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AMENDED AND RESTATED
BYLAWS
of
MESA INC.
The following Amended and Restated Bylaws, adopted by the Board of
Directors of MESA Inc. (the "Corporation") as of July 2, 1996, shall govern the
business of the Corporation, except as the same may be afterwards amended:
ARTICLE I
CAPITAL STOCK
Section 1. Certificates Representing Shares. The Corporation
shall deliver certificates representing all shares to which shareholders are
entitled. Such certificates shall be signed by the Chairman of the Board, the
President or a Vice President and either the Secretary or any assistant
Secretary, and shall bear the seal of the Corporation or a facsimile thereof.
The signatures of such officers upon a certificate may be facsimiles. In case
any officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before such certificate
is issued, it may be issued by the Corporation with the same effect as if be
were such officer at the date of its issuance.
Section 2. Shareholders of Record. The Board of Directors of
the Corporation may appoint one or more transfer agents or registrars of any
class of stock of the Corporation. Unless and until such appointment is made,
the Secretary of the Corporation shall maintain among other records a stock
transfer book, the stubs in which shall set forth the names and addresses of
the holders of all issued shares of the Corporation, the number of shares held
by each, the certificate numbers representing such shares, the date of issue of
the certificates representing such shares, and whether or not such shares
originate from original issues or from transfer. The names and addresses of
shareholders as they appear on the stock transfer book shall be the official
list of shareholders of record of the Corporation for all purposes. The
Corporation shall be entitled to treat the holder of record of any shares of
the Corporation as the owner thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or any
rights deriving from such shares, on the part of any other person, including
(but without limitation) a purchaser, assignee or transferee, unless and until
such other person becomes the holder of record of such shares, whether or not
the Corporation shall have either actual or constructive notice of the interest
of such other person
Section 3. Transfer of Shares. The shares of the Corporation
shall be transferable on the stock transfer books of the Corporation by the
holder of record thereof, or his duly authorized attorney or legal
representative, upon endorsement and surrender for cancellation of the
certificates for such shares. All certificates surrendered for transfer shall
be cancelled, and no new certificate
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shall be issued until a former certificate or certificates for a like number of
shares shall have been surrendered and cancelled, except that in the case of a
lost, destroyed or mutilated certificate, a new certificate may be issued
therefor upon such conditions for the protection of the Corporation and any
transfer agent or registrar as the Board of Directors or the Secretary or any
other officer may prescribe.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of shareholders
shall be held at the registered office of the Corporation, or at such other
place within or without the State of Texas as may be designated by the Board of
Directors or officer calling the meeting.
Section 2. Annual Meeting. Annual meetings of the shareholders
shall be each calendar year on a date and at a time designated by the Board of
Directors or as may otherwise be set forth in the notice of the meeting.
Failure to designate a time for the annual meeting or to hold the annual
meeting at the designated time shall not work a dissolution of the Corporation.
Section 3. Special Meetings. Special meetings of the
shareholders may be called by the chief executive officer or the Board of
Directors. Special meetings of shareholders shall be called by the Secretary
upon the written request of the holders of shares entitled to cast not less
than 20% of all the votes entitled to be cast at such meeting. Such request
shall state the purpose or purposes of such meeting and the matters proposed to
be acted on thereat. Upon receipt of such request and any notice required by
Sections 9 and/or 10 of Article II, the Board of Directors shall set a date for
the special meeting, set a record date in accordance with Article II, Section
5, and shall cause an appropriate officer of the Corporation to give the notice
required under Article II, Section 4.
Section 4. Notice of Meeting. Written notice of all meetings
stating the place, day and hour of the meeting and in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten nor more than sixty days before the meeting to the
shareholders of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mall
addressed to the shareholder at his address as it appears on the stock transfer
book of the Corporation, with postage thereon prepaid. Any notice required to
be given to any shareholder under any provision of the Texas Business
Corporation Act or the Articles of Incorporation or these Bylaws need not be
given to the shareholder if (1) notice of two consecutive annual meetings and
all notices of meetings held during the period between those annual meetings,
if any, or (2) all (but in no event less than two) payments (if sent by first
class mail) of distributions or interest on securities during a 12-month period
have been mailed to that person, addressed at his address as shown on the
records of the Corporation, and have been returned undeliverable. Any action
or meeting taken or held without notice to such a person shall have the same
force and effect as if the notice had been duly given. If such a person
delivers to the Corporation a written notice setting forth his then current
address, the requirement that notice be given to that person shall be
reinstated.
