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EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
INDEX, INC.
ARTICLE ONE
Index, Inc., pursuant to the provisions of Article 4.07 of the Texas
Business Corporation Act, hereby adopts restated articles of incorporation
which accurately copy the articles of incorporation and all amendments thereto
that are in effect to date and as further amended by such restated articles of
incorporation as hereinafter set forth and which contain no other change in any
provision thereof.
ARTICLE TWO
The articles of incorporation of the corporation are amended by the
restated articles of incorporation as follows:
The total number of shares of stock of all classes which the
Corporation shall have authority to issue has been increased from 102,000,000
shares to 110,000,000 shares. Further, the designated Common Stock, Preferred
Stock and Convertible Preferred Stock have each been designated as a series.
ARTICLE THREE
Each such amendment made by the restated articles of incorporation has
been effected in conformity with the provisions of the Texas Business
Corporation Act and such restated articles of incorporation and each such
amendment made by the restated articles of incorporation were duly adopted by
the shareholders of the corporation on the 2nd day of August, 1996.
ARTICLE FOUR
The number of shares outstanding was 100, and the number of shares
entitled to vote on the restated articles of incorporation as so amended was
100. All of the shareholders have signed a written consent to the adoption of
such restated articles of incorporation as so amended pursuant to Article 9.10
and any written notice required by Article 9.10 has been given.
ARTICLE FIVE
The articles of incorporation and all amendments and supplements
thereto are hereby superseded by the following restated articles of
incorporation which accurately copy the entire text thereof and as amended as
above set forth:
ARTICLE I
Name
The name of the Corporation is Index, Inc. (the "Corporation").
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ARTICLE II
Duration
The period of its duration is perpetual.
ARTICLE III
Purpose
The purpose or purposes for which the Corporation is organized is the
transaction of any or all lawful business for which corporations may be
incorporated under the Act.
ARTICLE IV
Capital Stock
The total number of shares of stock of all classes which the
Corporation shall have the authority to issue is 110,000,000, of which
100,000,000 shares of the par value of $.01 each shall be designated common
stock ("Common Stock") and 10,000,000 shares of the par value of $1.00 each
shall be designated serial preferred stock ("Preferred Stock"). A statement
of all of the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof in respect of the Common Stock and the
Preferred Stock is as follows:
A. Common Stock.
1. Dividends. Subject to any rights of the Preferred Stock or
any series thereof and the conditions set forth in paragraph B of this Article
IV or in any resolution of the Board of Directors of the Corporation providing
for the issuance of any series of Preferred Stock, the holders of the Common
Stock shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available therefor, dividends payable in cash,
stock or otherwise.
2. Voting Rights. Each holder of Common Stock shall be entitled
to one vote for each share held on each matter presented to shareholders
generally. Notwithstanding the foregoing, the Corporation may, without the
approval or consent of any holder of the Common Stock, amend these Articles of
Incorporation in any manner that would solely effect changes in the
preferences, limitations and relative rights of one or more series of stock of
the corporation which has been established pursuant to the authority granted
the Board of Directors of the corporation pursuant to paragraph B of this
Section 2 if (x) such amendment is approved by the holders of a majority of the
outstanding shares of the series of stock so affected and (y) the preferences,
limitations and relative rights of such series after giving effect to such
amendment and of any new series that may be established as a result of a
reclassification of such series are, in each case, no greater than those
preferences, limitations and rights permitted to be fixed and determined by the
Board of Directors of the corporation with respect to the establishment of any
new series of shares pursuant to the authority granted the Board of Directors
of the corporation in these Articles of Incorporation.
B. Preferred Stock.
1. Authorized Shares. The Preferred Stock may be divided into
and issued in one or more series. Of the 10,000,000 authorized shares of
Preferred Stock, (i) 1,000,000 shares have been designated as Series A
Preferred Stock (the "Series A Preferred Stock"), (ii) 1,000,000 shares have
been designated as Series B Convertible Preferred Stock (the "Series B
Preferred Stock") and (iii) 8,000,000 shares are available for future
designation as provided herein.
