Exhibit 3.1
FOURTH AMENDED AND RESTATED BYLAWS
OF
MANNATECH, INCORPORATED
A TEXAS CORPORATION
DATE OF ADOPTION:
August 8, 2001
FOURTH AMENDED AND RESTATED BYLAWS
OF
MANNATECH, INCORPORATED
A TEXAS CORPORATION
ARTICLE I
REGISTERED OFFICE
The registered office of the Corporation required by the Texas Business
Corporation Act (the "TBCA") to be maintained in the State of Texas shall be the
registered office named in the Amended and Restated Articles of Incorporation of
the Corporation or such other office (which need not be a place of business of
the Corporation) as may be designated from time to time by the Board of
Directors in the manner provided by law.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the shareholders shall be
held at the principal place of business of the Corporation or at such other
place within or without the State of Texas as shall be specified or fixed in the
notices or waivers of notice thereof.
SECTION 2. QUORUM; REQUIRED VOTE FOR SHAREHOLDER ACTION; ADJOURNMENT OF
MEETINGS.
(a) Quorum. 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. The validity of any proxy shall be determined
according to criteria established by the Board of Directors or its designee.
(b) Voting on Matters Other than the Election of Directors. 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 TBCA, 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 shall be the act
of the shareholders, unless otherwise provided in the Amended and Restated
Articles of Incorporation or these bylaws in accordance with the TBCA. The
validity of any proxy shall be determined according to criteria established by
the Board of Directors or its designee.
(c) Voting in the Election of Directors. shall be elected only if the
director receives the vote of the holders of a plurality 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.
(d) Adjournment. Notwithstanding the other provisions of the Amended and
Restated Articles of Incorporation or these bylaws, the chairman of the meeting
or the holders of a majority of the shares entitled to vote that are represented
in person or by proxy at any meeting of shareholders, whether or not a quorum is
present, shall have the power to adjourn such meeting from time to time, without
any notice other than announcement at the meeting of the time and place of the
holding of the adjourned meeting. If such meeting is adjourned by the
shareholders, such time and place shall be determined by a vote of the holders
of a majority of the shares entitled to vote that are represented in person or
by proxy in such meeting. Upon the resumption of such adjourned meeting, any
business may be transacted that might have been transacted at the meeting as
originally called.
SECTION 3. ANNUAL MEETINGS. An annual meeting of the shareholders, for the
election of directors to succeed those whose terms expire and for the
transaction of other business as may properly come before the meeting, shall be
held at such place, within or without the State of Texas, on such date and such
time as the Board of Directors shall fix and set forth in the notice of the
meeting, which date shall be within 180 days subsequent to the end of the
Corporation's most recent fiscal year.
SECTION 4. SPECIAL MEETINGS. Special meetings of the shareholders for any
proper purpose or purposes may be called at any time by (a) the Chairman of the
Board, (b) the Chief Executive Officer; or (c) the Secretary, on written request
of any two directors, (d) the holders of at least ten percent of all the shares
entitled to vote at the proposed special meeting. The record date for
determining shareholders entitled to call a special meeting is the date any
shareholder first signs the notice of that meeting. Only business within the
purpose or purposes described in the notice (or waiver thereof required by these
bylaws) may be conducted at a special meeting of the shareholders.
SECTION 5. CLOSING SHARE TRANSFER RECORDS; RECORD DATE. 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 purpose, the Board of
Directors of the Corporation may provide that the share transfer records shall
be closed for a stated period but not to exceed, in any case, 60 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 60 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 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
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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 herein, such determination shall also
apply to any adjournment thereof except where the determination has been made
through the closing of share transfer records and the stated period of closing
has expired.
SECTION 6. NOTICE OF MEETINGS. Written or printed notice stating the place,
day and hour of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not less than
ten nor more than 60 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 person calling the meeting, to each shareholder entitled to vote at such
meeting. If mailed, any 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.
SECTION 7. VOTING LIST. The Chief Financial Officer ("CFO") or his designee
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 by the CFO or his designee and shall be subject to inspection by any
shareholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder during the whole time of the meeting The
original 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. Failure to comply with the requirements of this Section
shall not affect the validity of any action taken at such meeting.