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Section 5. Fixing of Record Date. The Board of Directors shall
fix and shall have the exclusive authority to fix, in advance, a date as the
record date for the purpose of determining shareholders entitled to notice of
or to vote at any annual or special meeting of shareholders or any adjournment
thereof, or shareholders entitled to receive a distribution by the Corporation
(other than a distribution involving a purchase or redemption by the
Corporation of any of its own shares) or a share dividend, or in order to make
a determination of shareholders for any other proper purpose. Such date, in
any case, shall be not more than sixty days, and in the case of a meeting of
shareholders not less than ten days, prior to the date on which the particular
action requiring such determination of shareholders is to be taken.
Section 6. Voting List. The officer or agent having charge of
the stock transfer books of the Corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten days prior to such meeting, shall be kept on
file at the registered office of the Corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such
list shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting. The original stock transfer books shall be prima facie
evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meeting of shareholders. Failure to comply
with any requirements of this Section 6 shall not affect the validity of any
action taken at such meeting.
Section 7. Voting on Matters Other than the Election of
Directors. With respect to any matter, other than the election of directors,
any holder of shares of the Corporation entitled to vote shall be entitled to
one vote for each such share, either in person or by proxy executed in writing
by him or by his duly authorized attorney-in-fact, except to the extent
otherwise provided in the Articles of Incorporation. No proxy shall be valid
after 11 months from the date of its execution unless otherwise provided in the
proxy. Each proxy shall be revocable unless the proxy form conspicuously
states that the proxy is irrevocable and the proxy is coupled with an interest.
Section 8. Confidential Voting. The Board of Directors shall
designate an independent third party not affiliated with the Corporation or, in
the case of proxies solicited by another person, such other person to collect,
count and hold all proxies and ballots that identify shareholders and keep the
names of such shareholders confidential from the Board of Directors, any other
person soliciting proxies and all other persons, except to the extent that such
disclosure is required by law or is required to resolve any dispute relating to
such election or proxies. No proxy or ballot shall be valid if delivered to
any person other than such independent third party or if collected or counted
in a manner otherwise contrary to the requirements of this Section. The
foregoing shall not apply to any proxy solicited pursuant to a solicitation
made to fewer than ten shareholders. Nothing contained herein shall be
construed to prohibit such independent third party from releasing from time to
time prior to a meeting to the Board of Directors or such other persons
soliciting proxies (i) the cumulative results of the vote through such time and
(ii) the names of shareholders for which proxies or consents have not been
received as to some or all of the shares held. The chairman of the meeting
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shall, if the facts warrant, determine and declare at the meeting at which
proxies are to be voted, that any proxy or ballot was not collected or counted
in accordance with the terms of the Bylaws.
Section 9. Nomination of Directors. Subject to the rights of
holders of any class or series of stock having a preference over Common Stock
of the Corporation as to dividends or upon liquidation to elect directors under
specified circumstances, nominations of persons for election to the Board of
Directors may be made only (a) by the Board of Directors or a committee
appointed by the Board of Directors or (b) by any shareholder who is a
shareholder of record at the time of giving of the shareholder's notice
provided for in this Section 9, who shall be entitled to vote at such meeting
and who complies with the notice procedures set forth in this Section 9. A
shareholder wishing to nominate one or more individuals to stand for election
in the election of members of the Board of Directors at an annual or special
meeting must provide written notice thereof to the Board of Directors not less
than 80 days in advance of such meeting; provided, however, that in the event
that the date of the meeting was not publicly announced by the Corporation by a
mailing to shareholders, a press release or a filing with the Securities and
Exchange Commission pursuant to Section 13(a) or 14(a) of the Securities and
Exchange Act of 1934 more than 90 days prior to the meeting, such notice, to be
timely, must be delivered to the Board of Directors not later than the close of
business on the tenth day following the day on which the date of the meeting
was publicly announced. A shareholder's notice shall set forth (i) the name
and address, as they appear on the Corporation's books, of the shareholder
making the nomination or nominations; (ii) such information regarding the
nominee(s) proposed by such shareholder as would be required to be included in
a proxy statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had the nominee(s) been nominated or intended to be
nominated by the Board of Directors; (iii) a representation of the shareholder
as to the class and number of shares of capital stock of the Corporation that
are beneficially owned by such shareholder, and the shareholder's intent to
appear in person or by proxy at the meeting to propose such nomination; and
(iv) the written consent of the nominee(s) to serve as a member of the Board of
Directors if so elected. No shareholder nomination shall be effective unless
made in accordance with the procedures set forth in this Section 9. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a shareholder nomination was not made in accordance with the
provisions of the Bylaws, and if the chairman should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
Section 10. Proposals of Shareholders. At any meeting of
