1
EXHIBIT 3.1
BYLAWS
OF
SERVICE CORPORATION INTERNATIONAL
SHAREHOLDERS
ARTICLE I
Section 1. Annual Meeting. The annual meeting of shareholders shall be
held on the second Thursday in May of each year at ten o'clock in the morning,
if not a legal holiday, and, if a legal holiday, then on the next succeeding
business day, for the purpose of electing directors. Any business may be
transacted at an annual meeting, except as otherwise provided by law or by these
bylaws. The Board of Directors may alter or postpone the time of holding the
annual meeting of shareholders as they shall deem advisable.
Section 2. Special Meeting. A special meeting of shareholders may be
called at any time by the holders of at least ten percent (10%) of the
outstanding stock entitled to be voted at such meeting, by the Board of
Directors, by the Chairman of the Board or by the President. Only such business
shall be transacted at a special meeting as may be stated or indicated in the
notice of such meeting.
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Section 3. Place. The annual meeting of shareholders may be held at any
place within or without the State of Texas designated by the Board of Directors.
Special meetings of shareholders may be held at any place within or without the
State of Texas designated by the Chairman of the Board, if he shall call the
meeting; by the President, if he shall call the meeting; or the Board of
Directors, if they shall call the meeting. Meetings of shareholders shall be
held at the principal office of the corporation unless another place is
designated for meetings in the manner provided herein.
Section 4. Notice. Written or printed notice stating the place, day and
hour of each meeting of shareholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) nor more than fifty (50) days before the date of the meeting,
either personally or by mail, to each shareholder of record entitled to vote at
such meeting.
Section 5. Quorum. The holders of at least a majority of the
outstanding stock entitled to vote thereat and present in person or by proxy
shall constitute a quorum. Except as otherwise required by law, the articles of
incorporation or these bylaws, the act of a majority of the stock at any meeting
at which a quorum is present shall be the act of the shareholders' meeting.
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The Chairman of the meeting or the holders of a majority of stock present at any
meeting, though less than a quorum, may adjourn the meeting and any business may
be transacted at the adjournment that could be transacted at the original
meeting. No notice of adjournment, other than the announcement at the meeting,
need be given.
Section 6. Proxies. At all meetings of shareholders, a shareholder may
vote either in person or by proxy executed in writing by the shareholder or by
his duly authorized attorney in fact. Such proxies shall be filed with the
Secretary of the corporation before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution unless
otherwise provided in the proxy. Each proxy shall be revocable unless expressly
provided therein to be irrevocable or unless otherwise made irrevocable by law.
Proxies solicited by management shall be for the meetings set forth in the Proxy
Statement or Statements with respect to which the Proxy is being solicited and
any recesses or adjournments thereof, and shall cover only matters referred to
in such Proxy Statement or Statements.
Section 7. Voting of Shares. Each outstanding share entitled to vote
upon a matter submitted to a vote at a meeting of
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shareholders shall be entitled to one vote on such matter, unless otherwise
provided in the articles of incorporation.
Section 8. Officers. The President shall preside at and the Secretary
shall keep records of each meeting of shareholders, and in the absence of either
such officer, his duties shall be performed by some person appointed by the
meeting.
Section 9. List of Shareholders. A complete list of shareholders
entitled to vote at each shareholders' meeting, arranged in alphabetical order,
with the address of and number of shares held by each, shall be prepared by the
Secretary and filed at the registered office of the corporation and subject to
inspection by any shareholder during usual business hours for a period of ten
(10) days prior to such meeting and shall be produced at such meeting and at all
times during such meeting be subject to inspection by any shareholder.