2. Series A Preferred Stock
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The holders of the Series A Preferred Stock shall have the
following rights and preferences:
(a) Dividends. The holders of Series A Preferred Stock shall not
as a matter of right be entitled to be paid or receive or have declared or set
apart for such Series A Preferred Stock, any dividends or distributions of the
Corporation in respect thereof.
(b) Liquidation, Dissolution and Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, the holders of the Series A Preferred Stock shall be
entitled to receive $100.00 in cash and no more for each share of Series A
Preferred Stock held by them, before any distribution of the assets of the
Corporation shall be made to the holders of any other outstanding shares of the
Corporation, unless funds necessary for such payment shall have been set aside
in trust for the account of the holders of outstanding shares of Series A
Preferred Stock so as to be and continue to be available therefor. The holders
of shares of Series A Preferred Stock shall be entitled to no further
participation in any distribution of the assets of the Corporation. If upon
such liquidation, dissolution or winding up, the assets of the Corporation
distributable as aforesaid among the holders of shares of Series A Preferred
Stock are insufficient to permit the payment to holders of Series A Preferred
Stock of $100.00 per share then the assets of the Corporation shall be
distributed to the holders of shares of Preferred Stock ratably according to
their respective shares until they shall have received the full amount to which
they would otherwise be so entitled.
(c) Redemption. No shares of Series A Preferred Stock shall be
callable or redeemable by the Corporation. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation shall have the status
of treasury shares of Preferred Stock until such time as such shares are
cancelled pursuant to the provisions of the Act.
(d) Voting. Each share of Series A Preferred Stock shall entitle
the holder thereof to one-tenth (1/10) of one vote on each matter presented to
shareholders generally voting as a single class with the Common Stock and any
other class or series of stock having similar voting rights. The holders of
the Series A Preferred Stock shall not be entitled to vote as a class on any
matter except as required by law.
(e) Exclusion of Other Rights. Unless otherwise required by law,
the shares of Series A Preferred Stock shall not have any powers, preferences,
or relative, participating, option or other special rights other than those
specifically set forth herein.
3. Series B Preferred Stock
The holders of the Series B Preferred Stock shall have the
following rights and preferences:
(a) Dividends. The holders of the Series B Preferred Stock shall
be entitled to receive dividends out of any funds legally available for that
purpose at the annual rate of six percent (6%) per annum of the stated value
and no more. These dividends are payable in cash monthly on the last day of
each month. The first dividend, after the issuance of such shares, shall be
payable on the last day of the month of issuance. Dividends will accrue from
the date the shares of Series B Preferred Stock are issued and are considered
to accrue from day to day, whether or not earned or declared. The dividends
will be payable before any dividends are paid, declared, or set apart for any
other capital stock of the Corporation. Dividends are cumulative so that if
for any dividend period the dividends on the outstanding Series B Preferred
Stock are not paid or declared and set apart, the deficiency shall be fully
paid or
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declared and set apart for payment, without interest, before any distribution
(by dividend or otherwise) is paid on, declared, or set apart for any other
capital stock of the Corporation. The holders of shares of Series B Preferred
Stock shall not be entitled to receive any other dividends or distributions.
(b) Liquidation, Dissolution and Winding Up. Subject to the
rights of the holders of the Series A Preferred Stock, in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, the holders of outstanding shares of Series B Preferred
Stock shall be entitled to receive $100.00 in cash for each share, before any
distribution of the assets of the Corporation shall be made to the holders of
any other class or series of shares of the Corporation unless funds necessary
for such payment shall have been set aside in trust for the account of the
holders of outstanding shares of Series B Preferred Stock so as to be and
continue to be available therefor. If upon such liquidation, dissolution or
winding up, the assets of the Corporation distributable as aforesaid among the
holders of shares of Series B Preferred Stock are insufficient to permit the
payment to the holders of outstanding shares of Series B Preferred Stock of
$100.00 per share, then the assets of the Corporation shall be distributed to
the holders of outstanding shares of Series B Preferred Stock ratably according
to their respective shares until they shall have received the full amount to
which they would otherwise be so entitled. The holders of the Series B
Preferred Stock shall also be entitled to participate on a pro rata basis
(based on the outstanding number of shares) in any distributions made to the
holders of the Common Stock or other class or series of stock that is entitled
to distributions upon satisfaction of all shares entitled to preferred
distribution.
