Exhibit 3.5(c)
AMENDED AND RESTATED BYLAWS
OF
ALLIANCE HAULERS, INC.
ARTICLE I
OFFICES
1.01 Registered Office. The registered office shall be the address set
forth in the corporation's Articles of Incorporation, as the same may be amended
from time to time.
1.02 Other Offices. The corporation also may have offices at such other
places both within and without the State of Texas as the Board of Directors may
from time to time determine or as the business of the corporation may require.
ARTICLE II
MEETINGS OF THE SHAREHOLDERS
2.01 Place of Meetings. All meetings of shareholders for the election of
directors or for any other proper purpose shall be held at such place within or
without the State of Texas as the Board of Directors may from time to time
designate, as stated in the notice of such meeting or a duly executed waiver of
notice thereof.
2.02 Annual Meeting. An annual meeting of shareholders shall be held at
such time and date as the Board of Directors may determine. At such meeting the
shareholders entitled to vote thereat shall elect a Board of Directors and may
transact such other business as may properly be brought before the meeting.
2.03 Special Meetings. Special meetings of shareholders may be called by
the Chairman of the Board of Directors, the President, the Board of Directors,
or the holders of at least 33% of all the shares entitled to vote at the
proposed special meeting. If not otherwise fixed in accordance with these
Bylaws, the record date for determining shareholders entitled to call a special
meeting is the date the first shareholder signs the notice of such meeting.
2.04 Notice of Annual or Special Meeting. 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 10 nor more than 60 days before the date of the meeting, either
personally or by mail, or by any other method permitted by applicable law, 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, 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.
Whenever any notice is required to be given to any shareholder under the
provisions of any law, the Articles of Incorporation, or these Bylaws, a waiver
thereof in writing signed by the
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person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
2.05 Business at Special Meeting. The business transacted at any special
meeting of shareholders shall be limited to the purposes stated in the notice
thereof.
2.06 Quorum of Shareholders. Unless otherwise provided in the Articles of
Incorporation, the holders of a majority of the shares entitled to vote at a
meeting of shareholders, represented in person or by proxy, shall constitute a
quorum for any matter to be presented at that meeting. If, however, a quorum
shall not be present or represented at any meeting of the shareholders, the
holders of a majority of the shares represented in person or by proxy at the
meeting shall have the power to adjourn the meeting until such time and to such
place as they shall determine, without notice other than announcement at the
meeting. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted that might have been transacted at
the meeting as originally notified. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, and the subsequent
withdrawal of any shareholder or the refusal of any shareholder to vote shall
not affect the presence of a quorum at the meeting.
2.07 Act of Shareholders' Meeting. 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 law
or the Articles of Incorporation, the affirmative vote of the holders of a
majority of the shares entitled to vote on, and that voted for or against or
expressly abstained with respect to, that matter at a meeting of shareholders at
which a quorum is present shall be the act of shareholders. Unless otherwise
provided in the Articles of Incorporation, directors shall be elected by a
plurality of the votes cast by the holders of shares entitled to vote in the
election of directors at a meeting of shareholders at which a quorum is present.
2.08 Voting of Shares. Each outstanding share, regardless of class, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders, except to the extent otherwise provided by law or the Articles of
Incorporation. At each election for directors, every shareholder entitled to
vote at such election shall have the right to vote the number of shares owned by
him for as many persons as there are directors to be elected and for whose
election he has the right to vote. No shareholder shall be entitled to cumulate
his votes by giving one candidate as many votes as the number of such directors
to be elected multiplied by the number of shares owned by such shareholder or by
distributing such votes on the same principle among any number of such
candidates.