Section 10. Notice of Shareholder Business. Only such business shall be
conducted at shareholder meetings and only such persons shall be eligible to
serve on the Board of Directors as shall have been brought before the meeting or
nominated, as applicable, (a) by or at the direction of the Board of Directors
or (b) by any shareholder of the Corporation who shall be entitled to vote at
such meeting who complies with the notice procedures
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set forth in this Section 10 and who complies with all other requirements
imposed by these Bylaws. For business to be properly brought before a
shareholder meeting by a shareholder, the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice for nominations or other matters to be considered at an
annual meeting must be delivered to, or mailed and received at, the principal
executive offices of the Corporation not more than 120 days and not less than
100 days prior to the first anniversary of the previous year's annual meeting;
provided, however, that if no annual meeting of shareholders was held in the
previous year or if the date of the annual meeting is advanced by more than 30
days prior to, or delayed by more than 60 days after, such anniversary date,
notice by the shareholder to be timely must be so delivered, or mailed and
received, not later than the close of business on the 10th day following the day
on which the date of such meeting has been first publicly disclosed. To be
timely, a shareholder's notice of the nomination of persons for election to the
Board of Directors at a special shareholder meeting at which one or more
directors is to be elected must be delivered to, or mailed and received at, the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which the date of such meeting has
been first publicly disclosed. Notwithstanding anything in this Article 1,
Section 10 of these Bylaws to the contrary, in the event that the number of
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directors to be elected to the Board of Directors is increased and there is no
public disclosure naming all of the nominees for election or reelection to the
Board of Directors or specifying the size of the increased Board of Directors
made by the Corporation at least 130 days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice of nomination shall be
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to, or mailed and received at, the principal
executive offices of the Corporation not later than the close of business on the
10th day following the day on which public disclosure of such increase in the
number of directors to be elected to the Board of Directors is first made by the
Corporation. In no event shall the public announcement of an adjournment of a
shareholder meeting commence a new time period for the giving of timely notice
as described above. A shareholder's notice to the Secretary shall set forth as
to each matter the shareholder proposes to bring before the meeting (a) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (b) the name and address,
as they appear on the Corporation's books, of the shareholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder, (d) any material interest of the
shareholder in such business, and (e) any such further information as shall be
reasonably requested by the
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Corporation. Additionally, a shareholder's notice of the nomination of persons
for election to the Board of Directors shall set forth as to each person whom
the shareholder proposes to nominate for election or reelection to the Board of
Directors (a) all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule
14a-11 thereunder (including such person's written consent to being named as a
nominee and to serving as a director if elected) and (b) any such further
information as shall be reasonably requested by the Corporation. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at a
shareholder meeting except in accordance with the procedures set forth in this
Section 10. The Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting and in accordance with the provisions of these Bylaws, and if he should
so determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section 10, a shareholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section. Nothing in the
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Section shall be deemed to affect any rights of (a) shareholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act or (b) the holders of any series of Preferred Stock
to elect directors under specified circumstances. For purposes of these Bylaws,
"publicly disclosed" or "public disclosure" shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission.
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ARTICLE II
BOARD OF DIRECTORS
Section 1. Number of Term of Office. The business and property of the
corporation shall be managed and controlled by the Board of Directors, and
subject to restrictions imposed by law, by the articles of incorporation, or by
these bylaws, they may exercise all the powers of the corporation.
(a) Number. The Board of Directors shall consist of not less than nine
(9) nor more than fifteen (15) Directors, as so determined from time to time by
resolution of the Board of Directors. Within the above limits, the number of
directors may be increased or decreased (provided that such decrease does not
shorten the term of any incumbent director) from time to time by resolution of
the Board of Directors. Directors need not be shareholders nor residents of
Texas.
(b) Election and Terms. At the 1982 Annual Meeting of Shareholders, the
directors shall be divided into three classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the 1983
Annual Meeting of Shareholders, the term of office of the second class to expire
at the 1984 Annual Meeting of Shareholders and the term of office of
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the third class to expire at the 1985 Annual Meeting of Shareholders; in each
case, the term shall continue until the respective successors are elected and
qualified. At each Annual Meeting of Shareholders following such initial
classification and election, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding Annual Meeting of Shareholders and until their successors have been
elected and qualified.
