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Exhibit 3(b)
AMENDED AND RESTATED
BY-LAWS OF
BancTEXAS GROUP INC.
(as amended April 21, 1995)
ARTICLE I
SECTION 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New
Castle, State of Delaware.
SECTION 2. Other Offices. The Corporation may also have
offices at such other places, both within and without the State of
Delaware, as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of the
stockholders for the election of directors or for any other purpose
may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
SECTION 2. Annual Meetings. An annual meeting of stockholders
shall be held on such day in each fiscal year of the Corporation at
such time as may be fixed by the Board of Directors, at which
meeting the stockholders shall elect a Board of Directors and
transact such other business as may properly be brought before the
meeting.
SECTION 3. Notice of Annual Meeting. Written or printed
notice of the annual meeting, stating the place, day and hour
thereof, shall be given to each stockholder entitled to vote
thereat at such address as appears on the books of the Corporation,
not less than ten days nor more than sixty days before the date of
the meeting.
SECTION 4. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or the Restated Certificate of Incorporation,
may be called by the Chairman of the Board or by the President, and
shall be called by the President or the Secretary at the request in
writing of a majority of the Board of Directors, or at the request
in writing of stockholders of record owning at least fifty percent
in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote at such meeting. Such request
shall state the purpose or purposes of the proposed meeting.
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SECTION 5. Notice of Special Meetings. Written or printed
notice of a special meeting of stockholders, stating the place, day
and hour and purpose or purposes thereof, shall be given to each
stockholder entitled to vote thereat at such address as appears on
the books of the Corporation, not less than ten days nor more than
sixty days before the date of the meeting.
SECTION 6. Business at Meetings.
(a) Business transacted at all special meetings of
stockholders shall be confined to the purpose or purposes stated in
the notice thereof.
(b) No business may be presented at any annual meeting by a
stockholder unless presented in writing, delivered or mailed by
first class United States mail, postage prepaid, to the Secretary
of the Corporation not less than 14 days nor more than 50 days
prior to any annual meeting; provided, however, that if less than
21 days' notice of the meeting is given to stockholders, such
written notice shall be delivered or mailed, as prescribed, to the
Secretary of the Corporation not later than the close of the
seventh day following the day on which notice of the meeting was
mailed to stockholders.
(c) Each notice under subsection (b) shall set forth the issue
with specificity. Discussion at the annual meeting shall be limited
to the description of the proposed issue.
(d) If notice of the proposed issue is not made in accordance
with the foregoing procedure or the proposed issue is not a proper
subject for action by stockholders, the proposed issue shall not be
voted on or discussed at the meeting.
SECTION 7. Stockholder List. At least ten days before each
meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number
of voting shares held by each, shall be prepared by the Secretary
or other officer of the Corporation who shall have charge of its
stock ledger, either directly or through another officer of the
Corporation designated by him or through a transfer agent appointed
by the Board of Directors. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for such ten day period,
either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held.
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
stockholder during the whole time of the meeting.
SECTION 8. Quorum. The holders of a majority of the votes
attributed to the shares of capital stock issued and outstanding
and entitled to vote thereat, represented in person or by proxy,
shall constitute a quorum at all meetings of the stockholders for
the transaction of business except as otherwise provided by
statute, the Restated Certificate of Incorporation or these By-
laws. The stockholders present may adjourn the meeting despite the
absence of a quorum. When a meeting is adjourned for less than
thirty days in any one adjournment and a new record date is not
fixed for the adjourned meeting, it shall not be necessary to give
any notice of the adjourned meeting if the time and place to which
the meeting is adjourned are announced at the meeting at which
the adjournment is taken, and at the adjourned meeting any
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business may be transacted that might have been transacted on the
original date of the meeting. When a meeting is adjourned for
thirty days or more, or when after the adjournment a new record
date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given as in the case of an original meeting.
SECTION 9. Majority Vote. When a quorum is present at any
meeting, the vote of the holders of a majority of the shares having
voting power represented in person or by proxy shall decide any
question brought before such meeting, unless the question is one
upon which, by express provision of statute, the Restated
Certificate of Incorporation or these By-laws, a different vote is
required, in which case such express provision shall govern and
control the decision of such question.
