EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
BENCHMARK ELECTRONICS, INC.
DECEMBER 21, 1990
ARTICLE 1
OFFICES AND AGENT
The Corporation may have such offices, either within or without the State
of Texas, as the Board of Directors may designate or as the business of the
Corporation may require from time to
time.
The registered office of the Corporation required by the Texas Business
Corporation Act to be maintained in the State of Texas may be, but need not be,
the same as the principal office in the State of Texas, as designated by the
Board of Directors. The address of the registered office or the identity of the
registered agent may be changed from time to time by the Board of Directors.
The address of the registered office of the Corporation is 811 Dallas
Avenue, Houston, Texas 77002, and the name of the registered agent of the
Corporation at such address is C T Corporation
System.
ARTICLE 2
SHAREHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of the shareholders shall be
held on such date in each year and at such time and place as may be determined
by the Board of Directors, for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. If the day
fixed for the annual meeting is a legal holiday in the State of Texas, such
meeting shall be held on the next succeeding business day. If the election of
directors is not held on the day designated for the annual meeting of the
shareholders or at any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of the shareholders as soon
thereafter as may be convenient.
Section 2. SPECIAL MEETINGS. Special meetings of the shareholders may be
called by (a) the President, (b) the Board of Directors, (c) the President or
the Secretary at the request in writing of a majority of the Board of Directors,
or (d) the President or the Secretary at the request in writing of the holders
of at least ten percent of all the shares entitled to vote at the proposed
special meeting. Any such request to call a special meeting of the shareholders
shall state the purpose or purposes of such meeting.
Section 3. PLACE OF MEETING. The Board of Directors may designate any
place within or without the State of Texas as the place of meeting for any
annual or special meeting of shareholders called by or at the request of the
Board of Directors. If no designation is made, or if a special meeting is called
otherwise than by or at the request of the Board of Directors, the place of
meeting shall be the principal office of the Corporation in the State of Texas.
Section 4. NOTICE OF MEETING. Written or printed notice stating the place,
day and hour of the meeting and, in 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 date of the meeting, either personally or by
mail, by or at the direction of the President, the Secretary, or the officer or
persons calling the meeting, to each shareholder entitled to vote at such
meeting. If mailed, 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 share transfer records of the Corporation, with postage thereon
prepaid. Attendance by a shareholder, whether in person or by proxy, at a
shareholder's meeting shall constitute a waiver of notice of such meeting of
which he has had no notice.
The notice of any meeting of shareholders may be accompanied by a form of
proxy and other proxy solicitation materials approved by the Board of Directors.
Section 5. FIXING RECORD DATES FOR MATTERS OTHER THAN CONSENTS TO ACTION.
For the purpose of determining shareholders entitled to notice of or to vote at
any meeting of shareholders or any adjournment thereof, or 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
(other than determining shareholders entitled to consent to action by
shareholders proposed to be taken without a meeting of shareholders), the Board
of Directors of the Corporation may provide that the share transfer records
shall be closed for a stated period not to exceed, in any case, sixty days. If
the share transfer records shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
records shall be closed for at least ten days immediately preceding such
meeting. In lieu of closing the share transfer records, the Board of Directors
may fix in advance a date as the record date for any such determination of
shareholders, such date in any case to 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. If the share transfer records are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, or shareholders entitled to receive a distribution
(other than a distribution involving a purchase or redemption by the Corporation
of any of its own shares) or a share dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such distribution or share dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this Section 5, such determination shall apply to
any adjournment thereof except where the determination has been made through the
closing of the share transfer records and the stated period of closing has
expired.
