Exhibit 3.6(a)
Filed
in the Office of the
Secretary of State of Texas
SEP 30 2002
Corporations Section
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ALBERTA INVESTMENTS, INC.
Pursuant to the provisions of Article 4.07 of the Texas Business
Corporation Act (the "Act"), the undersigned, an officer of Alberta Investments,
Inc. (the "Corporation") hereby certifies as follows:
1. The name of the Corporation is Alberta Investments, Inc.
2. The Articles of Incorporation of the Corporation, as amended, are hereby
amended by striking each Article thereof and by substituting in lieu thereof the
Amended and Restated Articles of Incorporation hereinafter provided for.
3. The number of shares of capital stock of the Corporation outstanding at
the time of the adoption of the foregoing amendments was 14,500 shares of common
stock and the number of shares entitled to vote on the amendments was 14,500
shares of common stock.
4. The shareholders adopted the foregoing amendments on September 25, 2002
by written consent in lieu of a special meeting. The number of shares that voted
for the amendments was 14,500 shares of common stock, and the number of shares
that voted against the amendments was 0.
5. This certificate accurately copies the Articles of Incorporation and all
amendments thereto that are in effect to date and as further amended hereby and
this certificate contains no other change in any provision of the Articles of
Incorporation, as amended.
6. The Articles of Incorporation of the Corporation, as amended and
restated herein, shall upon the effective date of the Amended and Restated
Articles of Incorporation, read as follows:
ARTICLE ONE
The name of the Corporation is Alberta Investments, Inc.
ARTICLE TWO
The period of duration of the Corporation is perpetual.
ARTICLE THREE
The purpose for which the Corporation is organized is to engage in the
transaction of any and all lawful business for which corporations may be
incorporated Under the Act.
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ARTICLE FOUR
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 16,500 shares, consisting of (i) 15,500 shares
of Common Stock, one cent ($.01) par value per share ("Common Stock"), 15,000
shares of which are designated as Series A Common Stock, one cent ($.01) par
value per share ("Series A Common Stock"), and 500 shares of which are
designated as Series B Common Stock, one cent ($.01) par value per share
("Series B Common Stock"), and (ii) 1,000 shams of Preferred Stock, one cent
($.01) par value per share ("Preferred Stock"), 500 shares of which are
designated as Series A Preferred Stock, one cent (5.01) par value per share
("Series A Preferred Stock"). All shares of Common Stock outstanding as of the
date of the effectiveness of these Amended and Restated Articles of
Incorporation are hereby reclassified as shares of Series A Common Stock without
the need of further action by the holders thereof or the Corporation. The term
"Common Stock" as used herein without reference to the Series A Common Stock or
the Series B Common Stock shall mean all of the Series A Common Stock and Series
B Common Stock.
The following is a statement of the designations, preferences, limitations
and relative rights in respect of each class of capital stock of the
Corporation.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders of
Common Stock are subject to and qualified by the rights of the holders of the
Preferred Stock of any series as may be designated by the Board of Directors of
the Corporation (the "Board"). The rights, powers and privileges of Series A
Common Stock and Series B Common Stock shall be identical in all respects.
2. Voting. The holders of Common Stock are entitled to vote at all meetings
of shareholders (and written acions in lieu of meetings). Each share of Common
Stock shall be entitled to that number of votes that is equal to the quotient
obtained when 80,000 is divided by the number of shares of Common Stock
outstanding as of the record date for determining the holders of shares of the
Corporation entitled to vote at the meeting or by written consent.
3. Dividends. Dividends may be declared and paid on the Common Stock from
funds lawfully available therefor as and when determined by the Board, subject
to the provisions of this section and to any preferential rights of any
then-outstanding Preferred Stock.
4. Liquidation. Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its shareholders, subject to any preferential rights of any then-outstanding
Preferred Stock.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series, each
of such series to have such terms as stated or expressed herein or in the
resolution or resolutions providing for the issue of such series adopted by the
Board as hereinafter provided. Different
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series of Preferred Stock shall not be construed to constitute different classes
of shares for the purpose of voting by classes unless expressly provided.