SECTION 10. Proxies. At any meeting of the stockholders,
every stockholder having the right to vote shall be entitled to
vote in person or by proxy appointed by an instrument in writing
subscribed by such stockholder or his duly authorized attorney in
fact and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period.
SECTION 11. Voting. Unless otherwise provided by statute or
the Restated Certificate of Incorporation, each stockholder shall
have one vote for each share of stock having voting power,
registered in his name on the books of the Corporation; provided,
however, that in all elections for directors of the Corporation,
each shareholder shall have the right to cast as many votes in the
aggregate as shall equal the number of voting shares held by him or
her in the Corporation, multiplied by the number of directors to be
elected by the class to which he or she belongs at such election,
and each shareholder may cast the whole number of votes, either in
person or by proxy, for one candidate or distribute them among two
or more candidates.
SECTION 12. Conduct of Meetings.
(a) The Chairman of the meeting may, either before or during
any meeting of stockholders, prescribe rules which will govern the
orderly conduct, presentation, discussion, tabling, and voting,
including the procedures for the presentation, revocation and
counting of proxies, at the meeting with respect to issues to be
presented at the meeting and all other aspects of any annual or
special meeting of stockholders.
(b) The Chairman's determination shall be in his reasonable
discretion and shall be final, unless the Restated Certificate of
Incorporation, By-laws, resolution of the Board, or applicable law
establish rules governing a particular matter, in which case such
provision shall be dispositive, or unless the Chairman's ruling is
overruled by the affirmative vote of the holders of two-thirds of
the issued and outstanding capital stock of the Corporation
entitled to vote on such matters at the meeting and present at the
meeting in person or by proxy.
SECTION 13. Consent of Stockholders in Lieu of Meeting. Any
action required to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or
special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders
of outstanding stock having not less than the minimum number
of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote
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thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not
consented in writing.
SECTION 14. Procedure for Nominations. Nominations for the
election of directors may only be made by the Board of Directors,
by a committee of the Board of Directors designated for that
purpose or by a stockholder entitled to vote generally in the
election of directors who has complied with the procedures set
forth in this section. Any stockholder of record who is entitled
to vote generally in the election of directors may nominate one or
more persons for election as a director at a meeting of
stockholders only if written notice of such stockholder's intention
to make such nomination has been given, either by personal delivery
or by United States certified mail, postage prepaid, to the
Secretary of the Corporation (i) with respect to an election at an
annual meeting of stockholders, not more than fifty (50) days nor
less than fourteen (14) days prior to the date of the meeting, and
(ii) with respect to an election to be held at a special meeting of
stockholders called for such purpose, not later than the close of
business on the fourteenth day following the date on which notice
of the meeting was first given to stockholders. Each notice of a
stockholder's intention to nominate one or more candidates for
director shall set forth the name and address, as they appear on
the Corporation's records, of the stockholder who intends to make
the nomination and the name and residence and business addresses of
the person or persons to be nominated; the class and number of
shares of each class of the outstanding securities of the
Corporation beneficially owned by the stockholder giving the
notice; a representation that such stockholder is the holder of
record of stock of the Corporation entitled to vote at the meeting
and intends to attend the meeting and to nominate the person or
persons named in the notice; any other information regarding each
prospective nominee as would then be required by applicable law and
regulation to be disclosed in a solicitation of proxies for the
election of directors, had the prospective nominee been nominated
by the Board of Directors; and the written consent of each
prospective nominee to be nominated and to serve as a director if
elected.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. Powers. The business and affairs of the
Corporation shall be managed by a Board of Directors. The Board of
Directors may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute, by the
Restated Certificate of Incorporation or these By-laws directed or
required to be exercised or done by the stockholders.
SECTION 2. Number of Directors. The number of directors to
constitute the Board of Directors shall be six; provided, however,
that the number of directors which shall constitute the whole Board
shall be fixed from time to time by resolution of the Board of
Directors, provided that such number shall not be less than three
and, provided further, that there shall be added to such number of
directors as so fixed any number of directors who are elected
solely by the holders of any class of stock of the Corporation
pursuant to the terms of the constituent instrument establishing
such class.
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SECTION 3. Election and Term. Except as provided in Section
4 of this Article III, each director shall be elected to serve
until the next annual meeting and until his successor (if any)
shall have been elected and shall qualify, or until his death,
resignation or removal from office.