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Section 6. FIXING RECORD DATES FOR CONSENTS TO ACTION. Unless a record
date shall have previously been fixed or determined pursuant to Section 5 of
this Article 2, whenever action by shareholders is proposed to be taken by
consent in writing without a meeting of shareholders, the Board of Directors may
fix a record date for the purpose of determining shareholders entitled to
consent to that action, which record date shall not precede, and shall not be
more than ten days after, the date upon which the resolution fixing the record
date is adopted by the Board of Directors. If no record date has been fixed by
the Board of Directors and the prior action of the Board of Directors is not
required by the Texas Business Corporation Act, the record date for determining
shareholders entitled to consent to action in writing without a meeting shall be
the first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation by delivery to its
registered office, its principal place of business, or an officer or agent of
the Corporation having custody of the books in which proceedings of meetings of
shareholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. Delivery to the Corporation's
principal place of business shall be addressed to the President or the principal
executive officer of the Corporation. If no record date shall have been fixed by
the Board of Directors and prior action of the Board of Directors is required by
the Texas Business Corporation Act, the record date for determining shareholders
entitled to consent to action in writing without a meeting shall be at the close
of business on the date on which the Board of Directors adopts a resolution
taking such prior action.
Section 7. VOTING LIST. The officer or agent having charge of the share
transfer records 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 or principal place of business of the Corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
also shall 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 share transfer records shall be prima-facie evidence
as to who are the shareholders entitled to examine such list or transfer records
or to vote at any meeting of shareholders. The failure to comply with the
requirements of this Section 7 shall not affect the validity of any action taken
at the meeting.
Section 8. QUORUM OF SHAREHOLDERS. A quorum shall be present at a meeting
of shareholders if the holders of a majority of the shares entitled to vote are
represented at the meeting in person or by proxy. Once a quorum is present at a
meeting of shareholders, the shareholders represented in person or by proxy at
the meeting may conduct such business as may be properly brought before the
meeting until it is adjourned, and the subsequent withdrawal from the meeting of
any shareholder or the refusal of any shareholder represented in person or by
proxy to vote shall not affect the presence of a quorum at the meeting. The
shareholders represented in person or by proxy at a meeting of shareholders at
which a quorum is not present may adjourn the meeting until such time and to
such place as may be determined by a vote of the holders of a majority of the
shares represented in person or by proxy at that meeting.
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Section 9. PROXIES. Any shareholder may vote either in person or by proxy
executed in writing by the shareholder. A telegram, telex, cablegram or similar
transmission by the shareholder, or a photographic, photostatic, facsimile or
similar reproduction of a writing executed by the shareholder, shall be treated
as an execution in writing for purposes of this Section 9. No proxy shall be
valid after eleven months from the date of its execution unless otherwise
provided in the proxy. A proxy shall be revocable unless the proxy form
conspicuously states that the proxy is irrevocable and the proxy is coupled with
an interest.
Section 10. VOTING RIGHTS. Except as otherwise expressly provided in any
resolution or resolutions adopted by the Board of Directors establishing any
series of Preferred Stock, the exclusive voting power of the Corporation shall
be vested in the Common Stock. Except as otherwise expressly provided in any
such resolution or resolutions, or as otherwise provided by the Texas Business
Corporation Act, each outstanding share of Common Stock shall be entitled to one
vote on each matter submitted to a vote at a meeting of shareholders.
Section 11. VOTING REQUIREMENT. 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 the Texas
Business Corporation Act, the act of the shareholders shall be the affirmative
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 of shareholders at which a
quorum is present.
With respect to the election of directors, a director shall be elected
only if the director receives the vote of the holders of a majority of the
shares entitled to vote in the election of directors and represented in person
or by proxy at a meeting of shareholders at which a quorum is present.
With respect to any matter for which the affirmative vote of the holders
of a specified portion of the shares entitled to vote is required by the Texas
Business Corporation Act, the act of the shareholders on that matter shall be
the affirmative vote of the holders of a majority of the shares entitled to vote
on that matter, rather than the affirmative vote otherwise required by the Texas
Business Corporation Act.
Section 12. BUSINESS AT MEETING. To be properly brought before any meeting
of shareholders for consideration, the business must be (a) specified in the
notice of meeting given pursuant to Section 4 of this Article 2, (b) properly
brought before the meeting by or at the direction of the Board of Directors, or
(c) properly brought before the meeting by a shareholder.
