<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1996
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ....... TO .......
COMMISSION FILE NUMBER: 0-17995
AMTECH CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
TEXAS 75-2216818
(STATE OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
17304 PRESTON ROAD
BUILDING E-100
DALLAS, TEXAS 75252
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(214) 733-6600
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQUIRED
TO BE FILED BY SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DURING
THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT WAS
REQUIRED TO FILE SUCH REPORTS) AND (2) HAS BEEN SUBJECT TO SUCH FILING
REQUIREMENTS FOR THE PAST 90 DAYS.
YES X NO
----- -----
INDICATE THE NUMBER OF SHARES OUTSTANDING OF EACH OF THE ISSUER'S CLASSES OF
COMMON STOCK, AS OF THE LATEST PRACTICABLE DATE.
CLASS OUTSTANDING AT JULY 31, 1996
- -------------------------------------- ----------------------------------
COMMON STOCK, PAR VALUE $.01 PER SHARE 14,622,261
<PAGE>
INDEX
PART I-FINANCIAL INFORMATION
Page
Number
------
ITEM 1. FINANCIAL STATEMENTS
Condensed Consolidated Balance Sheets at June 30, 1996
and December 31, 1995 3
Condensed Consolidated Statements of Operations for the
three months and six months ended June 30, 1996 and 1995 4
Condensed Consolidated Statements of Cash Flows for the
three months and six months ended June 30, 1996 and 1995 5
Notes to Condensed Consolidated Financial Statements 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS 7
PART II-OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS 9
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 9
2
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AMTECH CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
June 30, 1996 December 31, 1995
------------- -----------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 14,344 $ 17,669
Short-term marketable securities 8,147 10,168
Accounts receivable, net of allowance for
doubtful accounts of $1,060,000 in 1996 and
$831,000 in 1995 23,765 24,559
Inventories (Note 2) 17,445 13,415
Deferred income taxes 1,880 1,037
Prepaid expenses 1,037 725
-------- --------
Total current assets 66,618 67,573
Property and equipment, at cost 25,373 23,221
Accumulated depreciation (10,889) (9,138)
-------- --------
14,484 14,083
Deferred income taxes 1,289 1,544
Intangible assets, net 8,937 8,827
Other assets 2,976 1,352
-------- --------
$ 94,304 $ 93,379
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 8,853 $ 6,628
Note payable 2,594 1,887
Accrued expenses 8,559 7,201
Deferred income and license revenues 2,177 2,508
-------- --------
Total current liabilities 22,183 18,224
Note payable -- 2,594
Contingencies (Note 3)
Stockholders' equity:
Preferred stock, $1 par value, 10,000,000 shares
authorized; none issued -- --
Common stock, $.01 par value, 30,000,000 shares
authorized; 14,698,761 issued, 14,618,761
outstanding in 1996 and 14,685,036 issued,
14,605,036 outstanding in 1995 147 147
Additional paid-in capital 75,899 75,349
Unrealized gain on marketable securities -- 1,323
Treasury stock, at cost (393) (393)
Accumulated deficit (3,532) (3,865)
-------- --------
Total stockholders' equity 72,121 72,561
-------- --------
$ 94,304 $ 93,379
======== ========
</TABLE>
See accompanying notes.
3
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AMTECH CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Six Months
Ended June 30 Ended June 30
------------------- -------------------
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Sales $ 29,867 $ 13,001 $ 58,143 $ 26,936
Operating costs and expenses:
Cost of sales 16,937 8,434 34,216 17,807
Research and development 2,557 1,883 5,121 3,525
Marketing, general and administrative 10,466 3,994 20,073 7,683
-------- -------- -------- --------
29,960 14,311 59,410 29,015
-------- -------- -------- --------
Operating loss (93) (1,310) ( 1,267) (2,079)
Investment income (loss) 288 (101) 2,366 352
Interest expense (61) -- (170) --
-------- -------- -------- --------
Income (loss) before income taxes 134 (1,411) 929 (1,727)
Provision (benefit) for income taxes 154 (154) 596 (190)
-------- -------- -------- --------
Net income (loss) $ (20) $ (1,257) $ 333 $ (1,537)
======== ======== ======== ========
Earnings (loss) per share (Note 1) $ 0.00 $ (0.09) $ 0.02 $ ( 0.10)
======== ======== ======== ========
Shares used in computing earnings
(loss) per share 14,613 14,658 14,743 14,639
======== ======== ======== ========
</TABLE>
See accompanying notes.
4
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AMTECH CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Six Months
Ended June 30 Ended June 30
----------------- ------------------
1996 1995 1996 1995
------- ------- ------- --------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ (20) $(1,257) $ 333 $ (1,537)
Adjustments to reconcile net income (loss) to net cash
from operating activities:
Depreciation and amortization 1,145 757 2,227 1,486
Realized gain on sale of marketable securities -- -- (2,150) --
Stock option compensation 446 -- 446 --
Deferred income taxes 55 (90) 93 (75)
Tax benefit from exercise of stock options 13 27 13 63
Change in assets and liabilities:
(Increase) decrease in accounts receivable 3,809 (375) (394) (1,871)
(Increase) decrease in inventories (1,935) 451 (4,030) 663
(Increase) decrease in prepaid expenses (191) 15 (312) (287)
(Increase) decrease in other assets (1,537) (364) (1,568) 164
Increase (decrease) in accounts payable
and accrued expenses 1,610 (392) 3,583 (19)
Decrease in deferred income
and license revenues (944) (240) (331) (481)
------- ------- ------- --------
Total adjustments 2,471 (211) (2,423) (357)
------- ------- ------- --------
Net cash provided (used) by
operating activities 2,451 (1,468) (2,090) (1,894)
Cash flows from investing activities:
Purchases of property and equipment (1,287) (277) (2,116) (848)
Purchase of Cotag International Limited -- (10) -- (5,784)
Purchase of Cardkey Systems -- -- (952) --
Purchases of marketable securities (5,047) -- (5,047) --
Sales and maturities of marketable securities 2,000 2,994 7,204 27,318
Increase in other assets (76) (62) (125) (114)
Other (94) -- (350) --
------- ------- ------- --------
Net cash provided (used) by investing activities (4,504) 2,645 (1,386) 20,572
Cash flows from financing activities:
Proceeds from issuances of common stock 69 126 69 273
Payment of cash dividends -- -- -- (293)
------- ------- ------- --------
Net cash provided (used) by
financing activities 69 126 69 (20)
Effect of exchange rate changes on cash and cash equivalents 114 (14) 82 (16)
------- ------- ------- --------
Increase (decrease) in cash and cash equivalents (1,870) 1,289 (3,325) 18,642
Cash and cash equivalents, beginning of period 16,214 31,570 17,669 14,217
------- ------- ------- --------
Cash and cash equivalents, end of period $14,344 $32,859 $14,344 $ 32,859
======= ======= ======= ========
</TABLE>
See accompanying notes.