2.09 Proxies. At any meeting of the shareholders, each shareholder having
the right to vote shall be entitled to vote either in person or by proxy
executed in writing by the shareholder. A telegram, telex, cablegram, or similar
transmission by the shareholder, or a photographic, photostatic, facsimile, or
similar reproduction of a writing executed by the shareholder, shall be treated
as an execution in writing for purposes of this section. No proxy shall be valid
after 11 months from the date of its execution unless otherwise provided in the
proxy. Each proxy shall be revocable unless the proxy form conspicuously states
that the proxy is irrevocable and the proxy is coupled with an interest. An
irrevocable proxy, if noted conspicuously on the certificate
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representing the shares that are subject to the irrevocable proxy, shall be
specifically enforceable against the holder of those shares or any successor or
transferee of the holder. Unless noted conspicuously on the certificate
representing the shares that are subject to the irrevocable proxy, an
irrevocable proxy, even though otherwise enforceable, is ineffective against a
transferee for value without actual knowledge of the existence of the
irrevocable proxy at the time of the transfer or against any subsequent
transferee (whether or not for value), but such an irrevocable proxy shall be
specifically enforceable against any other person who is not a transferee for
value from and after the time that the person acquires actual knowledge of the
existence of the irrevocable proxy.
2.10 Voting List. The officer or agent having charge of the share transfer
records for shares of the corporation shall make, at least 10 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 number of shares held by each shareholder, which list, for a
period of 10 days prior to such meeting, shall be kept on file at the registered
office or principal place of business of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
also shall be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting. The original share transfer records shall be prima-facie evidence
as to who are the shareholders entitled to examine such list or transfer records
or to vote at any such meeting of shareholders.
2.11 Action by Written Consent Without a Meeting. Any action required or
permitted by law, the Articles of Incorporation, or these Bylaws to be taken at
a meeting of the shareholders may be taken without a meeting, without prior
notice, and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of shares having not less than the minimum
number of votes that would be necessary to take such action at a meeting at
which the holders of all shares entitled to vote on the action were present and
voting. Consent does not have to be unanimous. Every written consent signed by
the holders of less than all of the shares entitled to vote with respect to the
action that is the subject of the consent must bear the date of signature of
each shareholder who signs the consent. No written consent signed by the holders
of less than all of the shares entitled to vote with respect to the action that
is the subject of the consent shall be effective to take the action that is the
subject of the consent unless, within 60 days after the date of the earliest
dated consent delivered to the corporation in the manner required by this
Section 2.11, a consent or consents signed by the holder or holders of shares
having not less than the minimum number of votes that would be necessary to take
the action that is the subject of the consent are delivered to the corporation
by delivery to its registered office, registered agent, principal place of
business, transfer agent, registrar, exchange agent, 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 certified or registered
mail, return receipt requested. Delivery to the corporation's principal place of
business shall be addressed to the President or Chief Executive Officer of the
corporation. A telegram, telex, cablegram, or similar transmission by a
shareholder, or a photographic, photostatic, facsimile, or similar reproduction
in writing signed by a shareholder, shall be regarded as signed by the
shareholder for purposes of this Section 2.11. Prompt notice of the taking of
any action by shareholders without a meeting by less than unanimous written
consent shall be given to those shareholders who did not consent in writing to
the action.
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ARTICLE III
BOARD OF DIRECTORS
3.01 Powers. The powers of the corporation shall be exercised by or under
the authority of, and the business and affairs of the corporation shall be
managed under the direction of, the Board of Directors, which may exercise all
such powers of the corporation and do all such lawful acts and things as are not
by law, the Articles of Incorporation, or these Bylaws directed or required to
be exercised and done by the shareholders.
3.02 Number of Directors. The Board of Directors shall consist of 1 or more
directors. The number of directors shall be determined by resolution of the
Board of Directors, but no decrease in the number of directors shall have the
effect of shortening the term of any incumbent director.
3.03 Election and Term. The directors, other than the initial Board of
Directors, shall be elected at each annual meeting of the shareholders, except
as provided in Section 3.04 of this Article, and each director elected shall
hold office until the next succeeding annual meeting and until his successor is
elected and qualified or until his death, resignation, or removal in accordance
with these Bylaws. Directors need not be residents of the State of Texas or
shareholders of the corporation.