SECTION 4. Vacancies and Newly Created Directorships. If the
office of any director or directors becomes vacant by reason of
death, resignation, retirement, disqualification, removal from
office, or otherwise, or the number of directors constituting the
whole Board shall be increased, a majority of the remaining or
existing directors, though less than a quorum, may choose a
successor or successors or the director or directors to fill the
new directorships, who shall hold office for the unexpired term in
respect to which such vacancy occurred or, in the case of a new
directorship or directorships, until the next annual meeting of the
stockholders.
SECTION 5. Removal. The stockholders may remove a director
either for or without cause at any meeting of stockholders,
provided notice of the intention to act upon such matter shall have
been given in the notice calling such meeting.
ARTICLE IV
MEETINGS OF BOARD OF DIRECTORS
SECTION 1. First Meeting. The first meeting of each newly
elected Board of Directors shall be held at the location of and
immediately following the annual meeting of stockholders, and no
notice of such meeting shall be necessary to the newly elected
directors in order legally to constitute the meeting, provided a
quorum shall be present; or the Board of Directors may meet at such
place and time as shall be fixed by the consent in writing of all
the directors.
SECTION 2. Other Meetings. The directors of the Corporation
may hold their meetings, both regular and special, either within or
without the State of Delaware.
SECTION 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such time and place and on such notice,
if any, as shall be determined from time to time by the Board of
Directors.
SECTION 4. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman of the Board or the
President on twenty-four hours' notice to each director, delivered
either personally or by mail or telegram. Special meetings of the
Board of Directors shall be called by the President or the
Secretary in like manner and on like notice on the written request
of a majority of the directors constituting the whole Board of
Directors.
SECTION 5. Quorum and Voting. At all meetings of the Board
of Directors, a majority of the directors at the time in office
shall be necessary and sufficient to constitute a quorum for the
transaction of business; and the act of four (4) or more of the
directors present at any meeting at which there is a quorum shall
be necessary to constitute the act of the Board of Directors,
except as may be otherwise specifically provided by statute, the
Restated Certificate of Incorporation or these By-laws. If a quorum
shall not be present at any meeting of directors, the directors
present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall
be present.
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SECTION 6. Telephone Meetings. At any meeting of the Board
of Directors or any committee thereof, members may attend by
conference telephone, radio, television or similar means of
communication by means of which all persons participating in the
meeting can hear each other, and all members so attending shall be
deemed present at the meeting for all purposes including the
determination of whether a quorum is present.
SECTION 7. Action by Written Consent. Any action required or
permitted to be taken by the Board of Directors or any committee
thereof, under the applicable provisions of the statutes, the
Restated Certificate of Incorporation, or these By-laws, 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.
SECTION 8. Advisory Directors. Any number of persons may be
appointed "Advisory Directors" by a vote of a majority of the
directors present at any meeting. An Advisory Director shall have
the right to attend and to participate in any and all meetings of
the Board of Directors to the same extent as any director, except
that an Advisory Director shall not have the right to vote on any
question or issue considered by the Board of Directors.
ARTICLE V
COMMITTEES
SECTION 1. Executive Committee. The Board of Directors, by
resolution adopted by a majority of the whole Board, may designate
three or more directors to constitute an Executive Committee, which
Committee, to the extent provided in such resolution, shall have
and may exercise all of the authority of the Board of Directors in
the business and affairs of the Corporation, and may have power to
authorize the seal of the Corporation to be affixed to all papers
which may require it, except where action by the Board of Directors
is expressly required by statute. The Executive Committee shall
keep regular minutes of its proceedings and report the same to the
Board of Directors when required.
SECTION 2. Other Committees. The Board of Directors may
similarly create other committees for such terms and with such
powers and duties as the Board of Directors deems appropriate.
SECTION 3. Committee Rules; Quorum. Each committee may adopt
rules governing the method of calling and time and place of holding
its meetings. Unless otherwise provided by the Board of Directors,
a majority of any committee shall constitute a quorum for the
transaction of business, and the act of a majority of the members
of such committee present at a meeting at which a quorum is present
shall be the act of such committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
SECTION 1. Attendance Fees. Directors, as such, shall not receive
any stated salary for their services, but by resolution of the Board
of Directors a fixed sum and expenses of attendance may be allowed
for attendance at each regular or special meeting of the Board;
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however, this provision shall not preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor. Members of committees may receive such
compensation, if any, as may be determined by the Board of
Directors.