5
<PAGE>
AMTECH CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying financial statements, which should be read in conjunction
with the audited consolidated financial statements included in the Company's
1995 Annual Report to Shareholders and Form 10-K, are unaudited but have been
prepared in the ordinary course of business for the purpose of providing
information with respect to the interim periods. The Condensed Consolidated
Balance Sheet at December 31, 1995 was derived from the audited Consolidated
Balance Sheet at that date which is not presented herein. Management of the
Company believes that all adjustments necessary for a fair presentation for such
periods have been included and are of a normal recurring nature. The results of
operations for the three-month and six-month periods ended June 30, 1996 are not
necessarily indicative of the results to be expected for the full year.
Earnings per share is computed based on the weighted average number of
shares of common stock and dilutive common equivalent shares outstanding.
2. INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
June 30, 1996 December 31, 1995
------------- -----------------
<S> <C> <C>
Raw materials $ 7,904,000 $ 4,900,000
Work in process 5,542,000 3,976,000
Finished goods 3,999,000 4,539,000
----------- -----------
$17,445,000 $13,415,000
=========== ===========
</TABLE>
3. CONTINGENCIES
WaveLink and certain of its employees are the subject of a Canadian
$11,000,000 (approximately U.S. $8,000,000) suit brought by Teklogix, Inc.,
their former employer. The suit alleges improper use of confidential
information, theft of technology, misappropriation of business opportunities and
similar improprieties. In addition to the damages requested, the suit seeks to
enjoin the defendants from soliciting customers of Teklogix and from disclosing
alleged confidential information of Teklogix. WaveLink has denied any wrong-
doing by it or its employees and intends to vigorously defend the litigation.
While the final outcome of this matter cannot be predicted with certainty, the
Company believes that the final resolution of this matter will not have a
material adverse effect on the consolidated financial position of the Company.
6
<PAGE>
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
Amtech Systems Corporation and Amtech World Corporation develop and provide
high-frequency radio frequency identification (RFID) solutions to the
transportation markets which include vehicle-roadside communications, electronic
toll and traffic management (ETTM), rail, intermodal and motor freight.
Products and services for electronic access control applications are the focus
of Cardkey Systems, Inc. and Amtech Europe Limited, which combines Cotag
International Limited ("Cotag") and Cardkey Systems Limited. Cotag was acquired
by the Company in January 1995 and Cardkey Systems, Inc. and Cardkey Systems
Limited (collectively "Cardkey") were acquired in August 1995. WaveLink
Technologies, Inc. ("WaveLink") is developing a line of products targeted to the
interactive data marketplace consisting of mobile radio frequency data
communications terminals using wireless local area networks for use in portable
computing in logistics, warehousing, transportation and medical applications.
The 1995 acquisitions impact the comparability of the Company's second quarter
and year-to-date 1996 results with those of 1995.
RESULTS OF OPERATIONS
Sales for the three months and six months ended June 30, 1996 increased
$16,866,000 or 130% and $31,207,000 or 116%, respectively, from the comparable
periods in 1995. Sales in the electronic access control markets amounted to
$16,161,000 for the three months in 1996 compared to $1,984,000 in 1995 and
$31,735,000 for the six months in 1996 compared to $3,478,000 in 1995. Sales of
Cotag were included in the Company's consolidated financial statements beginning
February 1, 1995, and sales of Cardkey were included beginning August 1, 1995.
Comparable to 1995, 1996 revenues in the electronic toll and traffic management
sector of the transportation markets include approximately $3,650,000 and
$8,200,000 for the three month and six month periods from a single systems
integration services contract.
Cost of sales for the three months and six months ended June 30, 1996
increased $8,503,000 or 101% and $16,409,000 or 92% from the comparable periods
in 1995. Gross profit as a percentage of sales increased from 35% for the
second quarter of 1995 to 43% for the second quarter of 1996 and from 34% for
the first six months of 1995 to 41% for the first six months of 1996. This
increase was primarily due to a gross profit margin on sales of 45% for the
three months and 44% for the six months ended June 30, 1996 achieved by the
recently acquired electronic access control businesses.
Research and development expenses for the three months and six months ended
June 30, 1996 increased $674,000 or 36% and $1,596,000 or 45% from the
comparable periods in 1995. Expenditures for WaveLink increased from $101,000
for the second quarter of 1995 to $377,000 in 1996 and from $169,000 for the
first six months of 1995 to $804,000 in 1996. These increases are primarily a
result of increased product development activities and a greater percentage of
ownership in WaveLink by the Company. Cardkey expenditures were $425,000 for
the second quarter and $819,000 for the first six months of 1996.
Marketing, general and administrative expenses for the three months and six
months ended June 30, 1996 increased $6,472,000 or 162% and $12,390,000 or 161%
from the comparable periods in 1995. The increase was primarily attributable to
Cardkey expenditures of $4,936,000 in the second quarter and $9,853,000 in the
first six months of 1996. In addition, the Company's pro rata share of the
losses attributable to its European joint venture, Alcatel Amtech S.A.,
increased from $93,000 for the second quarter of 1995 to $403,000 in 1996 and
from $186,000 for the first six months of 1995 to $852,000 in 1996 primarily due
to a decline in sales. Both the Company and its joint venture partner, Alcatel
AVI S.A., are currently evaluating various alternatives (including their
continuing mutual participation) with respect to the future of Alcatel Amtech.
The Company also recognized an expense of $446,000 in the second quarter
7
<PAGE>
of 1996 relating to stock options granted in December 1995 to certain of the
Company's outside directors under a plan that was approved by the shareholders
on April 25, 1996. The amount of expense was determined based on the excess of
the fair market value of the Company's common stock on the date of plan approval
over the exercise price of the options which was fair market value of the
Company's common stock on the date of the grant.
As a result of the foregoing, the Company experienced operating losses of
$93,000 and $1,267,000 for the three months and six months ended June 30, 1996
as compared to operating losses of $1,310,000 and $2,079,000 for the comparable
periods in 1995.
Investment income for the three months and six months ended June 30, 1996
increased from a loss of $101,000 to a gain of $288,000 and from a gain of
$352,000 to a gain of $2,366,000, respectively. The loss for the second quarter
of 1995 was primarily attributable to declines in certain of the Company's cash
and cash equivalent instruments while such declines did not occur in the
comparable period in 1996. The increase for the six month period is primarily
attributable to gains realized from the sale of corporate equity securities of
approximately $2,150,000 partially offset by the effect of a reduction in
investment cash and marketable securities resulting from the Company's 1995
business acquisitions.