Authority is hereby expressly granted to the Board from time to time to
issue Preferred Stock in one or more series, and in connection with the creation
of any such series, by resolution or resolutions providing for the issue of the
shares thereof, to determine and fix the designations, preferences, limitations
and relative rights, including voting rights, as shall be stated and expressed
in such resolutions, all to the full extent now or hereafter permitted by the
Act. Without limiting the generality of the foregoing, the resolutions providing
for issuance of any series of Preferred Stock may provide that such series shall
be superior or rank equally or be junior to the Preferred Stock of any other
series to the extent permitted by law. Except as otherwise specifically provided
in these Articles of Incorporation, no vote of the holders of the Preferred
Stock or Common Stock shall be a prerequisite to the issuance of any shares of
any series of Preferred Stock authorized by and complying with the conditions of
the Amended and Restated Articles of Incorporation, the right to have such vote
being expressly waived by all present and future holders of the capital stock of
the Corporation.
All references to sections in this Section B of Article Four shall refer to such
Sections as they appear in this Section B of Article Four.
When used in this Section B of Article Four, the term:
(a) "Business Day" means any day that is not a Saturday, a Sunday or a day
on which banks are required or permitted to be closed in the State of
Texas;
(b) "Cumulative Dividend Base" of a share of Series A Preferred Stock
means, at any point in time, the amount by which:
(i) the Initial Redemption Price of the share;
exceeds:
(ii) the aggregate amount of all dividends declared on such share
prior to that point in time pursuant to Sections 1(b)(ii) and
I(b)(iii);
if the result of the foregoing calculation is a negative amount, then
the Cumulative Dividend Base of a share of Series A Preferred Stock
shall be zero ($0);
(c) "Initial Redemption Price" of a share of Series A Preferred Stock
means the fair market value of the consideration received by the
Corporation for the issuance of such share as determined, and as from
time to time adjusted, pursuant to Section 4(a);
(d) "Person" or "person" means any individual, partnership, corporation,
trust, unincorporated organization, joint venture, governmental
agency, political subdivision or any other entity of any kind;
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(e) "Regular Dividend" means the amount of the cumulative dividend which
the holder of a share of Series A Preferred Stock is entitled to be
paid pursuant to Section 1(a);
(f) "Series A Preferred Stock Liquidation Participation Amount" means, at
any point in time, 11 % of the product obtained when:
(i) the amount by which:
(A) the amount that would be available for distribution to all
shareholders of the Corporation on a liquidation of the
Corporation at that point in time
exceeds the aggregate of:
(B) the amount by which $60,000,000 exceeds the aggregate of all
dividends declared on the Series A Preferred Stock prior to
that point in time pursuant to Sections 1(b)(ii) and I
(b)(iii);
(C) the aggregate of the accrued and unpaid Regular Dividend, if
any, on all shares of the Series A Preferred Stock then
outstanding calculated through to that point in time; and
(D) the amount by which:
(I) the aggregate of the Regular Dividend on all shares of
Series A Preferred Stock then outstanding calculated through
to that point in time, whether or not declared and paid;
exceeds:
(II) the aggregate of the dividends declared on the Common Stock
from October 1, 2002 through to that point in time;
if the amount determined pursuant to the foregoing provisions of
this subsection (D) is a negative amount, then the amount of zero
($0) shall be used as the amount determined under this subsection
(D) for the purpose of determining the Series A Preferred Stock
Liquidation Participation Amount;
is multiplied by a fraction:
(ii) the numerator of which is the number of shares of Series A
Preferred Stock outstanding at that point in time; and
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(iii) the denominator of which is the number of shares of Series A
Preferred Stock outstanding at October 1, 2002;
if the product determined pursuant to the foregoing provisions of this
subsection (f) is a negative amount, than the Series A Preferred Stock
Liquidation Participation Amount shall be zero (SO); and
(g) "Series A Preferred Stock Liquidation Preference" of a share of Series
A Preferred Stock means, at any point in time, the aggregate of:
(i) the Cumulative Dividend Base of the share at that point in time;
(ii) the accrued and unpaid Regular Dividend, if any, calculated
through to that point in time; and
(iii) the quotient obtained when:
(A) the Series A Preferred Stock Liquidation Participation
Amount at that point in time;
is divided by
(B) the number of shares of Series A Preferred Stock outstanding
at that point in time.
