Exhibit 3(c)
BYLAWS
OF
ENTERGY GULF STATES, INC.
AS OF OCTOBER 5, 1998
ARTICLE I.
Name.
The name of this Corporation shall be ENTERGY GULF
STATES, INC.
ARTICLE II.
Shareholders' Meetings.
All meetings of the Shareholders shall be held at a
place and time to be set either by the Shareholders or by the
Board of Directors. With or without motion, the Chairman of
any meeting of the Shareholders may appoint Inspectors and
Tellers for such meeting who shall examine into the
qualifications of the Shareholders present in person or
represented at the meeting by proxy, report the shares
represented at the meeting and tabulate the vote on such
matters as may come before the meeting.
ARTICLE III.
Annual Meeting.
The Annual Meeting of the Shareholders of this
Corporation shall be held on a date selected either by the
Shareholders or by the Board of Directors
ARTICLE IV.
Special Meetings.
Special Meetings of the Shareholders of this Corporation
shall be held whenever called by the Chairman of the Board of
Directors, the Vice Chairman, the President, a Vice President
or a majority of the Board of Directors, or whenever the
holder or holders of one-tenth (1/10) of the shares of the
capital stock issued and outstanding and entitled to vote
shall make written application therefor to the Secretary or
an Assistant Secretary, stating the time and purpose of the
meeting applied for. Special Meetings of the Shareholders
shall also be held following the accrual or termination of
the right of the preferred stock of the Corporation, voting
as a class, to elect the smallest number of Directors of this
Corporation necessary to constitute a majority of the members
of the Board of Directors, whenever requested to be called in
the manner provided in Paragraph 6 of Article VI of the
Restated Articles of Incorporation of the Corporation as
amended.
ARTICLE V.
Notice of Shareholders' Meetings.
Written or printed notice of all Shareholders' Meetings,
stating the time and place, and, in the case of Special
Meetings, the purpose or purposes for which such meetings are
called, shall be delivered by the Secretary or an Assistant
Secretary, by mail, to each Shareholder of record, having
voting power in respect of the business to be transacted
thereat, at his or her registered address, at least ten (10)
and not more than sixty (60) days prior to the date of the
meeting, and the person giving such notice shall make
affidavit in relation thereto; provided that such notice
shall be deemed to be delivered when deposited in the United
States mail addressed to the Shareholder at his address as it
appears on the stock transfer books of the Corporation, with
postage thereon prepaid, and further provided that notice of
any such meeting shall be deemed to be sufficiently delivered
to any Shareholder who, while the provisions of the Trading
with the Enemy Act (Public Act No. 91 of the Sixty-fifth
Congress of the United States of America, as now or hereafter
amended) shall be operative, shall appear from the stock
books to be or shall be known to the Corporation to be an
"enemy" or "ally of enemy" as defined in the said Act and
whose address appearing on such stock books is outside the
United States, or the mailing to whom of notice shall at the
time be prohibited by any other law of the United States of
America or by any executive order or regulation issued or
promulgated by any officer or agency of the United States of
America (a) if, at least ten (10) days prior to the date of
the meeting, a copy of the notice of the meeting shall be
mailed to any person or agency who by any such law, order or
regulation shall have been duly designated to receive such
notice or duty designated or appointed as custodian of the
property of such Shareholder; or (b) if a brief notice of
such meeting, including, in the case of a Special Meeting,
either a brief statement of the objects for which such
meeting is called or a statement as to where there may be
obtained a copy of a written notice containing a statement of
such objects, shall be published by the Corporation at least
once, not less than ten (10) days before the meeting in a
daily newspaper published in the English language and of
general circulation in the City of Beaumont, Texas.
Any meeting at which all Shareholders having voting
power in respect of the business to be transacted thereat are
present, either in person or represented by proxy, or of
which those not present have waived notice in writing, shall
be a legal meeting for the transaction of business,
notwithstanding that notice has not been given as herein
before provided.
ARTICLE VI.
Waiver of Notice.
Notice of any Shareholders' Meeting may be waived by any
Shareholder and the presence at any meeting, either in person
or by proxy, of a Shareholder having voting power in respect
of the business to be transacted thereat shall be deemed as
to such Shareholder a waiver of notice of the meeting.
ARTICLE VII.
Quorum.