The income tax provision of $154,000 and $596,000 for the three months and
six months ended June 30, 1996 approximates 115% and 64% of income before income
taxes, respectively. These rates are different from the U.S. statutory rate of
34%, primarily due to the effect of unbenefitted foreign losses in multiple
jurisdictions. The effective tax rate for 1996 will change based upon the
amounts of pre-tax income or loss in these foreign jurisdictions.
As a result of the foregoing, the Company experienced a net loss of $20,000
and net income of $333,000 for the three months and six months ended June 30,
1996 as compared to net losses of $1,257,000 and $1,537,000 for the same periods
in 1995. For calendar year 1996, the Company is targeting sales of $118-$125
million with net results ranging from break-even to a net loss of $0.10 per
share, with the fourth quarter results expected to be better than the third
quarter.
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 1996 the Company's principal source of liquidity is its net
working capital position of $44,435,000, including cash and marketable
securities of $22,491,000 and accounts receivable of $23,765,000. The Company
expects to invest up to an additional $2,000,000 in 1996 for property and
equipment.
The Company believes that its existing net working capital position will be
sufficient to meet the capital requirements for the current businesses for at
least the next two years. Additional acquisitions, if any, would be financed by
the most attractive alternative which could be the utilization of cash reserves
or the issuance of debt or equity securities.
"SAFE HARBOR" STATEMENT
The following is a 'safe harbor' statement under the Private Securities
Litigation Reform Act of 1995:
Other than historical information, the matters discussed in this Quarterly
Report on Form 10-Q are forward-looking statements that are based on management
assumptions and involve risks and uncertainties, including but not limited to,
the following: the Interactive Data Group's ability to develop successfully,
timely release to manufacturing, and establish market channels for, its product
line, and customers' acceptance of such products; the Transportation Systems
Group and Electronic Security Group increasing the sales of their manufactured
products; the availability of components from suppliers; the regulatory and
8
<PAGE>
trade environment; general domestic and international economic conditions; the
impact of competitive products and pricing; the Company's ability to attract and
retain key employees; and other risks detailed from time to time in the
Company's SEC public filings. Consequently, if such management assumptions
prove to be incorrect or such risks or uncertainties materialize, the Company's
actual results could differ materially from the results forecast in the forward-
looking statements.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The information set forth under Part I, Notes to Condensed Consolidated
Financial Statements, Note 3 is incorporated herein by reference.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) Exhibits
The following is a list of exhibits filed as part of this Quarterly
Report on Form 10-Q.
DESCRIPTION OF EXHIBITS
-----------------------
3.1* Restated Bylaws of the Company, dated July 25, 1996.
27.1* Financial Data Schedule.
(B) No reports of the registrant on Form 8-K have been filed with the
Securities and Exchange Commission during the three months ended June
30, 1996.
- --------------------------------------------------------------------------------
* Filed herewith.
9
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
AMTECH CORPORATION
(Registrant)
Date: August 14, 1996 By: /s/ Steve M. York
--------------------------------------------
Steve M. York
Senior Vice President, Chief Financial
Officer, and Treasurer
(Principal Financial Officer and
Duly Authorized Officer)
10
<PAGE>
EXHIBIT 3.1
RESTATED BYLAWS
OF
AMTECH CORPORATION
ARTICLE I
OFFICES
-------
1. Principal Office. The principal office of the Corporation shall be
----------------
located in the City of Dallas, County of Dallas, State of Texas. The
Corporation also may have offices at such other places, both within and without
the State of Texas, as the Board of Directors may from time to time determine or
the business of the Corporation may require.
2. Registered Office. The registered office of the Corporation, required
-----------------
by the Texas Business Corporation Act (the "Act") to be maintained in the State
of Texas, may be, but need not be, the same as its principal place of business
in the State of Texas or the business office of a domestic or foreign
corporation authorized to transact business in the State of Texas. The address
of the registered office of the corporation may be changed from time to time by
resolution of the Board of Directors.
ARTICLE II
SHAREHOLDERS
------------
1. Time and Place of Meeting. Meetings of the shareholders shall be held
-------------------------
at such times and at such places, within or without the State of Texas, as shall
be determined by the Board of Directors.
2. Annual Meetings. Annual meetings of shareholders shall be held on such
---------------
date and at such time and place during the fourth month of each fiscal year
(beginning in 1988) as shall be determined by the Board of Directors of the
Corporation, at which they shall elect a Board of Directors and transact such
other business as may properly be brought before the meeting. The date of the
annual meeting of the shareholders may be a date or time different than that set
forth above if the Board of Directors so determines and so states in the notice
of the meeting or in a duly executed waiver thereof.
3. Special Meetings. Special meetings of the shareholders may be called at
----------------
any time by the President or the Board of Directors, and shall be called by the
President or the Secretary at the request in writing of a majority of the Board
of Directors or at the request in writing of the holders of not less than ten
percent (10%) of all the shares issued, outstanding and entitled to vote at the
meeting. Such request shall state the purpose or purposes of the proposed
meeting. Business transacted at special meetings shall be confined to the
purposes stated in the notice of the meeting.
<PAGE>
4. Notice. Written or printed notice stating the place, day and hour of
------
the meeting and, in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) nor more than
fifty (50) days before the date of the meeting, either personally or by mail,
by or at the discretion of the President, the Secretary, or the officer or
person calling the meeting, to each shareholder entitled to vote at such
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 share transfer records of the Corporation.
5. Closing of Share Transfer Records and Fixing Record Date. For the
---------------------------------------------------------
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose (other than determining shareholders entitled to
consent to action by shareholders proposed to be taken without a meeting of
shareholders), the Board of Directors of the Corporation may provide that the
share transfer records shall be closed for a stated period but not to exceed, in
any case, sixty (60) days. If the share transfer records shall be closed for
the purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such records shall be closed for at least ten (10) days
immediately preceding such meeting. In lieu of closing the share transfer
records, the Board of Directors may fix in advance a date as the record date
for any such determination of shareholders, such date in any case to be not more
than sixty (60) days and, in the case of a meeting of shareholders, not less
than ten (10) days, prior to the date on which the particular action requiring
such determination of shareholders is to be taken. If the share transfer
records are not closed and no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof except where the determination has been made through the closing of the
share transfer records and the stated period of closing has expired.
Unless a record date shall have previously been fixed or determined
pursuant to this section, whenever action by shareholders is proposed to be
taken by consent in writing without a meeting of shareholders, the Board of
Directors may fix a record date for the purpose of determining shareholders
entitled to consent to that action, which record date shall not precede, and
shall not be more than ten (10) days after, the date upon which the resolution
fixing the record date is adopted by the Board of Directors. If no record date
has been fixed by the Board of Directors and the prior action of the Board of
Directors is not required by this section, the record date for determining
shareholders entitled to consent to action in writing without a meeting shall
be the first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corporation by delivery to its
registered office, its principal place of business, or an officer or agent of
the Corporation having custody of the books in which proceedings of meetings of
shareholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. Delivery to the Corporation's
principal place of business shall be addressed to the President. If no record
date shall have been fixed by the Board of Directors and prior action of the
Board of Directors is required by this section, the record date for determining
shareholders entitled to consent to action in writing without a meeting shall be
at the close of business on the date on which the Board of Directors adopts a
resolution taking such prior action.