If a shareholder desires to bring business before a meeting for
consideration, the shareholder must submit a written notice of the proposed
business to the Secretary as provided herein. In the case of the annual meeting
of shareholders, the shareholder's notice must be received at the principal
office of the Corporation not less than sixty days in advance of the date of the
Corporation's notice of annual meeting given in connection with the previous
year's annual meeting of shareholders. If no such annual meeting was held in the
previous year or the date of the current year's annual meeting has been changed
by more than thirty days from the date contemplated in the previous year's
notice of annual meeting, the shareholder's notice must be received by the
Corporation a reasonable period
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of time before the date of the Corporation's notice of annual meeting for the
current year and any accompanying solicitation of proxies are made. In the case
of a special meeting of shareholders, the shareholder's notice must be received
at the principal office of the Corporation a reasonable period of time prior to
the date of the meeting to allow sufficient time for the dissemination of
information to the shareholders entitled to vote at such meeting; provided,
however, that if at least thirty days' notice of the meeting has been given to
the shareholders, the shareholder's notice must be received by the Corporation
no later than ten days prior to the date of the meeting.
A shareholder's notice of proposed business shall set forth as to each
matter that the shareholder proposes to bring before the meeting of shareholders
the following information: (a) a brief description of the business proposed to
be brought before the meeting and the reason or reasons for conducting such
business at the meeting; (b) the name and address of the shareholder proposing
such business; (c) the class, series (if applicable), and number of shares of
the Corporation that such shareholder owns beneficially; (d) any material
interest of the shareholder in the proposed business; and (e) if the business
that the shareholder proposes to bring before the meeting of shareholders is the
election to the Board of Directors of a person or persons to be nominated by or
on behalf of the shareholder, the information set forth in Section 8 of Article
3.
After receipt of the shareholder's notice of proposed business but before
the commencement of the meeting of shareholders, the Board of Directors, to the
extent allowed by law, may consider the subject matter of the proposed business
and the reason or reasons for conducting such business at the meeting to
determine whether such business should be considered. Proposed business, notice
of which is submitted by a shareholder in accordance with the foregoing
procedures, shall be considered at the meeting of shareholders unless the Board
of Directors determines that the proposed business should not be conducted at
the meeting. If the business is not to be considered at the meeting, the Board
of Directors shall notify the presiding officer of the meeting of such
determination, and such presiding officer shall declare to the meeting that such
proposed business is not properly before the meeting and will not be considered.
In addition, with respect to any business proposed to be considered, the
presiding officer of the meeting may determine that such business has not been
brought properly before the meeting in accordance with the foregoing procedures
and, if such determination is made, such proposed business will not be
considered at the meeting.
Section 13. ACTIONS WITHOUT MEETING. Any action required by the Texas
Business Corporation Act to be taken at any annual or special meeting of
shareholders, or any action 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 all the shares entitled to
vote with respect to the action that is the subject of the consent.
Every written consent shall bear the date of signature of each shareholder
who signs the consent. No written consent shall be effective to take the action
that is the subject of the consent unless, within sixty days after the date of
the earliest dated consent delivered to the Corporation in the manner required
by this Section 13, a consent or consents signed by the holder or holders of
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shares having not less than the minimum number of votes that would be necessary
to take the action that is the subject of the consent are delivered to the
Corporation by delivery to its registered office, its principal place of
business, or an officer or agent of the Corporation having custody of the books
in which proceedings of meetings of shareholders are recorded. Delivery shall be
by hand or by certified or registered mail, return receipt requested. Delivery
to the Corporation's principal place of business shall be addressed to the
President or principal executive officer of the Corporation.
A telegram, telex, cablegram or similar transmission by a shareholder, or
a photographic, photostatic, facsimile or similar reproduction of a writing
signed by a shareholder, shall be regarded as signed by the shareholder for
purposes of this Section 13.
