section 2.8 QUORUM. The holders of a majority of the shares of stock
issued and outstanding and 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
or by the Certificate of Incorporation. 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
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;
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date and hour of the adjourned meeting shall be given in conformity herewith.
At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted at the meeting as originally notified.
Section 2.9 MAJORITY. When a quorum is present at any meeting, the
affirmative vote of the holders of a majority of the shares of stock having
voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of law or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
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Section 2.10 ONE VOTE PER SHARE. Unless otherwise provided for in the
Certificate of Incorporation, each shareholder shall at every meeting of the
shareholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such shareholder, but no proxy shall
be voted or acted upon after three (3) years from its date unless the proxy
provides for a longer period, and, except where the transfer books of the
corporation have been closed or a date has been fixed as a record date for the
determination of its shareholders entitled to vote, no share of stock shall be
voted on at any election for directors which has been transferred on the books
of the corporation within twenty (20) days preceding such election of directors.
Section 2.11 CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Unless otherwise
provided for in the Certificate of Incorporation, any action required to or
which may be taken at any annual or special meeting of the shareholders may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action by the shareholders without a meeting by less than
unanimous written consent shall be given to those shareholders who have not
consented in writing.
ARTICLE III
DIRECTORS
Section 3.1 NUMBER, QUALIFICATIONS, ELECTION AND TERM OF OFFICE. The
number of directors which shall constitute the whole Board shall be not less
than one (1) nor more than fifteen (15). Within the limits above specified, the
number of directors shall be determined by resolution of the Board of Directors
or by the shareholders at the annual or a special meeting of the shareholders;
provided that in the event the directors or shareholders fail to adopt such a
resolution, the number of directors previously fixed shall apply until further
action by the directors or shareholders. Each director shall serve until the
next annual meeting of shareholders and until his successor shall have been
elected and shall qualify, except in the event of his death, resignation or
removal. Directors need not be shareholders.
Section 3.2 VACANCIES. Vacancies and newly-created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority vote of the directors in office, though less than a quorum, or by a
sole remaining director. Each director so chosen shall hold office until the
next annual meeting of shareholders and until his successor shall have been
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duly elected and shall qualify, unless he dies, resigns or is removed prior to
such time. If there are no directors in office, then an election of directors
may be held in a manner provided by statute.
Section 3.3 GENERAL POWERS. The business of the corporation shall be
managed by its Board of Directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the shareholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 3.4 PLACE OF MEETINGS. The Board of Directors of the corporation
may hold meetings, both regular and special, either within or without the State
of Oklahoma.
Section 3.5 TIME AND PLACE OF REGULAR MEETING. Regular meetings of the
Board of Directors may be held at such time and at such place as shall from time
to time be determined by the Board. Five (5) days' notice of all regular
meetings shall be given, and such notice shall state the place, date, hour and
the business to be transacted at and purpose of such meeting.
Section 3.6 CALL AND NOTICE FOR SPECIAL MEETING. Special meetings of the
Board of Directors may be called by the President on three (3) 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 two (2) directors unless the corporation has at that
time less than three (3) directors, in which latter event the request of only
one (1) director shall be required. Notice of any special meeting shall state
the place, date, hour and the business to be transacted at and the purpose of
such meeting.
Section 3.7 QUORUM. At all meetings of the Board, a majority of the
directors shall constitute a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by law or by the Certificate of Incorporation. If a
quorum shall not be present at any 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 shall be present.
Section 3.8 DESIGNATION AND AUTHORITY OF COMMITTEES. The Board of
Directors may, by resolution, passed by a majority of the whole Board, designate
one or more committees, each committee to consist of one (1) or more of the
directors of the corporation,
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which, to the extent provided in the resolution, shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the corporation and may authorize the seal of the corporation to be
affixed to all papers which may require it. The Board may designate one or
more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence
or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the shareholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets,
recommending to the shareholders a dissolution of the corporation or a
revocation of a dissolution, or amending the Bylaws of the corporation; and,
unless the resolution or the Certificate of Incorporation expressly so
provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
Section 3.9 MINUTES OF COMMITTEES. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
Section 3.10 PARTICIPATION BY MEANS OF COMMUNICATION EQUIPMENT. Members of
the Board of Directors, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment that enables all persons participating in the meeting
to hear and speak to each other. Such participation shall constitute presence
in person at such meeting.
Section 3.11 CONSENT OF DIRECTORS IN LIEU OF MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if a written consent to
such action is signed by all members of the Board or of such committee as the
case may be, and such written consent is filed with the minutes of proceedings
of the Board or committee.