6. Voting List. The officer or agent of the Corporation having charge of
-----------
the stock transfer books for shares of the Corporation shall make, at least ten
(10) days before each meeting of the
2
<PAGE>
shareholders, a complete list of the shareholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of voting shares held by each, which list, for a
period of ten (10) days prior to such meeting, shall be kept on file at the
registered office or principal place of business of the Corporation and shall be
subject to inspection by any shareholder at any time during the usual business
hours. Such list shall also be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any shareholder during the
whole time of the meeting. The original stock transfer books shall be prima
facie evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meetings of shareholders.
7. Quorum. A quorum shall be present at all meetings of shareholders for
------
the transaction of business if the holders of a majority of the issued and
outstanding shares entitled to vote are represented at the meeting in person or
by proxy, unless otherwise provided in the Articles of Incorporation or the Act.
However, the shareholders represented in person or by proxy at a meeting of
shareholders at which a quorum is not present may adjourn the meeting until
such time and to such place as may be determined by a vote of the holders of a
majority of the shares represented in person or by proxy at that meeting. Once
a quorum is present at a meeting of shareholders, the shareholders represented
in person or by proxy at the meeting may conduct such business as may be
properly brought before the meeting until it is adjourned, and the subsequent
withdrawal from the meeting of any shareholder or the refusal of any shareholder
represented in person or by proxy to vote shall not affect the presence of a
quorum at the meeting.
8. Voting. With respect to any matter, other than the election of
------
directors or a matter for which the affirmative vote of the holders of a
specified portion of the shares entitled to vote is required by this section,
the affirmative vote of the holders of a majority of the shares entitled to vote
on that matter and represented in person or by proxy at a meeting of
shareholders at which a quorum is present shall be the act of the shareholders.
Directors shall be elected by a plurality of the votes cast by the
holders of shares entitled to vote in the election of directors at a meeting of
shareholders at which a quorum is present.
Each shareholder shall at every meeting of the shareholders be entitled
to one vote in person or by proxy for each share having voting power held by
such shareholder, except to the extent that the voting rights of the shares of
any class or classes are limited or denied by the Articles of Incorporation. At
each election for directors every shareholder shall be entitled to vote, in
person or by proxy, the number of shares owned by him for as many persons as
there are directors to be elected and for whose election he has a right to vote.
Cumulative voting is prohibited by the Articles of Incorporation. Every proxy
must be executed in writing by the shareholder. A telegram, telex, cablegram,
or similar transmission by the shareholder, or a photographic, photostatic,
facsimile, or similar reproduction of a writing executed by the shareholder,
shall be treated as an execution in writing for purposes of this section. No
proxy shall be valid after eleven (11) months from the date of its execution
unless otherwise provided therein. Each proxy shall be revocable unless
expressly provided therein to be irrevocable or unless otherwise made
irrevocable by law.
An irrevocable proxy, if noted conspicuously on the certificate
representing the shares that are subject to the irrevocable proxy, shall be
specifically enforceable against the holder of those shares or any successor or
transferee of the holder. Unless noted conspicuously on the certificate
representing the shares that are subject to the irrevocable proxy, an
irrevocable proxy, even though otherwise enforceable, is ineffective against a
transferee for value without actual knowledge of the existence of the
3
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irrevocable proxy at the time of the transfer or against any subsequent
transferee (whether or not for value), but such an irrevocable proxy shall be
specifically enforceable against any other person who is not a transferee for
value from and after the time that the person acquires actual knowledge of the
existence of the irrevocable proxy.
Shares registered in the name of another corporation may be voted by
such officer, agent or proxy as the bylaws of such corporation may prescribe or,
in the absence of such provisions, as the board of directors of such corporation
may determine.
Shares held by an administrator, executor, guardian or conservator may
be voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name as trustee.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without being transferred into his name, if such authority is contained
in an appropriate order of the court that appointed the receiver.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to the Corporation or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
9. Action by Unanimous Consent. Any action required to be taken at any
---------------------------
annual or special meeting of shareholders, or any action which may be taken at
any annual or special meeting of shareholders, may be taken without a meeting,
without prior notice, and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall have been signed by the holder or
holders of all the shares entitled to vote with respect to the action that is
the subject of the consent.
Every written consent shall bear the date of signature of each
shareholder who signs the consent. No written consent shall be effective to
take the action that is the subject of the consent unless, within sixty (60)
days after the date of the earliest dated consent delivered to the corporation
in the manner required by this section, a consent or consents signed by the
holder or holders of shares having not less than the minimum number of votes
that would be necessary to take the action that is the subject of the consent
are delivered to the Corporation by delivery to its registered office, its
principal place of business, or an officer or agent of the corporation having
custody of the books in which proceedings of meetings of shareholders are
recorded. Delivery shall be by hand or certified or registered mail, return
receipt requested. Delivery to the Corporation's principal place of business
shall be addressed to the President.
A telegram, telex, cablegram, or similar transmission by a shareholder,
or a photographic, photostatic, facsimile, or similar reproduction of a writing
signed by a shareholder, shall be regarded as signed by the shareholder for
purposes of this section.
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Prompt notice of the taking of any action by shareholders without a
meeting by less than unanimous written consent shall be given to those
shareholders who did not consent in writing to the action.
If any action by shareholders is taken by written consent, any articles
or documents filed with the Secretary of State of the State of Texas as a result
of the taking of the action shall state, in lieu of any statement required by
this section or by the Act concerning any vote of shareholders, that written
consent has been given in accordance with the provisions of this section and
that any written notice required by this section has been given.
10. Presence at Meetings by Means of Communication Equipment. Shareholders
--------------------------------------------------------
may participate in and hold a meeting of such shareholders by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this section shall constitute presence in person at such
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 III
DIRECTORS
---------
1. Number of Directors. The number of directors of the Corporation shall
-------------------
be fixed from time to time by resolution of the Board of Directors. Until
otherwise fixed by resolution of the Board of Directors, the number of directors
shall be six. No decrease in the number of directors shall have the effect of
reducing the term of any incumbent director. Directors shall be elected at the
annual meeting of the holders of shares entitled to vote in the election of
directors, except as provided in Section 2 of this Article III, and each
director shall hold office until (i) his successor is elected and qualified,
(ii) he dies, (iii) he resigns, or (iv) he is removed. Directors need not be
residents of the State of Texas or shareholders of the Corporation.