(c) Vacancies and Increases of Directors. Any vacancy (other than by an
increases in number) in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
may be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors. Any directors so elected by
the Board of Directors to fill a vacancy shall hold office for the unexpired
term of the director whose place he has been elected to fill, even though that
term may extend beyond the next annual meeting of shareholders. In case of any
increase in the number of directors (within the above limits), the additional
directors shall be elected at an annual meeting or at a special meeting of
shareholders called for that purpose.
(d) Removal. Any director, or the entire Board of Directors, may be
removed from office at any time, with or without cause, but only by the
affirmative vote of the holders of at least four-fifths of all of the
outstanding shares of capital stock of
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the corporation entitled to vote on election of directors at a meeting of
shareholders called for that purpose, except that if the Board of Directors, by
an affirmative vote of at least four-fifths of the entire Board of Directors,
recommends removal of a director to the shareholders, such removal may be
effected by the affirmative vote of the holders of at least a majority of the
outstanding shares of capital stock of the corporation entitled to vote on the
election of directors at a meeting of shareholders called for that purpose.
Section 2. Meeting of Directors. The directors may hold their meetings
and may have an office and keep the books of the corporation, except as
otherwise provided by statute, in such place or places in the State of Texas, or
outside the State of Texas, as the Board of Directors may from time to time
determine.
Section 3. First Meeting. Each newly elected Board of Directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as the
annual meeting of the shareholders, and no notice of such meeting shall be
necessary.
Section 4. Election of Officers. At the first regularly scheduled
meeting of the Board of Directors in each year at which
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a quorum shall be present, held next after the commencement of the fiscal year,
the Board of Directors shall proceed to the election of the officers of the
corporation.
Section 5. Regular Meeting. 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
shall be held whenever called by the Chairman of the Board, the President or by
a majority of the directors for the time being in office.
Section 7. Notice. The Secretary shall give notice of each special
meeting in person, or by mail or by telegraph at least two (2) days before the
meeting to each director. The attendance of a director at any meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting for the express purpose of objecting to the transaction of any business
on the grounds that the meeting is not lawfully called or convened. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of notice of
such meeting.
At any meeting at which every director shall be present, even though
without any notice, any business may be transacted.
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Section 8. Quorum. A majority of the directors fixed by these bylaws
shall constitute a quorum for the transaction of business, but if at any meeting
of the Board of Directors there be less than a quorum present, a majority of
those present or any director solely present may adjourn the meeting from time
to time without further notice. The act of a majority of the directors present
at a meeting at which a quorum is in attendance shall be the act of the Board of
Directors, unless the act of a greater number is required by the articles of
incorporation or by these bylaws.
Section 9. Order of Business. At meetings of the Board of Directors,
business shall be transacted in such order as from time to time the Board may
determine.
At all meetings of the Board of Directors, the Chairman of the Board
shall preside, and in the absence of the Chairman then the President, and in the
absence of the President then a chairman shall be chosen by the Board from among
the directors present.
The Secretary of the corporation shall act as secretary of the meetings
of the Board of Directors, but in the absence of the Secretary, the presiding
officer may appoint any person to act as secretary of the meeting.
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Section 10. Compensation. Directors and members of any committee of the
Board of Directors shall be entitled to such reasonable compensation for their
services as directors and members of any such committee as shall be fixed from
time to time by resolution of the Board of Directors, and shall also be entitled
to reimbursement for any reasonable expenses incurred in attending such
meetings. The compensation of directors may be on such basis as is determined in
the resolution of the Board of Directors. Any director receiving compensation
under these provisions shall not be barred from serving the corporation in any
other capacity and receiving reasonable compensation for such other services.
Section 11. Presumption of Assent. A director of the corporation 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 of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
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Section 12. Executive Committee and other Committees.
(a) Designation of Executive Committee. The Board of Directors, by
resolution adopted by a majority of the entire number of directors, from time to
time may designate two or more directors to constitute an Executive Committee.