3.04 Vacancies. Any vacancy occurring in the Board of Directors may be
filled by an election at an annual or special meeting of the shareholders called
for that purpose or 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 shall be elected for the unexpired term of his
predecessor in office. Any directorship to be filled by reason of an increase in
the number of directors may be filled by election at an annual or special
meeting of the shareholders called for that purpose or may be filled 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 that the Board of
Directors may not fill more than two such directorships during the period
between any two successive annual meetings of shareholders.
3.05 Resignation and Removal. Any director may resign at any time upon
giving written notice to the corporation. At any meeting of shareholders called
expressly for the purpose of removing a director or directors, any director or
the entire Board of Directors may be removed, with or without cause, by a vote
of the holders of a majority of the shares then entitled to vote at an election
of directors.
3.06 Compensation of Directors. As specifically prescribed from time to
time by resolution of the Board of Directors, the directors of the corporation
may be paid their expenses of attendance at each meeting of the Board and may be
paid a fixed sum for attendance at each meeting of the Board or a stated salary
in their capacity as directors. This provision shall not preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for service on any such committee.
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3.07 Chairman of the Board. The Board of Directors, at its first meeting
after each annual meeting of shareholders, may elect one of its members Chairman
of the Board. Subject to the authority of the Board of Directors, the Chairman
of the Board shall preside at all meetings of the Board of Directors and shall
have such other powers and duties as usually pertain to such position or as may
be delegated by the Board of Directors.
ARTICLE IV
MEETINGS OF THE BOARD
4.01 First Meeting. The first meeting of each newly elected Board of
Directors shall be held without notice immediately following the shareholders'
annual meeting at which such directors were elected, at the same place as such
shareholders' meeting or at such other time and place either within or without
the State of Texas as shall be designated by the Secretary upon the written
request of a majority of the directors then elected.
4.02 Regular Meetings. Regular meetings of the Board of Directors may be
held with or without notice at such time and at such place either within or
without the State of Texas as from time to time shall be prescribed by
resolution of the Board of Directors.
4.03 Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board of Directors or the President, and shall be
called by the Chairman of the Board of Directors, the President, or the
Secretary on the written request of two directors. Written notice of special
meetings of the Board of Directors shall be given to each director at least 24
hours prior to the time of the meeting.
4.04 Methods of Giving Notice. Whenever any notice is required to be given
to any director under the provisions of any law, the Articles of Incorporation,
or these Bylaws, it shall be given in writing and delivered personally or
mailed, or delivered by any other method permitted under applicable law, to such
director at such address as appears on the records of the corporation, and, if
mailed, such notice shall be deemed to be delivered at the time when the same
shall be deposited in the United States mail with sufficient postage thereon
prepaid.
4.05 Waiver of Notice. Whenever any notice is required to be given to any
director under the provisions of any law, the Articles of Incorporation, or
these Bylaws, a waiver thereof in writing signed by the director or directors
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
4.06 Attendance as Waiver. Attendance of a director at a meeting of the
Board of Directors or a committee thereof shall constitute a waiver of notice of
such meeting, except when 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.
4.07 Business at Regular or Special Meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice or waiver of notice of such
meeting.
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4.08 Quorum of Directors. A majority of the Board of Directors shall
constitute a quorum for the transaction of business. If a quorum shall not be
participating at any meeting of the Board of Directors, the directors
participating thereat may adjourn the meeting from time to time, without notice
other than announcement of the meeting, until a quorum shall be participating.
4.09 Interested Directors. An otherwise valid contract or transaction
between the corporation and 1 or more of its directors or officers, or between
the corporation and any other corporation or other entity in which 1 or more of
its directors or officers are directors or officers or have a financial
interest, shall be valid notwithstanding whether the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof that authorizes the contract or transaction, and notwithstanding whether
his or their votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(b) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; or
(c) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved, or ratified by the Board of Directors,
a committee thereof, or the shareholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee that authorizes
the contract or transaction.
4.10 Act of Directors' Meeting. 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 unless the act of a greater number is required by law.