At any meeting of the Shareholders, a majority of the
shares of capital stock issued and outstanding and entitled
to vote in respect of the business to be transacted thereat,
represented by such Shareholders of record in person or by
proxy, shall constitute a quorum, but a less interest may
adjourn any meeting from time to time and the same shall be
held as adjourned without further notice. When a quorum is
present at any meeting, the vote of the holders of a majority
of the shares of capital stock entitled to vote represented
thereat shall decide all questions brought before such
meeting, unless the question is one upon which by express
provision of law or of the Articles of Incorporation of the
Corporation or of these Bylaws a larger or different vote is
required, in which case such express provision shall govern
and control the decision of such question. The provisions of
this Article are, however, subject to the provisions of
Paragraphs 6 and 13 of Article VI of the Articles of
Incorporation of the Corporation as amended.
ARTICLE VIII.
Proxy and Voting.
The voting power of the respective classes of stock of
the Corporation shall be as provided in Article VI of the
Articles of Incorporation of the Corporation as amended.
Shareholders of record entitled to vote may vote at any
meeting either in person or by proxy in writing, which shall
be filed with the Secretary of the meeting before being
voted. Such proxies shall entitle the holders thereof to vote
at any adjournment of such meeting, but shall not be valid
after the final adjournment thereof or after eleven (11)
months from the date of its execution unless otherwise
provided in the proxy. Each holder of record of stock of the
Corporation of any class shall, as to all matters in respect
of which such class of stock has voting power, be entitled to
one vote for each share of stock of such class standing in
his name on the books of the Corporation.
ARTICLE IX.
Board of Directors.
The Shareholders or the Board of Directors shall have
the power from time to time to fix the number of directors of
the Company, provided that the number so fixed shall not be
less than three (3) or more than fifteen (15).
No person shall be eligible for election or re-election
as a Director of the Company after attaining age seventy (70)
except as otherwise permitted by the Board by special
resolution heretofore adopted. Any Director who retires from
active employment by the Company shall, concurrently with
such retirement, resign as a Director of the Company
The foregoing provisions placing qualifications on the
eligibility of Directors are, however, subject to Paragraphs
6 and 13 of Clause E of Article V~ of the Restated Articles
of Incorporation of the Corporation as amended.
ARTICLE X.
Powers of Directors.
The Board of Directors shall have the entire management
of the business of the Corporation. In the management and
control of the property, business and affairs of the
Corporation, the Board of Directors is hereby vested with all
the powers possessed by the Corporation itself, so far as
this delegation of authority is not inconsistent with the
laws of the State of Texas, with the Articles of
Incorporation of the Corporation or with these Bylaws. The
Board of Directors shall have power to determine what
constitutes net earnings, profits and surplus, respectively,
what amount shall be reserved for working capital and for any
other purposes, and what amount shall be declared as
dividends, and such determination of the Board of Directors
shall be final and conclusive.
ARTICLE XI.
Fees of Directors and Others.
The Board of Directors shall have power to fix and
determine the fee or fees to be paid members of the Board of
Directors or any Committees appointed by the Directors or
Shareholders for attendance at meetings of said Directors or
Committees. Any fees so fixed and determined by the Board of
Directors shall be subject to revision or amendment by the
Shareholders.
ARTICLE XII.
Executive and Other Committees.
The Board of Directors may, by resolution passed by a
majority of the whole Board of Directors, appoint an
Executive Committee of not less than two or more than four
members, to serve at the pleasure of the Board of Directors.
Such Committee shall have and may exercise all the powers of
the Board of Directors during the intervals between its
meetings, which may be lawfully delegated, subject to such
limitations which may be provided by resolution of the Board
of Directors.
The Board of Directors may likewise appoint from its
number or from the Shareholders other Committees from time to
time, the number composing such Committees and the powers
conferred upon the same to be determined by vote of the Board
of Directors.
ARTICLE XIII.
Meetings.
Regular Meetings of the Board of Directors shall be held
at such places within or without the State of Texas and at
such times as the Board by vote may determine from time to
time, and if so determined no notice thereof need be given.
Special Meetings of the Board of Directors may be held at any
time or place, either within or without the State of Texas.
whenever called by the Chairman of the Board of Directors,
the Vice Chairman, the President, a Vice President, the
Secretary, an Assistant Secretary or three or more Directors,
notice thereof being given to each Director by the Secretary
or an Assistant Secretary or officer calling the meeting, or
at any time without formal notice provided all the Directors
are present or those not present have waived notice thereof.