SECTION 8. PROXIES. A shareholder may vote either in person or by proxy
executed in writing by the shareholders. A telegram, telex, cablegram, telecopy
or similar transmission by the shareholder, or a photographic, photostatic,
facsimile, electronic mail or similar reproduction of a writing executed by the
shareholder shall be treated as an execution in writing for purposes of this
Section. Proxies for use at any meeting of shareholders or in connection with
the taking of any action by written consent shall be filed with the Secretary,
or such other officer as the Board of Directors may from time to time determine
by resolution, before or at the time of the meeting or execution of the written
consent as the case may be. No proxy shall be valid after 11 months from the
date of its execution unless otherwise provided in the proxy. The validity of
any proxy shall be determined according to criteria established by the chief
executive officer or his designee.
SECTION 9. VOTING; INSPECTORS; ELECTIONS. Unless otherwise required by law
or provided in the Amended and Restated Articles of Incorporation, each
outstanding share,
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regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders.
At any meeting at which a vote is taken, the chairman of the meeting may
appoint one or more inspectors, each of whom shall subscribe an oath or
affirmation to execute faithfully the duties of inspector at such meeting with
strict impartiality and according to the best of such person's ability. Such
inspector shall receive the ballots, count the votes and make and sign a
certificate of the result thereof. The chairman of the meeting may appoint any
person to serve as inspector, except no candidate for the office of director
shall be appointed as an inspector.
SECTION 10. CONDUCT OF MEETINGS. All meetings of the shareholders shall be
presided over by the chairman of the meeting, who shall be the Chairman of the
Board, or if the Chairman of the Board is not present, the designated officer
appointed by majority vote of the Board of Directors as chairman for the sole
purpose of conducting the meeting. The Secretary of the Corporation, if present,
shall act as secretary of such meetings, or if the Secretary is not present an
Assistant Secretary (if any) shall so act; if neither the Secretary nor an
Assistant Secretary (if any) is present then a secretary shall be appointed by
the chairman of the meeting. The chairman of any meeting of shareholders shall
determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to the
chairman of the meeting in order. The Company shall publish in advance of any
meeting of the shareholders the rules and procedures that will govern the
conduct of the meeting.
SECTION 11. TREASURY SHARES. Neither the Corporation nor any other person
shall vote, directly or indirectly, at any meeting, Treasury Shares, as defined
in the TBCA, shares of the Corporation's own stock owned by another corporation
the majority of the voting stock of which is owned or controlled by the
Corporation, and shares of the Corporation's own stock held by the Corporation
in a fiduciary capacity; and such shares shall not be counted in determining the
total number of outstanding shares at any given time.
SECTION 12. ACTION BY WRITTEN CONSENT. Any action required or permitted to
be taken at a meeting of shareholders, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the shareholders entitled to vote with respect to the subject matter thereof,
and the consent shall have the same force and effect as a unanimous vote of the
shareholders. Such writing, which may be in counterparts, shall be manually
executed if practicable; provided, however, that if circumstances so require,
effect shall be given to written consent transmitted by telegraph, telex,
telecopy or similar means of visual data transmission
SECTION 13. FIXING RECORD DATES FOR CONSENTS TO ACTION. 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 law or these bylaws,
the record date for determining shareholders entitled to consent to action in
writing without a meeting shall be the
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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 chief
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 TBCA or these bylaws, 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.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWER; NUMBER; TERM OF OFFICE; ELECTION. 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 by the Board of Directors except
as the Board of Directors shall delegate the power to so manage to the Executive
Committee or other committee. Directors need not be residents of the State of
Texas or shareholders of the Corporation.
Unless otherwise provided in the Amended and Restated Articles of
Incorporation, the number of directors that shall constitute the Board of
Directors, which shall not be less than three, shall be determined from time to
time either (i) by resolution of the Board of Directors (provided that no
decrease in the number of directors that would have the effect of shortening the
term of an incumbent director may be made by the Board of Directors) or (ii) by
the shareholders at an annual meeting or a special meeting called for that
purpose. The current number of directors is hereby set at nine. Each director
shall hold office until his or her successor is elected and qualified or until
his or her earlier death, resignation or removal. The Board of Directors shall
include at least the minimum number of independent directors required by the
rules of the Securities and Exchange Commission and any applicable securities
exchange on which the stock of the Company is listed.