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Section 3.12 EXPENSES OF ATTENDANCE. The directors may be paid their
expenses, if any, of attendance at a meeting of the Board of Directors and may
be paid a fixed sum for attendance at such meeting of the Board of Directors or
a stated salary as directed. No such payment shall 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 3.13 VOTE REQUIRED FOR REMOVAL OF OFFICE. The Board of Directors
at any time may, by affirmative vote of a majority of the members of the Board
then in office, remove any officer elected or appointed by the Board of
Directors for cause or without cause.
Section 3.14 VOTE REQUIRED FOR REMOVAL OF DIRECTORS REPLACEMENT. Except as
otherwise provided in the Certificate of Incorporation or the General
Corporation Act of the State of Oklahoma, any director may be removed from
office, with or without cause, at any time by the holders of a majority of the
shares entitled to vote at any election of directors, at any annual or special
meeting of the shareholders. Upon such removal of a director, the shareholders
(and not the remaining directors) shall elect a director to replace such removed
director at the same shareholders' meeting at which such removal took place or
at a subsequent shareholders' meeting.
ARTICLE IV
NOTICES
Section 4.1 DELIVERY. Notices to directors and shareholders shall be in
writing and delivered personally or mailed to the directors or shareholders at
their addresses appearing on the books of the corporation. Notice by mail shall
be deemed to be given at the time when the same shall be deposited in the United
States mail, postage prepaid. Notice to directors may also be given by
telegram. Notice by telegram shall be deemed to be given when delivered to the
sending telegraph office.
Section 4.2 WAIVER. Whenever any notice is required to be given under the
provisions of law or of the Certificate of Incorporation or of these Bylaws, 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 deemed
equivalent to notice.
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ARTICLE V
OFFICERS
Section 5.1 NUMBER, QUALIFICATIONS AND DESIGNATION. The officers of the
corporation shall be chosen by the Board of Directors and shall be a President,
Secretary and such other officers as may be elected in accordance with the
provisions of Section 5.3 of this Article. One person may hold more than one
office. Officers may be, but need not be, Directors or Shareholders of the
corporation.
Section 5.2 ELECTION AND TERM OF OFFICE. The officers of the corporation,
except those elected by delegated authority pursuant to Section 5.3 of this
Article, shall be elected by the Board of Directors and shall serve at the
pleasure of the Board of Directors, and each such officer shall hold his office
until his successor shall have been elected and shall qualify, or until his
earlier death, resignation or removal. Any officer may resign at any time upon
written notice to the corporation or may be removed, with or without cause, by
the Board of Directors.
Section 5.3 OTHER OFFICERS, COMMITTEES AND AGENTS. The Board of Directors
may from time to time elect such other officers, including without limitation a
Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, a
Treasurer and one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers, and appoint such committees, employees and other agents as it deems
necessary, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as are provided in these bylaws, or as the Board
of Directors may from time to time determine. The chief executive officer of
the corporation shall be the Chairman of the Board, the President or any other
officer which the Board of Directors shall designate as such. The Board of
Directors may delegate to any officer or committee the power to elect
subordinate officers and to retain or appoint employees or other agents, or
committees thereof, and to prescribe the authority and duties of such
subordinate officers, committees, employees or other agents. The Board of
Directors may, by resolution, also modify, add to, reduce or eliminate the
specific powers, authority, duties or responsibilities of any officers specified
in these bylaws.
Section 5.4 CHAIRMAN OF THE BOARD AND VICE CHAIRMAN. The Chairman of the
Board of Directors, if any, shall preside at all meetings of the Board of
Directors. He may sign, with the Secretary or any other proper officer of the
corporation, thereunto authorized by the Board of Directors, and deliver on
behalf of the corporation any deeds, mortgages, bonds, contracts, powers of
attorney, and other instruments which the Board of Directors has authorized to
be executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of
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Directors or by these bylaws to some other officer or agent of the corporation
or shall be required by law to be otherwise signed or executed, and he shall
perform such other duties as may be prescribed by the Board of Directors from
time to time. The Vice Chairman, if any, shall, at the request of the
Chairman or in his absence or disability, per-form the duties and exercise the
powers of the Chairman, and shall perform such other duties as the Board of
Directors shall prescribe.