Prompt notice of the taking of any action by shareholders without a
meeting by less than unanimous written consent shall be given to those
shareholders who did not consent in writing to the action.
Section 14. TELEPHONE MEETINGS. Subject to the provisions required or
permitted by the Texas Business Corporation Act for notice of meetings,
shareholders may participate in and hold a meeting of such shareholders by means
of conference telephone or similar communications equipment whereby all persons
participating in the meeting can hear and speak to each other.
ARTICLE 3
BOARD OF DIRECTORS
Section 1. POWER. The powers of the Corporation shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the Board of Directors of the Corporation.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors shall
consist of seven members. The number of directors may be increased or decreased
from time to time by amendment to these Amended and Restated Bylaws, but no
decrease shall have the effect of shortening the term of any incumbent director.
Unless removed in accordance with the provisions of these Amended and Restated
Bylaws, each director shall hold office until the next annual meeting of
shareholders, and until his successor shall have been elected and qualified. A
director need not be a resident of the State of Texas or a shareholder of the
Corporation.
Section 3. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held without notice other than this Section 3 immediately after, and at
the same place as, the annual meeting of shareholders. The Board of Directors
may provide, by resolution, the time and place, either within or without the
State of Texas, for the holding of additional regular meetings without notice
other than such resolution.
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Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the chairman of the Board of Directors,
the President or any two directors. The person or persons authorized to call
special meetings of the Board of Directors may fix any place, either within or
without the State of Texas, as the place for holding any special meeting called
by such person or persons.
Section 5. NOTICE. Notice of any special meeting of the Board of Directors
shall be given at least one day prior thereto by written notice delivered
personally or mailed to each director at his business address, or by telegram,
telex, telecopy or similar means of visual data transmission. If mailed, such
notice shall be deemed to be delivered three days after deposited in the United
States mail so addressed, with postage thereon prepaid. If notice is given by
telegram, telex, telecopy or similar means of visual data transmission, such
notice shall be deemed to be delivered when transmitted for delivery to the
recipient. Any director may waive notice of any meeting. The attendance of a
director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business on the grounds that such meeting is not
lawfully called or convened. 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.
Section 6. QUORUM. A majority of the number of directors fixed in Section
2 of this Article 3 shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors. If less than a majority of such number of
directors is present at a meeting, a majority of the directors present may
adjourn such meeting from time to time without further notice.
Section 7. MANNER OF ACTING.
(a) ACTIONS AT MEETING. Except as provided in Paragraph (b) of this
Section 7, the act of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
(b) ACTIONS WITHOUT MEETING. Any action required or permitted to be
taken at a meeting of the Board of Directors or any committee may be taken
without a meeting if a consent in writing, setting forth the action so taken, is
signed by all the members of the Board of Directors or committee, as the case
may be. Such consent shall have the same force and effect as a unanimous vote at
a meeting. A telegram, telex, cablegram or similar transmission by a director,
or a photographic, photostatic, facsimile or similar reproduction of a writing
signed by a director, shall be regarded as signed by the director for purposes
of this Paragraph (b).
(c) TELEPHONE MEETINGS. Subject to the provisions required or
permitted by the Texas Business Corporation Act for notice of meetings, members
of the Board of Directors or any committee designated by the Board of Directors
may participate in and hold a meeting of the Board of Directors or such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear and speak to
each other.
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Section 8. NOMINATIONS FOR ELECTION. Nominations of persons for election
to the Board of Directors at the annual meeting of shareholders or any special
meeting of shareholders called for the specific purpose of electing directors
may be made at any such meeting (a) by or at the direction of the Board of
Directors, any nominating committee thereof, or any person appointed by the
Board of Directors or such committee to make such nominations, or (b) by any
shareholder entitled to vote for the election of directors who complies with the
procedures set forth in this Section 8 as well as Section 12 of Article 2.