Notice of Special Meetings, stating the time and place
thereof, shall be given by mailing the same to each Director
at his residence or business address at least two days before
the meeting or by delivering the same to him personally or by
telephoning or telegraphing the same to him at his residence
or business address at least one day before the meeting
ARTICLE XIV.
Quorum.
A majority of the Board of Directors shall constitute a
quorum for the transaction of business, but a less number may
adjourn any meeting from time to time and the same may be
held without further notice. When a quorum is present at any
meeting, a majority vote of the members in attendance thereat
shall decide any question brought before such meeting, except
as otherwise provided by law or by these Bylaws
ARTICLE XV.
Officers.
The Board of Directors shall elect individuals to occupy
at least three executive offices: President, Secretary and
Treasurer. In its discretion, the Board of Directors may
elect individuals to occupy other executive offices,
including Chief Executive Officer, Vice Chairman, Chief
Operating Officer, Vice President and such other executive
offices as the Board shall designate. Officers shall be
elected annually and shall hold office until their respective
successors shall have been duly elected and qualified, or
until such officer shall have died or resigned or shall have
been removed by majority vote of the whole Board. To
the extent permitted by the laws of the State of Texas,
individuals may occupy more than one office.
ARTICLE XVI.
Subordinate Officers.
The Board of Directors may appoint such assistant
secretaries, assistant treasurers and other officers as it
may deem desirable. Each such officer shall hold office for
such period, have such authority and perform such duties as
the Board of Directors may prescribe. The Board of Directors
may, from time to time, authorize any officer to appoint and
remove such officers and to prescribe the powers and duties
thereof.
ARTICLE XVII.
Chairman of the Board.
The Board of Directors shall designate one of its
members as Chairman of the Board. The position of Chairman
of the Board is not an officer position; therefore the
Chairman of the Board need not be an officer of the Company.
ARTICLE XVIII.
President.
The President shall perform duties incident to the
office of a president of a corporation and such other duties
as from time to time may be assigned to him by the Board of
Directors, by the Executive Committee or, if the Board has
elected a Chief Executive Officer and if the Chief Executive
Officer is not the President, by the Chief Executive Officer.
ARTICLE XIX.
Vice President.
Each Vice President shall have such powers and shall
perform such duties as from time to time may be conferred
upon or assigned to him by the Board of Directors or the
Executive Committee, or as may be delegated to him by the
President or the Chief Executive Officer.
ARTICLE XX.
Secretary.
The Secretary shall keep the minutes of all meetings of
the stockholders and of the Board of Directors in books
provided for the purpose; shall see that all notices are duly
given in accordance with the provisions of law and these
bylaws; shall be custodian of the records and of the
corporate seal of the Corporation; shall see that the
corporate seal is affixed to all documents the execution of
which under the seal is duly authorized, and when the seal is
so affixed he may attest the same; may sign, with the
Chairman of the Board, a Vice Chairman, the President or a
Vice President, certificates of stock of the Corporation;
and, in general, shall perform all duties incident to the
office of a secretary of a corporation, and such other duties
as from time to time may be assigned to the Secretary by the
Chief Executive Officer, the Chairman of the Board, a Vice
Chairman, the President, the Board of Directors or the
Executive Committee. The Secretary shall also keep, or cause
to be kept, a stock book, containing the name, alphabetically
arranged, of all persons who are stockholders of the
Corporation, showing their places of residence, the number of
shares held by them respectively, and the time when they
respectively became the owners thereof.
ARTICLE XXI.
Treasurer and Controller.
The Treasurer shall have charge of and be responsible
for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in
the name of the Corporation, all moneys or other valuable
effects in such banks, trust companies or other depositories
as shall, from time to time, be selected by the Board of
Directors. The Treasurer may endorse for collection on
behalf of the Corporation, checks, notes and other
obligations; may sign receipts and vouchers for payments made
to the Corporation singly or jointly with another person as
the Board of Directors may authorize; may sign checks of the
Corporation and pay out and dispose of the proceeds under the
direction of the Board; shall render or cause to be rendered
to the Chairman of the Board, the President and the Board of
Directors, whenever requested, an account of the financial
condition of the Corporation; may sign, with the Chairman of
the Board, a Vice Chairman, the President or a Vice
President, certificates of stock of the Corporation; and, in
general, shall perform all the duties incident to the office
of a treasurer of a corporation, and such other duties as
from time to time may be assigned to him by the Chairman of
the Board, a Vice Chairman, the President, the Board of
Directors or the Executive Committee.