2. Vacancies. Subject to other provisions of this section, any vacancy
---------
occurring in the Board of Directors may be filled by the affirmative vote of a
majority of the remaining directors, though the remaining directors may
constitute less than a quorum of the Board of Directors as fixed by Section 10
of this Article III. 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 may be filled by unanimous
vote of the existing directors; provided, however, that the Board of Directors
may not fill more than two (2) such directorships during the period between any
two (2) successive annual meetings of shareholders. Any vacancy occurring in
the Board of Directors or any directorship to be filled by reason of an increase
in the number of directors may be filled by election at an annual or special
meeting of the shareholders called for that purpose. Shareholders holding a
majority of the issued and outstanding shares entitled to vote may, at any time,
terminate the term of office of all or any of the directors, with or without
cause, by a vote at any annual or special meeting, or by written statement,
signed by the holders of all of such shares, and filed with the secretary or, in
his absence, with any other officer. Such removal shall be effective
immediately upon such shareholder action even if successors are not elected
simultaneously, and the vacancies on the Board of Directors caused by such
action shall be filled only by election by the shareholders.
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3. General Powers. The business of the Corporation shall be managed by its
--------------
Board of Directors, which may exercise all powers of the Corporation and do all
such lawful acts and things, as are not by the Act, the Articles of
Incorporation or these Bylaws directed or required to be exercised or done by
the shareholders.
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 Texas.
5. Annual Meetings. The first meeting of each newly elected Board of
---------------
Directors shall be held, without further notice, immediately following the
annual meeting of shareholders at which such directors were elected, provided a
quorum shall be present. In the event such meeting is not held immediately
following the annual meeting, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
of notice signed by all of the directors.
6. Regular Meetings. Regular meetings of the Board of Directors shall be
----------------
held without special notice at such time and at such place as shall from time to
time be determined by the Board of Directors.
7. Special Meetings. Special meetings of the Board of Directors may be
----------------
called by or at the request of the President, and shall be called by the
Secretary on the written request of a majority of the incumbent directors. The
person or persons authorized to call special meetings of the Board of Directors
may fix the place for holding any special meeting of the Board of Directors
called by them.
8. Notice of Special Meetings. Notice of any special meetings shall be
--------------------------
given at least forty-eight (48) hours prior thereto if given either personally
(including written notice delivered personally or telephone notice) or by
telegram, and at least one hundred twenty (120) hours prior thereto if given by
written notice mailed to each director at the address of his business or
residence. If mailed, the notice shall be deemed to be delivered when deposited
in the United States mail addressed, in the above-specified manner, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegraph company. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice for such meeting.
9. Waiver of Notice. Any director may waive notice of any meeting, as
----------------
provided in Article IV, Section 2, of these Bylaws. The attendance of a
director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully called or
convened.
10. Quorum and Voting. At all meetings of the Board of Directors, the
-----------------
presence of a majority of the number of directors fixed by Article III, Section
1, of these Bylaws shall constitute a quorum for the transaction of business,
and the affirmative vote of at least 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 the Act, the Articles of
Incorporation or these Bylaws. If a quorum shall not be present at any meeting
of the Board of Directors, a majority of the directors present thereat may
adjourn the meeting from time to time without notice other than announcement at
the meeting, until a quorum shall be present.
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11. Committees. The Board of Directors by resolution passed by a majority
----------
of the full Board of Directors may designate an Executive Committee, to consist
of two or more directors, one of whom shall be designated as Chairman and shall
preside at all meetings of such Executive Committee and at least one of whom
shall be a person other than an officer or employee of the Corporation or its
subsidiaries. The Board of Directors may also designate one or more directors
to be alternate members of such Executive Committee, who may, subject to any
limitations imposed by the Board of Directors, replace absent or disqualified
members at any meeting of the Executive Committee. At any meeting of the
Executive Committee a majority of the members of the Executive Committee shall
constitute a quorum for the transaction of business, and the act of a majority
of the members present at any meeting at which a quorum is present shall be the
act of the Executive Committee. To the extent provided in the resolution of the
Board of Directors, the Executive Committee shall have and may exercise all of
the authority of the Board of Directors, and shall have power to authorize the
seal of the corporation to be affixed to all papers which may require it,
subject to the limitations set forth in the Act, the Articles of Incorporation
or these Bylaws; provided, however, that the Executive Committee shall not have
the authority to authorize the issuance of shares of stock of the Corporation or
to declare dividends with respect to shares of stock of the Corporation. The
designation of such Executive Committee and the delegation thereto of authority
shall not operate to relieve the Board of Directors, or any member thereof, of
any responsibility imposed upon it or him by law. Meetings of the Executive
Committee may be called and notices given in the same manner as calling and
giving notice of special meetings of the Board of Directors. Any member of the
Executive Committee may be removed, for or without cause, by the affirmative
vote of a majority of the full Board of Directors. If any permanent vacancy or
vacancies occur in the Executive Committee, such vacancy or vacancies shall be
filled by the affirmative vote of a majority of the full Board of Directors.
The Board of Directors by resolution passed by a majority of the full
Board of Directors may designate other committees, each committee to consist of
two or more directors, one of whom shall be designated as Chairman and shall
preside at all meetings of such committee. The Board of Directors may also
designate one or more directors to be alternate members of any committee, who
may, subject to any limitations imposed by the Board of Directors, replace
absent or disqualified members at any meeting of that committee. To the extent
provided in the resolution of the Board of Directors, the committees shall have
such power and authority and shall perform such functions as may be provided in
such resolution, subject to the limitations set forth in the Act, the Articles
of Incorporation or these Bylaws. At any meeting of the committee a majority of
the members of the committee shall constitute a quorum for the transaction of
business, and 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. Such committee or
committees shall have such name or names as may be designated by the Board of
Directors.
The Executive Committee and all other such committees shall keep regular
minutes of their proceedings and report the same to the Board of Directors at
the meeting of the Board of Directors next succeeding such action.
12. Compensation of Directors. Directors, as such, shall not receive any
-------------------------
stated salary for their services, but by resolution of the Board of Directors, a
fixed sum and expenses of attendance, if any, may be allowed for attendance at
each regular or special meeting of the Board of Directors. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of any committee may, by resolution of the Board of Directors, be allowed like
compensation for attending meetings of such committee.
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<PAGE>
13. Action by Unanimous Written Consent. Any action required or permitted
-----------------------------------
to be taken at any meeting of the Board of Directors or of a committee
designated by the Board of Directors may be taken without a meeting if a written
consent, setting forth the action so taken, is signed by all the members of the
Board of Directors or the committee, as the case may be, and such consent shall
have the same force and effect as a unanimous vote at a meeting.
