FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
KIRBY CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 74-1884980
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(State of incorporation or organization) (IRS Employer Identification No.)
55 Waugh Drive, Suite 1000, Houston, Texas 77007
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Rights to Purchase Series A Junior New York Stock Exchange
Participating Preferred Stock
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. [ ]
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:
..... (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
ITEM 1. Description of Registrant's Securities To Be Registered.
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On July 18, 2000, the Board of Directors of Kirby Corporation (the
"Company") declared a dividend of one right ("Right") for each outstanding share
of the Company's Common Stock, par value $.10 per share ("Common Stock"), to
stockholders of record at the close of business on August 15, 2000. Each Right
entitles the registered holder to purchase from the Company a unit consisting of
one one-hundredth of a share (a "Fractional Share") of Series A Junior
Participating Preferred Stock, par value $1.00 per share (the "Preferred
Stock"), at a purchase price of $92 per Fractional Share, subject to adjustment
(the "Purchase Price"). The description and terms of the Rights are set forth in
a Rights Agreement dated as of July 18, 2000 as it may from time to time be
supplemented or amended (the "Rights Agreement") between the Company and Fleet
National Bank, as Rights Agent.
Initially, the Rights will be evidenced by the certificates
representing outstanding shares of Common Stock, and no separate certificates
for the Rights ("Rights Certificates") will be distributed. The Rights will
separate from the Common Stock and a "Distribution Date" will occur, with
certain exceptions, upon the earlier of (i) ten days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common Stock (the date of
the announcement being the "Stock Acquisition Date"), or (ii) ten business days
following the commencement of a tender offer or exchange offer that would result
in a person's becoming an Acquiring Person. Charles Berdon Lawrence and related
trusts, which beneficially owned approximately 18% of the outstanding Common
Stock at the time the Rights Agreement was adopted, and their affiliates and
associates, will not become Acquiring Persons unless certain increases in their
aggregate beneficial ownership occur or are deemed to occur such that such
aggregate beneficial ownership exceeds 23% of the outstanding shares of Common
Stock. In certain circumstances, the Distribution Date may be deferred by the
Board of Directors. Certain inadvertent acquisitions will not result in a
person's becoming an Acquiring Person if the person promptly divests itself of
sufficient Common Stock. Until the Distribution Date, (a) the Rights will be
evidenced by the Common Stock certificates (together with a copy of this Summary
of Rights or bearing the notation referred to below) and will be transferred
with and only with such Common Stock certificates, (b) new Common Stock
certificates issued after July 18, 2000 will contain a notation incorporating
the Rights Agreement by reference and (c) the surrender for transfer of any
certificate for Common Stock (with or without a copy of this Summary of Rights)
will also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on July 18, 2010, unless earlier redeemed or
exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of Common Stock as of the close of business
on the Distribution Date and, from and after the Distribution Date, the separate
Rights Certificates alone will represent the Rights. All shares of Common Stock
issued prior to the Distribution Date will be issued with Rights. Shares of
Common Stock issued after the Distribution Date in connection with certain
employee benefit plans or upon conversion of certain securities will be issued
with Rights. Except as
otherwise determined by the Board of Directors, no other shares of Common Stock
issued after the Distribution Date will be issued with Rights.
In the event (a "Flip-In Event") that a person becomes an Acquiring
Person except pursuant to a tender or exchange offer for all outstanding shares
of Common Stock at a price and on terms that a majority of the independent
Continuing Directors (as hereinafter defined) determines to be fair to and
otherwise in the best interests of the Company and its stockholders (a
"Permitted Offer"), each holder of a Right will thereafter have the right to
receive, upon exercise of such Right, a number of shares of Common Stock (or, in
certain circumstances, cash, property or other securities of the Company) having
a Current Market Price (as defined in the Rights Agreement) equal to two times
the exercise price of the Right. Notwithstanding the foregoing, following the
occurrence of any Triggering Event, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by or
transferred to an Acquiring Person (or by certain related parties) will be null
and void in the circumstances set forth in the Rights Agreement. However, Rights
are not exercisable following the occurrence of any Flip-In Event until such
time as the Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $92 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase $184
worth of Common Stock (or other consideration, as noted above), based upon its
then Current Market Price, for $92. Assuming that the Common Stock had a Current
Market Price of $23 per share at such time, the holder of each valid Right would
be entitled to purchase 8 shares of Common Stock for $92.
