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EXHIBIT 3.1
FIRST AMENDMENT TO BYLAWS OF KEVCO, INC.
ADOPTED JULY 26, 1999
I, Richard Tucker, the duly elected and acting secretary of
Kevco, Inc. (the "Corporation") do hereby certify that the following amendments
to the Bylaws of the Corporation were duly and validly approved and adopted
pursuant to Bylaw 8.07 of the Corporation's Bylaws by resolution of the
Corporation's board of directors at a meeting duly called and held, such
amendment to be effective as of the ___ day of July, 1999.
/s/ RICHARD TUCKER
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Name: Richard Tucker
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Title: Secretary:
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The Bylaws of the Corporation, are hereby amended as follows:
1. Bylaw 3.02(a) is hereby amended by deleting Bylaw 3.02(a) in its
entirety and replacing in lieu thereof the following:
"(a) REGULAR DIRECTORS. Except as otherwise provided by the
Articles of Incorporation, including, without limitation, by the terms
of the provisions of the Corporation's Tranche A and Tranche B Senior
Subordinated Exchangeable Notes (the "Notes") and Series A and Series
B 10 3/8% Convertible Pay-in-Kind Preferred Stock (as it may be
subsequently authorized in Amended and Restated Articles of
Incorporation, the "Preferred Stock"), the number of directors shall
not be less than two (2) or more than nine (9) and shall be fixed from
time to time by the board of directors. Except as otherwise provided
by the Preferred Stock, or Bylaws 3.02(c), 3.03, and 3.05, such
directors shall be elected at the annual meeting of shareholders. Each
director shall hold office until his successor is elected and
qualified, or, if earlier, until his death, resignation, or removal
from office. None of the directors need be a stockholder of the
corporation or a resident of the State of Texas."
2. Bylaw 3.02(b) is hereby amended by deleting Bylaw 3.02(b) in its
entirety and replacing in lieu thereof the following:
"(b) CLASSIFICATION OF DIRECTORS. Subject to the last
sentence of this Bylaw 3.02(b), the board of directors shall be
classified in respect of the time for which they shall severally hold
office by dividing the board into three (3) classes, each class to be
as nearly equal in number as possible. Each director of the
corporation shall hold office until his successor is duly elected and
qualified, or if earlier, until his death, resignation, or removal
from office. Subject to the last sentence of this Bylaw 3.02(b), the
term of office of directors of the first class shall expire at the
first annual meeting of shareholders after their election, the term of
office of the second class of directors shall expire at the second
annual meeting of shareholders after their election, and the term of
office of the third
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class of directors shall expire at the third annual meeting of
shareholders after their election. At each annual meeting of
shareholders after such classification, the number of directors equal
to the number of the class whose term expires at the time of such
meeting shall be elected to hold office until the third succeeding
annual meeting so that the term of office of one class of directors
shall expire each year. Notwithstanding any other provision of these
Bylaws to the contrary, any director or directors permitted to be
elected pursuant to the Notes and the Preferred Stock shall not be
classified and any directors so elected shall hold office for the term
provided for by Preferred Stock."
3. Bylaw 3.02(c) is hereby amended by deleting Bylaw 3.02(c) in its
entirety and replacing in lieu thereof the following:
"(b) ELECTION. At each election for directors, every
shareholder entitled to vote at such election shall have the right to
vote the number of shares owned by such shareholder for as many
persons as there are directors to be elected and for whose election he
has a right to vote. At each annual meeting of shareholders, the
holders of shares entitled to vote in the election of directors shall
elect directors to hold office until the next succeeding annual
meeting, except in the case of the classification of directors and
except as may otherwise be provided by the Notes and the Preferred
Stock."
4. Bylaw 3.03 is hereby amended by deleting Bylaw 3.03 in its entirety
and replacing in lieu thereof the following:
"CHANGE IN NUMBER. The number of directors may be increased
or decreased by resolution of the board of directors from time to
time, but no decrease shall have the effect of shortening the term of
any incumbent director. Any directorship to be filled by reason of an
increase in the number of directors may be filled by election at an
annual meeting of shareholders or at a special meeting of shareholders
called for that purpose or may be filled by the board of directors for
a term of office continuing only until the next election of one or
more directors by the shareholders; provided, however, that the board
of directors may not fill more than two such directorships during the
period between any two successive annual meetings of shareholders. Any
director(s) elected in accordance with the terms of the Notes and the
Preferred Stock shall be excluded for the purpose of determining the
maximum number of directors under Bylaw 3.02(a)."
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5. Bylaw 3.04 is hereby amended by deleting Bylaw 3.04 in its entirety
and replacing in lieu thereof the following:
"REMOVAL. Except as otherwise provided by the Notes and the
Preferred Stock, any director or the entire board of directors may be
removed, for or without cause, at any meeting of shareholders called
expressly for that purpose by the affirmative vote of at least a
majority in number of the shares then entitled to vote at the election
of directors."
6. Bylaw 3.05 is hereby amended by deleting Bylaw 3.05 in its entirety
and replacing in lieu thereof the following:
"VACANCIES. Except as otherwise provided in the Notes and the
Preferred Stock, any vacancy occurring in the board of directors after
the issuance of shares (by death, resignation, or removal) may be
filled by an affirmative vote of a majority of the remaining directors
though less than a quorum of the board of directors. A director
elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office."
7. The first sentence of Bylaw 3.06 is hereby amended by deleting the
first sentence of Bylaw 3.06 in its entirety and replacing in lieu thereof the
following:
"Other than in respect of the initial directors and directors
elected pursuant to the Notes and the Preferred Stock, only persons
who are nominated in accordance with the procedure set forth in these
Bylaws shall be eligible for election as, and to serve as, directors."
8. The penultimate sentence of the first paragraph of Bylaw 3.06 is
hereby amended by deleting such sentence in its entirety and replacing in lieu
thereof the following:
"Other than directors chosen pursuant to the provisions of
Bylaw 3.05, and directors otherwise chosen in accordance with the
terms of the Notes and the Preferred Stock, no person shall be
eligible to serve as a director of the corporation unless nominated in
accordance with the procedures set forth in this Bylaw 3.06."
9. Bylaw 8.07 is hereby amended by deleting Bylaw 8.07 in its entirety
and replacing in lieu thereof the following:
"AMENDMENT OF BYLAWS. Except as otherwise provided in the
Notes and the Preferred Stock, these Bylaws may be altered, amended,
or repealed or new bylaws adopted at any meeting of the board of
directors at which a quorum is present by the affirmative vote of a
majority of the directors present at such meeting, provided notice of
the proposed alteration, amendment, or repeal is contained in the
notice of such meeting; provided, that for so long as the Notes and
the Preferred Stock or any portion thereof is outstanding, no such
amendment shall materially and adversely affect the rights of holders
of the Notes and the Preferred Stock."
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