ARTICLE XXII.
Resignations.
Any officer may resign at any time by giving written
notice of such resignation to the Board of Directors, a
Chairman of the Board, the Vice Chairman, the President or
the Secretary. Unless otherwise specified therein, such
resignation shall take effect upon written receipt thereof by
the Board of Directors or by such officer.
ARTICLE XXIII.
Vacancies, Absences.
Any vacancy in any of the above offices may be filled
for the unexpired portion of the term by the Board of
Directors at any regular or special meeting. Except when the
law requires the act of a particular officer, the Board of
Directors or the Executive Committee, whenever necessary,
may, in the absence of any officer, designate any other
officer or properly qualified employee, to perform the duties
of the one absent for the time being, and such designated
officer or employee shall have, when so acting, all the
powers herein given to such absent officer.
ARTICLE XXIV.
Capital Stock.
The amount of capital stock, and of each class thereof,
shall be as fixed in the Articles of Incorporation or in any
lawful amendments thereto and the votes of the Corporation
from time to time
ARTICLE XXV.
Certificates of Stock.
Every Shareholder shall be entitled to a certificate or
certificates representing shares of the capital stock of the
Corporation in such form, complying with the law as may be
prescribed by the Board of Directors, duly numbered and
sealed with the corporate seal of the Corporation and setting
forth the number and kind of shares to which such Shareholder
is entitled. Such certificates shall be signed by the
Chairman of the Board of Directors, the Vice Chairman, the
President or a Vice President and by the Secretary or an
Assistant Secretary. The Board of Directors may also appoint
one or more Transfer Agents and/or Registrars for the stock
of any class or classes and may require stock certificates to
be countersigned by one or more of them. If certificates
representing shares of capital stock of this Corporation are
manually signed either by a Transfer Agent or by a Registrar,
the signatures thereon of the Chairman of the Board of
Directors, the Vice Chairman, the President or a Vice
President and the Secretary or an Assistant Secretary of this
Corporation may be facsimiles, engraved or printed. Any
provisions of these Bylaws with reference to the signing of
stock certificates shall include, in cases above permitted,
such facsimile signatures. In case any officer or officers
who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or
certificates, shall cease to be such officer or officers of
this Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates shall have
been delivered by this Corporation, such certificate or
certificates may nevertheless be adopted by the Board of
Directors of this Corporation and be issued and delivered as
though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall
have been used thereon had not ceased to be such officer or
officers of this Corporation. Any stock certificates bearing
facsimile signatures of officers of this Corporation, as
above provided, may also bear a facsimile of the seal of this
Corporation.
ARTICLE XXVI.
Transfer of Stock.
Shares of stock may be transferred by delivery of the
certificate accompanied either by an assignment in writing on
the back of the certificate or by a written power of attorney
to sell, assign and transfer the same signed by the person
appearing by the certificate to be the owner of the shares
represented thereby. No transfer shall affect the right of
the Corporation to pay any dividend due upon the stock, or to
treat the holder of record as the holder in fact, until such
transfer is recorded upon the books of the Corporation or a
new certificate is issued to the person to whom it has been
so transferred. It shall be the duty of every Shareholder to
notify the Corporation of his post office address.
The Board of Directors shall have power to close the
stock transfer books of this Corporation for a period not
exceeding 50 days preceding the date of any meeting of
Shareholders or the date for payment of any dividend or the
date for the allotment of rights or the date when any change
or conversion or exchange of capital stock shall go into
effect; provided, however, that in lieu of closing the stock
transfer books as aforesaid, the Board of Directors may fix
in advance a date, not exceeding 60 days preceding the date
of any meeting of Shareholders or the date for the payment of
any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital
stock shall go into effect, as a record date for the
determination of the Shareholders entitled to notice of, and
to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any
such allotment or rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital
stock, and in such case only such Shareholders as shall be
Shareholders of record on the date so fixed shall be entitled
to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend,
or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of
any stock on the books of this Corporation after any such
record date fixed as aforesaid
ARTICLE XXVII.
Loss of Certificates.