The shareholder's notice with respect to the nomination of persons for
election to the Board of Directors shall set forth, as to each person whom the
shareholder proposes to nominate, (a) the nominee's name, age, business and
residence address; (b) the principal occupation or employment of the nominee;
(c) the class, series (if applicable), and number of shares of the Corporation
that the nominee owns beneficially; and (d) any other information relating to
the nominee that is required to be disclosed in solicitations of proxies for the
election of directors pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, including, without limitation, the nominee's consent to
being named in the proxy statement as a nominee and to serving as a director if
elected. The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as a director of the Corporation.
No person shall be eligible for nomination as a director of the
Corporation at any meeting of shareholders unless such person is nominated in
accordance with the procedures set forth herein. The presiding officer of the
meeting may determine that a proposed nomination was not made in accordance with
such procedures and, if such determination is made, such proposed nomination
will not be considered at the meeting.
Section 9. REMOVAL. At any meeting of shareholders called expressly for
the purpose of removal, any director or the entire Board of Directors may be
removed, with or without cause, by a vote of the holders of a majority of the
shares then entitled to vote at an election of directors. In the event that any
director is so removed, a new director may be elected at the same meeting for
the unexpired term of the director so removed. The failure to elect a director
to fill the unexpired term of any director so removed shall be deemed to create
a vacancy in the Board of Directors.
Section 10. VACANCIES. A vacancy in the Board of Directors shall be deemed
to exist by reason of the death or resignation of a director or upon the failure
of shareholders to elect a director to fill the unexpired term of any director
removed in accordance with the provisions of Section 9 of this Article 3.
Any vacancy occurring in the Board of Directors may be filled (a) by
election at an annual or special meeting of shareholders called for that
purpose, or (b) by a majority of the remaining directors though less than a
quorum of the Board of Directors, provided that the remaining directors may not
fill more than two such directorships during the period between any two
successive annual meetings of shareholders. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office.
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Section 11. COMMITTEES OF BOARD OF DIRECTORS. The Board of Directors, by
resolution adopted by a majority of the full Board of Directors, may designate
from among its members one or more committees, each of which shall be comprised
of one or more of its members, and may designate one or more of its members as
alternative members of any committee, who may, subject to any limitations
imposed by the Board of Directors, replace absent or disqualified members at any
meeting of that committee. Any such committee, to the extent provided in such
resolution, shall have and may exercise all of the authority of the Board of
Directors, subject to the limitations set forth in the Texas Business
Corporation Act. The designation of a committee of the Board of Directors and
the delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law.
Section 12. COMPENSATION. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors or any committee, and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or any committee or a
stated salary as directors or committee members. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 13. PRESUMPTION OF ASSENT. A director of the Corporation who is
present at a meeting of the Board of Directors or any committee at which action
on any corporate matter is taken shall be presumed to have assented to the
action taken unless his dissent shall be entered in the minutes of the meeting
or unless he shall file his written dissent to such action with the person
acting as the secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
ARTICLE 4
OFFICERS
Section 1. OFFICES. The officers of the Corporation shall consist of a
President, one or more Vice Presidents (the number and specific titles thereof
to be determined by the Board of Directors), a Secretary and a Treasurer, each
of whom shall be elected by the Board of Directors. Such other officers,
including assistant officers, and agents as may be deemed necessary may be
elected or appointed by the Board of Directors. Any two or more offices may be
held by the same person.
Section 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation
shall be elected annually by the Board of Directors at the regular meeting of
the Board of Directors held after each annual meeting of the shareholders. If
the election of officers is not held at such meeting, such election shall be
held as soon thereafter as may be convenient. Each officer shall hold office
until his successor shall have been duly elected and qualified, or until his
earlier death, resignation or removal in accordance with the provisions of
Section 3 of this Article 4.
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Section 3. REMOVAL. Any officer or agent may be removed by the 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.
Section 4. VACANCIES. A vacancy in any office occurring for any reason may
be filled by the Board of Directors. An officer elected to fill a vacancy shall
be elected for the unexpired term of his predecessor in office.