The designation of such Executive Committee, and the delegation of authority
thereto, shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law. No member of the
Executive Committee shall continue to be a member thereof after he ceases to be
a director of the corporation. The Board of Directors shall have the power at
any time to increase or decrease the number of members of the Executive
Committee, to fill vacancies thereon, to change any member thereof, and to
change the function or terminate the existence thereof.
(b) Powers of the Executive Committee. During intervals between
meetings of the Board of Directors, and subject to such limitations as may be
imposed by resolutions of the Board of Directors, the Executive Committee shall
have any and may exercise all of the powers and authority of the Board of
Directors, including, but without limitation, the power to authorize the
corporate seal to be affixed to any instruments executed on behalf of the
Corporation, and the power to authorize the issuance of shares of the
corporation's capital stock, except that no such
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committee shall have the authority of the Board of Directors in reference to
amending the articles of incorporation, approving a plan of merger or
consolidation, 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. Furthermore, in such
circumstances, the Executive Committee may not recommend to shareholders a
voluntary dissolution of the corporation or a revocation thereof, amend, alter,
or repeal the bylaws of the corporation, or adopt new bylaws for the
corporation, fill vacancies in or remove members of the Board of Directors or
any such committee, elect or remove officers or members of any such committee,
fix the compensation of any member of such committee, or alter or repeal any
resolution of the Board of Directors which by its terms provides that it shall
not be so amendable or repealable. All minutes of the meetings of the Executive
Committee shall be submitted to the next succeeding meeting of Board of
Directors; but failure to submit the same or to receive the approval thereof
shall not invalidate any completed or incomplete action taken by the corporation
upon authorization by the Executive Committee prior to the time at which the
same has been, or was, submitted to the Board of Directors.
(c) Procedure; Meetings; Quorum. Unless designated by the Board of
Directors, the chairman of the Executive Committee shall be chosen by the
Executive Committee, and the Secretary of the
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corporation, if present, shall act as Secretary of the meetings. In the absence
of either, the Executive Committee shall appoint a chairman or secretary, as the
case may be, of the meeting. The Executive Committee shall keep a record of its
acts and proceedings. The Executive Committee shall fix its own rules of
procedure (which need not be written) and shall meet from time to time on call
of the President or any two or more members of the Executive Committee. Notice
of each such meeting, stating the place, day and hour thereof, shall be mailed,
telegraphed or telephoned to each member's business or residential address at
least twenty-four hours before the meeting, but need not state the purpose of
the meeting. Meetings may be held at any place within or without the State of
Texas, specified in the notice of such meeting. Notice of any meeting may be
waived in writing, signed by the member or members entitled to such notice,
whether before or after the time stated therein, and shall be equivalent to the
giving of such notice. Attendance of any members at a meeting shall constitute a
waiver of notice of such meeting. A majority of the Executive Committee shall be
necessary to constitute a quorum for the transaction of any business, and the
act of a majority of the members present at a meeting at which a quorum is
present shall be the act of the Executive Committee. The members of the
Executive Committee shall act only as a Committee, and the individual members
shall have no power as such, but the Executive Committee may vote the members of
the Executive Committee a
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reasonable fee as compensation and remainder of expenses for attendance at
meetings of such Committee.
(d) Other Committees. The Board of Directors may by resolution provide
for such other standing or special committees as it from time to time deems
desirable, and discontinue the same at its pleasure. Each such committee shall
have such powers and perform such duties, not inconsistent with law, as may be
assigned to it by the Board of Directors. If provision be made for any such
committee, the members thereof shall be appointed by the Board of Directors and
shall serve at the pleasure of the Board. Vacancies in such committees shall be
filled by the Board of Directors.
Section 13. Action Without A Meeting.
(a) Any action required or permitted to be taken at a meeting of the
Board of Directors or any committee may be taken without a meeting if a consent
in writing, setting forth the action so taken, is signed by all the members of
the Board of Directors or Committee, as the case may be. Such consent shall have
the same force and effect as a unanimous vote at a meeting, and may be stated as
such in any document or instrument filed with the Secretary of State.