(c) Redemption.
(i) The Corporation, at the option of the Board of
Directors, may at any time five (5) years from the date of initial issuance
redeem the whole, or any part, of the outstanding shares of Series B Preferred
Stock by paying $100.00 per share plus all dividends accrued, unpaid, and
accumulated as provided in this Article through and including the redemption
date and by giving to each record holder of Series B Preferred Stock, at his or
her last known address as shown in the Corporation's records, at least twenty
but not more than sixty days' notice. This redemption notice may be delivered
either in person or in writing, by mail, postage prepaid and must state the
shares to be redeemed, along with the date and plan of redemption, the
redemption price, and the place where the shareholders may obtain payment of
the redemption price on surrendering their share certificates. If only a part
of the outstanding shares of Series B Preferred Stock shares are redeemed,
redemption will be pro rata. No shares of Series B Preferred Stock may be
redeemed unless all accrued dividends on all outstanding shares of Series B
Preferred Stock shares have been paid for all past dividend periods and full
dividends for the current period, except those to be redeemed, have been paid
or declared and set apart for payment. On or after the date fixed for
redemption, each holder of shares called for redemption must, unless the
shareholder has previously exercised the option to convert the holder's shares
of Series B Preferred Stock as provided herein, surrender to the Corporation
the certificate for the shares at the place designated in the redemption notice
and will then be entitled to receive payment of the redemption price. If fewer
than all the shares represented by any surrendered certificate are redeemed, a
new certificate for the unredeemed shares will be issued. If the redemption
notice is duly given and sufficient funds are available to pay all monies
herein required on the date fixed for redemption, then, whether or not the
certificates representing the shares to be redeemed are surrendered, all rights
with respect to the shares shall terminate on the date fixed for redemption,
except for the holders' right to receive the redemption price, without
interest, on surrendering their certificates.
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(ii) Shares are considered redeemed, and dividends on them
cease to accrue after the date fixed for redemption, if, on or before any date
fixed for redemption of the shares of Series B Preferred Stock as provided
herein, the Corporation deposits as a trust fund with any bank or trust company
a sum sufficient to redeem, on the date fixed for redemption, with irrevocable
instructions and authority to the bank or trust company (a) to publish the
redemption notice (or to complete publication already begun), and (b) to pay,
on and after the date fixed for redemption or before that date, the redemption
price of the shares to their holders when they surrender their certificates.
The deposit is considered to constitute full payment of the shares to their
holders, and from the date of the deposit the shares will no longer be
considered outstanding. Moreover, the holders of the shares will cease to be
shareholders with respect to the shares and will have no rights with respect to
the shares, except to receive from the bank or trust company payment of the
redemption price of the shares (without interest) on surrendering of the
certificates unless the shares are converted to Common Stock, as provided
herein. Any money so deposited on account of the redemption price of Series B
Preferred Stock share which are converted after the deposit is made must be
repaid immediately to the Corporation on conversion of the Series B Preferred
Stock.
(iii) Share of Series B Preferred Stock redeemed by the
Corporation shall be restored to the status of authorized but unissued shares.
(d) Conversion.
(i) At any time prior to the redemption of any share of
Series B Preferred Stock, the holder of such shares of Series B Preferred Stock
shall have the right to convert such share into 112 shares of Common Stock.
The right to receive the converted shares requires delivery to the office of
the Corporation or its transfer agent of the shareholder's written notice
stating the number of shares the shareholder is electing to convert. Said
notice shall be accompanied by the surrender of the Series B Preferred Stock
certificate or certificates, duly endorsed to the Corporation. The date of
conversion shall be the date of receipt by the Company or its transfer agent of
the notice and the duly endorsed certificate(s).