Section 5. PRESIDENT. The President shall be the chief executive officer
of the Corporation and, subject to the control of the Board of Directors,
generally shall supervise and control all of the business and affairs of the
Corporation. When present, he shall preside at all meetings of the shareholders.
He shall perform all duties incident to the office of the President and such
other duties as the Board of Directors may assign to him from time to time.
Section 6. VICE PRESIDENTS. In the absence of the President, or in the
event of his death or inability or refusal to act, the Vice President (or if
there is more than one Vice President, the Vice Presidents in the order
designated at the time of their election, or in the absence of any such desig
nation, in the order of their election) shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice President shall perform such
other duties as the President or the Board of Directors may assign to him from
time to time.
Section 7. SECRETARY. The Secretary shall (a) keep the minutes of the
meetings of the shareholders and of the Board of Directors in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these Amended and Restated Bylaws or as required by law;
(c) have custody of, and be responsible for, the corporate records and the seal
of the Corporation, and see that the seal of the Corporation is affixed to all
documents as may be necessary or appropriate; (d) keep a register of the post
office address of each shareholder furnished to the Secretary by such
shareholder; (e) have general charge of the share transfer records of the
Corporation; and (f) in general, perform all duties incident to the office of
the Secretary and such other duties the President or the Board of Directors may
assign to him from time to time.
Section 8. TREASURER. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his duties in such sum, and with
such surety or sureties, as the Board of Directors shall determine. The
Treasurer shall (a) have charge and custody of, and be responsible for, all
funds and securities of the Corporation from any source whatsoever, and deposit
all such funds in the name of the Corporation in such banks, trust companies or
other depositories as shall be selected by the Board of Directors; and (b) in
general, perform all duties incident to the office of the Treasurer and such
other duties as the President or the Board of Directors may assign to him from
time to time.
Section 9. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Assistant
Secretaries, when authorized by the Board of Directors, may sign with the
President or a Vice President certificates for shares of the Corporation, the
issuance of which shall have been authorized by the Board of
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Directors. The Assistant Treasurers, if required by the Board of Directors,
shall give bonds for the faithful discharge of their duties in such sums, and
with such sureties, as the Board of Directors shall determine. The Assistant
Secretaries and the Assistant Treasurers, in general, shall perform such duties
as the Secretary or the Treasurer, respectively, the President or the Board of
Directors may assign to them from time to time.
Section 10. SALARIES. The salaries, if any, of the officers shall be fixed
by the Board of Directors from time to time, and no officer shall be prevented
from receiving such salary by reason of the fact that he also is a director of
the Corporation.
ARTICLE 5
CERTIFICATES REPRESENTING SHARES, TRANSFER AND REPLACEMENT
Section 1. CERTIFICATES REPRESENTING SHARES. Certificates representing
shares of the Corporation shall be in such form as shall be determined by the
Board of Directors. The certificates shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary, and the signatures of
such officers on such certificates may be facsimiles. The certificates may be
sealed with the seal of the Corporation or a facsimile thereof. In case any
officer who has signed or whose facsimile signature has been placed upon any
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 he were
such officer at the date of its issuance. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, together with the
number of shares and date of issue, shall be entered in the share transfer
records of the Corporation. All certificates surrendered to the Corporation for
transfer shall be cancelled, and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
cancelled, except that in case of a lost, stolen or destroyed certificate, a new
certificate may be issued therefor as provided in Section 3 of this Article 5.
Section 2. TRANSFER OF SHARES. A transfer of shares of the Corporation
shall be made only in the share transfer records of the Corporation by the
holder of record thereof, or by his legal representative who shall furnish
proper evidence of authority to transfer, or by his attorney thereunto
authorized by power of attorney, duly executed and filed with the Secretary of
the Corporation, and on surrender for cancellation of the certificate for such
shares. The Corporation shall regard the person in whose name any shares issued
by the Corporation are registered in the share transfer records of the
Corporation at any particular time (including, without limitation, as of a
record date fixed pursuant to Section 5 or 6 of Article 2) as the owner of those
shares at that time for the purposes specified by the Texas Business Corporation
Act.