1. Dividends.
(a) The holders of the outstanding shares of Series A Preferred Stock
shall be entitled to receive annual cumulative dividends out of any
assets legally available therefor in an amount per share of 6% of the
Cumulative Dividend Base of such share payable prior and in preference
to any declaration or payment of any dividend (payable other than in
Common Stock or other securities and rights convertible into or
entitling the holder thereof to receive shares of Common Stock of the
Corporation) on the Common Stock.
(b) in addition to the dividends described in subsection (a) above, the
Board shall have the discretion to declare and pay on the Series A
Preferred Stock the following dividends out of any assets legally
available therefor:
(i) one or more dividends at any time and from time to time or to
October 1, 2005, provided always that the aggregate amount of all
dividends declared pursuant to this subsection (i) shall not
exceed $2,000,000;
(ii) one or more dividends at any time and from time to time within a
period of 90 days prior to the date of any change in control of
the Corporation that occurs prior to October 1, 2005, provided
always that no dividend declared pursuant to this subsection (ii)
shall
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exceed the aggregate of the Series A Preferred Stock Liquidation
Preference (calculated immediately before the declaration of the
dividend) for all shares of Series A Preferred Stock outstanding
at the time of the declaration of the dividend; and
(iii) one or more dividends at any time and from time to time on or
after October 1, 2005, provided always that no dividend declared
pursuant to this subsection (iii) shall exceed the aggregate of
the Series A Preferred Stock Liquidation Preference (calculated
immediately before the declaration of the dividend) for all
shares of Series A Preferred Stock outstanding at the time of the
declaration of the dividend.
For the purposes of subsection (ii) above, a change in control of the
Corporation shall mean any voluntary or involuntary transfer of shares of the
Corporation that will result in a majority of the voting power of the
Corporation not being controlled, directly or indirectly, by any one or more of
Atlas Concrete Inc., Wild Rose Holdings Ltd. and any shareholder of Atlas
Concrete Inc. or Wild Rose Holdings Ltd.
2. Preference on Liquidation.
(a) Liquidation Preference for Preferred Stock In the event that the
Corporation shall commence a voluntary case under the Federal
bankruptcy laws or any other applicable Federal or state bankruptcy,
insolvency or similar law, or consent to the entry of an order for
relief in an involuntary case under such law or to the appointment of
entry of a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or other similar officials) of the Corporation or of any
substantial part of its property, or make an assignment for the
benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or if a decree or order for relief
in respect of the Corporation shall be entered by a court having
jurisdiction in the premises in an involuntary case under the Federal
bankruptcy laws or any other applicable Federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or other similar
official) of the Corporation or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs,
and on account of any such event the Corporation shall liquidate,
dissolve or wind up, or if the Corporation shall otherwise liquidate,
dissolve or wind up, then no distribution of the assets of the
Corporation shall be made to the holders of shares of Common Stock
(and no monies shall be set apart for such purpose) unless prior
thereto each holder of a share of Series A Preferred Stock shall have
received the Series A Preferred Stock Liquidation Preference from the
assets of the Corporation with respect to the shares of Series A
Preferred Stock held thereby.
(b) Pro Rata Payments. If, upon any such liquidation, dissolution or other
winding up of the affairs of the Corporation, the assets of the
Corporation shall be insufficient to permit the payment in full of the
Series A Preferred Stock Liquidation Preference to all holders of the
shares of Series A Preferred Stock then
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outstanding, then the assets of the Corporation shall be ratably
distributed among the holders of the Series A Preferred Stock in
proportion to the full amounts to which they would otherwise be
respectively entitled if all amounts thereon were paid in full.
(c) Notice of Liquidation. Written notice of any liquidation,
dissolution or winding up of the Corporation, stating the payment date
or dates and the place or places where amounts distributable in such
circumstances shall be payable, shall be given by first class mail,
postage prepaid, not less than thirty (30) days prior to any payment
date specified therein, to the holders of record of the Series A
Preferred Stock at their respective addresses as they than appear on
the records of the Corporation. Notwithstanding the foregoing, the
holders of record of the Series A Preferred Stock may waive any notice
required under this Section 2(c).