In the event (a "Flip-Over Event") that, at any time from and after the
time an Acquiring Person becomes such, (i) the Company is acquired in a merger
or other business combination transaction (other than certain mergers that
follow a Permitted Offer), or (ii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right (except Rights that
are voided as set forth above) shall thereafter have the right to receive, upon
exercise, a number of shares of common stock of the acquiring company having a
Current Market Price equal to two times the exercise price of the Right. Flip-In
Events and Flip-Over Events are collectively referred to as "Triggering Events."
The number of outstanding Rights associated with a share of Common
Stock, or the number of Fractional Shares of Preferred Stock issuable upon
exercise of a Right and the Purchase Price, are subject to adjustment in the
event of a stock dividend on, or a subdivision, combination or reclassification
of, the Common Stock occurring prior to the Distribution Date. The Purchase
Price payable, and the number of Fractional Shares of Preferred Stock or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event of certain
transactions affecting the Preferred Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Preferred Stock that are not integral multiples
of a Fractional Share are required to be issued upon exercise of Rights and, in
lieu thereof, an adjustment in cash may be made based on the market
price of the Preferred Stock on the last trading date prior to the date of
exercise. Pursuant to the Rights Agreement, the Company reserves the right to
require prior to the occurrence of a Triggering Event that, upon any exercise of
Rights, a number of Rights be exercised so that only whole shares of Preferred
Stock will be issued.
At any time until ten days following the first date of public
announcement of the occurrence of a Flip-In Event, the Company may redeem the
Rights in whole, but not in part, at a price of $0.01 per Right, payable, at the
option of the Company, in cash, shares of Common Stock or such other
consideration as the Board of Directors may determine. Under certain
circumstances set forth in the Rights Agreement, the decision to redeem shall
require the concurrence of a majority of the Continuing Directors. Immediately
upon the effectiveness of the action of the Board of Directors ordering
redemption of the Rights, with, where required, the concurrence of the
Continuing Directors, the Rights will terminate and the only right of the
holders of Rights will be to receive the $0.01 redemption price.
The term "Continuing Director" means any member of the Board of
Directors of the Company, while such Person is a member of the Board of
Directors of the Company, who is not an officer or employee of the Company or
any Subsidiary of the Company and who is not an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person, or a nominee or representative of
an Acquiring Person or of any such Affiliate or Associate, if (i) such Person
was a member of the Board of Directors of the Company prior to the time a Person
becomes an Acquiring Person or (ii) such Person's nomination for election or
election to the Board of Directors of the Company is recommended or approved by
a majority of the then Continuing Directors.
At any time after the occurrence of a Flip-In Event and prior to a
person's becoming the beneficial owner of 50% or more of the shares of Common
Stock then outstanding or the occurrence of a Flip-Over Event, the Company (with
the concurrence of a majority of the Continuing Directors) may exchange the
Rights (other than Rights owned by an Acquiring Person or an affiliate or an
associate of an Acquiring Person, which will have become void), in whole or in
part, at an exchange ratio of one share of Common Stock, and/or other equity
securities deemed to have the same value as one share of Common Stock, per
Right, subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights should not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for the
common stock of the acquiring company as set forth above or are exchanged as
provided in the preceding paragraph.
Other than the redemption price, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company (in certain
circumstances, with the concurrence of the Continuing Directors) as long as the
Rights are redeemable. Thereafter, the provisions of the Rights Agreement other
than the redemption price may be amended by the Board of Directors (in certain
circumstances, with the concurrence of the Continuing Directors) in order
to cure any ambiguity, defect or inconsistency, to make changes that do not
materially adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person), or to shorten or lengthen any time period
under the Rights Agreement; provided, however, that no amendment to lengthen the
time period governing redemption shall be made at such time as the Rights are
not redeemable.
The Rights will have certain anti-takeover effects. The Rights will
cause substantial dilution to any person or group that attempts to acquire the
Company without the approval of the Company's Board of Directors. As a result,
the overall effect of the Rights may be to render more difficult or discourage
any attempt to acquire the Company even if such acquisition may be favorable to
the interests of the Company's stockholders. Because the Company's Board of
Directors can redeem the Rights or approve a Permitted Offer, the Rights should
not interfere with a merger or other business combination approved by the Board
of Directors of the Company.