Section 5.5 PRESIDENT. The President shall be the chief operating officer
of the corporation and shall have general charge and active management of the
business, properties and operations of the corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. He
shall preside at all meetings of the Shareholders and, if there is no Chairman
or Vice Chairman of the Board, or in their absence, all meetings of the Board of
Directors. He shall possess the power to execute and acknowledge, in the name
and under the seal of the corporation, deeds, mortgages, bonds, contracts,
certificates and other instruments authorized by the Board of Directors, except
as may be otherwise provided or required by law, and except as may be expressly
delegated by the Board of Directors, or by these bylaws. He may employ all
agents and employees of the corporation and may discharge any such agent or
employee, and, in general, shall perform all duties incident to the office of
President, and such other duties as from time to time may be assigned to him by
the Board of Directors.
Section 5.6 VICE PRESIDENTS. Any Vice President shall, at the request of
the President or in his absence or disability, perform the duties and exercise
the powers of the President and such other duties as may from time to time be
assigned by the Board of Directors or by the President. At the discretion of
the Board of Directors, one or more Vice Presidents may be designated as an
Executive Vice President or Senior Vice President.
Section 5.7 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall
attend all meetings of the Shareholders and of the Board of Directors and shall
record the proceedings of the Shareholders and of the Directors and of
committees of the Board in a book or books to be kept for that purpose; see that
notices are given and records and reports properly kept and filed by the
corporation as required by law; be the custodian of the seal of the corporation
and see that it is affixed to all documents to be executed on behalf of the
corporation under its seal; and, in general, perform all duties incident to the
office of Secretary, and such other duties as may from time to time be assigned
to him by the Board of Directors or the President. Any Assistant Secretary
shall, at the request of the Secretary or in his absence or disability, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors or the President shall prescribe.
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Section 5.8 TREASURER AND ASSISTANT TREASURERS. The Treasurer, if
any, shall be the chief financial officer of the corporation. The Treasurer
shall have or provide for the custody of the funds or other property of the
corporation; whenever so required by the Board of Directors, shall render an
account showing his transactions as Treasurer and the financial condition of the
corporation; and, in general, shall discharge such other duties as may from time
to time be assigned to him by the Board of Directors or the President. Any
Assistant Treasurer shall, at the request of the Treasurer or in his absence or
disability, perform the duties and exercise the powers of the Treasurer and
shall perform such other duties as the Board of Directors or the President shall
prescribe.
Section 5.9 OFFICERS' BONDS. No officer of the corporation need provide a
bond to guarantee the faithful discharge of his duties unless the Board of
Directors shall by resolution so require a bond in which event such officer
shall cove the corporation a bond (which shall be renewed if and as required) in
such sum and with such surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties of his office.
Section 5.10 COMPENSATION. The compensation of the officers and agents of
the corporation elected by the Board of Directors shall be fixed from time to
time by the Board of Directors.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFERS OF STOCK,
CLOSING OF TRANSFER BOOKS AND
REGISTERED SHAREHOLDERS
Section 6.1 FORM. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of, the corporation by
the Chairman or Vice-Chairman of the Board of Directors, or the President or a
Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the corporation, certifying the number of shares
owned by the shareholder in the corporation. If the corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualification, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock,
provided that, except as otherwise provided in Section 1055 of Title 18 of the
Oklahoma Statutes, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement
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that the corporation will be without charge to each stockholder who so
requests a copy of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 6.2 SIGNATURES. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if the person who signed the certificate was such officer, transfer agent or
registrar at the date of issue.
Section 6.3 LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or such owner's legal representative, to advertise the same in
such manner as the corporation shall require and/or to give the corporation a
bond in such sum as the corporation may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 6.4 TRANSFER OF STOCK. Subject to transfer restrictions permitted
by Section 1055 of Title 18 of the Oklahoma Statutes and to stop transfer orders
directed in good faith by the corporation to any transfer agent to prevent
possible violations of federal or state securities laws, rules or regulations,
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 6.5 FIXING RECORD DATE. The Board of Directors may fix a record
date, which shall not be more than sixty (60) nor less than ten (10) days before
the date of any meeting of shareholders, nor more than sixty (60) days prior to
the time for the other action hereinafter described, as of which there shall be
determined the shareholders who are entitled: to notice of or to vote at any
meeting of shareholders or any adjournment thereof; to express consent to
corporate action in writing without a meeting; to receive payment of any
dividend or other distribution or allotment
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of any rights; or to exercise any rights with respect to any change,
conversion or exchange of stock or with respect to any other lawful action.
Section 6.6 REGISTERED SHAREHOLDERS. The corporation shall be entitled to
treat the person in whose name any share of stock is registered on the books of
the corporation as the owner thereof for all purposes including voting, receipt
of dividends and, where applicable, liability for calls and assessments, and
shall not be bound to recognize any equitable or other claim or other interest
in such shares in the part of any other person, whether or not the corporation
shall have express or other notice thereof.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 DECLARATION AND PAYMENT OF DIVIDENDS. Dividends upon the
capital stock of the corporation, subject to the provisions of the Certificate
of Incorporation, if any, may be declared by the Board of Directors at any
regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property or in shares of the corporation's capital stock.