In case of the loss, mutilation or destruction of a
certificate representing shares of stock, a duplicate
certificate may be issued upon such terms as the Board of
Directors may prescribe
ARTICLE XXVIII.
Seal.
The seal of this Corporation shall consist of a
flat-faced circular die with the words and figures "GULF
STATES UTILITIES COMPANY CORPORATE SEAL 1925 TEXAS" cut or
engraved thereon
ARTICLE XXIX.
Books and Records.
Unless otherwise expressly required by the laws of the
State of Texas, the books and the records of the Corporation
may be kept outside of the State of Texas at such place or
places as may be designated from time to time by the Board of
Directors.
ARTICLE XXX.
Amendments.
These Bylaws may be amended, added to, altered or
repealed by the Board of Directors of the Company. In the
event of any such amendment, alteration or repeal of these
Bylaws by the Board of Directors, the notice of the Annual
Meeting of the Shareholders which shall thereafter first be
sent to the Shareholders shall state that the Bylaws have
been so amended, added to, altered or repealed and shall
describe or set forth or be accompanied by statement
describing or setting forth such amendment, addition,
alteration or the text ~f any article which has been
repealed. Notwithstanding anything hereinabove contained,
these Bylaws may be amended, added to, altered or repealed at
any Annual or Special Meeting of the Shareholders by vote in
either case of a majority of the voting power of the shares
of the capital stock issued and outstanding and entitled to
vote in respect thereof, unless the question is one upon
which by express provisions of law or of the Articles of
Incorporation or of these Bylaws a larger or different vote
is required, in which case such express provision shall
govern and control the decision of such question, provided,
however, that notice is given in the call of said meeting
that an amendment, addition, alteration or repeal is to be
acted upon.
ARTICLE XXXI.
Indemnification.
A. The Corporation shall indemnify any person who was or
is a named defendant or respondent or is threatened to be
made a named defendant or respondent in a proceeding (which
shall ;include any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action,
suit or proceeding, and any inquiry or investigation that
could lead to such an action, suit, or proceeding including
but not limited to any action, suit or proceeding brought by
or in behalf of the Corporation) because the person is or was
a director, officer, or employee of the Corporation, and any
person who, while a director, officer, or employee 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 domestic or foreign
corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan, or other enterprise, or is or
was a nominee or designee of the Corporation who is or was
serving at the request of the Corporation as a director or
officer of any domestic or foreign corporation which is owned
in whole or part by the Corporation, against, judgments,
penalties (including excise and similar taxes), fines,
settlements, and reasonable expenses (including but not
limited to court costs and attorneys' fees) actually incurred
by the person in connection with such proceeding, if the
person (1) conducted himself or herself in good faith, (2)
reasonably believed in the case of conduct in his or her
official capacity as a director, officer, or employee of the
Corporation, that his or her conduct was in the Corporation's
best interests and in all other cases that his or her conduct
was at least not opposed to the Corporation's best interests
and (3) in the case of any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
This indemnity is expressly intended to apply regardless of
the sole, concurrent, or contributing negligence or fault of
the person to be indemnified provided that the standards of
conduct described in clauses (l), (2), and (3) are met. In
addition to the other standards of conduct described in
clauses (1), (2), and (3), indemnification and payment or
reimbursement of expenses of employees under this Article
XXXIII shall be provided for an employee (who is not a
director or officer) only when the employee's conduct was
within the course and scope of his or her employment by the
Corporation.
B. The Corporation shall indemnify a director, officer,
or employee, or such A nominee or designee or person who, at
the request of the Corporation, is serving in capacities
described above against reasonable expenses (including but
not limited to court costs and attorneys' fees) incurred by
him or her in connection with a proceeding in which he or she
is a named defendant or respondent because he or she is or
was a director, officer, or employee, or such a nominee or
designee if he or she has been wholly successful, on the
merits or otherwise, in the defense of the proceeding.