4.11 Action by Written Consent Without a Meeting. Any action required or
permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by all members of the Board of Directors or
committee, as the case may be. Such consent shall be filed with the minutes of
the proceedings of the Board of Directors or committee, as the case may be. Such
consent shall have the same force and effect as a unanimous vote at a meeting.
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ARTICLE V
COMMITTEES
The Board of Directors, by resolution adopted by a majority of the full
Board of Directors, may designate from among its members 1 or more committees,
each of which shall be comprised of 1 or more of its members, and may designate
1 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. Any such committee, to
the extent provided in such resolution, shall have and may exercise all of the
authority of the Board of Directors, subject to the limitations imposed by
applicable law. Each committee shall keep regular minutes of its proceedings and
report the same to the Board of Directors when required. To the extent
applicable, the provisions of Article IV of these Bylaws governing the meetings
of the Board of Directors shall likewise govern the meetings of any committee
thereof.
ARTICLE VI
MEETING BY USE OF CONFERENCE TELEPHONE
OR SIMILAR COMMUNICATIONS EQUIPMENT
The shareholders, members of the Board of Directors, or members of any
committee designated by such Board of Directors may participate in and hold a
meeting of such shareholders, Board of Directors, or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
such a meeting shall constitute 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 VII
OFFICERS
7.01 Executive Officers. The officers of the corporation shall consist of a
President and a Secretary, and may also include one or more Vice Presidents, a
Treasurer, and such other officers as are provided for in this Article. Each
officer of the corporation shall be elected by the Board of Directors as
provided in Section 7.02 of this Article. Any two or more offices may be held by
the same person.
7.02 Election and Qualification. The Board of Directors, at its first
meeting after each annual meeting of shareholders, shall elect a President and a
Secretary. The Board of Directors also may elect one or more Vice Presidents, a
Treasurer, and such other officers, including assistant officers and agents, as
may be deemed necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors.
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7.03 Compensation. The compensation of all officers and agents of the
corporation shall be determined by or determined in a manner specified by the
Board of Directors.
7.04 Term, Removal, and Vacancies. Each officer of the corporation shall
hold office until his successor is chosen and qualified or until his death,
resignation, or removal. Any officer may resign at any time upon giving written
notice to the corporation, but such resignation shall be without prejudice to
the contract rights, if any, of the corporation. Any officer or agent or member
of a committee elected or appointed by the Board of Directors may be removed by
the Board of Directors whenever in its judgment the best interests of the
corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent or member of a committee shall not of itself
create contract rights. Any vacancy occurring in any office of the corporation
by death, resignation, removal, or otherwise shall be filled by the Board of
Directors.
7.05 Chief Executive Officer. Unless the Board of Directors designates
otherwise, the President shall be the chief executive officer of the
corporation. The Chief Executive Officer shall preside at all meetings of the
shareholders. The Chief Executive Officer shall have such other powers and
duties as usually pertain to such office or as may be delegated by the Board of
Directors.
7.06 President. Unless the Board of Directors shall otherwise delegate such
duties, the President shall have general powers of oversight, supervision, and
management of the business and affairs of the corporation, and shall see that
all orders and resolutions of the Board of Directors are carried into effect.
The President shall have such powers and duties as usually pertain to such
office, except as the same may be modified by the Board of Directors. He shall
execute bonds, mortgages, instruments, contracts, agreements, and other
documentation, except when the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation.
7.07 Vice Presidents. Unless otherwise determined by the Board of
Directors, the Vice Presidents in order of their seniority as such seniority may
from time to time be designated by the Board of Directors, shall perform the
duties and exercise the powers of the President in absence or disability of the
President. They shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
7.08 Secretary. The Secretary shall attend all meetings of the Board of
Directors and of the shareholders, record all the proceedings of the meetings of
the Board of Directors and of the shareholders in a book to be kept for that
purpose, and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
shareholders and special meetings of the Board of Directors as may be prescribed
by the Board of Directors or the President. He shall keep in safe custody the
seal of the corporation, and, when authorized by the Board of Directors, affix
the same to any instrument requiring it. When so affixed, such seal shall be
attested by his signature or by the signature of the Treasurer or an Assistant
Secretary. He shall perform all duties incident to the office of the Secretary
and such other duties as may from time to time be assigned to him by the Board
of Directors.