Section 7.2 RESERVES FOR DIVIDENDS. There may be set apart out of any of
the funds of the corporation available for dividends such amounts as the Board
of Directors deems proper as a reserve or reserves for working capital,
depreciation, losses in value, or for any other proper corporate purpose, and
the Board of Directors may increase, decrease or abolish any such reserve in the
manner in which it was created.
Section 7.3 STATEMENT OF BUSINESS CONDITION. The Board of Directors shall
present at each annual meeting and at any special meeting of the shareholders
when called for by vote of the shareholders, a full and clear statement of the
business and condition of the corporation.
Section 7.4 CHECKS. 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.
Section 7.5 FISCAL YEAR. The fiscal year of the corporation shall be as
fixed by the Board of Directors.
Section 7.6 SEAL. The Board of Directors may provide a suitable seal,
containing the name of the corporation, which seal shall be in charge of the
Secretary. If and when so directed by the Board of Directors or a committee
thereof, duplicates of the seal may be kept and used by the Treasurer or by the
Assistant
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Secretary of Assistant Treasurer. The seal may be used by causing it, or a
facsimile thereof, to be impressed or affixed or in any other manner
reproduced.
Section 7.7 BOOKS OF ACCOUNT. The books of account and other records of
the corporation may be kept (subject to any provisions of Oklahoma law) at the
principal place of business and chief executive office of the corporation.
Section 7.8 CONTRACTS WITH DIRECTORS AND OFFICERS. To the extent permitted
by law, no contract or transaction between the corporation and one or more of
its directors or officers, or between the corporation and any other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
directors or officers are present at or participate in the meeting of the board
or committee thereof which authorizes the contract or transaction, or solely
because the directors or officers or their votes are counted for such purpose.
ARTICLE VIII
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS
A. ACTIONS BY THIRD PERSONS. To the extent and in the manner permitted
by the laws of the State of Oklahoma and specifically as is permitted under
Section 1031 of Title 18 of the Oklahoma Statutes, the corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, other than an action by or in
the right of the corporation, by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contenders or its equivalent, shall not, of itself, create a
prescription that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests o the
corporation, and, with respect to any criminal action or
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proceeding, had reasonable cause to believe that his conduct was unlawful.
B. ACTIONS BY THE CORPORATION. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
C. EXPENSES. To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsection A or B of this Article,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection therewith.
D. DETERMINATION. Any indemnification under the provisions of subsection
A or B of this Article, unless ordered by a court, shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
subsection A or B of this Article. Such determination shall be made:
1. by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding; or
2. if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel
in a written opinion; or
3. by the shareholders.
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E. EXPENSE ADVANCES. Expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an under@g by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized by the provisions of
this Article. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
F. NON-EXCLUSIVE RIGHTS. The indemnification and advancement of expenses
provided by or granted pursuant to this Article shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any agreement, bylaw, vote of shareholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
G. INSURANCE. The corporation may, to the full extent permitted by law,
as amended from time to time, but only to such extent as may be determined by
the Board of Directors, purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture trust or
other enterprise against any liability asserted against and incurred by him in
any such capacity or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Article.
H. DEFINITIONS. For purposes of this Article, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at
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the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services, by such director, officer, employee, or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests
of the corporation" as referred to in this Article.
I. SEPARABILITY. The provisions of this Article shall be separable and
the invalidity of all or any part thereof as applied to any particular type of
liability or any particular person shall not preclude application of any
remaining portion thereof to such situation or such person, nor application of
the provisions of this Article to any other situation or person.
J. CONTINUATION OF INDEMNIFICATION. The indemnification and advancement
of expenses provided by or granted pursuant to this Article, unless otherwise
provided when authorized or ratified, shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
K. Notwithstanding the foregoing, the rights of indemnification
hereinbefore set forth shall be deemed to extend to the fullest limits of the
General Corporation Act of the State of Oklahoma, in its current form or as
hereafter amended, and any successor act.
ARTICLE IX
AMENDMENTS
The Bylaws may be amended or repealed, or new bylaws may be adopted, by the
shareholders or by the Board of Directors at any regular meeting of the
shareholders or of the Board of Directors, or at any special meeting of the
shareholders or of the Board of Directors if notice of such amendment, repeal,
or adoption of new bylaws be contained in the notice of such special meeting.
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