The Rights Agreement, which includes the Form of Resolutions
Establishing Designations, Preferences and Rights of Series A Junior
Participating Preferred Stock of Kirby Corporation as Exhibit A, the form of
Rights Certificate as Exhibit B, and the Summary of Rights as Exhibit C, is
included as an exhibit hereto and is incorporated herein by reference. The
foregoing description of the Rights is qualified in its entirety by reference to
the Rights Agreement and the exhibits thereto.
ITEM 2. Exhibits.
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1. Rights Agreement, dated as of July 18, 2000, between Kirby
Corporation and Fleet National Bank, a national banking
association, which includes the form of Form of Resolutions
Establishing Designations, Preferences and Rights of Series A
Junior Participating Preferred Stock of Kirby Corporation as
Exhibit A, the form of Rights Certificate as Exhibit B, and
the Summary of Rights as Exhibit C. (Incorporated by reference
to Exhibit 4.1 of the Company's Form 8-K dated July 18, 2000.)
2. Bylaws of the Company.
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, thereunto duly authorized.
Dated: July 18, 2000.
KIRBY CORPORATION
By: /s/ G. Stephen Holcomb
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G. Stephen Holcomb
Vice President and Controller
EXHIBIT INDEX
Exhibit
No. Exhibit Description
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1. Rights Agreement, dated as of July 18, 2000, between Kirby
Corporation and Fleet National Bank, a national banking
association, which includes the form of Form of Resolutions
Establishing Designations, Preferences and Rights of Series A
Junior Participating Preferred Stock of Kirby Corporation as
Exhibit A, the form of Rights Certificate as Exhibit B, and
the Summary of Rights as Exhibit C. (Incorporated by reference
to Exhibit 4.1 of the Company's Form 8-K dated July 18, 2000.)
2. Bylaws of the Company.
EXHIBIT 2
KIRBY CORPORATION
BYLAWS
ARTICLE I
Offices
Section 1. The principal office shall be in the City of Reno, County of
Washoe, State of Nevada.
Section 2. The corporation shall also have an office and a place of
business in the City of Houston, Texas, and it may also have offices at such
other places both within and without the State of Nevada as the Board of
Directors may from time to time determine or as the business of the corporation
may require.
ARTICLE II
Meetings of Stockholders
Section 1. All annual meetings of the stockholders shall be held at
such place as may be designated by the Board of Directors and stated in the
notice of the meeting, in the City of Houston, State of Texas. Special meetings
of the stockholders may be held at such time and place within or without the
State of Nevada as shall be stated in the notice of the meeting, or in a duly
executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1984, shall be held at such time and place and on such date during the month of
April or May as may be determined by resolution adopted by the Board of
Directors of the corporation, at which meeting the shareholders shall elect by a
plurality vote a Board of Directors and transact such other business as may
properly be brought before the meeting.
Section 3. Special meetings of the stockholders may be called only by
the Chairman of the Board, the President or the Board of Directors acting by a
majority of the entire Board of Directors, in each case stating the purpose or
purposes of the proposed meeting.
Section 4. Notices of meetings shall be in writing and signed by the
President or a Vice President, or the Secretary, or an Assistant Secretary, or
by such other person or persons as the Directors shall designate. Such notice
shall state the purpose or purposes for which the meeting is called and the time
when, and the place, which may be within or without this state, where it is to
be held. A copy of such notice shall be either delivered personally to or shall
be mailed, postage prepaid, to each stockholder of record entitled to vote at
such meeting not less than ten nor more than sixty days before such meeting. If
mailed, it shall be directed to a stockholder at his address as it appears upon
the records of the corporation and, upon such mailing of any such notice, the
service thereof shall be complete, and the time of the notice shall begin to run
from the date upon which such notice is deposited in the mail for transmission
to such stockholder. Personal delivery of any such notice to any officer of a
corporation or association, or to any member of a partnership shall constitute
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delivery of such notice to such corporation, association or partnership. In the
event of the transfer of stock after delivery or mailing of the notice of and
prior to the holding of the meeting, it shall not be necessary to deliver or
mail notice of the meeting to the transferee.
Section 5. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 6. A majority of the voting power, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Articles of Incorporation of the corporation. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, the chairman of the meeting shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 7. When a quorum is present or represented at any meeting, the
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 the statutes or of the Articles of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 8. Every stockholder of record of the corporation shall be
entitled at each meeting of stockholders to one vote for each share of stock
standing in his name on the books of the corporation.