ARTICLE VII
NOTICES
SECTION 1. Methods of Notice. Whenever any notice is required
to be given to any stockholder, director or committee member under
the provisions of any statute, the Restated Certificate of
Incorporation or these By-laws, such notice shall be delivered
personally or shall be given in writing by mail addressed to such
stockholder, director or committee member at such address as
appears on the books of the Corporation, and such notice shall be
deemed to be given at the time when the same shall be deposited in
the United States mail with postage thereon prepaid. Notice to
directors and committee members may also be given by telegram, and
notice given by such means shall be deemed to be given at the time
it is delivered to the telegraph office.
SECTION 2. Waiver of Notice. Whenever any notice is required
to be given to any stockholder, director or committee member under
the provisions of any statute, the Restated Certificate of
Incorporation or these By-laws, a waiver thereof in writing signed
by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to the
giving of such notice. Attendance at any meeting shall constitute
a waiver of notice thereof except as otherwise provided by statute.
ARTICLE VIII
OFFICERS
SECTION 1. Executive Officers. The executive officers of the
Corporation shall consist of a Chairman of the Board, a President,
one or more Vice Presidents, one or more of whom may be designated
Executive or Senior Vice Presidents and may also have such
descriptive titles as the Board of Directors shall deem
appropriate, a Secretary and a Treasurer, each of whom shall be
elected by the Board of Directors. Any two or more offices may be
held by the same person except the offices of President and
Secretary.
SECTION 2. Election and Qualification. The Board of Directors
at its first meeting after each annual meeting of stockholders may
elect a Chairman of the Board from its members, shall elect a
President from its members, and shall elect one or more Vice
Presidents, a Secretary and a Treasurer, none of whom need be a
member of the Board of Directors.
SECTION 3. Other Officers and Agents. The Board of Directors
may elect or appoint Assistant Vice Presidents, Assistant
Secretaries and Assistant Treasurers, and such other officers and
agents as it shall deem necessary, or may vest the appointment of
any such Assistant Vice Presidents, Assistant Secretaries and
Assistant Treasurers or other officers (except executive officers)
and agents in such of the executive officers as it deems
appropriate, subject in all cases to the control of the Board of
Directors.
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SECTION 4. Salaries. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors except as
otherwise directed by the Board.
SECTION 5. Term, Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and
qualify. Any officer or agent of the Corporation may be removed at
any time by the affirmative vote of a majority of the Board of
Directors, or by the executive officer having power to appoint his
successor. Any vacancy occurring in any office of the Corporation
may be filled by the Board of Directors or otherwise as provided in
this Article VIII.
SECTION 6. Execution of Instruments. Either the Chairman of
the Board or the President or the Executive Vice President and
Chief Financial Officer may execute in the name of the Corporation
bonds, notes debentures and other evidences of indebtedness, stock
certificates, deeds, mortgages, deeds of trust, indentures, loan
and credit agreements, checks, drafts, leases, purchase contracts,
and all other terms of agreements, contracts and instruments and
may bind this Corporation thereto without the seal of this
Corporation being affixed thereon and without the signature of the
Chairman of the Board or the President or Executive Vice President
and Chief Financial officer being attested. Any Senior Vice
President may execute in the name of the Corporation any of the
documents and instruments described in the preceding sentence,
except where such documents or instruments are required by these
By-laws, by law or by specific delegation or designation to be
otherwise executed. Nothing in this Section shall override the
duties and authorities conferred on any officer of this corporation
elsewhere in these By-laws or by any resolution adopted by the
Board of Directors.
SECTION 7. Duties of Officers. The duties and powers of the
officers of the Corporation shall be as provided in these By-laws,
or as provided for pursuant to these By-laws, or (except to the
extent inconsistent with these By-laws or with any provision made
pursuant thereto) shall be those customarily exercised by corporate
officers holding such offices.