The directors shall be divided into three classes as nearly equal in
number as possible and one class of directors shall be elected by plurality vote
at each annual meeting of shareholders to hold office for a three-year term.
Each director, including a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until a successor has
been elected and qualified. No decrease in the number of directors shall have
the effect of shortening the term of any incumbent director.
Nominations for candidates for Director shall be made by the
Nominating Committee of the Board of Directors in accordance with the rules set
forth in the Nominating Committee's charter. A shareholder entitled to vote at a
meeting of Shareholders may deliver written notice to the CFO of the Corporation
of proposed candidates for director no later than December 31st of the year
preceding the next annual shareholder meeting in which the election of directors
will be among the matters to be presented for a shareholder's vote. The
Nominating Committee or the Board of Directors shall establish criteria for
consideration of any such additional candidates which general criteria may be
disseminated to the shareholders at the
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Nominating Committee's discretion.. Those candidates whose names are submitted
by shareholders and not nominated by the Nominating Committee shall not be
disclosed in the proxy statement prepared in connection with the annual
shareholders meeting or on the ballot for election of directors distributed at
the annual meeting of shareholders
SECTION 2. ADVISORS TO THE BOARD. The Board of Directors may appoint
certain individuals to the position of "Advisory Director." There may be any
number of Advisory Directors named or elected by the Board of Directors to
advise said Board. Advisory Directors shall not be members of the Board of
Directors and shall not be entitled to vote, nor in any way direct or affect the
affairs of the Corporation coming before the Board of Directors, except by
advice or suasion of the voting Directors. The presence or absence of an
Advisory Director shall not affect the constitution of a quorum.
SECTION 3. QUORUM; REQUIRED VOTE FOR DIRECTOR ACTION. Unless otherwise
required by law, a majority of the total number of directors fixed by, or in the
manner provided in, these bylaws shall constitute a quorum for the transaction
of business of the Board of Directors, and the act of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
SECTION 4. MEETINGS; ORDER OF BUSINESS; ATTENDANCE OF COUNSEL. Regular or
Special Meetings of the Board of Directors may be held within or outside the
State of Texas.
Unless authorized by a majority vote of the directors, no director may have
private counsel present at any meeting of the Board of Directors. On the request
of any director during a regular or special meeting of the Board of Directors,
those directors participating in the meeting may, by majority vote, authorize
such requesting director to have personal counsel attend the meeting. The
director so requesting the attendance of counsel may participate in voting to
determine whether such attendance of counsel shall be authorized.
Attendance of a director at a meeting of the Board of Directors 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 ground that the meeting is not lawfully called or convened.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such times and places as shall be designated from time to time
by resolution of the Board of Directors. Notice of such regular meetings shall
not be required.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the President or by any two directors. Notice of such special
meeting may be given either (i) by the person or persons who have called the
meeting or (ii) by the Secretary upon the request of the person or persons who
have called the meeting, in each case on at least 24 hours personal, written,
electronic mail, telegraphic, cable, wireless, or facsimile notice to each
director. Such notice or any waiver thereof pursuant to Article VIII, Section 3
hereof need not state the purpose or purposes of such meeting.
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SECTION 7. VACANCIES; INCREASES IN THE NUMBER OF DIRECTORS. Any vacancy
occurring in the Board of Directors other than by reason of an increase in the
number of directors may be filled (a) by election at an annual or special
meeting of the shareholders called for that purpose or (b) by the affirmative
vote of a majority of the remaining directors though less than a quorum of the
Board of Directors. A director elected to fill a vacancy occurring other than by
reason of an increase in the number of directors shall be elected for the
unexpired term of his predecessor in office. A vacancy shall be deemed to exist
by reason of the death or resignation of the person elected, or upon the failure
of shareholders to elect directors to fill the unexpired terms of directors
removed in accordance with the provisions of Section 7 of this Article III.