Section 9. At any meeting of the stockholders, any stockholder may be
represented and vote by a proxy or proxies appointed by an instrument in
writing. In the event that any such instrument in writing shall designate two or
more persons to act as proxies, a majority of such persons present at the
meeting or, if only one shall be present, then that one shall have and may
exercise all of the powers conferred by such written instrument upon all of the
persons so designated unless the instrument shall otherwise provide. No such
proxy shall be valid after the expiration of six months from the date of its
execution, unless coupled with an interest, or unless the person executing it
specifies therein the length of time for which it is to continue in force, which
in no case shall exceed seven years from the date of its execution. Subject to
the above, any proxy duly executed is not revoked and continues in full force
and effect until an instrument revoking it or a duly executed proxy bearing a
later date is filed with the Secretary of the corporation.
Section 10. Subject to the rights of the holders of Preferred Stock or
any series thereof as shall be prescribed in the Articles of Incorporation or in
the resolutions of the Board of Directors providing for the issuance of any such
series, any action required or permitted to be taken by the stockholders of the
corporation must be taken at a duly called annual or special meeting of
stockholders of the corporation and may not be taken by any consent in writing
by such stockholders.
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Section 11. Subject to such rights of the holders of Preferred Stock or
any series thereof as shall be prescribed in the Articles of Incorporation or in
the resolutions of the Board of Directors providing for the issuance of any such
series, only persons who are nominated in accordance with the procedures set
forth in this Section 11 shall be eligible for election as, and to serve as,
Directors. Nominations of persons for election to the Board of Directors may be
made at a meeting of stockholders at which directors are to be elected (a) by or
at the direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the corporation (i) who is a stockholder
of record on the date of the giving of the notice provided for in this Section
11 and on the record date for the determination of stockholders entitled to vote
at such annual meeting and (ii) who complies with the requirements of this
Section 11. In addition to any other applicable requirements, nominations, other
than those made by or at the direction of the Board of Directors (or any duly
authorized committee thereof) shall be preceded by timely notice thereof in
proper written form to the Secretary of the corporation.
To be timely, a stockholder's notice must be delivered to, or mailed
and received at, the principal executive offices of the corporation not less
than 90 days nor more than 120 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within 30
days before or after such anniversary date, notice by the stockholder, in order
to be timely, must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the annual
meeting was mailed or public disclosure of the date of the annual meeting was
made, whichever first occurs. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above.
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a Director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class or series and number of shares of capital stock of the
corporation which are owned beneficially or of record by such person and (iv)
any other information relating to such person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder intends to appear in
person or by proxy at the meeting to nominate the persons named in the notice
and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of the Directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be
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accompanied by a written consent of each proposed nominee to be named as a
nominee and to serve as a Director if elected.
No person shall be eligible for election as a Director of the
corporation unless nominated in accordance with the procedures set forth in this
Section 11. If the chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
Notwithstanding anything in the second paragraph of this Section 11 to
the contrary, in the event that the number of Directors to be elected to the
Board of Directors of the corporation is increased and there is no public
disclosure by the corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 100 days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this by-law shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the 10th day following the
day on which such public disclosure is first made by the corporation.
For purposes of this Section 11 and Section 12 of these Bylaws, "public
disclosure" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press, PR Newswire, Bloomberg or comparable national
news service or in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
Section 12. No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the corporation (i) who
is a stockholder of record on the date of the giving of the notice provided for
in this Section 12 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 12. In addition to any other applicable
requirements, for business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the corporation.
To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the corporation not less than 90
days nor more than 120 days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within 30 days before
or after such anniversary date, notice by the stockholder, in order to be
timely, must be so received not later than the close of business on the tenth
day following the day on which such notice of the
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date of the annual meeting was mailed or public disclosure (as defined in
Section 11) of the date of the annual meeting was made, whichever first occurs.
In no event shall the public disclosure of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (a) a brief description of the business desired to be brought
before the annual meeting (which shall include the text of the resolution to be
presented for adoption, indicating without limitation the text of any proposed
alteration, amendment, rescission or repeal of these Bylaws) and the reasons for
conducting such business at the annual meeting, (b) the name and record address
of such stockholder, (c) the class or series and number of shares of capital
stock of the corporation which are owned beneficially or of record by such
stockholder, (d) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (e) a representation
that such stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 12. If the chairman of the annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
At a special meeting of stockholders, only such business shall be
conducted as shall have been set forth in the notice of the meeting. At any
meeting, matters incident to the conduct of the meeting may be voted upon or
otherwise disposed of as the chairman of the meeting shall determine to be
appropriate.