SECTION 8. Chairman of the Board. The Chairman of the Board
shall preside when present at all meetings of the Board of
Directors. He shall advise and counsel the President and other
officers of the Corporation and shall exercise such powers and
perform such duties as shall be assigned to or required of him from
time to time by the Board of Directors. The Chairman of the Board
shall, if so designated by the Board of Directors, be the Chief
Executive Officer of the Corporation; in such event he shall have
all of the powers granted by the By-laws to the President,
including the power to make and sign contracts and agreements in
the name and on behalf of the Corporation, and from time to time
may delegate all, or any, of his powers and duties to the
President.
SECTION 9. President. Unless such powers have been conferred
upon the Chairman of the Board by the Board of Directors, the
President shall have the powers of Chief Executive Officer of the
Corporation, and as Chief Executive Officer, the President shall
have general supervision of the affairs of the Corporation and
shall have general and active control of all of its business.
In the absence of any other person designated thereto by
these By-laws, the President shall preside at all meetings of the
stockholders. He shall have authority to cause the employment or
appointment of such employees and agents of the Corporation as the proper
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conduct of operations may require, and to fix their compensation,
subject to the provisions of these By-laws; to remove or
suspend any employee or agent who shall have been employed or
appointed under his authority or under authority of any officer
subordinate to him; to suspend for cause, pending final action by
the authority which shall have supervisory power over him, any
officer subordinate to the President, and in general, to exercise
all the powers usually appertaining to the office of President of
a corporation, except as otherwise provided in these By-laws. In
the event the Chairman of the Board has been designated Chief
Executive Officer of the Corporation, the President shall, subject
to the powers of supervision and control thereby conferred upon the
Chairman of the Board, be the chief operating officer of the
Corporation and shall have all necessary powers to discharge such
responsibility including all powers heretofore in this paragraph
enumerated.
The President shall perform all the duties and have all the
powers of the Chairman of the Board in the absence of the Chairman
of the Board.
SECTION 10. Vice Presidents. The Vice Presidents in the
order determined by the Board of Directors shall, in the absence or
disability of the President, perform the duties and exercise the
powers of the President, and shall perform such other duties as the
Board of Directors and the Chief Executive Officer may prescribe.
SECTION 11. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of the
stockholders and record all votes and the minutes of all
proceedings in a book to be kept for the purpose and shall perform
like duties for the committees of the Board of Directors when
required. He shall give or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed
by the Board of Directors and the Chief Executive Officer. He shall
keep in safe custody the seal of the Corporation and shall have
authority to affix the same to any instrument requiring it, and
when so affixed it may be attested by his signature. The Board of
Directors may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by his
signature.
SECTION 12. Assistant Secretaries. The Assistant Secretaries
in the order determined by the Board of Directors shall, in the
absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors and the Chief Executive Officer
may prescribe.
SECTION 13. Treasurer. The Treasurer shall have the custody
of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all monies and other valuable
effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. He
shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors and the
Chief Executive Officer, whenever they may require it, an account
of all of his transactions as Treasurer and of the financial
condition of the Corporation.
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SECTION 14. Assistant Treasurers. The Assistant Treasurers in
the order determined by the Board of Directors shall, in the
absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other
duties as the Board of Directors and the Chief Executive Officer
may prescribe.
ARTICLE IX
SHARES AND STOCKHOLDERS
SECTION 1. Certificates Representing Shares. Every holder of
stock in the Corporation shall be entitled to have a certificate,
signed by, or in the name of the Corporation by, the Chairman of
the Board or the President or a Vice President and the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares owned by him in
the Corporation. The signature of any such officer may be facsimile
if the certificate is countersigned by a transfer agent or
registered by a registrar, other than the Corporation itself or an
employee of the Corporation. In case any officer who has signed or
whose facsimile signature has been placed upon such 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. If the
Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to
represent such class or series of stock, provided, that, except as
otherwise provided in Section 202 of the General Corporation Law of
the State of Delaware, in lieu of the foregoing requirements, there
may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock
a statement that the Corporation will furnish without charge to
each stockholder who so requests the designations, preferences and
relative, participating, option or other special rights of each
class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 2. Transfer of Shares. Subject to valid transfer
restrictions and to stop-transfer restrictions and to stop-transfer
orders directed in good faith by the Corporation to any transfer
agent to prevent possible violations of federal or state securities
laws, rules or regulations, or for any other lawful purpose, upon
surrender to the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, 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. Fixing Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any
change, conversions or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, or more than sixty days prior
to any other action. If no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next
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preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the
day on which the meeting is held; the record date for determining
stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of
Directors is necessary, shall be the day on which first written
consent is expressed; and the record date for determining
stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 4. Registered Stockholders. The Corporation shall be
entitled to recognize the holder of record of any share or shares
as the holder in fact thereof and shall not be bound to recognize
any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
law.