Section 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation shall
issue a new certificate in place of any certificate representing shares
previously issued if the registered owner of the certificate (a) makes proof in
affidavit form that it has been lost, destroyed or wrongfully taken;
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(b) requests the issuance of a new certificate before the Corporation has notice
that the certificate has been acquired by a purchaser for value in good faith
and without notice of an adverse claim; (c) gives a bond in such form, and with
such surety or sureties, with fixed or open penalty, as the Corporation may
direct, or indemnifies the Corporation (and its transfer agent and registrar, if
any) against any claim that may be made on account of the alleged loss,
destruction or theft of the certificate; and (d) satisfies any other reasonable
requirements imposed by the Corporation. If a certificate has been lost,
apparently destroyed or wrongfully taken, and the registered holder of the
shares represented thereby fails to notify the Corporation within a reasonable
time after he has notice of it, and the Corporation registers a transfer of such
shares before receiving such notification, the registered holder shall be
precluded from making any claim against the Corporation for the transfer or for
a new certificate.
ARTICLE 6
FISCAL YEAR
The Board of Directors, by resolution, shall fix the fiscal year of the
Corporation.
ARTICLE 7
DISTRIBUTIONS
The Board of Directors may authorize, and the Corporation may make,
distributions subject to any restrictions in its Articles of Incorporation and
to the limitations set forth in the Texas Business Corporation Act.
ARTICLE 8
INDEMNIFICATION
Section 1. INDEMNIFICATION. As permitted by Section G of Article 2.02-1 of
the Texas Business Corporation Act (the "Indemnification Article"), the
Corporation (a) makes mandatory the indemnification permitted under Section B of
the Indemnification Article as contemplated by Section G thereof, and (b) agrees
to advance the reasonable expenses of a director upon such director's compliance
with the requirements of Sections K and L of the Indemnification Article.
Section 2. NON-EXCLUSIVITY. The provisions of Section 1 of this Article 8
shall not be deemed exclusive of any other rights to which any director of the
Corporation may be entitled under any agreement, pursuant to a vote of the Board
of Directors, any committee thereof or the shareholders, as a matter of law or
otherwise, either as to action in his official capacity or as to action
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in another capacity while holding such office, shall continue as to a person who
has ceased to be a director, and shall inure to the benefit of the heirs,
executors and administrators of such person.
Section 3. LIMITATION. No person shall be entitled to indemnification
pursuant to this Article 8 in relation to any matter as to which indemnification
shall not be permitted by law.
Section 4. DEFINED TERMS. Terms used herein that are defined in the
Indemnification Article shall have the respective meanings set forth therein.
ARTICLE 9
SEAL
The Board of Directors shall provide for a corporate seal, which shall be
circular in form and shall have inscribed thereon the name of the Corporation,
the state of incorporation, and the five-pointed Texas star.
ARTICLE 10
WAIVER OF NOTICE
Whenever any notice is required to be given to any shareholder or director
of the Corporation under the provisions of the Articles of Incorporation, these
Amended and Restated Bylaws or the Texas Business Corporation Act, 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 deemed equivalent to
the giving of such notice.
ARTICLE 11
PROCEDURE
Meetings of the shareholders and of the Board of Directors shall be
conducted in accordance with the procedures contained in Roberts Rules of Order,
to the extent applicable.
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ARTICLE 12
PARTICIPATION OF DIRECTORS AND
OFFICERS IN RELATED BUSINESSES
Unless otherwise provided by contract, directors and officers of the
Corporation may hold positions as directors and officers of other corporations
in related businesses, and their efforts to advance the interests of those
corporations will not create a breach of fiduciary duty to this Corporation in
the absence of bad faith.
ARTICLE 13
AMENDMENT
These Amended and Restated Bylaws may be amended or repealed, as to all or
some portion thereof, and new bylaws may be adopted, by (a) the Board of
Directors or (b) the shareholders.
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