3. Voting, The holders of Series A Preferred Stock are entitled to vote at all
meetings of shareholders (and written actions in lieu of meetings). Each share
of Series A Preferred Stock shall be entitled to that number of votes that is
equal to the quotient obtained when 20,000 is divided by the number of shares of
Series A Preferred Stock outstanding as of the record date for determining the
holders of shares of the Corporation entitled to vote at the meeting or by
written consent. Except as required by applicable law, the Preferred Stock shall
vote together with the Common Stock on all actions to be voted on by the
shareholders of the Corporation.
3. Redemption of Series A Preferred Stock.
(a) General. The price to be paid by the Corporation on any redemption of
a share of Series A Preferred Stock pursuant to this Section 4 shall
be the Series A Preferred Stock Liquidation Preference for such share.
At the time of issuance of each share of Series A Preferred Stock, the
Board shall determine the fair market value of the consideration
received by the Corporation far the issuance of such share provided
always that if such fair market value is subsequently determined:
(i) by a tribunal or court of competent jurisdiction as a result of a
reassessment of income tax by the Canada Customs and Revenue
Agency ("CCRA") or other governmental entity with appropriate
authority and such determination is not, or can no longer be,
appealed;
(ii) by the CCRA or other governmental entity with appropriate
authority, and the amount so determined is agreed to by the
Corporation and the person to whom such share is issued; or
(iii) by agreement between the Corporation and the person to whom such
share is issued;
to be greater or less than the fair market value determined by the Board, then
the fair market value (and, as a result, the Initial Redemption Price) shall be
increased or decreased so as to reflect the fair market value determined
pursuant to subclause (i), (ii) or (iii) above, as applicable. Such adjustment
shall be effective as of the date of issuance of the relevant share of
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Series A Preferred Stork and the Corporation and the person to whom such share
is issued shall make all payments and take all action required to give effect
thereto. Without limiting the generality of the foregoing, if the fair market
value is adjusted at any time after the Corporation has redeemed, repurchased or
otherwise acquired any share of Series A Preferred Stock, then the Corporation
and the former holder of such share shall make all payments and take all action
required to give effect to the change in the fair market value. Interest at the
prime lending rate of the Corporation's principal bank as at the date of
redemption or repurchase, calculated from the date of redemption or repurchase
to the date of payment of the adjusting amount, shall be paid on any amount that
the Corporation or the former holder of such share is obligated to pay to the
other as a result of an adjustment to the fair market value. Such interest shall
be paid at the time of payment of the adjusting amount.
(b) Redemption at Holders' Option. At any time after the twentieth (20th)
anniversary date of the issuance of a share of Series A Preferred
Stock, the Corporation shall redeem any such outstanding share of
Series A Preferred Stock at the Series A Preferred Stock Liquidation
Preference for such share upon request by the holder thereof pursuant
to the provisions of Section 4(b)(i) below.
(i) Optional Redemption Notice. The right of a holder of Series A
Preferred Stock to require the Corporation to redeem some or all
of such holder's shares of Series A Preferred Stock pursuant to
this Section 4(b) may be exercised by delivery to the
Corporation, pursuant to the notice provisions hereof, of a
written notice (the "Optional Redemption Notice") together with
the stock certificates representing the shares of Series A
Preferred Stock to be redeemed (properly endorsed or assigned for
transfer). The Optional Redemption Notice shall be signed by the
person or entity specified in the Corporation's share ledger as
the registered holder of the shares to be redeemed or by such
holder's authorized attorney. The Optional Redemption Notice
shall specify the number of shares of Series A Preferred Stock to
be redeemed and the address or account to which the aggregate
amount to be paid by the Corporation for such shares (the
"Optional Redemption Amount") is to be delivered.
(ii) Payment of Optional Redemption Amount Within thirty (30) days of
receipt of the Optional Redemption Notice and the applicable
stock certificates, the Corporation shall pay the Optional
Redemption Amount to the holder of the shares of Series A
Preferred Stock designated in the Optional Redemption Notice.
Such payment of the Optional Redemption Amount shall be made by
check or wire transfer delivered to the address or account, as
applicable, specified in the Optional Redemption Notice. If less
than all of the shares of Series A Preferred Stock represented by
the stock certificates accompanying the Optional Redemption
Notice are to be redeemed by the Corporation., the Corporation
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shall deliver to the holder a new certificate for the shares of
Series A Preferred Stock that are not being redeemed.