(ii) Neither fractional shares nor scrip or other
certificates representing the shares may be issued by the Corporation on
conversion of shares of Series B Preferred Stock, but the Corporation must pay
in lieu thereof the full value in cash to the holders who would be entitled to
receive the fractional shares but for this provision.
(iii) The Corporation must at all time reserve out of its
authorized but unissued shares of Common Stock the full number of shares
deliverable on conversion of all shares hereunder from time to time
outstanding. Said shares are reserved solely for the purpose of satisfying the
conversion requirements.
(iv) The number of shares and securities or other property
issuable upon the conversion of the Series Preferred Stock shall be subject to
adjustment from time to time in the event of any reclassification of the Common
Stock, the issuance of any stock dividend or stock split in respect of the
Common Stock, share exchange involving the Common Stock or other similar
transaction so that the holders of the Series B Preferred Stock shall be
entitle to receive on conversion of the shares of Series B Preferred Stock that
number of shares and other securities or property that a holder of a share of
Common Stock received in such reclassification, stock dividend, stock split,
share exchange or similar transaction. Such adjustments shall be determined by
the Board of Directors of the Corporation, whose determination shall be final
and conclusive. Such adjustments shall be made for successive transactions.
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(d) Voting. Each share of Series A Preferred Stock shall entitle
the holder thereof to one-tenth (1/10) of one vote on each matter presented to
shareholders generally voting as a single class with the Common Stock and any
other class or series of stock having similar voting rights. The holders of
the Series A Preferred Stock shall not be entitled to vote as a class on any
matter except as required by law.
(e) Exclusion of Other Rights. Unless otherwise required by law,
the shares of Series A Preferred Stock shall not have any powers, preferences,
or relative, participating, option or other special rights other than those
specifically set forth herein.
(f) Stated Value. The stated value of the Series B Preferred
Stock is $100 per share, all of which shall be allocated to the stated capital
of the Corporation.
4. Future Designations
Subject to the provisions of paragraph A of this Article IV, the Board
of Directors of the Corporation is hereby vested with authority from time to
time to establish and designate such series of Preferred Stock from the
authorized but unissued shares of Preferred Stock as it may deem desirable, and
within the limitations prescribed by law or set forth herein, to fix and
determine the relative rights and preferences of the shares of any series so
established. The Board of Directors shall exercise such authority by the
adoption of a resolution or resolutions as prescribed by law, setting forth the
designation of the series and fixing and determining the relative rights and
preferences thereof or so much thereof as shall not be fixed and determined
herein. The Board of Directors may increase or decrease the number of shares of
a series by adopting a resolution fixing and determining the new number of
shares of each series in which the number of shares is increased or decreased;
provided, however, no decrease may reduce the number of shares within a series
to less than the number of shares within such series that are then issued.
C. Provisions Applicable to All Stock.
1. Voting Rights. The holders of a majority of the shares of the
Corporation's stock of any class entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders. Subject to the
provisions of paragraph A of this Article IV, the vote of the holders of a
majority of the shares entitled to vote and represented at a meeting at which a
quorum is present shall be the act of the shareholders' meeting, except with
respect to certain actions, which require the affirmative vote of the holders
of a majority of the outstanding shares of the Corporation unless any class of
stock of the Corporation is entitled to vote as a class thereon, in which event
the action shall be approved upon the affirmative vote of the holders of a
majority of the outstanding shares within each class entitled to vote as a
class thereon as well as a majority of the outstanding shares. No shareholder
of the Corporation shall have the right of cumulative voting at any election of
directors or upon any other matter.
2. Preemptive Rights. No holder of securities of the Corporation
shall be entitled as a matter of right, preemptive or otherwise, to subscribe
for or purchase any securities of the Corporation now or hereafter authorized
to be issued, or securities held in the treasury of the Corporation, whether
issued or sold for cash or other consideration or as a share dividend or
otherwise. Any such securities may be issued or disposed of by the Board of
Directors to such persons and on such terms as in its discretion it shall deem
advisable.