C. Indemnification provided under Section A shall be
made by the Corporation (except as provided in Section B)
only if it is determined in accordance with the following
procedures that the person has met the requirements set forth
in Section A and that indemnification is permissible Such
determination that indemnification is permissible under
Section A shall be made (1) by a majority vote of a quorum
consisting of directors who at the time of the vote were not
named defendants or respondents in the proceeding, or (2) if
such a quorum cannot be obtained by a majority vote of a
committee of the board of directors, designated to act in the
matter by a majority vote of all directors, consisting solely
of two or more directors who at the time of the vote are not
named defendants or respondents in the proceeding, or (3) by
special legal counsel selected by the board of directors or a
committee of the board by vote as set forth in subsections
(1) or (2) of this Section C, or, if such a quorum cannot be
obtained and such a committee cannot be established, by a
majority vote of all directors, or (4) by the shareholders in
a vote that excludes the shares held by directors who are
named defendants or respondents in the proceeding.
The termination of a proceeding by judgment, order,
settlement, or conviction, or on a plea of nolo contendere or
its equivalent is not of itself determinative that the
persons did not meet the requirements set forth in Section A
above. A person shall be deemed to have been found liable in
respect of any claim, issue or matter only after the person
shall have been so adjudged by a court of competent
jurisdiction after exhaustion of all appeals therefrom,
The provisions of Section A are intended to make
mandatory the indemnification permitted therein and, together
with Article IX of the Restated Articles of Incorporation,
shall constitute authorization of indemnification in the
manner required Determinations as to reasonableness of
expenses under Section A shall be made in the same manner as
the determination that indemnification is permissible, except
that if the determination that indemnification is permissible
is made by special legal counsel, determination as to
reasonableness of expenses shall be made in the manner
specified in subsection (3) of the first paragraph of this
Section C for the selection of special legal counsel.
Determinations as to the reasonableness of expenses under
Sections B and F shall be made in any manner which may be
used to determine if indemnification is permissible under
Section A.
Action taken or omitted by a person with respect to an
employee benefit plan in the performance of his or her duties
for a purpose reasonably believed by him or her to be in the
interest of the participants and beneficiaries of the plan is
deemed to be for a purpose which is not opposed to the best
interests of the Corporation
D. Notwithstanding the provisions of Section A, except
to the extent permitted by the next sentence, a person shall
not be indemnified by the Corporation in respect of a
proceeding in which the person is found liable on the basis
that personal benefit was improperly received by the person,
whether or not the benefit resulted from an action taken in
the person's official capacity, or in which the person is
found liable to the Corporation. If a person is found liable
to the Corporation or is found liable on the basis that
personal benefit was improperly received by the person, the
indemnification (i) is limited to reasonable expenses
actually incurred by the person in connection with the
proceeding and (ii) shall not be made in respect of any
proceeding in which the person shall have been found liable
for willful or intentional misconduct in the performance of
his duty to the Corporation.
E. Reasonable expenses incurred by a director, officer,
or employee, or such a nominee or designee or person serving
in capacities described above at the request of the
Corporation who was, is, or is threatened to b~ made a named
defendant or respondent in a proceeding, may be paid or
reimbursed by the Corporation in advance of the final
disposition of the proceeding and without any of the
determinations specified in Section C after (1) the
Corporation receives a written affirmation by the person of
his or her good faith belief that he or she has met the
standard of conduct that is necessary for indemnification
under this Article XXXIII and a written undertaking by or on
behalf of the person to repay the amount paid or reimbursed
if it is ultimately determined that he or she has not met
those requirements. The written undertaking required by this
Section E must be an unlimited general obligation of the
person but need not be secured, and may be accepted without
reference to financial ability to make repayment.
F. Notwithstanding any other provision of this Article
XXXIII, the Corporation shall pay or reimburse reasonable
expenses incurred by a director, officer, or employee, or
such a nominee or designee in person who, at the request of
the Corporation, is serving in capacities described above in
connection with his appearance as a witness or other
participation in a proceeding at a time when he is not a
named defendant or respondent in the proceeding.
G. The indemnification provided by this Article XXXIII
shall not be deemed to limit the powers of the Corporation to
indemnify or to advance expenses to any person who is or was
a director, officer, employee, agent, nominee, or designee of
the Corporation conferred on the Corporation by the Texas
Business Corporation Act (as now in effect or as same may be
amended) or other applicable law and shall not be deemed
exclusive of any rights to which those indemnified may be
entitled under any agreement, contract, insurance,
arrangement, vote of shareholders or disinterested directors,
statute, court order, or otherwise, both as to action in his
or her official capacity and as to action in another capacity
while holding such office (including but not limited to
service as plan fiduciary), and shall continue as to a person
who has ceased to be a director, officer, employee, agent,
nominee, or designee or person serving in a named capacity at
the request of the Corporation and shall inure to the benefit
of the heirs, executors and administrators of such person.