(iii) No Exercise of Rights After Delivery of Optional Redemption
Notice. From and after the receipt by the Corporation of the
Optional Redemption Notice, the holder specified m such Optional
Redemption Notice shall not be entitled to exercise any rights in
respect of the shares of Series A Preferred Stock to be redeemed
pursuant to such Optional Redemption Notice, except to receive
the Optional Redemption Price therefor. If the Corporation fails
to pay the Optional Redemption Price within thirty (30) days
after receipt of the Optional Redemption Notice and the
applicable stock certificates, the holder shall be entitled to
exercise all right of a holder of the shares of the Series A
Preferred Stock specified in the Optional Redemption Notice.
(iv) Redemption Conditional on Compliance with the Act.
Notwithstanding any other provision of these Amended and Restated
Articles of Incorporation, the Corporation shall only be required
to redeem shares of Series A Preferred Stock to the extent
permissible under the Act. If any requested redemption of shares
of Series A Preferred Stock is not permitted under the Act, the
holder requesting such redemption may withdraw the Optional
Redemption Notice delivered by such holder and such holder's
rights as a holder of any shares of Series A Preferred Stock
specified therein shall automatically be reinstated. If such
holder does not withdraw an Optional Redemption Notice, the
Corporation shall purchase the shares specified therein, or a
portion thereof, from time to time, as soon as and to the extent
permissible under the Act. Until such time as all such shares
specified in an Optional Redemption Notice have been redeemed by
the Corporation, such holder may withdraw the Optional Redemption
Notice with respect to any shares of Series A Preferred Stock not
yet redeemed,
(c) Mandatory Redemption at Corporation's Option. At any time after the
twentieth (20th) anniversary of the issuance of a share of Series A
Preferred Stock, the Corporation may, at its option, redeem any such
outstanding share of Series A Preferred Stock at the Series A
Preferred Stock Liquidation Preference for such share pursuant to the
provisions of Section 4(c)(i) below.
(i) Mandatory Redemption Notice. The right of the Corporation to
require a mandatory redemption of Series A Preferred Stock
pursuant to this Section 4(c) may be exercised from time to time
by delivery to the holders of the shares of Series A Preferred
Stock to be redeemed, pursuant to the notice provisions hereof,
of a written notice from the Corporation (the "Mandatory
Redemption
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Notice"). The Mandatory Redemption Notice shall be delivered to
the applicable holders of Series A Preferred Stock not less than
thirty (30) nor more than ninety (90) days prior to the date of
redemption. Each such Mandatory Redemption Notice shall state:
(i) the redemption date; (ii) the number of such holder's shares
of Series A Preferred Stock to be redeemed; (iii) the aggregate
amount to be paid by the Corporation for the shares being
redeemed (the "Mandatory, Redemption Amount"); (iv) the place or
places where certificates for such shares are to be surrendered
for payment of the Mandatory Redemption Amount; (v) that payment
will be made upon presentation and surrender of such shares of
Series A Preferred Stock; and (vi) that such redemption is
mandatory.
(ii) Payment of Mandatory Redemption Amount. Upon surrender of the
certificates for any such shares so redeemed (properly endorsed
or assigned for transfer), in accordance with the terms of the
applicable Mandatory Redemption Notice, the Corporation shall pay
to the holders thereof the applicable Mandatory Redemption
Amount. The payment of the Mandatory Redemption Amount all be
made by check, delivered to the address of the holder of such
shares, as such holder's address appears in the stock records of
the Corporation. Notwithstanding the foregoing, payment of the
Mandatory Redemption Amount may be made by wire transfer to an
account specified in writing by the holder of any shares redeemed
pursuant to this Section 4(c). If less than all of the shares of
Series A Preferred Stock represented by the surrendered stock
certificates are to be redeemed by the Corporation, the
Corporation shall deliver to the holder a new certificate for the
shares of Series A Preferred Stock that are not being redeemed.