Any directorship to be filled by reason of an increase in the number of
directors may be filled (a) by the Board of Directors for a term of office
continuing only until the next election of one or more directors by the
shareholders; PROVIDED, HOWEVER, that during the period between any two
successive annual meetings of shareholders, the Board of Directors may not fill
more than three such directorships; or (b) by election at an annual or special
meeting of shareholders entitled to vote in the election of such directors
called for that purpose.
SECTION 8. REMOVAL. At any meeting of shareholders at which a quorum of
shareholders is present called expressly for that purpose, or pursuant to a
written consent adopted pursuant to Article II, Section 12 hereof, any director
may be removed from office with or without cause, by vote of the holders of
issued and outstanding shares representing a majority of the votes entitled to
be cast for the election of such director. The Board of Directors, by majority
vote, may also remove a director from office at any regular meeting by
resolution declaring the director's position vacant in the event the director,
in the Board's determination, has become incapacitated and cannot perform his or
her duties as director, or the director has been absent, without cause
considered adequate by the Board, from any two consecutive regular meetings of
the Board or from a total of four meetings in any 12-month period.
SECTION 9. COMPENSATION. The Board of Directors shall have the authority
to fix the compensation, if any, of independent directors. Only independent
directors shall be compensated for services rendered as a member of the Board of
Directors.
SECTION 10. PRESUMPTION OF ASSENT. A director who is present at a meeting
of the Board of Directors at which action on any corporate matter is taken shall
be presumed to have assented to the action 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 secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
SECTION 11. ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE. Any action
permitted or required by the TBCA, the Amended and Restated Articles of
Incorporation or these bylaws to be taken at a meeting of the Board of Directors
or any committee designated by the Board of Directors may be taken without a
meeting if a consent in writing, setting forth the action to be taken, is signed
by all the members of the Board of
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Directors or committee, as the case may be. Such consent shall have the same
force and effect as a unanimous vote at a meeting and may be stated as such in
any document or instrument filed with the Secretary of State, and the execution
of such consent shall constitute attendance or presence in person at a meeting
of the Board of Directors or any such committee, as the case may be. Subject to
the requirement of the TBCA or these bylaws for notice of meetings, members of
the Board of Directors, or members of any committee designated by the Board of
Directors, may participate in and hold a meeting of the Board of Directors or
any committee of directors, as the case may be, by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in such
meeting shall constitute attendance and presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
ARTICLE IV
COMMITTEES
SECTION 1. DESIGNATION; POWERS. 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 committee, each of which shall be comprised of one or
more of its members, and may designate one or more of its members as alternate
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. Committee members may be removed from committees, with or
without cause, by the Board of Directors. Any such committee, to the extent
provided in such resolution or in the Amended and Restated Articles of
Incorporation or bylaws shall have and may exercise all of the authority of the
Board of Directors, subject to the limitations set forth in the TBCA or below.
No committee of the Board of Directors shall have the authority of the
Board of Directors in reference to:
(1) amending the Articles of Incorporation, except that a committee may,
to the extent provided in the resolution designating that committee or
in the Articles of Incorporation or these bylaws, exercise the
authority of the Board of Directors vested in it in accordance with
Article 2.13 of the TBCA;
(2) proposing a reduction in the stated capital of the Corporation in the
manner permitted by Article 4.12 of the TBCA;
(3) approving a plan of merger or share exchange of the Corporation;
(4) recommending to the shareholders the sale, lease or exchange of all or
substantially all of the property and assets of the Corporation
otherwise than in the usual and regular course of its business;
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(5) recommending to the shareholders the sale, lease or exchange of all
or substantially all of the property and assets of the Corporation
other than in the usual and regular course of its business;
(6) amending, altering or repealing the bylaws of the Corporation or
adopting new bylaws of the Corporation;
(7) filling vacancies in the Board of Directors;
(8) filling vacancies in or designating alternate members of any such
committee;
(9) filling any directorship to be filled by reason of an increase in the
number of directors;
(10) electing or removing officers of the Corporation or members or
alternate members of any such committee;
(11) fixing the compensation of any member, or alternate members of such
committee; or
(12) altering or repealing any resolution of the Board of Directors that
by its terms provided that it shall not be so amendable or
repealable.