Section 13. Meetings of stockholders shall be presided over by the
Chairman of the Board or in his absence by the President, or in his absence by a
Vice President, or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting. The Secretary of the corporation shall act as
secretary of the meeting, but in the absence of the Secretary the chairman of
the meeting may appoint any person to act as secretary of the meeting.
The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be determined by
the person presiding over the meeting. The Board of Directors of the corporation
may adopt by resolution such rules and regulations for the conduct of meetings
of stockholders as it shall deem appropriate. Except to the extent inconsistent
with any such rules and regulations adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and take all such actions as,
in the judgment of such chairman, are appropriate for the proper conduct
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of the meeting. Such rules, regulations or procedures, whether adopted by the
Board of Directors or prescribed by the chairman of the meeting, may include,
without limitation, the following: (a) the establishment of an agenda or order
of business for the meeting; (b) rules and procedures for maintaining order at
the meeting and the safety of those present; (c) limitations on attendance at or
participation in the meeting to stockholders of record of the corporation, their
duly authorized proxies or such other persons as the chairman of the meeting
shall determine; (d) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (e) limitations on the time allotted to
questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
ARTICLE III
Directors
Section 1. The number of Directors of the corporation shall be not
fewer than three nor more than fifteen, and within that range shall be
established from time to time by resolution of the Board of Directors.
Commencing with the election of Directors at the annual meeting of stockholders
held in 2001, the Directors, other than those who may be elected by the holders
of Preferred Stock or any series thereof as shall be prescribed in the Articles
of Incorporation or in the resolutions of the Board of Directors providing for
the issuance of any such series, shall be divided into three classes designated
Class I, Class II and Class III, as determined by the Board of Directors. Such
classes shall be as nearly equal in number as possible. The term of office of
the initial Class I Directors shall expire at the annual meeting of stockholders
in 2002, the term of office of the initial Class II Directors shall expire at
the annual meeting of stockholders in 2003, and the term of office of the
initial Class III Directors shall expire at the annual meeting of stockholders
in 2004. At each annual meeting of stockholders beginning with the annual
meeting of stockholders in 2002, Directors elected to succeed Directors whose
terms are then expiring shall serve for a term ending at the third annual
meeting of stockholders after their election and shall be of the same class as
the Directors they succeed; provided that the Board of Directors may designate
one or more directorships whose term expires at any annual meeting as
directorships of another class so that the classes will be as nearly equal in
number as possible. Each Director shall hold office until the expiration of his
or her term and until his or her successor is elected and qualified or until his
or her earlier death, resignation or removal. In the event of any change in the
authorized number of Directors constituting the entire Board of Directors, each
Director then serving shall nevertheless continue as a Director of the class of
which he or she is a member until the expiration of his or her current term, or
his or her earlier death, resignation or removal. Directors need not be
residents of the State of Nevada nor stockholders of the corporation.
Section 2. Subject to the rights of the holders of Preferred Stock or
any series thereof as shall be prescribed in the Articles of Incorporation or in
the resolutions of the Board of Directors providing for the issuance of any such
series, newly created directorships resulting from any increase in the number of
Directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the
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remaining Directors then in office, even though less than a quorum, or by the
sole remaining Director. Any Director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
Directors in which the new directorship was created or the vacancy occurred and
until such Director's successor shall have been elected and qualified. Except as
otherwise provided with respect to a Director elected by the holders of
Preferred Stock or any series thereof in the Articles of Incorporation or in
resolutions providing for the issuance of any such series, no decrease in the
number of Directors constituting the entire Board of Directors shall shorten the
term of any incumbent Director. When one or more directors shall give notice of
his or their resignation to the Board, effective as of a future date, the Board
shall have power to fill such vacancy or vacancies to take effect when such
resignation or resignations become effective, each Director so appointed to hold
office for the remainder of the term of office of the resigning Director or
Directors.
Section 3. 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 statute or by the Articles of
Incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
Section 4. The Board of Directors of the corporation may hold meetings,
both regular and special, either within or without the State of Nevada.
Meetings of the Board of Directors
Section 5. The first meeting of each newly elected Board of Directors
shall be held at the offices of the corporation in Houston, Texas, immediately
following the Annual Stockholders' Meeting and no notice of such meeting shall
be necessary to the newly elected Directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
Directors to hold such meeting at the time and place so fixed, 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 signed by all of the Directors.
Section 6. Regular meetings of the Board of Directors may be held
without notice at such time and place as shall from time to time be determined
by the Board.