ARTICLE X
INDEMNIFICATION
SECTION 1. Indemnification.
(a) The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, or agent of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit
if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation and
except that no indemnification shall be made in respect of
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any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance
of his duty to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall
deem proper.
(c) To the extent that a person who is or was a director,
officer, employee or agent of the Corporation, or a person who is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or another enterprise, has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b), or in defense of
any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless
ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee, agent or other
person is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and
(b). Such determination shall be made (1) by the Board of Directors
by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) by stockholders.
(e) Expenses incurred in defending a civil or criminal action,
suit or proceeding, or a threatened action, suit or proceeding, may
be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by or
on behalf of the director, officer, employee, agent or other person
to repay the such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation as
authorized in this Article X.
(f) The indemnification provided by this Article X shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any agreement or vote of
stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under
the provisions of this Article X.
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(h) For purposes of this Article X, references to "the
Corporation" shall include, in addition to the resulting
corporation, any constituent absorbed in a consolidation or merger
which, if its separate existence had continued, would have had
power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article X with
respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate
existence had continued.
ARTICLE XI
GENERAL
SECTION 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Restated Certificate
of Incorporation, if any, or of the resolutions, if any, providing
for any series of stock, may be declared by the Board of Directors
at any meeting thereof, or by the Executive Committee at any
meeting thereof. Dividends may be paid in cash, in property, or in
shares of the capital stock of the Corporation, subject to the
provisions of the Restated Certificate of Incorporation or the
resolutions, if any, providing for any series of stock.
SECTION 2. Reserves. Before payment of any dividend, there
may be set aside out of any funds of the Corporation available for
dividends such sum or sums as the directors from time to time, in
their absolute discretion, deem proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other
purpose or purposes as the directors shall think conducive to the
interests of the Corporation, and the directors may modify or
abolish any such reserve in the manner in which it was created.
SECTION 3. Shares of Other Corporations. The President, or in
his absence, any Vice President, is authorized to vote, represent
and exercise on behalf of the Corporation all rights incident to
any and all shares of any other corporation, bank, banking
association or other entity standing in the name of the
Corporation. The authority herein granted to said officer may be
exercised either by said officer in person or by any person
authorized so to do by proxy or power of attorney duly executed by
said officer. Notwithstanding the above, however, the Board of
Directors, in its discretion, may designate by resolution any
additional person to vote or represent said shares of other
corporations, banks, banking associations and other entities.
SECTION 4. Checks. All checks, drafts, bills of exchange or
demands for money of the Corporation shall be signed by such
officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
SECTION 5. Corporate Records. 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 its
stockholders giving the names and addresses of all stockholders and
the number and class and series, if any, of shares held by each.
All other books and records of the Corporation may be kept at such
place or places within or without the State of Delaware as the
Board of Directors may determine.
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SECTION 6. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation. The seal may be used by
causing it or a facsimile thereof to be impressed, affixed or
reproduced.
SECTION 7. Fiscal Year. The fiscal year of the Corporation
shall be fixed by the Board of Directors; if not so fixed it shall
be the calendar year.
ARTICLE XII
AMENDMENTS
SECTION 1. Amendment. These By-laws may be altered, amended
or repealed or new By-laws may be adopted at any annual meeting of
the stockholders or at any special meeting of the stockholders at
which a quorum is present or represented, by the affirmative vote
of the holders of a majority of the shares entitled to vote at such
meeting and present or represented thereat, or, with the
affirmative vote of the holders of a majority of the shares of the
Class B Common Stock, by the affirmative vote of a majority of the
whole Board of Directors at any regular meeting of the Board, or at
any special meeting of the Board, provided notice of the proposed
alteration, amendment or repeal or the adoption of the new By-laws
is set forth in the notice of such meeting.
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