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7.09 Assistant Secretary. An Assistant Secretary, unless otherwise
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. An
Assistant Secretary shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
7.10 Treasurer. The Treasurer shall have the custody of the corporate funds
and securities, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys 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 President and the Board of Directors at its regular meetings, or when the
Board of Directors so requires, an account of all his transactions as Treasurer,
and of the financial condition of the corporation. The Treasurer shall perform
all the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Board of Directors.
7.11 Assistant Treasurer. An Assistant Treasurer, unless otherwise
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. An
Assistant Treasurer shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
7.12 Officer's Bond. If required by the Board of Directors, any officer so
required shall give the corporation a bond (which shall be renewed as the Board
of Directors may require) in such sum and with such surety or sureties as shall
be satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement, or removal from office, of any and all books,
papers, vouchers, money, and other property of whatever kind in his possession
or under his control belonging to the corporation.
ARTICLE VIII
INDEMNIFICATION
8.01 Indemnification by the Corporation. The corporation shall indemnify
any person who was, is, or is threatened to be made a named defendant or
respondent in a proceeding (as hereinafter defined) because the person (a) is or
was a director or officer of the corporation or (b) 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, to the fullest extent that a corporation may grant indemnification
to a person serving in such capacity under the Texas Business Corporation Act or
other applicable law, as the same exists or may hereafter be amended.
8.02 Expenses; Procedure. Such right shall be a contract right which shall
survive the termination of any such person's service as a director or officer,
shall not be adversely affected by any amendment of this article with respect to
acts or omissions occurring or alleged to occur
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prior to any such amendment, and shall include the right to be paid by the
corporation for all expenses incurred in defending any such proceeding in
advance of its final disposition to the maximum extent permitted under the Texas
Business Corporation Act or other applicable law, as the same exists or may
hereafter be amended. If a claim for indemnification or advancement of expenses
hereunder is not paid in full by the corporation within 90 days after a written
claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim, and if successful in whole or in part, the claimant shall be entitled
to be paid also the expenses of prosecuting such claim. It shall be a defense to
any such action that such indemnification or advancement of costs of defense are
not permitted under the Texas Business Corporation Act or other applicable law,
but the burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its Board of Directors or any committee
thereof, special legal counsel, or shareholders) to have made its determination
prior to the commencement of such action that indemnification of, or advancement
of costs of defense to, the claimant is permissible in the circumstances nor an
actual determination by the corporation (including its Board of Directors or any
committee thereof, special legal counsel, or shareholders) that such
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible.
8.03 Additional Indemnification. The corporation may additionally indemnify
any person covered by the grant of mandatory indemnification contained above to
such further extent as is permitted by law and may indemnify any other person to
the fullest extent permitted by law.
8.04 Definition. As used herein, the term "proceeding" means any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative, any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that could lead to
such an action, suit, or proceeding.
ARTICLE IX
CERTIFICATES FOR SAARES
9.01 Certificates Representing Shares. The corporation shall deliver
certificates representing shares to which shareholders are entitled. Such
certificates shall be numbered and shall be entered in the books of the
corporation as they are issued, and shall be signed by the President or any Vice
President and the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof. The signatures of such officers upon a
certificate may be facsimiles. 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. Each certificate representing shares issued by the corporation shall
conspicuously set forth such provisions as are required by applicable law. Each
certificate representing shares shall state upon the face thereof that the
corporation is organized under the laws of the State of Texas, the name of the
person to whom issued, the number and class of shares and the designation of the
series, if any, that such certificate represents and the par value of each share
represented by such certificate or a statement that the shares are without par
value. No certificate shall be issued for
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any share until the full amount of the consideration therefor, fixed as provided
by law, has been paid or delivered.