shareholders, there shall be conducted only such business as shall have been
brought before the meeting (a) by or at the direction of the Board of Directors
or (b) by any shareholder of the Corporation who is a shareholder of record at
the time of giving of the shareholder's notice provided for in this Section 10,
who shall be entitled to vote at such meeting and who complies with the notice
procedure set forth in this Section 10. For business to be properly brought
before a meeting of shareholders by a shareholder, the shareholder shall have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a shareholder's notice shall be delivered to or mailed and received
at the principal executive offices of the Corporation not less than 80 days in
advance of such meeting; provided, however, that in the event that the date of
the meeting was not publicly announced by the Corporation by a mailing to
shareholders, a press release or a filing with the Securities and Exchange
Commission pursuant to
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Section 13(a) or 14(a) of the Securities and Exchange Act of 1934 more than 90
days prior to the meeting, such notice, to be timely, must be delivered to the
Board of Directors not later than the close of business on the tenth day
following the day on which the date of the meeting was first so publicly
announced. A shareholder's notice shall set forth as to each matter proposed to
be brought before the meeting: (1) a brief description of the business desired
to be brought before the meeting, the reasons for conducting such business at
the meeting and, in the event that such business includes a proposal regarding
the amendment of either the Articles of Incorporation or Bylaws of the
Corporation, the language of the proposed amendment; (2) the name and address,
as they appear on the Corporation's books, of the shareholder proposing such
business; (3) a representation of the shareholder as to the class and number of
shares of capital stock of the Corporation that are beneficially owned by such
shareholder, and the shareholder's intent to appear in person or by proxy at
the meeting to propose such business; and (4) any material interest of such
shareholder in such proposal or business. Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at a shareholders
meeting unless brought before the meeting in accordance with the procedure set
forth in this Section 10. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of the Bylaws,
and if the chairman should so determine, the chairman shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
Section 11. Election of Directors. At each election for
directors every shareholder entitled to vote at such election shall have the
right to vote, in person or by proxy, the number of shares owned by such
shareholder for as many persons as there are directors to be elected and for
whose election such shareholder has a right to vote. Each shareholder may
cumulate his votes by giving one candidate as many votes as the number of such
directors multiplied by his shares shall equal, or by distributing such votes
on the same principle among any number of such candidates. Cumulative voting
shall not be allowed in an election unless a shareholder who intends to
cumulate votes as herein authorized gives written notice of such intention to
the Secretary of the Corporation on or before the date preceding the election
at which such shareholder intends to cumulate votes. All shareholders entitled
to vote cumulatively may cumulate their votes if any shareholder gives the
written notice provided for herein.
Section 12. Quorum and Voting of Shareholders. The holders of a
majority of shares entitled to vote on a matter, represented in person or by
proxy, shall constitute a quorum as to that matter at a meeting of
shareholders, but, if a quorum is not present or represented, a majority in
interest of those present or represented may 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. With respect to any
matter, other than the election of directors or a matter for which the
affirmative vote of the holders of a specified portion of the shares entitled
to vote is required by law, the Articles of Incorporation, or these Bylaws, the
vote of the holders of a majority of the shares entitled to vote on that matter
and represented in person or by proxy at a meeting at which a quorum is present
or represented shall be the act of the shareholders' meeting.
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Section 13. Officers. The Chairman of the Board, if there is
one, or otherwise the President, shall, if present, preside at and be the
chairman of, and the Secretary shall keep the records of, each meeting of
shareholders. In the absence of either such officer, his duties shall be
performed by another officer of the Corporation appointed by the Board of
Directors or appointed at the meeting.
Section 14. Conduct of Meeting. The chairman of a meeting of
shareholders shall have the power to appoint inspectors of election and to
establish and interpret rules for the conduct of the meeting.
Section 15. Preferred Stock Rights. Notwithstanding anything in
this Article II to the contrary, the provisions of this Article II are subject
to the rights of the holders of any class or series of Preferred Stock to call
shareholder meetings, to receive notice of meetings, to nominate and elect
directors voting as a separate class or series, to conduct meetings of such
holders subject to such quorum and voting procedures applicable to such class
or series or to act by written consent in lieu of a meeting, all as set forth
in any resolution of the Board of Directors establishing such class or series
of Preferred Stock. In determining the right of the Board of Directors or a
committee appointed by the Board of Directors to nominate persons for election
to the Board of Directors by holders of the Corporation's Common Stock pursuant
to Section 9 of this Article II, the Board of Directors or such committee shall
for such purpose be deemed to exclude any directors elected exclusively by the
holders of a class or series of Preferred Stock to the extent such directors
are not authorized to participate in such nomination pursuant to the provisions
of the resolution establishing such class or series of Preferred Stock.