This Article XXXIII is intended to be consistent with the
powers granted by the Texas Business Corporation Act, as
heretofore and hereafter amended, and terms used herein shall
be defiled and the provisions of this Article XXXIII shall be
interpreted and applied consistently with such law. The
provisions of this Article XXXIII shall be deemed several,
and if and to the extent any provision of this Article XXXIII
is determined not to be consistent with the provisions of
such Act, as heretofore and hereafter amended, then the other
provisions to the extent consistent shall remain valid and in
full force and effect.
H. The Corporation may 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
who 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 domestic or
foreign corporation, partnership, joint venture, sole
proprietorship, trust, or other enterprise, or employee
benefit plan against any liability asserted against him or
her and incurred by him or her in such capacity or arising
out of his or her status as such a person, whether or not the
Corporation would have the power to indemnify him or her
against that liability under the provisions of the Restated
Articles of Incorporation as amended, this Article XXXIII,
the Texas Business Corporation Act, as heretofore and
hereafter amended, or otherwise. Nothing in this Article
XXXIII is intended to authorize a double payment to a person
entitled to indemnification or reimbursement by the
Corporation pursuant to this Article XXXIII of an amount
actually paid to such person or expended for such person's
benefit under any such insurance or other arrangement. If the
insurance or other arrangement is with a person or entity
that is not regularly engaged in the business of providing
insurance coverage, the insurance or arrangement may provide
for payment of a liability with respect to which the
Corporation would not have the power to indemnify the person
only if including coverage for the additional liability has
been approved by the shareholders of the Corporation. Without
limiting the power of the Corporation to procure or maintain
any kind of insurance or other arrangement the Corporation
may, for the benefit of persons indemnified by the
Corporation, (1) create a trust fund; (2) establish any form
of self-insurance; (3) secure its indemnity obligation by
grant of a security interest or other lien on the assets of
the Corporation; or (4) establish a letter of credit,
guaranty, or surely arrangement. The insurance or other
arrangement may be procured, maintained, or established
within the Corporation or with any insurer or other person
deemed appropriate by the board of directors regardless of
whether all or part of the stock or other securities of the
insurer or other person are owned in whole or part by the
Corporation In the absence of fraud, the judgment of the
board of directors as to the terms and conditions of the
insurance or other arrangement and the identity of the
insurer or other person participating in an arrangement shall
be conclusive and the insurance or arrangement shall not be
voidable and shall not subject the directors approving the
insurance or arrangement to liability, on any ground,
regardless of whether directors participating in the approval
are beneficiaries of the insurance or arrangement.
I. Any indemnification of or advance of expenses to any
person in accordance with this Article XXXIII or otherwise
shall be reported in writing to the shareholders with or
before the notice or waiver of notice of the next
shareholders' meeting or with or before the next submission
to shareholders of a consent to action without a meeting,
and, in any case, within the twelve (12) month period
immediately following the date of the indemnification or
advance. Failure to make or delay in making any such report
shall not affect the Corporation's obligation to make any
such indemnification or advance
J. The indemnification provided hereunder to any person
who is or was serving as an employee benefit plan fiduciary
shall not operate to relieve any such person who acts as a
plan fiduciary from any responsibility or liability under
applicable laws, and the indemnification provided hereunder
to a plan fiduciary is limited to satisfaction of liabilities
incurred by such person as a plan fiduciary, subject to the
terms and conditions stated in this Article XXXIII. For
purposes of this Article XXXIII, the Corporation shall be
deemed to have requested a director or officer to serve an
employee benefit plan whenever the performance by him or her
of his or her duties to the Corporation also imposes duties
on or otherwise involves services by him or her to the plan
or participants or beneficiaries of the plan. Excise taxes
assessed on a director or officer with respect to
an employee benefit plan pursuant to applicable law shall be
deemed fines.
K. These indemnities shall apply with respect to acts,
omissions, and occurrences before or after September 3, 1987;
provided that (i) if the indemnities in effect prior to such
date should operate in any respect to provide greater
indemnification for the person affected or (ii) if it should
be determined that these indemnities may not lawfully be
applied retroactively from date of adoption, then the
indemnities in effect prior to such date shall continue to
apply and shall be effective and enforceable with respect
thereto.