ARTICLE V
Majority Vote for Approval of Certain Actions
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If, with respect to any matter for which the affirmative vote or
concurrence of the shareholders of the Corporation is required, any provision
of the Texas Business Corporation Act, as the same may be amended from time to
time, would, but for this Article V, require the affirmative vote or
concurrence of the holders of shares having more than a majority of the votes
entitled to vote on such matter, or of any class or series thereof, the
affirmative vote or concurrence of the holders of shares having only a majority
of the votes entitled to vote on such matter, or of any class or series
thereof, shall be required with respect to any such matter.
ARTICLE VI
Written Consents
Except for the election of directors of the Corporation, who when
elected by shareholders shall be elected at either an annual or special meeting
of shareholders called for such purpose, any action required to, or which may,
be taken at any annual or special meeting of shareholders may be taken without
a meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holder or
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 VII
Commencement of Business
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand
($1,000.00) Dollars consisting of money, labor done, or property actually
received.
ARTICLE VIII
Registered Office and Agent
The street address of its initial registered office is 5555 San
Felipe, 17th Floor, Houston, Texas 77056 and the name of its initial registered
agent at such address is Gary A. Messersmith.
ARTICLE IX
Directors
(A) Number of Directors. The business and affairs of the
Corporation shall be managed by or be under the direction of the Board of
Directors of the Corporation. The number of Directors constituting the initial
Board of Directors is one (1). The number of Directors of the Corporation may
from time to time be changed in accordance with the Bylaws of the Corporation
and the Act.
(B) Name and Address of Director. The name of the person who is to
serve as Director until the first annual meeting of the shareholders, or until
his successor is elected and qualified is DAVID R. LITTLE and his address is
580 Westlake Park Blvd., Suite 1100, Houston, Texas 77079
(C) Directors Liability. No director of the Corporation shall be
liable to the Corporation or any of its shareholders for monetary damages for
an act or omission in the director's capacity as a director, except that this
Article IX shall not authorize the elimination or limitation of liability of a
director of the Corporation to the extent the director is found liable for: (i)
a breach of such director's duty of loyalty to the Corporation or its
shareholders;
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(ii) an act or omission not in good faith that constitutes a breach of duty of
such director to the Corporation or an act or omission that involves
intentional misconduct or a knowing violation of the law; (iii) a transaction
from which such director received an improper benefit, whether or not the
benefit resulted from an action taken within the scope of the director's
office; or (iv) an act or omission for which the liability of a director is
expressly provided by an applicable statute.
ARTICLE X
Limitation of Liability of Directors
A. No director of the Corporation shall be liable to the
Corporation or any of its shareholders for monetary damages for an act or
omission in the director's capacity as a director, except that this Article
VIII shall not authorize the elimination or limitation of liability of a
director of the Corporation to the extent the director is found liable for: (i)
a breach of such director's duty of loyalty to the Corporation or its
shareholders; (ii) an act or omission not in good faith that constitutes a
breach of duty of such director to the Corporation or an act or omission that
involves intentional misconduct or a knowing violation of the law; (iii) a
transaction from which such director received an improper benefit, whether or
not the benefit resulted from an action taken within the scope of the
director's office; or (iv) an act or omission for which the liability of a
director is expressly provided by an applicable statute.
B. If the Texas Business Corporation Act, the Texas Miscellaneous
Corporation Laws Act or any other applicable Texas statute hereafter is amended
to authorize the further elimination or limitation of the liability of
directors of the Corporation, then the liability of a director of the
Corporation shall be limited to the fullest extent permitted by the Texas
Business Corporation Act, the Texas Miscellaneous Corporation Laws Act and such
other applicable Texas statute, as so amended, and such limitation of liability
shall be in addition to, and not in lieu of, the limitation on the liability of
a director of the Corporation provided by the foregoing provisions of this
Article VIII.
C. Any repeal of or amendment to this Article VIII shall be
prospective only and shall not adversely affect any limitation on the liability
of a director of the Corporation existing at the time of such repeal or
amendment.