ARTICLE III
DIRECTORS
Section 1. Number and Tenure. The business and affairs of the
Corporation shall be managed by a Board of Directors consisting of seven (7)
directors. The number of directors shall be increased from time to time to the
extent required to comply with the provisions of the Articles of Incorporation
pertaining to special voting rights of the holders of any class or series of
Preferred Stock (other than the Series B Preferred Stock), but apart from such
increases may not be otherwise increased or decreased except by amendment to
these Bylaws approved by the unanimous vote or written consent of all
directors. No amendment to the Bylaws to decrease the number of members of the
Board of Directors shall have the effect of shortening the term of any
incumbent director. Unless sooner removed in accordance with these Bylaws or
the Articles of Incorporation, members of the Board of Directors shall hold
office for the term for which such director is elected and until their
successors shall have been elected and qualified.
Section 2. Qualifications. Directors need not be shareholders
of the Corporation.
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Section 3. Vacancies. Subject to the rights of holders of any
class or series of Preferred Stock, any vacancy occurring in the Board of
Directors or any directorship to be filled by reason of an increase in the
number of directors may be filled by election at an annual or special meeting
of shareholders called for that purpose or by the affirmative vote of a
majority of the remaining directors, though less than a quorum of the entire
Board; provided, however, that any directorship to be filled by the Board of
Directors by reason of an increase in the number of directors may be filled for
a term of office continuing only until the next election of one or more
directors by the shareholders; and provided, further, that the Board of
Directors may not fill more than two directorships to be filled by reason of an
increase in the number of directors during the period between any two
successive annual meetings of shareholders. Subject to the foregoing, a
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
Section 4. Place of Meeting. Meetings of the Board of Directors
may be held either within or without the State of Texas, at whatever place is
specified by the officer calling the meeting. In the absence of specific
designation, the meetings shall be' held at the principal office of the
Corporation.
Section 5. Regular Meetings. Board of Directors shall meet each
year immediately following the annual meeting of the shareholders, at the place
of such meeting, for the action of such business as may properly be brought
before it. No notice of annual meetings need be given to either existing or
newly elected members of the Board of Directors. Regular meetings may be held
at such other times as shall be designated by the Board of Directors.
Section 6. Special Meetings. Special meetings of the Board of
Directors may be held at any time upon the call of the Chairman of the Board,
the President or any two directors of the Corporation. Notice shall be sent by
mail or telegram to the last known address of each director at least four days
before the meeting. Oral notice may be substituted for such written notice if
given not later than one day before the meeting. Notice of the time, place and
purpose of such meeting may be waived in writing before or after such meeting,
and shall be equivalent to the giving of notice. Attendance of a director at
such meeting shall also constitute a waiver of notice thereof, except where he
attends for the announced purpose of objecting to the action of any business on
the ground that the meeting is not lawfully called or convened. Except as
otherwise herein provided, neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting. Notwithstanding
any other provision of these Bylaws, the unanimous vote of all the directors of
the Corporation shall be required to amend the first sentence of this Section
6.
Section 7. Quorum. Except as otherwise provided by law, the
Articles of Incorporation or these Bylaws (i) a majority of the number of
directors fixed in the manner provided in these Bylaws as from time to time
amended shall constitute a quorum for the transaction of business, and (ii) 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. Any regular or special
directors' meeting may be adjourned from time to time by those present, whether
a quorum is present or not.
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Section 8. Committees. The Board of Directors, by resolution or
resolutions passed by a majority of the whole Board of Directors, may designate
one or more members of the Board of Directors to constitute an Executive
Committee and one or more other committees, which shall in each case consist of
such number of directors as the Board of Directors may determine; provided
that, at least one member of each such committee shall be a director who is
elected by the holders of the Corporation's Common Stock and the identity of
each such member shall be determined by the directors elected by the holders of
Common Stock. The Executive Committee shall have and may exercise, subject to
such restrictions as may be contained in the Articles of Incorporation or that
may be imposed by law, all of the authority of the Board of Directors,
including without limitation the power and authority to declare a dividend and
to authorize the issuance of shares of the Corporation. Each other committee
shall have and may exercise such powers of the Board in the management of the
business and affairs of the Corporation, including without limitation the power
and authority to declare a dividend and to authorize the issuance of shares of
the Corporation, as the Board of Directors may determine by resolution and
specify in the respective resolutions appointing them, subject to such
restrictions as may be contained in the Articles of Incorporation or that may
be imposed by law. 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. A majority of all the members of any such committee may fix its
rules of procedure, determine its action and fix the time and place, whether
within or without the State of Texas, of its meetings and specify what notice
thereof, if any, shall be given, unless the Board of Directors shall provide
otherwise by resolution. The Board of Directors, by resolution or resolutions
passed by a majority of the whole Board of Directors, shall have power to
change the membership of any such committee at any time, to fill vacancies
therein and to disband any such committee, either with or without cause, at any
time, subject however, to the proviso in the first sentence of this Section 8.