Unless the resolution designating a particular committee, the Amended and
Restated Articles of Incorporation or these bylaws expressly so provide, no
committee of the Board of Directors shall have the authority to authorize a
distribution (as such term is defined in the TBCA) or to authorize the issuance
of shares of the Corporation.
SECTION 2. PROCEDURE; MEETINGS; QUORUM. Any committee designated pursuant
to Section 1 of this Article shall by written charter which shall be submitted
for approval to the Board of Directors, choose its own chairman and secretary,
shall keep regular minutes of its proceedings and report the same to the Board
of Directors when requested, shall fix its own rules or procedures and shall
meet at such times and at such place or places as may be provided by such rules,
or by resolution of such committee or of the Board of Directors. At every
meeting of any such committee, the presence of a majority of all the members
thereof shall constitute a quorum, and the affirmative vote of a majority of the
members shall be necessary for the adoption by it of any resolution
SECTION 3. DISSOLUTION. The Board of Directors may dissolve any committee
at any time, unless otherwise provided in the Amended and Restated Articles of
Incorporation or these bylaws.
ARTICLE V
OFFICERS
SECTION 1. NUMBER, TITLES AND TERMS OF OFFICE. The officers of the
Corporation shall be a Chairman of the Board, chief executive officer, a
President and a
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Secretary and such other officers as the Board of Directors may from time to
time elect or appoint. Each officer shall hold office until his successor shall
be duly elected and shall qualify or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided. Any number of
offices may be held by the same person. Except for the Chairman of the Board, no
officer need be a director.
SECTION 2. SALARIES. The salaries or other compensation, if any, of the
officers of the Corporation shall be fixed from time to time by the Board of
Directors.
SECTION 3. REMOVAL. Any officer or agent may be removed, either with or
without cause, 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.
Election or appointment of an officer or agent shall not of itself create
contract rights.
SECTION 4. VACANCIES. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
SECTION 5. POWERS AND DUTIES OF THE CHAIRMAN OF THE BOARD. The Board of
Directors will designate the Chairman of the Board, or two or more Co-Chairman
of the Board. The Chairman of the Board shall preside at all meetings of the
shareholders and the Board of Directors meetings and shall have such other
powers and duties as designated in these bylaws and as from time to time may be
assigned to that office by the Board of Directors.
SECTION 6. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER. The Board of
Directors will designate the chief executive officer of the Corporation and
subject to the control of the Board of Directors, the chief executive officer
shall have general executive charge, management and control of the properties,
business and operations of the Corporation with all such powers as may be
reasonably incident to such responsibilities; subject to any limitations placed
by the Board of Directors, the chief executive officer may agree upon and
execute on behalf of the Corporation leases, contracts, evidences of
indebtedness and other obligations in the name of the Corporation and may sign
certificates for shares of capital stock of the Corporation. The chief executive
officer shall have such other powers and duties as designated in accordance with
these bylaws and as from time to time may be assigned by the Board of Directors.
SECTION 7. POWERS AND DUTIES OF THE PRESIDENT. Unless the Board of
Directors otherwise determines, the President shall, in the absence of the
Chairman of the Board or if there be no Chairman of the Board, preside at all
meetings of the shareholders and (should he be a director) of the Board of
Directors; and the President shall have such powers and duties as designated in
accordance with these bylaws and as from time to time may be assigned by the
Board of Directors.
SECTION 8. VICE PRESIDENTS. The Vice President(s), if any, shall perform
such duties and have such powers as the Board of Directors may from time to time
prescribe. In addition, in the absence of the Chairman of the Board or
President, or in the event of their inability or refusal to act, (a) a Vice
President designated by the Board of Directors or (b) in the
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absence of such designation, the Vice President who is present and who is senior
in terms of rank (or in the absence of a senior rank, time) as a Vice President
of the Corporation, shall perform the duties of the Chairman of the Board, or
the President as the case may be, and when so acting shall have all the powers
of and be subject to all the restrictions upon the Chairman of the Board, or the
President; provided that such person shall not preside at meetings of the Board
of Directors unless such person is a director.