Section 7. Special meetings of the Board of Directors may be called at
any time and from time to time by the President or Secretary and shall be called
by the President or Secretary on the written request of two Directors. Oral,
written, telegraphic or telephone notice of special meetings of the Board of
Directors shall be given to each Director at least two (2) days before the date
of the meeting.
Section 8. A majority of the Board of Directors, at a meeting duly
assembled, shall be necessary to constitute a quorum for the transaction of
business and the act of a majority of the Directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute, or by the Articles of
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Incorporation. Any action of a majority, although not at a regularly called
meeting, and the record thereof, if assented to in writing by all of the other
members of the Board either before or after such action, shall be as valid and
effective in all respects as if passed by the Board in regular meeting.
Section 9. 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 thereto is signed by all the members of the Board
or of such committee. Such written consent shall be filed with the minutes of
proceedings of the Board or committee.
Section 10. Members of the Board of Directors and members of any
committee designated by the Board of Directors may participate in and hold a
meeting of such Board or committee by means of a conference telephone or a
similar communications method by which all persons participating in the meeting
can hear each other. Participation in such a meeting shall constitute presence
in person at the meeting.
Committees of Directors
Section 11. 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 or more of the Directors of the corporation 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 have power to authorize the seal of the corporation to be affixed to all
papers which may require it. 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 12. The committees shall keep regular minutes of their
proceedings and report the same to the Board when required.
Compensation of Directors
Section 13. The Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
Director. No such payment shall preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Advisory Directors
Section 14. The Board of Directors may from time to time designate one
or more persons as Advisory Directors of the corporation. Advisory Directors
shall serve for terms ending at the time of the Annual Meeting of the Board of
Directors following the Annual Meeting of Stockholders each year; provided,
however, any or all of the Advisory Directors may be removed at any time, with
or without cause, by the Board of Directors.
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Section 15. Advisory Directors shall receive notice of and be entitled
to attend meetings of the Board of Directors or committees to which they are
assigned and shall be entitled to participate in discussions at such meetings,
but shall not vote. The Board of Directors or committees shall have the
authority to excuse Advisory Directors from all or portions of any meeting.
Section 16. Advisory Directors shall not be entitled to vote and shall
not have the powers or responsibilities of a Director of the corporation.
Nomination of Directors
Section 17. The Board of Directors may nominate a Director, Directors
or slate of Directors to be voted upon by the Stockholders at the Annual Meeting
of Stockholders or at any other meeting of Stockholders or at any other meeting
of Stockholders at which Directors are to be elected. Except as provided in this
Section, the Board of Directors shall not nominate for election or reelection as
a Director any person who will be seventy-two (72) years of age or older at the
time the Stockholders are scheduled to vote on such election; provided, however,
this restriction may be waived by the vote or written consent of two-thirds
(2/3rds) of the total number of Directors of the Corporation then in office,
excluding, however, any Director who would otherwise be disqualified for
nomination for election. Any such waiver shall be applicable only to the
scheduled election, but additional waivers may be granted for subsequent
elections.
ARTICLE IV
Notices
Section 1. Notices to stockholders shall be in writing and delivered
personally or mailed to the stockholders 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 mailed. Notice to Directors may also be given orally or
by telegram or telephone.
Section 2. Whenever all parties entitled to vote at any meeting,
whether of Directors or stockholders, consent, either by a writing on the
records of the meeting or filed with the Secretary, or by presence at such
meeting and oral consent entered on the minutes, or by taking part in the
deliberations at such meeting without objection, the doings of such meeting
shall be as valid as if had at a meeting regularly called and noticed, and at
such meeting any business may be transacted which is not excepted from the
written consent or to the consideration of which no objection for want of notice
is made at the time, and if any meeting be irregular for want of notice or of
such consent, provided a quorum was present at such meeting, the proceedings of
said meeting may be ratified and approved and rendered likewise valid and the
irregularity or defect therein waived by a writing signed by all parties having
the right to vote at such meetings; and such consent or approval of stockholders
may be by proxy or attorney, but all such proxies and powers of attorney must be
in writing.