Each committee shall keep regular minutes of its proceedings and report the
same to the Board of Directors when required. Notwithstanding any other
provision of these Bylaws, the unanimous vote of all the directors of the
Corporation shall be required to amend the first and sixth sentences of this
Section 8.
Section 9. Compensation. Directors may be paid their expenses,
if any, of attendance at each regular or special meeting of the Board of the
Directors or any committee thereof, and a salary as director as may be fixed by
the Board of Directors from time to time; provided, that nothing contained
herein shall be construed to preclude any director from serving the Corporation
in any other capacity and receiving compensation therefor.
Section 10. Removal. At any special meeting of shareholders
called expressly for the purposes of removal (for which, if called by
shareholders, notice has been given in accordance with Article in, Section 10),
any director or the entire Board of Directors may be removed, either for or
without cause, by the affirmative vote of a majority of the outstanding shares
entitled to vote at elections of directors, except that if less than the entire
Board of Directors is to be removed, no director may be removed if the number
of votes cast against that director's removal would be sufficient to elect the
director if then cumulatively voted at an election of the entire Board of
Directors. Whenever the holders of any class or series of shares are entitled
to elect one or more directors by the provisions of the Articles of
Incorporation, only the holders of shares of that class
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or series shall be entitled to vote for or against the removal of any director
elected by the holders of shares of that class or series.
Section 11. Action Without a Meeting. Any action required or
permitted to be taken at a meeting of directors or any committee may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors or members of the committee, as the
case may be, and such consent shall have the same force and effect as a
unanimous vote at a meeting.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the Corporation shall be
elected by a majority of the whole Board of Directors, and shall consist of a
President and a Secretary. A majority of the whole Board of Directors, in its
discretion, may also elect a Chairman of the Board (who must be a director),
one or more Vice Presidents, a Treasurer and such other officers as the Board
of Directors may from time to time designate, all of whom shall hold office
until their successors are elected and qualified. Any two or more offices may
be held by the same person.
The salaries of the officers shall be determined by the Board of
Directors, and may be altered by the Board of Directors from time to time
except as otherwise provided by contract. All officers shall be entitled to be
paid or reimbursed for all costs and expenditures incurred in the Corporation's
business.
Section 2. Vacancies. Whenever any vacancies shall occur in any
office by death, resignation, increase in the number of officers of the
Corporation or otherwise, the same shall be filled by a majority of the whole
Board of Directors, and the officer so elected shall hold office until his
successor is chosen and qualified.
Section 3. Removal. Any officer or agent elected or appointed
by the Board of Directors in the manner provided in these Bylaws may be removed
by a majority of the whole Board of Directors whenever in its judgment the best
interests of the Corporation will be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
Section 4. Chairman of the Board. The Chairman of the Board if
there is one, shall, if present, preside at all meetings of the shareholders
and of the Board of Directors. If so designated by the Board of Directors, the
Chairman of the Board shall be the chief executive officer of the Corporation
and in such capacity may sign, with the Secretary or any other proper officer
of the Corporation thereunto authorized by the Board of Directors, certificates
for shares of the
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Corporation, any deeds, mortgages, bonds, contracts 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 and executed; and in general
shall perform all duties incident to the office of Chairman of the Board and
such other duties as may be prescribed by the Board of Directors from time to
time. If not designated as the chief executive officer by the Board of
Directors, the Chairman of the Board shall advise and counsel the President and
the other officers of the Corporation and shall exercise such powers and
perform such duties as shall be assigned to or required of the Chairman of the
Board from time to time by the Board of Directors or the Executive Committee.
Section 5. President. The President shall, subject to the
control of the Board of Directors and the chief executive officer, if not the
President, in general supervise and control all of the business and affairs of
the Corporation. In the absence of the Chairman of the Board, or if there is
none, the President shall preside at all meetings of the shareholders and (if
the President is a director) of the Board of Directors. If so designated by
the Board of Directors, the President shall be the chief executive officer of
the Corporation. The President may sign, with the Secretary or any other
proper officer of the Corporation thereunto authorized by the Board of
Directors, certificates for shares of the Corporation, any deeds, mortgages,
bonds, contracts 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 and executed; and in general shall perform all
duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 6. Vice President. Any Vice President may perform the
usual and customary duties that pertain to such office (but no unusual or
extraordinary duties or powers conferred by the Board of Directors upon the
President) and, under the direction and subject to the control of the Board of
Directors, such other duties as may be assigned to a Vice President.