(iii) No Exercise of Rights, From and after the redemption date
specified in the Mandatory Redemption Notice, unless the
Corporation shall be in default in the payment of the Mandatory
Redemption Amount, the holder specified in such Mandatory
Redemption Notice shall not be entitled to exercise any rights in
respect of the shares of Series A Preferred Stock to be redeemed
pursuant to such Mandatory Redemption Notice. If the Corporation
fails to pay the Mandatory Redemption Amount within thirty (30)
days after receipt of the applicable stock certificates, the
holder specified in such Mandatory Redemption Notice shall be
entitled to exercise all rights of a holder of the shares of
Series A Preferred Stock specified in the Mandatory Redemption
Notice.
4. Shares to be Retired. Any share of Series A Preferred Stock redeemed,
repurchased or otherwise acquired by the Corporation shall be retired and
canceled and shall,
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upon cancellation, be restored to the status of authorized but unissued shares
of Preferred Stock, subject to reissuance by the Board as shares of Preferred
Stock of one or more series.
5. Restriction on Distributions. Without the prior approval of the holders
of 100% of the then outstanding shares of Series A Preferred Stock, the
Corporation shall make no distribution or other disposition of its assets to its
shareholders if, after such distribution or other disposition, the amount by
which:
(a) the fair market value of the Corporation's assets;
exceeds:
(b) all liabilities of the Corporation;
is less than the aggregate of the Series A Preferred Stock Liquidation
Preference for all shares of Series A Preferred Stock then outstanding.
6. Notices. Except as may otherwise be provided for in these Amended and
Restated Articles of Incorporation, all notices referred to herein shall be in
writing, and all notices hereunder shall be deemed to have been given (a) upon
receipt, in the case of a notice of redemption given to or by the Corporation as
contemplated in Section 4 hereof or (b) in all other cases, upon the earlier of
(i) receipt of such notice, (ii) three Business Days after the mailing of such
notice if sent by registered mail (unless first-class mail shall be specified or
permitted for such notice under the terms of these Amended and Restated Articles
of Incorporation) or (iii) the Business Day following the sending of such notice
by reputable overnight courier, in any case with postage or delivery charges
prepaid, addressed: if to the Corporation to its principal offices or to an
agent of the Corporation designated as permitted by these Amended and Restated
Articles of Incorporation, or, if to any holder of Preferred Stock, to such
holder at the address of such holder of Preferred Stock as listed in the stock
record books of the Corporation; or to such other address as the Corporation or
holder, as the case may be, shall have designated by notice similarly given.
ARTICLE FIVE
The Corporation will not commence business until it has received for the
issuance of shares consideration of the value of at least One Thousand Dollars
($1,000), consisting of money, labor done or property actually received.
ARTICLE SIX
No holder of any shares of the Corporation shall, as such holder, have any
preemptive or preferential right to subscribe for, purchase or receive (i) any
shares of the Corporation (including treasury shares) which it may issue or
sell; (ii) any obligation, evidence of indebtedness or other security of the
Corporation which it may issue or sell and which is convertible into or
exchangeable for shares of the Corporation or to which shall be attached or
appertain any warrant, option or other instrument or right entitling the owner
or holder thereof to subscribe for, purchase or receive shares of the
Corporation; (iii) any warrant, option or right to subscribe for, purchase or
receive any such shares, obligation, evidence of indebtedness or other
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security of the Corporation; or (iv) any other security which the Corporation
may issue or sell; provided, however, that notwithstanding the foregoing
provisions of this Article, the Board shall have authority to grant any person
or persons, upon such terms as it may determine, such options and rights to
purchase any security or securities of the Corporation now or hereafter
authorized as it may deem to be in the best interests of the Corporation
ARTICLE SEVEN
Cumulative voting in the election of directors or otherwise is hereby
expressly prohibited.
ARTICLE EIGHT
Notwithstanding any provisions of the Texas Business Corporation Act now or
hereafter in force requiring for any purpose the affirmative vote of two-thirds,
or any other percentage, of the outstanding shares entitled by law to vote
thereon, or of the outstanding shares of a class or series entitled by law to
vote thereon, such action, to the extent permitted by law, may be authorized and
taken by the affirmative vote of the holders of a majority of such outstanding
shares, or such outstanding shares of a class or series, as applicable. Except
as provided in the preceding sentence or as otherwise required by law, the
affirmative vote of the holders of a majority of the shares entitled to vote and
represented in person or by proxy at any shareholders meeting at which a quorum
is present shall be the act of the shareholders.