SECTION 9. CHIEF FINANCIAL OFFICER. The Chief Financial Officer, if any,
shall have responsibility for the custody and control of all the funds and
securities of the Corporation, and shall have such other powers and duties as
designated in these bylaws and as from time to time may be assigned by the Board
of Directors. The Chief Financial Officer shall perform all acts incident to the
position of the Chief Financial Officer subject to the control of the chief
executive officer and the Board of Directors; and the Chief Financial Officer
shall, if required by the Board of Directors, give such bond for the faithful
discharge of the Chief Financial Officer's duties in such form as the Board of
Directors may require.
SECTION 10. ASSISTANT TREASURERS. The Assistant Treasurers shall assist the
Treasurer and shall exercise the powers of the Treasurer during that officer's
absence or inability or refusal to act. Each Assistant Treasurer, if any, shall
have such other powers and duties as designated by these bylaws and as from time
to time may be assigned by the chief executive officer, the Board of Directors
or the Treasurer.
SECTION 11. SECRETARY. The Secretary shall keep the minutes of all meetings
of the Board of Directors, and the minutes of all meetings of the shareholders,
in books provided for that purpose; shall attend to the giving and serving of
all notices; may in the name of the Corporation affix the seal (if any) of the
Corporation to all contracts of the Corporation and attest thereto; may sign
with the other appointed offices all certificates for shares of capital stock of
the Corporation; shall have charge of the certificate books, transfer books and
stock ledgers, and such other books and papers as the Board of Directors may
direct, all of which shall at all reasonable times be open to inspection of any
director upon application at the office of the Corporation during business
hours. The Secretary shall have such other powers and duties as designated in
these bylaws and as from time to time may be assigned by the chief executive
officer or the Board of Directors; and shall in general perform all duties
incident to the office of Secretary, subject to the control of the chief
executive officer of the Board of Directors.
SECTION 12. ASSISTANT SECRETARIES. The Assistant Secretary shall assist the
Secretary and shall exercise the power of the Secretary during that officer's
absence or inability or refusal to act. Each Assistant Secretary, if any, shall
have such other powers and duties as designated by these bylaws and as from time
to time to be assigned by the chief executive officer, the Board of Directors or
the Secretary.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
SECTION 1. RIGHT TO INDEMNIFICATION. Subject to the limitations and
conditions as provided in this Article VI, and in Section 2.02-1 of the TBCA
(relating among other matters to liability for receipt of an improper personal
benefit or liability to the Corporation), as from time to time amended, each
person who was or is made a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative or investigative
(hereinafter a "proceeding"), or any appeal in such a proceeding or any inquiry
or investigation that could lead to such a proceeding, by reason of the fact
that he or she, or a person of whom he or she is the legal representative, is or
was a director or officer of the Corporation or while a director or officer of
the Corporation is or was serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise shall be indemnified by the Corporation to the fullest extent
permitted by the TBCA as the same exists or may hereafter be amended against
judgments, penalties (including excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including, without limitation,
attorneys' fees) actually incurred by such person in connection with such
proceeding, and indemnification under this Article VI shall continue as to a
person who has ceased to serve in the capacity which initially entitled such
person to indemnity hereunder. The rights granted pursuant to this Article VI
shall be deemed contract rights, and no amendment, modification or repeal of
this Article VI shall have the effect of limiting or denying any such rights
with respect to actions taken or proceedings arising prior to any such
amendment, modification or repeal. It is expressly acknowledged that the
indemnification provided in this Article VI could involve indemnification for
negligence or under theories of strict liability.