Section 7. Secretary. It shall be the duty of the Secretary to
attend all meetings of the shareholders and Board of Directors and record
correctly the proceedings had at such meetings in a book suitable for that
purpose. It shall also be the duty of the Secretary to attest with his
signature and the seal of the Corporation all stock certificates issued by the
Corporation and to keep a stock ledger in which shall be correctly recorded all
transactions permitting to the capital stock of the Corporation. The Secretary
shall also attest with his signature and the seal of the Corporation all deeds,
conveyances or other instruments requiring the seal of the Corporation. The
person holding the office of Secretary shall also perform under the direction
and subject to the control of the Board of Directors, such other duties as may
be assigned to the Secretary. The duties of the Secretary may also be
performed by any Assistant Secretary.
Section 8. Treasurer. The Treasurer shall keep such moneys of
the Corporation as may be entrusted to his keeping and account for the same.
The Treasurer shall be prepared at all times to give information as to the
condition of the Corporation and shall make a detailed annual report
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of the entire business and financial condition of the Corporation. The person
holding the office of Treasurer shall also perform, under the direction and
subject to the control of the Board of Directors, such other duties as may be
assigned to the Treasurer. The duties of the Treasurer may also be performed
by any Assistant Treasurer.
Section 9. Other Officers. Assistant Secretaries, if any, and
Assistant Treasurers, if any, shall have the duties set forth in Sections 7 and
8, respectively, of this Article IV. Any officer whose duties are not set
forth in Sections 4 through 8 of this Article IV shall have such duties as the
Board of Directors or the President may prescribe.
Section 10. Delegation of Authority. In the case of any absence
of any officer of the Corporation or for any other reason that the Board may
deem sufficient, a majority of the whole Board of Directors may delegate some or
all of the powers or duties of such officer to any other officer or to any
director, employee, shareholder or agent for whatever period of time seems
desirable.
ARTICLE V
INDEMNITY
Section 1. Indemnification. Each person who at any time shall
serve, or shall have served, as a director, officer, employee or agent of the
Corporation, or any person who, while a director, officer, employee or agent of
the Corporation, is or was serving at the request of the Corporation as a
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 (each such person referred to herein as an "Indemnitee"), shall be
entitled to indemnification as and to the fullest extent permitted by Article
2.02-1 of the Texas Business Corporation Act or any successor statutory
provision as from time to time amended (the "T.B.C.A."). The foregoing right
of indemnification shall not be deemed exclusive of any other rights to which
those to be indemnified may be entitled as a matter of law or under any
agreement, other provision of these Bylaws, vote of shareholders or directors,
or other arrangement. The Corporation may enter into indemnification
agreements with its executive officers and directors that contractually provide
to them the benefits of the provisions of this Article V and include related
provisions meant to facilitate the Indemnitees' receipt of such benefits and
such other indemnification protections as may be deemed appropriate.
Section 2. Advancement or Reimbursement of Expenses. The rights
of Indemnitee provided under the preceding section shall include, but not be
limited to, the right to be indemnified and to have expenses advanced in all
proceedings to the fullest extent permitted by Article 2.02-1 of the T.B.C.A.
In the event that an Indemnitee is not wholly successful, on the merits or
otherwise, in a proceeding but is successful on the merits or otherwise, as to
any claim in such proceeding, the Corporation shall indemnify Indemnitee
against all expenses actually and reasonably incurred by him or on his behalf
relating to each claim. The termination of a claim in a proceeding by
dismissal with or without prejudice, shall be deemed to be a successful result
as to such claim. In addition,
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to the extent an Indemnitee is, by reason of his corporate status, a witness or
otherwise participates in any proceeding at a time when he is not named a
defendant or respondent in the proceeding, he shall be indemnified against all
expenses actually and reasonably incurred by him or on his behalf in connection
therewith. The Corporation shall pay all reasonable expenses incurred by or on
behalf of Indemnitee in connection with any proceeding or claim, whether
brought by the Corporation or otherwise, in advance of any determination
respecting entitlement to indemnification pursuant to this Article V within ten
days after the receipt by the Corporation of a written request from Indemnitee
reasonably evidencing such expenses and requesting such payment or payments
from time to time, whether prior to or after final disposition of such
proceeding or claim; provided that the Indemnitee undertakes and agrees in
writing that be will reimburse and repay the Corporation for any expenses so
advanced to the extent that it shall ultimately be determined by a court, in a
final adjudication from which there is no further right of appeal, that
Indemnitee is not entitled to be indemnified against such expenses.