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Section 3. Whenever any notice whatever is required to be given under
the provisions of the statutes, of the Articles of Incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
Officers
Section 1. The officers of the corporation shall be chosen by the Board
of Directors and shall be a Chairman of the Board of Directors (who must be a
Director), a President, one or more Vice Presidents (as elected by the Board of
Directors hereinafter provided), and a Secretary and a Treasurer. Any person may
hold two or more offices except that the offices of President and Vice President
shall not be held by the same person.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a Chairman and a President (who may
be one and the same person) from among the Directors, and shall choose one or
more Vice Presidents (as hereinafter provided), a Secretary and a Treasurer,
none of whom need be a member of the Board.
Section 3. The Board of Directors may appoint additional Vice
Presidents, and Assistant Secretaries and Assistant Treasurers and such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board.
Section 4. The salaries of all officers of the corporation shall be
fixed by the Board of Directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Chairman of the Board of Directors
Section 6. The Chairman of the Board of Directors shall be chosen from
the membership of the Board of Directors.
Section 7. He shall preside at all meetings of the Board of Directors
and stockholders and, except as otherwise provided in these Bylaws or ordered by
the Board of Directors, shall appoint all special or other committees of the
Board of Directors.
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Section 8. He may call meetings of the Board of Directors whenever he
deems same to be necessary; and he shall perform such other duties as may be
prescribed by the Board of Directors from time to time.
The President
Section 9. The President of the corporation shall be the chief
executive officer of the corporation, shall have general and active management
of the business of the corporation and shall see that all policies, orders and
resolutions of the Board of Directors are carried into effect. If there is no
Chairman of the Board or during the absence or disability of the Chairman of the
Board, the President shall preside at all meetings of the stockholders and of
the Board of Directors and shall exercise all of the other powers and discharge
all of the other duties of the Chairman of the Board. He may call meetings of
the Board of Directors and of any committee thereof whenever he deems same to be
necessary.
Section 10. He may sign and deliver on behalf of the corporation any
deeds, mortgages, bonds, contracts, powers of attorney or 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 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. He
shall perform all such other duties as are incident to his office or are
properly required of or assigned to him by the Board of Directors.
Section 11. He shall have the right to exercise on behalf of the
corporation any and all voting privileges, including the power to grant proxies,
on all stocks of subsidiaries of the corporation and all other securities owned
by or on behalf of the corporation, such right to be exercised by him in his
discretion as he deems in the best interest of the corporation unless limited or
otherwise directed by resolution of the Board of Directors.
The Vice President
Section 12. The Vice President who shall be senior by designation of
the Board of Directors or, if no Vice President is so designated, then the Vice
President who shall have longest served in such capacity shall, in the absence
or disability of the President, perform the duties and exercise the powers of
the President and shall perform such other duties as the Board of Directors may
from time to time prescribe.
Section 13. All other Vice Presidents, if any, shall at all times
possess power to sign all certificates, contracts and other instruments of the
corporation, except as otherwise limited in writing by the Chairman of the Board
or the President of the corporation, and shall have such other authority and
perform such other duties as these Bylaws or the Board of Directors, executive
committee, Chairman of the Board or President shall prescribe. They shall
succeed, in order of seniority, to the duties and powers of other Vice
Presidents who are absent or disabled.
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The Secretary and Assistant Secretaries
Section 14. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the Board of Directors in a book to be
kept for the purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
President, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation, and when authorized by the Board of Directors,
affix the same to any instrument requiring it and, when so affirmed, it shall be
attested by his signature or by the signature of the Treasurer or an Assistant
Secretary.
Section 15. The Assistant Secretaries shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as the Board of Directors shall
prescribe.
The Treasurer and Assistant Treasurers
Section 16. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors.
Section 17. He shall disburse the funds of the corporation as may be
ordered by the Board of Directors taking proper vouchers for such disbursements,
and shall render to the President and the Board of Directors, at the regular
meetings of the Board, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
corporation.
Section 18. If required by the Board of Directors, he 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.
Section 19. The Assistant Treasurers in the order of their seniority
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as the
Board of Directors shall prescribe.
Operating Divisions
Section 20. The Board of Directors may, by resolution passed by a
majority of the whole Board, establish one or more operating divisions of the
corporation, and may confer on the employees
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of the corporation assigned to any such operating division the title of
President, Vice President and any other titles deemed appropriate. The Board of
Directors may at any time discontinue any such operating division or title. The
designation of any such titles for employees assigned to operating divisions of
the corporation shall not be permitted to conflict in any way with any executive
or administrative authority established from time to time by or for the
corporation. Any employee designated as an officer of an operating division
shall have authority, responsibilities and duties with respect to such operating
division corresponding to those normally vested in the comparable officer of the
corporation by these Bylaws, subject to such limitations as may be imposed by
the Board of Directors of the corporation.