ARTICLE XI
Indemnification of Officers and Directors
(A) Indemnification of Directors. To the fullest extent permitted by
Section B and Section E of Article 2.02-1 of the Act, the Corporation shall
indemnify each person who was, is, or is threatened to be made a named
defendant or respondent in a proceeding because the person is or was a director
of the Corporation, and this provision for indemnification shall be deemed to
constitute authorization of such indemnification in the manner required by
Section G of said Article 2.02-1 of the Act.
(B) Expenses of a Defendant. To the fullest extent permitted by
Section K of Article 2.02-1 of the Act, reasonable expenses incurred by a
director of the Corporation who was, is, or is threatened to be made a named
defendant or respondent in a proceeding shall be paid or reimbursed by the
Corporation, in advance of the final disposition of such proceeding, after the
Corporation receives a written affirmation by the director of his good faith
belief that he has met the standard of conduct necessary for indemnification by
the Corporation and the Corporation receives a written undertaking by or behalf
of the director to repay the amount paid or reimbursed if it is ultimately
determined that he has not met that standard or if it is ultimately determined
that indemnification of the director against expenses incurred by him
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in connection with that proceeding is otherwise prohibited by said Article
2.02-1 of the Act. This provision for payment or reimbursement shall be deemed
to constitute authorization of such payment or reimbursement as provided by
said Section K of Article 2.02-1 of the Act.
(C) Officers. Pursuant to Section O of Article 2.02-1 of the Act,
the Corporation shall indemnify and advance expenses to an officer of the
Corporation to the same extent that the Corporation shall indemnify and pay or
reimburse expenses to directors of the Corporation as set forth in subsections
(A) and (B) hereinabove.
(D) Expenses of a Witness. To the fullest extent permitted by
Section N of Article 2.02-1 of the Act, the Corporation shall pay or reimburse
expenses incurred by a director or officer in connection with his appearance as
a witness or other participation, only in his capacity as a director or officer
of the Corporation, in a proceeding at a time when he is not a named defendant
or respondent in the proceeding as set out therein.
(E) Other. In addition to the foregoing, the Corporation hereby
adopts all other terms, provisions and authorizations of Article 2.02-1 of the
Act, not in conflict with subsections (A), (B), (C) and (d) hereinabove,
including but not limited to Sections H, I, J and O of said Article 2.02-1 of
the Act. It is the intention of the Corporation to provide the maximum
indemnification allowed by law to its directors and officers and to make
mandatory in all instances any permissive provisions of Article 2.02-1 of the
Act for the benefit of the Corporation's directors and officers.
(F) Insurance. The Corporation shall have power to purchase and
maintain insurance or another arrangement on behalf of any person who is or was
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article or the Act.
(G) Amendment of this Article. No amendment or repeal of this
Article shall apply to or have any affect on the indemnification or
reimbursement of any director or officer of the Corporation for or with respect
to any such indemnification or reimbursement on the part of such director or
officer for events covered by such indemnification or reimbursement occurring
prior to such amendment or repeal.
(H) Amendment of the Act. In the event any provision of the Act set
out in this Article is amended, altered or repealed in any way, then any such
amendment, alteration or repeal shall be incorporated herein without the
necessity of any further action by the corporation upon the effective date of
such action.
ARTICLE XII
Amendment of Bylaws
The shareholders of the Corporation hereby delegate to the Board of
Directors the power to adopt, alter, amend or repeal the Bylaws of the
Corporation. Such power shall be vested exclusively in the Board of Directors
and shall not be exercised by the shareholders.
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ARTICLE XIII
Power to Call Special Shareholders' Meetings
Special meetings of the shareholders of the Corporation may be called
by the President of the Corporation, the Board of Directors or holders of not
less than thirty (30%) percent of all the shares entitled to vote at the
proposed special meeting of the shareholders.
ARTICLE XIV
Amendments
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles of Incorporation or in its Bylaws in
the manner now or hereafter prescribed by the Act or these Articles of
Incorporation, and all rights conferred on shareholders herein are granted
subject to this reservation.
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Executed this the 12th day of August, 1996.
INDEX, INC.
By: /s/ DAVID R. LITTLE
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Name: David R. Little
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Title: Chairman & CEO
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