Section 3. Determination of Request. Upon written request to
the Corporation by an Indemnitee for indemnification pursuant to these Bylaws,
a determination, if required by applicable law, with respect to Indemnitee's
entitlement thereto shall be made in accordance with Article 2.02-1 of the
T.B.C.A. provided, however, that notwithstanding the foregoing, if a Change in
Control shall have occurred, such determination shall be made by Independent
Counsel selected by the Indemnitee, unless the Indemnitee shall request that
such determination be made in accordance with Article 2.02-1F (1) or (2). The
Corporation shall pay any and all reasonable fees and expenses of Independent
Counsel incurred in connection with any such determination. If a Change in
Control shall have occurred, the Indemnitee shall be presumed (except as
otherwise expressly provided in this Article) to be entitled to indemnification
under this Article upon submission of a request to the Corporation for
indemnification, and thereafter the Corporation shall have the burden of proof
in overcoming that presumption in reaching a determination contrary to that
presumption. The presumption shall be used by Independent Counsel, or such
other person or persons determining entitlement to indemnification, as a basis
for a determination of entitlement to indemnification unless the Corporation
provides information sufficient to overcome such presumption by clear and
convincing evidence or the investigation, review and analysis of Independent
Counsel or such other person or persons convinces him or them by clear and
convincing evidence that the presumption should not apply.
Section 4. Effect of Certain Proceeding. The termination of any
proceeding or of any claim in a proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Article) by itself adversely
affect the right of Indemnitee to indemnification or create a presumption that
Indemnitee did conduct himself in good faith and in a manner that he reasonably
believed in the case of conduct in his official capacity, that was in the best
interests of the Corporation or, in all other cases, that was not opposed to
the best interests of the Corporation or, with respect to any criminal
proceeding, that Indemnitee had reasonable cause to believe that his conduct
was unlawful and Indemnitee shall be deemed to have been found liable in
respect of any claim only after he shall have been so adjudged by a court in
competent jurisdiction after exhaustion of all appeals therefrom.
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Section 5. Expenses of Enforcement of Article. In the event
that Indemnitee, pursuant to this Article V, seeks a judicial adjudication to
enforce his rights under, or to recover damages for breach of, rights created
under or pursuant to this Article, Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation against, any and
all expenses actually and reasonably incurred by him in such judicial
adjudication but only if he prevails therein. If it shall be determined in
said judicial adjudication that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication shall be
reasonably prorated in good faith by counsel for Indemnitee. Notwithstanding
the foregoing, if a Change in Control shall have occurred, Indemnitee shall be
entitled to indemnification under this Section regardless of whether Indemnitee
ultimately prevails in such judicial adjudication
Section 6. Insurance and Self-Insurance Arrangements. The
Corporation may procure or maintain insurance or other similar arrangements, at
its expense, to protect itself and any Indemnitee against any expense,
liability or loss asserted against or incurred by such person, incurred by him
in such a capacity or arising out of his status as such a person, whether or
not the Corporation would have the power to indemnify such person against such
expense or liability. In considering the cost and availability of such
insurance, the Corporation, (through the exercise of the business judgment of
its directors and officers), may from time to time, purchase insurance which
provides for any and all of (i) deductibles, (ii) limits on payments required
to be made by the insurer, or (iii) coverage which may not be as comprehensive
as that previously included in insurance purchased by the Corporation. The
purchase of insurance with deductibles, limits on payments and coverage
exclusions will be deemed to be in the best interest of the Corporation but may
not be in the best interest of certain of the persons covered thereby. As to
the Corporation, purchasing insurance with deductibles, limits on payments, and
coverage exclusions is similar to the Corporation's practice of sell-insurance
in other areas. In order to protect the Indemnitees who would otherwise be
more fully or entirely covered under such policies, the Corporation shall
indemnify and hold each of them harmless as provided in Section 1 of this
Article V, without regard to whether the Corporation would otherwise be
entitled to indemnify such officer or director under the other provisions of
this Article V, or under any law, agreement, vote of shareholders or directors
or other cement, to the extent (i) of such deductibles, (ii) of amounts
exceeding payments required to be made by an insurer or (iii) that prior
policies of officer's and director's liability insurance held by the
Corporation or its predecessors would have provided for payment to such officer
or director. Notwithstanding the foregoing provision of this Section 6, no
Indemnitee shall be entitled to indemnification for the results of such
person's conduct that is intentionally adverse to the interests of the
Corporation. This Section 6 is authorized by Section 2.02-1(R) of the Texas
Business Corporation Act as in effect as of the date hereof, and further is
intended to establish an arrangement of self- insurance pursuant to that
section.