SECTION 2. ADVANCE PAYMENT. The right to indemnification conferred in this
Article VI shall include the right to be paid or reimbursed by the Corporation
the reasonable expenses incurred by a person of the type entitled to be
indemnified under Section 1 who was, is or is threatened to be made a named
defendant or respondent in a proceeding in advance of the final disposition of
the proceeding and without any determination as to the person's ultimate
entitlement to indemnification; provided, however, that the payment of such
expenses incurred by any such person in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of a written
affirmation by such director or officer of his or her good faith belief that he
or she has met the standard of conduct necessary for indemnification under this
Article VI and a written undertaking, by or on behalf of such person, to repay
all amounts so advanced if it shall ultimately be determined that such
indemnified person is not entitled to be indemnified under this Article VI or
otherwise.
SECTION 3. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation, by
adoption of a resolution of the Board of Directors, may (but shall not be
required to) indemnify and advance expenses to an employee or agent of the
Corporation to the same extent and subject to the same conditions under which it
may indemnify and advance expenses to
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directors and officers under this Article VI; and, the Corporation may (but
shall not be required to) indemnify and advance expenses to persons who are not
or were not directors, officers, employees or agents of the Corporation but who
are or were serving at the request of the Corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan and or other enterprise against any
liability asserted against that person and incurred by that person in such a
capacity or arising out of such individual's status as such a person to the same
extent that it may indemnify and advance expenses to directors under this
Article VI.
SECTION 4. APPEARANCE AS A WITNESS. Notwithstanding any other provision of
this Article VI, the Corporation may pay or reimburse expenses incurred by a
director or officer in connection with his or her appearance as a witness or
other participation in a proceeding at a time when he or she is not a named
defendant or respondent in the proceeding.
SECTION 5. NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this Article VI shall not be
exclusive of any other right which a director or officer or other person
indemnified pursuant to Section 3 of this Article VI may have or hereafter
acquire under any law (common or statutory), provision of the Amended and
Restated Articles of Incorporation or these bylaws, agreement, vote of
shareholders or disinterested directors or otherwise.
SECTION 6. INSURANCE. The Corporation may purchase and maintain insurance
and, to the extent permitted by the TBCA, similar arrangements, at its expense,
to protect itself and any person who is or was serving as 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 foreign or domestic
corporation, partnership, joint venture, proprietorship, employee benefit plan,
trust or other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under this Article VI.
SECTION 7. SHAREHOLDER NOTIFICATION. To the extent required by law, any
indemnification of or advance of expenses to a director or officer in accordance
with this Article VI shall be reported in writing to the shareholders with or
before the notice or waiver of notice of the next shareholder's meeting or with
or before the next submission to shareholders of a consent to action without a
meeting.
SECTION 8. SAVINGS CLAUSE. If this Article VI or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each director,
officer or any other person indemnified pursuant to this Article VI as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative to the full extent permitted by
any applicable portion of this Article VI that shall not have been invalidated
and to the fullest extent permitted by applicable law.
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ARTICLE VII
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK. The certificates for shares of the
capital stock of the Corporation shall be in such form, consistent with that
required by law and the Amended and Restated Articles of Incorporation, as shall
be approved by the Board of Directors. The Chairman of the Board, President or a
Vice President (if any) shall cause to be issued to each shareholder one or more
certificates, which shall be signed by (a) one of the chief executive officer,
President, or a Vice President and (b) one of the Chief Financial Officer,
Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer
certifying the number of shares (and, if the stock of the Corporation shall be
divided into classes or series, the class and series of such shares) owned by
such shareholder in the Corporation; provided however, that any or all of the
signatures on the certificate may be facsimile. If the Board of Directors shall
have provided for a seal, such certificates shall bear such seal or a facsimile
thereof. The stock record books and the blank stock certificate books shall be
kept by the Secretary, or at the office of such transfer agent or transfer
agents as the Board of Directors may from time to time by resolution determine.
In case any officer, transfer agent or registrar who shall have signed or have
ceased to be such officer, transfer agent or registrar before such certificate
is issued by the Corporation, such certificate may nevertheless be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue. The stock certificates shall be
consecutively numbered and shall be entered in the books of the Corporation as
they are issued and shall exhibit the holder's name and number of shares.