ARTICLE VI
Certificates of Stock
Section 1. Every stockholder shall be entitled to have a certificate,
signed by the President or a Vice President and the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the corporation,
certifying the number of shares owned by him 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 designations, preferences and relative,
participating, optional or other special rights of the various classes of stock
or series thereof and the qualifications, limitations or restrictions of such
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 stock and, if
the corporation shall be authorized to issue only special stock, such
certificate shall be set forth in full or summarize the rights of the holders of
such stock.
Section 2. Whenever any certificate is countersigned or otherwise
authenticated by a transfer agent or transfer clerk, and by a registrar duly
appointed by the corporation, then a facsimile of the signatures of the officers
or agents of the corporation may be printed or lithographed upon such
certificate in lieu of the actual signatures. In case any officer or officers
who shall have signed, or whose facsimile signature or signatures shall have
been used on, any 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 shall have been delivered by
the corporation, such certificate or certificates may nevertheless be adopted by
the corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates, or whose facsimile signature or
signatures shall have been used thereon, had not ceased to be the officer or
officers of such corporation.
Section 3. 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 destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost 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 or destroyed certificate or certificates, or his legal representative, to
advertise
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the same in such manner as it shall require and/or give the corporation a bond
in such sum as it 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.
Transfer of Stock
Section 4. Upon surrender to the corporation or any duly appointed
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.
Closing of Transfer Books
Section 5. The Directors may prescribe a period not exceeding sixty
days prior to any meeting of the stockholders during which no transfer of stock
on the books of the corporation may be made, or may fix a day not more than
sixty days prior to the holding of any such meeting as the day as of which
stockholders entitled to notice of and to vote at such meeting shall be
determined; and only stockholders of record on such day shall be entitled to
notice or to vote at such meeting.
Registered Stockholders
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and 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 the laws of
Nevada.
ARTICLE VII
General Provisions
Dividends
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the Articles 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 capital stock or
other securities of the corporation, subject to the provisions of the Articles
of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
Directors from time to time, in their
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absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as the Directors shall
think conducive to the interest of the corporation, and the Directors may modify
or abolish any such reserve in the manner in which it was created.
Checks
Section 3. 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.
Fiscal Year
Section 4. The fiscal year of the corporation shall be fixed by the
resolutions of the Board of Directors.
Seal
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its incorporation and the words "Corporate Seal,
Nevada."
ARTICLE VIII
Amendments
Section 1. Subject to the provisions of the Articles of Incorporation,
and in addition to any affirmative vote required by law, any alteration,
amendment, repeal or rescission of these Bylaws must be approved either (a) by
the Board of Directors by the affirmative vote of at least a majority of the
then-authorized number of Directors or (b) by the stockholders by the
affirmative vote of the holders of at least 66 2/3% of the combined voting power
of the then-outstanding shares of stock entitled to vote generally in elections
of Directors, voting together as a single class. No amendment, alteration,
rescission or repeal of these Bylaws shall be effective to reduce the term of
any incumbent Director, whether by reduction in the number of Directors, changes
to the provisions for the division of the Directors into classes or otherwise.
ARTICLE IX
Indemnification of Directors and Officers
Section 1. The Corporation shall indemnify each and every present and
former director and officer of the Corporation, and each and every person who
may have served at the Corporation's request as a director or officer of another
corporation in which the Corporation owns shares of capital stock or of which
the Corporation is a creditor (each of which other corporations is individually
15
referred to herein as an "Other Enterprise"), against any and all expenses
(including attorneys' fees) actually and necessarily incurred by him in
connection with the defense of any action, suit or proceeding in which he was or
is a party by reason of being or having been a director or officer of the
Corporation or Other Enterprise to the fullest extent permitted by law. The
rights of indemnification provided in this Section 1 shall be in addition to any
other rights to which a person may otherwise be entitled by any other sections
of this Article IX, the Corporation's Articles of Incorporation, statute,
agreement, vote of stockholders or otherwise.
Section 2. The Corporation shall indemnify officers and directors of
the Corporation, as well as other persons who serve as agents and employees of
the Corporation, to the extent set forth in the Corporation's Articles of
Incorporation.
Section 3. The Corporation may purchase and maintain insurance on
behalf of, and contractually agree to indemnify, 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 him 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 Section 1 or Section 2 of this Article IX.
As amended through May 31, 2000.
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