ARTICLE NINE
Any action required or permitted by law to be taken at a meeting of the
shareholders may be taken without a meeting, without prior notice, and without a
vote, if a consent in writing, setting forth the action so taken, is signed by
the holders of shares having not less than the minimum number of votes that
would be necessary to take such action at a meeting at which the holders of all
shares entitled to vote on the action were present and voted.
ARTICLE TEN
The Corporation shall indemnify any person who was, is or is threatened to
be made a named defendant or respondent in a proceeding (as hereinafter defined)
because the person (a) is or was a director or officer of the Corporation or (b)
while a director or officer of the Corporation is or was serving at the request
of the Corporation as a member, manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise to the fullest extent that a
corporation may grant indemnification to a person serving in such capacity under
the Texas Business Corporation Act, as the same exists or may hereafter be
amended.
Such right shall be a contract right and shall include the right to be paid
by the Corporation for all expenses incurred in defending any such proceeding in
advance of its final disposition to the maximum extent permitted under the Texas
Business Corporation Act, as the same exists or may hereafter be amended. If a
claim for indemnification or advancement of expenses hereunder is not paid in
full by the Corporation within 90 days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit against
the
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Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such claim. It shall be a defense to any such action that such
indemnification or advancement of costs of defense is not permitted under the
Texas Business Corporation Act, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
or any committee thereof, special legal counsel, or shareholders) to have made
its determination prior to the commencement of such action that indemnification
of, or advancement of costs or defense to, the claimant is permissible under the
circumstances nor an actual determination by the Corporation (including its
Board or any committee thereof special legal counsel, or shareholders) that such
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible.
The Corporation additionally may indemnify any person covered by the grant
of mandatory indemnification contained above to such further extent as is
permitted by law and may indemnify any other person to the fullest extent
permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
ARTICLE ELEVEN
A director of the Corporation shall not be liable to the Corporation or its
shareholders for monetary damages for an act or omission in the director's
capacity as a director, except that this Article Eleven does not eliminate or
limit the liability of a director, to the extent the director is found liable,
for:
(a) a breach of a director's duty of loyalty to the Corporation or its
shareholders;
(b) an act or omission not in good faith that constitutes a breach of the
duty of care of the director to the Corporation or an act or omission
that involves intentional misconduct or a knowing violation of the
law;
(c) a transaction from which a director received an improper benefit,
whether or not the benefit resulted from an action taken within the
scope of the director's office; or
(d) an act or omission for which the liability of a director is expressly
provided by an applicable statute.
Neither the amendment nor repeal of this Article, nor the adoption of any
provision of these Amended and Restated Articles of Incorporation inconsistent
with this Article, shall eliminate or reduce the effect of this Article in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this Article, would accrue or arise, prior to such amendment, repeal or
adoption of any inconsistent provision. If the Texas Business Corporation Act or
the Texas Miscellaneous Corporation Laws Act or any successor act to either of
such acts is amended to authorize corporate action further eliminating or
limiting the personal liability of
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directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Texas Business
Corporation Act or the Texas Miscellaneous Corporation Laws Act or any successor
act to either of such acts, as so amended from time to time.
ARTICLE TWELVE
The street address of the registered office of the Corporation is 1445
MacArthur Drive, Suite 136, Carrollton, Texas 75007, and the name of its
registered agent at such address is John C. Miller.
ARTICLE THIRTEEN
The number of directors currently constituting the Board is four (4).
Hereafter, the number of directors constituting the Board shall be fixed by or
in accordance with the bylaws of the Corporation. The name and address of the
persons currently serving as directors are as follows:
Gerald A. Berkhold 1445 MacArthur Drive, Suite 136
Carrollton, Texas 75007
Ronald L. Graham 1445 MacArthur Drive, Suite 136
Carrollton, Texas 75007
Jack C. Anderson 1445 MacArthur Drive, Suite 136
Carrollton, Texas 75007
H. Douglas Hunter 1445 MacArthur Drive, Suite 136
Carrollton, Texas 75007
[Signature page to follow.]
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IN WITNESS WHEREOF I have hereunto set my hand this 30 day of September,
2002.
ALBERTA INVESTMENTS, INC.
By: /s/ G.H. Birkhold
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Name: G.H. Birkhold
Title: President
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