9.02 Restriction on Transfer of Shares. Any restriction on the transfer, or
registration of the transfer, of shares shall be noted conspicuously on each
certificate representing shares that are subject to the restriction in
accordance with applicable law.
9.03 Voting and Shareholder Agreements. Any voting or shareholder agreement
shall be noted conspicuously on each certificate representing the shares that
are subject to the agreement in accordance with applicable law.
9.04 Transfer of Shares. Upon surrender to the corporation or the transfer
agent of 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.
9.05 Lost, Stolen or Destroyed Certificates. The Board of Directors, or
such officer or officers of the corporation as the Board of Directors may from
time to time designate, may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed upon the making of
an affidavit of that fact by the person claiming the certificate or certificates
of stock to be lost, stolen, or destroyed. When authorizing the issuance of a
new certificate or certificates, the Board of Directors, or such officer or
officers, in its or his discretion and as a condition precedent to the issuance
thereof, may require the owner of such lost, stolen, or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it or he shall require or to give the corporation a bond in such form, in
such sum, and with such surety or sureties as it or he may direct as indemnity
against any claim that may be made against the corporation on account of the
certificate or certificates alleged to have been lost, stolen, or destroyed or
the issuance of the new certificate or certificates.
9.06 Closing of Transfer Books and 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) (a "Distribution") or a share
dividend, or in order to make a determination of shareholders for any other
proper purpose (other than determining shareholders entitled to consent to
action taken by shareholders that is proposed to be taken without a meeting of
shareholders), the Board of Directors 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 10 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 case of a meeting of shareholders, not less than 10 days, prior to the
date on which the particular action requiring such determination of shareholders
is to be taken. If the share transfer records are not closed and no record date
is fixed for the determination of shareholders entitled to notice of or to vote
at a
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meeting of shareholders, or shareholders entitled to receive a Distribution or a
share dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the Board of Directors declaring such Distribution or
share dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as provided in this Section
9.06, such determination shall apply to any adjournment thereof, except when the
determination has been made through the closing of the share transfer records
and the stated period of closing has expired. Unless a record date shall have
previously been fixed or determined pursuant to this Section 9.06, 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 10 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, the record date
for determining shareholders entitled to consent to action in writing without a
meeting shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is delivered to the corporation as
provided in Section 2.11. If no record date shall have been fixed by the Board
of Directors and prior action of the Board of Directors is required by law, 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.
9.07 Registered Shareholders. The corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, 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
GENERAL PROVISIONS
10.01 Dividends. The Board of Directors from time to time may authorize and
declare, and the corporation may pay, dividends or other distributions on its
outstanding shares in cash, property, or its own shares pursuant to law and
subject to the provisions of the Articles of Incorporation and these Bylaws.
10.02 Reserves. The Board of Directors may by resolution create a reserve
or reserves out of surplus for any proper purpose or purposes, and may abolish
any such reserve in the same manner.
10.03 Negotiable Instruments. All bills, notes, checks, or other
instruments for the payment of money shall be signed or countersigned by such
officer or officers or such other person or persons and in such manner as are
permitted by these Bylaws or in such manner as the Board of Directors from time
to time may designate.
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10.04 Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
10.05 Seal. The corporation may have a corporate seal and, if the Board of
Directors adopts a corporate seal, the corporate seal shall have inscribed
thereon the name of the corporation and may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
10.06 Books and Records. The corporation shall keep books and records of
account and shall keep minutes of the proceedings of the shareholders, the Board
of Directors, and each committee of the 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 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 or series 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.
ARTICLE XI
AMENDMENTS
These Bylaws may be amended or repealed or new Bylaws may be adopted by the
Board of Directors at any regular or special meeting of the Board, unless the
Articles of Incorporation or applicable law reserves the power exclusively to
the shareholders in whole or part or the shareholders in amending, repealing or
adopting a particular bylaw expressly provide that the Board may not amend or
repeal that by law.
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