Section 7. Severability. If any provision or provisions of this
Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby; and, to the
fullest extent possible, the provisions of this Article shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
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Section 8. Definitions. The following terms are used herein as
follows:
"Change in Control" means a change in control of the
Corporation occurring after the date of adoption of these Bylaws of a
nature that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A (or in response to any similar item
on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), whether or not
the Corporation is then subject to such reporting requirement;
provided, however, that, without limitation, such a Change in Control
shall be deemed to have occurred if at any time after the date of
adoption of these Bylaws (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Corporation representing
40% or more of the combined voting power of the Corporation's then
outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office
immediately prior to such person attaining such percentage interest;
(ii) the Corporation is a party to a merger, consolidation, share
exchange, sale of assets or other reorganization, or a proxy contest,
as a consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter or (iii) during any
15-month period, individuals who at the becoming of such period
constituted the Board of Directors (including for this purpose any new
director whose election or nomination for election by the
Corporation's shareholders was approved by a vote of at least two-
thirds of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least
a majority of the Board of Directors; notwithstanding the foregoing,
no Change in Control shall be deemed to have occurred as a result of
the transfer of substantially all the assets of Mesa limited
Partnership to the Corporation and the transactions contemplated
thereby.
"corporate status" means the status of a person who is or was
a director, officer, partner, employee, agent or fiduciary of the
Corporation or of any other corporation partnership, joint venture,
trust, employee benefit plan or other enterprise which such person is
or was serving at the request of the Corporation.
"Disinterested Director" means a director of the Corporation
who is not a named defendant or respondent to the proceeding or
subject to a claim in respect of which indemnification is sought by
Indemnitee.
"Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
contemporaneously is, nor in the five years theretofore has been,
retained to represent: (a) the Corporation or Indemnitee in any matter
material to either such party, (b) any other party to the proceeding
giving rise to a claim for indemnification hereunder or (c) the
beneficial owner, directly or indirectly, of securities of the
Corporation representing 40% or more of the combined voting power of
the Corporation's then outstanding voting securities. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include any
person who, under the applicable standards of
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professional conduct then prevailing, would have a conflict of
interest in representing either the Corporation or Indemnitee in an
action to determine Indemnitee's rights to indemnification under these
Bylaws.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 1. Amendments. These Bylaws may be amended or
repealed, or new Bylaws adopted, (a) by a majority of the whole Board of
Directors, except to the extent that (i) the shareholders in amending,
repealing or adopting a particular Bylaw expressly provide that the Board of
Directors may not amend or repeal that bylaw, (ii) the Articles of
Incorporation or the Texas Business Corporation Act reserves the power to take
such action to the shareholders in whole or part, or (iii) Sections 1, 6 and 8
of Article III provide otherwise, or (b) by the shareholders, unless the
Articles of Incorporation or a bylaw adopted by the shareholders provides
otherwise as to all or some portion of the Bylaws; provided that any amendment
or repeal of the Bylaws by the shareholders (i) may only be effected at a
shareholders meeting for which notice has been given pursuant to Article III
Section 10 of these Bylaws, and (ii) shall be subject to the rights of holders
of any class or series of Preferred Stock to vote as a separate class or series
to approve such proposed amendment or repeal as set forth in a resolution of
the Board of Directors establishing such class or series.
Section 2. Waiver. Whenever any notice is required to be given
to any shareholder, director or committee member under the provisions of any
law, the Articles of Incorporation or these Bylaws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be equivalent to the giving of such
notice.
Section 3. Conference Telephone Meeting. Meetings of
shareholders, directors, or any committee thereof, may be held by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this Section shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section 4. Offices. The principal office of the Corporation
shall be located in Dallas, Texas, unless and until changed by resolution of
the Board of Directors. The Corporation may also have offices at such other
places as the Board of Directors may from time to time designate, or as the
business of the Corporation may require.
Section 5. Resignations. Any director or officer may resign at
any time. Such resignations shall be made in writing and shall take effect at
the time specified therein, or, if no time be specified, at the time of its
receipt by the President or Secretary. The acceptance of a resignation shall
not be necessary to make it effective, unless expressly so provided in the
resignation.
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Section 6. Seal. The seal of the Corporation shall be circular
in form with a five pointed star in the center and the name of the Corporation
around the margin thereof, or in such other form as may be fixed by resolution
of the Board of Directors.
Section 7. Fiscal Year. The fiscal year of the Corporation
shall be the calendar year beginning on January 1, or such other fiscal year as
shall be fixed by the resolution of the Board of Directors.
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