14. Presence at Meetings by Means of Communication Equipment. Members of
--------------------------------------------------------
the Board of Directors of the Corporation or any committee designated by the
Board of Directors may participate in and hold a meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such 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 IV
NOTICES
-------
1. Form of Notice. Whenever under the provisions of the Act, 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 such notice shall be given,
such notice shall be given in writing, by mail, postage prepaid, addressed to
such director or shareholder at such address as appears on the books of the
Corporation, provided that such notice as is required to be given to any
director also may be given either personally (including written notice delivered
personally or telephone notice) or by prepaid facsimile. Any notice required or
permitted to be given by mail shall be deemed to be given at the time when the
same is deposited in the United States mail addressed in the above-specified
manner, with postage thereon prepaid.
2. Waiver. Whenever any notice is required to be given to any director or
------
shareholder of the Corporation under the provisions of the Act, the Articles of
Incorporation or these Bylaws, 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.
ARTICLE V
OFFICERS
--------
1. General. The elected officers of the Corporation shall be a President,
-------
one or more Vice Presidents, with or without such descriptive titles as the
Board of Directors shall deem appropriate, a Secretary and a Treasurer. The
Board of Directors by resolution may also appoint one or more Assistant
Secretaries, Assistant Treasurers and such other officers and assistant officers
and agents as from time to time may appear to be necessary or advisable in the
conduct of the affairs of the Corporation. Any two or more offices may be held
by the same person.
2. Election. The Board of Directors at its first meeting after each annual
--------
meeting of the shareholders shall elect and appoint the officers to fill the
positions designated in Section 1 of this Article V. The Board of Directors may
appoint such other officers and agents as it shall deem necessary and may
8
<PAGE>
determine the salaries of all officers and agents from time to time. The
officers shall hold office until their successors are chosen and qualified. Any
officer elected or appointed by the Board of Directors may be removed, for or
without cause, at any time by a majority vote of the directors present at a
meeting of the Board of Directors at which a quorum is present, when in its
judgment the best interest of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the
persons so removed. Election or appointment of an officer or agent shall not of
itself create contract rights. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
3. Chairman of the Board. The Chairman of the Board shall be chosen from
---------------------
among the non-employee directors. He shall preside at all meetings of the Board
of Directors, unless he shall be absent or unless he shall, at his election,
designate the President to preside in his stead, and shall have such incidental
powers and duties as are related to the conduct of such meetings. The Chairman
of the Board shall also be an ex-officio member of all standing committees.
4. President. The President shall be the Chief Executive Officer of the
---------
Corporation and shall be responsible for the operations and business affairs of
the Corporation. He shall preside at all meetings of the shareholders and of
the Board of Directors in the absence of the Chairman of the Board, unless he
shall be absent or unless he shall, at his election, designate another officer
to preside in his stead. He shall, in general, have supervisory power over all
of the other officers and the business activities of the Corporation, subject to
the direction of the Board of Directors. He shall have authority to execute
bonds, deeds and contracts in the name of the Corporation and to affix the
corporate seal thereto; to sign stock certificates; to cause the employment or
appointment of such employees and agents of the Corporation as the proper
conduct of operations may require, and to fix their compensation, subject to the
provisions of these Bylaws and such resolutions as may be adopted by the Board
of Directors from time-to-time; to remove or suspend any employee or agent who
shall have been employed or appointed under his authority or under authority of
an officer subordinate to him; to suspend for cause, pending final action by the
Board of Directors which shall have supervisory power over him, any officer
subordinate to him and, in general, to exercise all powers usually pertaining to
the office of the President of a corporation, except as otherwise provided in
these Bylaws. The President shall see that all orders and resolutions of the
Board of Directors and committees thereof are carried into effect.
5. Vice Presidents. The Vice President or, if there be more than one, the
---------------
Vice Presidents, shall perform all such duties and services as shall be assigned
to or required of them from time to time by the Board of Directors, the
Executive Committee and any officer superior to him.
6. Secretary and Assistant Secretaries. The Secretary shall attend all
-----------------------------------
meetings of the Board of Directors and all meetings of the shareholders and
record all proceedings of the meetings of the shareholders of the Corporation
and of the Board of Directors in a book to be kept for that purpose, and shall
perform like duties for the Executive Committee when required. He shall give,
or cause to be given, notice of all meetings of the shareholders and meetings of
the Board of Directors. He shall have charge of the seal of the Corporation and
have authority to affix the same to any instrument requiring it, and when so
affixed, it shall be attested by his signature or by the signature of the
Treasurer, an Assistant Secretary or an Assistant Treasurer, which may be in
facsimile. He shall keep and account for all books, documents, papers and
records of the Corporation except those for which some other officer or agent is
properly accountable. He shall have authority to sign stock certificates, and
shall generally perform all the duties usually appertaining to the office of the
Secretary of a corporation.
9
<PAGE>
Assistant Secretaries, in the order of their seniority unless otherwise
determined by the Board of Directors, shall assist the Secretary, and in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary. They shall perform such other duties and have such
other powers as the Board of Directors may prescribe from time to time.
7. Treasurer and Assistant Treasurers. The Treasurer shall be the chief
----------------------------------
financial officer of the Corporation and shall have active control of and shall
be responsible for all matters pertaining to the finances of the Corporation.
He shall have the care and custody of all monies, funds and securities of the
Corporation and shall deposit all monies and other valuable effects in the name
of and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. He shall cause to be recorded a statement
of all receipts and disbursements of the Corporation in order that proper
entries may be made in the books of account. He shall have the power to sign
stock certificates, to endorse for deposit or collection, or otherwise, all
checks, drafts, notes, bills of exchange, or other commercial paper payable to
the Corporation, and to give proper receipts or discharges for all payments to
the Corporation. He shall be responsible for all terms of credit granted by the
Corporation and for the collection of all of its accounts. If required by the
Board of Directors, the Treasurer shall give the Corporation a bond 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 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.
Assistant Treasurers, in the order of their seniority unless otherwise
determined by the Board of Directors, shall assist the Treasurer, and in the
absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer. They shall perform such other duties and have such
other powers as the Board of Directors may prescribe from time to time.
8. Bonding. If required by the Board of Directors, all or certain of the
-------
officers 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 of Directors, for
the faithful performance of the duties of their office and for the restoration
to the Corporation, in case of their death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in their possession or under their control belonging to the
Corporation.
ARTICLE VI
----------
CERTIFICATES REPRESENTING SHARES
--------------------------------
1. Form of Certificates. The Corporation shall deliver certificates
--------------------
representing all shares to which shareholders are entitled. Certificates
representing shares of the Corporation shall be in such form as shall be
determined by the Board of Directors and shall be numbered consecutively and
entered in the books of the Corporation as they are issued. Each certificate
shall state on the face thereof that the Corporation is organized under the laws
of the State of Texas; the name of the registered holder; the number, class of
shares and the designation of the series, if any, which said certificate
represents; and either the par value of the shares or a statement that the
shares are without par value. Each certificate shall also set forth on the back
thereof, a full or summary statement of matters required by the Act or the
Articles of Incorporation to be described on certificates representing shares,
and shall contain a statement on the face thereof referring to the matters set
forth on the back thereof. Certificates shall be signed by
10
<PAGE>
the President and the Secretary or any Assistant Secretary, 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 signatures
of the Corporation's officers may be facsimiles. In case any officer or
officers who have signed, or whose facsimile signature or signatures have been
used on such certificate or certificates, shall cease to be such officer or
officers of the Corporation, whether because of death, resignation or otherwise,
before such certificate or certificates have been delivered by the Corporation
or its agents, such certificate or certificates may be adopted, nevertheless, by
the Corporation and issued and delivered as though the person or persons who
signed the certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer or officers
of the Corporation.