SECTION 2. TRANSFER OF SHARES. The shares of stock of the Corporation shall
be transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives, upon
surrender and cancellation of certificates for a like number of shares (or upon
compliance with the provisions of Section 4 of this Article VII, if applicable).
Upon such surrender to the Corporation or a transfer agent of the Corporation of
a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer (or upon compliance with the
provisions of Section 4 of this Article VII, if applicable) and of compliance
with any transfer restrictions applicable thereto contained in an agreement to
which the Corporation is a party or of which the Corporation has knowledge by
reason of legend with respect thereto placed on any such surrendered stock
certificate, it shall be the duty of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 3. REGULATIONS REGARDING CERTIFICATES. The Board of Directors shall
have the power and authority to make all such rules and regulations as they may
deem expedient concerning the issuance, transfer and registration or the
replacement of certificates for shares of capital stock of the Corporation.
SECTION 4. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. The Board of
Directors may determine the conditions upon which a new certificate of stock may
be issued in place of a certificate that is alleged to have been lost, stolen,
destroyed or mutilated; and may, in its discretion, require the owner of such
certificate or his legal representative to give bond, with sufficient surety, to
indemnify the Corporation and each transfer agent and registrar
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against any and all losses or claims which may arise by reason of the issuance
of a new certificate in the place of the one so lost, stolen, destroyed or
mutilated.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall be such as
established from time to time by the Board of Directors.
SECTION 2. CORPORATE SEAL. The Board of Directors may provide a suitable
seal, containing the name of the Corporation. The Secretary shall have charge of
the seal (if any). If and when so directed by the Board of Directors, duplicates
of the seal may be kept and used by the Treasurer, if any, or by any Assistant
Secretary or Assistant Treasurer.
SECTION 3. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required to
be given by law, the Amended and Restated Articles of Incorporation or these
bylaws, except with respect to notices of meetings of shareholders (with respect
to which the provisions of Article II, Section 6 apply) and except with respect
to notices of special meetings of the Board of Directors (with respect to which
the provisions of Article III, Section 6 apply), said notice shall be deemed to
be sufficient if given (a) by telegraphic, cable, telecopy, facsimile,
electronic mail, or wireless transmission or (b) by deposit of same in a post
office box in a sealed prepaid wrapper addressed to the person entitled thereto
at his or her address as it appears on the records of the Corporation, and such
notice shall be deemed to have been given on the day of such transmission or
mailing, as the case may be.
Whenever notice is required to be given by law, the Amended and
Restated Articles of Incorporation or these bylaws, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to the notice required to be given by law,
the Amended and Restated Articles of Incorporation or these bylaws, as the case
may be.
SECTION 4. RESIGNATIONS. Any director, member of a committee or officer may
resign at any time. Such resignation shall be made in writing and shall take
effect at the time specified therein, or if no time be specified, at the time of
its receipt by the chief executive officer or Secretary. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
SECTION 5. FACSIMILE SIGNATURES. In addition to the provisions for the use
of facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors.
SECTION 6. BOOKS AND RECORDS. The Corporation shall keep books and records
of account and shall keep minutes of the proceedings of its shareholders, its
Board of Directors and each committee of its Board of Directors. The Corporation
shall keep at its registered office or principal place of business, or at the
office of its transfer agent or registrar, a record of the
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original issuance of shares issued by the Corporation and a record of each
transfer of those shares that have been presented to the Corporation for
registration of transfer. Such records shall contain the names and addresses of
all past and current shareholders of the Corporation and the number and class of
shares issued by the Corporation held by each of them. Any books, records,
minutes and share transfer records may be in written form or in any other form
capable of being converted into written form within a reasonable time.
SECTION 7. AMENDMENT OF BYLAWS. No provision of the Corporation's bylaws
which has been adopted by the shareholders may be amended, modified or repealed,
except by the vote of a majority of the shareholders. No bylaw provision which
conflicts with or is contrary to a bylaw adopted by the shareholders may be
adopted, except by the vote of a majority of the shareholders. Except as
otherwise provided in this Section 7, the power to alter, amend or repeal the
bylaws or adopt new bylaws shall be vested in the Board of Directors.
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