2. Restrictions on Transferability of Shares. In the event any restriction
-----------------------------------------
on the transfer, or registration of the transfer, of shares shall be imposed or
agreed to by the Corporation, as permitted by law, each certificate representing
shares so restricted shall conspicuously set forth a full or summary statement
of the restriction on the face of the certificate, or shall set forth such
statement on the back of the certificate and conspicuously refer to the same on
the face of the certificate, or shall conspicuously state on the face or back of
the certificate that such restriction exists pursuant to a specified document
and that the Corporation will furnish to the holder of the certificate without
charge upon written request to the Corporation at its principal place of
business or registered office a copy of the specified document.
3. Lost Certificates. The Corporation may direct that a new certificate or
-----------------
certificates be issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate to be
lost or destroyed. When authorizing the issuance of a new certificate or
certificates, the Board of Directors, in its discretion and as a condition
precedent to the issuance thereof, may require the owner of the lost or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and give the Corporation a bond in
such form, in such sum, and with such surety or sureties 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 or destroyed.
4. Transfer of Shares. Shares of stock shall be transferable on the books
------------------
of the Corporation by the holder thereof in person or by his duly authorized
attorney. Subject to any restrictions on transfer set forth in the Articles of
Incorporation of the Corporation, these Bylaws or any agreement among
shareholders to which the Corporation is a party or has notice, upon surrender
to the Corporation or to the transfer agent of the Corporation of the
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer, it shall be the duty of the
Corporation or the transfer agent of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
5. Registered Shareholders. The Corporation shall be entitled to recognize
-----------------------
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 shall have express or other notice thereof, except as
otherwise provided by law.
11
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ARTICLE VII
INDEMNIFICATION
---------------
1. Indemnity. Each person who was or is made a party or is threatened to
---------
be made a party to or is otherwise involved in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative and including, without
limitation, any "proceeding" referred to in art. 2.02-1 of the Texas Business
Corporation Act (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director or officer of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "Indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director of officer shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Texas Business Corporation Act or other applicable law of the
State of Texas, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto), against all expense, liability, and loss (including, without
limitation, attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such Indemnitee in connection therewith, and such indemnification shall continue
as to an Indemnitee who has ceased to be a director or officer and shall inure
to the benefit of the Indemnitee's heirs, executors, and administrators;
provided, however, that, except for a proceeding brought by an Indemnitee to
enforce his or her rights to indemnification, the Corporation shall indemnify
any such Indemnitee in connection with a proceeding (or part thereof) initiated
by such Indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation. The right to indemnification
conferred in this Article VII shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that, if the Texas Business Corporation Act or
other applicable law of the State of Texas requires, an advancement of expenses
incurred by an Indemnitee in his or her capacity as a director of officer (and
not in any other capacity in which service was or is rendered by such
Indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking complying
in all respects with the requirements of the Texas Business Corporation Act or
other applicable law of the State of Texas (hereinafter an "undertaking"), by or
on behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
Indemnitee is not entitled to be indemnified for such expenses under this
Article VII or otherwise. If the Corporation makes an advancement of expenses
to an Indemnitee, the Corporation shall be subrogated to every right of recovery
the Indemnitee may have against any insurance carrier from whom the Corporation
has purchased insurance for such purpose.
2. Remedy. If a claim under this Article VII is not paid in full by the
------
Corporation within 60 days after a written claim has been received by the
Corporation, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole
or in part in any such suit, or in a suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit, including, without limitation, any appeal. In (i) any suit brought by the
Indemnitee to enforce a right to indemnification (but not in a suit brought by
the Indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit by the Corporation to recover an
12
<PAGE>
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
Indemnitee has not met the applicable standard of conduct set forth in the Texas
Business Corporation Act or other applicable law of the State of Texas. Neither
the failure of the Corporation (including its Board of Directors, independent
legal counsel, or its shareholders) to have made a determination prior to the
commencement of such suit that the Indemnitee met the applicable standard of
conduct set forth in the Texas Business Corporation Act or other applicable law
of the State of Texas, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its shareholders) that the
Indemnitee has not met such applicable standard of conduct, shall create a
presumption that the Indemnitee has not met the applicable standard of conduct
or, in the case of such a suit brought by the Indemnitee, be a defense to such
suit. In any suit brought by the Indemnitee to enforce a right to
indemnification or to an advancement of expenses or by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the Indemnitee is not entitled to be indemnified, or to
such advancement of expenses, under this Article VII or otherwise, shall be on
the Corporation.
3. Employees and Agents. The Corporation may, to the extent authorized
--------------------
from time to time by the Board of Directors, grant rights to indemnification
and to the advancement of expenses to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article VII with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
4. Partial Indemnification; Interest.
---------------------------------
(A) If it is determined pursuant to the provisions of the Texas Business
Corporation Act or other applicable law of the State of Texas, or by the court
before which such action was brought, that an Indemnitee is entitled to
indemnification as to some claims, issues, or matters, but not as to other
claims, issues, or matters, involved in any action, no matter by whom brought,
the person or persons making such determination (or the court) shall authorize
the reasonable proration of such expenses, judgments, penalties, fines, and
amounts incurred in settlement with respect to which indemnification is sought
by the Indemnitee, among such claims, issues, or matters as the person or
persons making such determination (or the court) shall deem appropriate in light
of all of the circumstances of such action.
(B) If it is determined pursuant to the provisions of the Texas Business
Corporation Act or other applicable law of the State of Texas, or by the court
before which such action was brought, that certain amounts incurred by the
Indemnitee are, for whatever reason, unreasonable in amount, the person or
persons making such determination (or the court) shall authorize indemnification
to be paid by the Corporation to the Indemnitee for only such amounts as the
person or persons making such determination (or the court) shall deem reasonable
in light of all of the circumstances of such action.
(C) To the extent deemed appropriate pursuant to the provisions of the Texas
Business Corporation Act or other applicable law of the State of Texas, or by
the court before which such action was brought, interest shall be paid by the
Corporation to the Indemnitee, at a reasonable interest rate, for amounts for
which the Corporation indemnifies the Indemnitee.
5. Nonexclusivity. The right to indemnification and advancement of
--------------
expenses provided to an Indemnitee pursuant to this Article VII shall not be
deemed exclusive of any other rights to which the Indemnitee may be entitled
under any charter provision, bylaw, agreement, resolution, vote of shareholders
or disinterested directors, or otherwise, including, without limitation, under
the Texas Business Corporation
13
<PAGE>
Act or other applicable law of the State of Texas, as then in effect, both as to
acts in his or her official capacity and as to acts in any other capacity.
6. Insurance.
---------
(A) The Corporation may purchase and maintain insurance on behalf of an
Indemnitee against any liability asserted against him or her or incurred by or
on behalf of him or her whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of this Article
VII or under the Texas Business Corporation Act or other applicable law of the
State of Texas, as then in effect. The purchase and maintenance of such
insurance shall not in any way limit or affect the rights and obligations of the
Corporation or an Indemnitee under this Article VII and the adoption of this
Article VII by the Corporation shall not in any way limit or affect the rights
and obligations of the Corporation or of the other party or parties thereto
under any such policy or agreement of insurance.
(B) If the Indemnitee shall receive payment from any insurance carrier or
from the plaintiff in any action against the Indemnitee in respect of
indemnified amounts after payments on account of all or part of such indemnified
amounts have been made by the Corporation pursuant to this Article VII, the
Indemnitee shall promptly reimburse the Corporation for the amount, if any, by
which the sum of such payment by such insurance carrier or such plaintiff and
payments by the Corporation to the Indemnitee exceeds such indemnified amounts;
provided, however, that such portions, if any, of such insurance proceeds that
are required to be reimbursed to the insurance carrier under the terms of its
insurance policy, such as deductible or coinsurance payments, shall not be
deemed to be payments to the Indemnitee hereunder. In addition, upon payment of
indemnified amounts under this Article VII, the Corporation shall be subrogated
to the Indemnitee's rights against any insurance carrier in respect of such
indemnified amounts and the Indemnitee shall execute and deliver any and all
instruments and documents and perform any and all other acts and deeds that the
Corporation deems reasonably necessary or advisable to secure such rights.
7. Witness Expenses. Upon an Indemnitee's written request, the Corporation
----------------
shall pay (in advance or otherwise) or reimburse any and all expenses reasonably
incurred by the Indemnitee in connection with his or her appearance as a witness
in any proceeding at a time when he has not been formally named a defendant or
respondent to such a proceeding.
8. Contribution. If the indemnity provided for in this Article VII is
------------
unavailable to an Indemnitee for any reason whatsoever, the Corporation, in lieu
of indemnifying the Indemnitee, shall contribute to the amount reasonably
incurred by or on behalf of the Indemnitee, whether for judgments, fines,
penalties, amounts incurred in settlement, or for expenses in connection with
any proceeding, no matter by whom brought, in such proportion as deemed fair and
reasonable, by the person or persons entitled to make the determination as to
whether the Indemnitee has met the requisite standard of conduct under the Texas
Business Corporation Act or other applicable law of the State of Texas, or by
the court before which such proceeding was brought, taking into account all of
the circumstances of such proceeding, in order to reflect (i) the relative
benefits received by the Corporation and the Indemnitee as a result of the
event or transaction giving cause to such proceeding; and (ii) the relative
fault of the Corporation (and its other directors, officers, employees, and
agents) and the Indemnitee in connection with such event or transaction.
14
<PAGE>
9. Severability. If any provision of this Article VII shall be deemed
------------
invalid or inoperative, or if a court of competent jurisdiction determines that
any of the provisions of this Article VII contravenes public policy, this
Article VII shall be construed so that the remaining provisions shall not be
affected, but shall remain in full force and effect, and any such provisions
that are invalid and inoperative or contravene public policy shall be deemed,
without further action or deed on the part of any person, to be modified,
amended, or limited, but only to the extent necessary to render the same valid
and enforceable, and the Corporation shall indemnify the Indemnitee as to
expenses, judgments, fines, and amounts incurred in settlement with respect to
any proceeding, no matter by whom brought, to the full extent permitted by any
applicable provision of this Article VII that shall not have been invalidated
and to the full extent otherwise permitted.
ARTICLE VIII
GENERAL PROVISIONS
------------------
1. Dividends. Dividends upon the outstanding shares of the Corporation,
---------
subject to the provisions of the Act, the Articles of Incorporation and any
agreements or obligations of the Corporation, if any, may be declared by the
Board of Directors at any regular or special meeting. Dividends may be declared
and paid in cash, in property, or in shares of the Corporation, provided that
all such declarations and payments of dividends shall be in strict compliance
with all applicable laws and the Articles of Incorporation. The Board may fix
in advance a record date for the purpose of determining shareholders entitled to
receive payment of any dividend, such record date to be not more than fifty (50)
days prior to the payment 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 such dividend shall be the record date.
2. Reserves. There may be created by resolution of the Board of Directors
--------
out of the earned surplus of the Corporation such reserve or reserves as the
Board of Directors from time to time, in its absolute discretion, deems proper
to provide for contingencies, or to equalize dividends, or to repair or maintain
any property of the Corporation, or for such other proper purposes as the Board
of Directors shall deem beneficial to the Corporation, and the Board of
Directors may modify or abolish any reserve in the same manner in which it was
created.
3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
-----------
resolution of the Board of Directors.
4. Seal. The Corporation shall have a seal which may be used by causing it
----
or a facsimile thereof to be impressed on, affixed to, or in any manner
reproduced upon, instruments of any nature required to be executed by its proper
officers.
5. Annual Statement. The Board of Directors shall present at each annual
----------------
meeting and when requested to do so by shareholders holding at least one third
(1/3) of the outstanding shares, a full and clear statement of the business and
condition of the Corporation.
6. 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 designate from time to time.
15
<PAGE>
7. Voting Securities Owned by Corporation. Voting securities in any other
--------------------------------------
corporation held by this Corporation shall be voted by the President or any Vice
President, unless the Board of Directors confers authority to vote with respect
thereto, which may be general or confined to specific investments, upon some
other person or officer. Any person authorized to vote securities shall have
the power to appoint proxies with the general power of substitution.
8. Resignation. Any director, officer, employee or agent of the
-----------
Corporation 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 specified in such notice,
the acceptance of such resignation shall not be necessary to make it effective.
ARTICLE IX
AMENDMENTS TO BYLAWS
--------------------
These Bylaws may be altered, amended, modified or repealed, or new Bylaws
may be adopted at any meeting of the Board of Directors at which a quorum is
present by the affirmative vote of a majority of the directors present at such
meeting.
CERTIFICATE
-----------
The foregoing Bylaws were adopted by the Board of Directors of the
Corporation effective July 25, 1996.
/s/ Ronald A. Woessner
-------------------------------------------
Ronald A. Woessner, Secretary
16
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