(b) Members of the Board of Directors, or members of any committee
designated by such board, may participate in and hold a meeting of such board or
committee by means of conference telephone or similar communications equipment
by means of which
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all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this Section shall constitute presence in person at
such meeting, except where a person participates in the meeting for the express
purpose of objection to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
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ARTICLE III
OFFICERS
Section 1. Number, Titles and Term of Office. The officers of the
corporation shall be a Chairman of the Board, a Vice Chairman of the Board, a
President, one or more Vice Presidents (including one or more Executive Vice
Presidents and one or more Senior Vice Presidents if deemed appropriate by the
Board of Directors), a Secretary, a Treasurer 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 have been duly elected and qualified or
until his death or until he shall resign or shall have been removed in the
manner hereinafter provided. One person may hold more than one office, except
that the President shall not hold the office of Secretary. None of the officers
need be a director.
Section 2. Removal. Any officer or agent 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
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removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 3. Vacancies. A vacancy in the office of any officer may be
filled by vote of a majority of the directors for the unexpired portion of the
term.
Section 4. Powers and Duties of the Chairman of the Board. The Chairman
of the Board shall be chief executive officer of the corporation and shall
preside at all meetings of the Board of Directors and shall have such other
powers and duties as designated in these bylaws and as from time to time may be
assigned to him by the Board of Directors.
Section 5. Powers and Duties of the Vice Chairman of the Board. The
Vice Chairman of the Board in the absence of the Chairman of the Board shall
preside at all meetings of the Board of Directors and in the absence of both the
Chairman of the Board and the President preside at all meetings of the
shareholders and shall have such other powers and duties as from time to time
may be assigned him by the Board of Directors.
Section 6. Powers and Duties of the President. The President shall be
the chief administrative officer of the corporation and, subject to the Board of
Directors and the
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Chairman of the Board, he shall have general administrative charge, management
and control of the properties and operations of the corporation in the ordinary
course of its business with all such powers with respect to such properties and
operations as may be reasonably incident to such responsibilities; he shall
preside at all meetings of the shareholders and in the absence of both the
Chairman of the Board and the Vice Chairman of the Board at all meetings of the
Board of Directors; he may agree upon and execute all bonds, contracts and all
other obligations in the name of the corporation; and he may sign all
certificates for shares of capital stock of the corporation.
Section 7. Vice Presidents. Each Vice President shall have such powers
and duties as may be assigned to him by the Board of Directors and shall
exercise the powers of the President during that officer's absence or inability
to act. Any action taken by a Vice President in the performance of the duties of
the President shall be conclusive evidence of the absence or inability to act of
the President at the time such action was taken.
Section 8. Treasurer. The Treasurer shall have custody of all the funds
and securities of the corporation which come into his hands. When necessary or
proper, for collection he may, on behalf of the corporation, endorse checks,
notes and other obligations and shall deposit the same to the credit of the
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corporation in such bank or banks or depositories as shall be designated in the
manner prescribed by the Board of Directors, and he may sign all receipts and
vouchers for payments made to the corporation, either alone or jointly with such
other officer as is designated by the Board of Directors. Whenever required by
the Board of Directors, he shall render a statement of his cash account; he
shall enter or cause to be entered regularly in the books of the corporation to
be kept by him for the purpose full and accurate accounts of all moneys received
and paid out on account of the corporation; he shall perform all acts incident
to the position of Treasurer subject to the control of the Board of Directors;
and he shall, if required by the Board of Directors, give such bond for the
faithful discharge of his duties in such form as the Board of Directors may
require.
Section 9. Assistant Treasurer. Each Assistant Treasurer shall have the
usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors. The
Assistant Treasurers shall exercise the powers of the Treasurer during that
officer's absence or inability to act.
Section 10. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors and committees thereof and the minutes of all
meetings of the stockholders, in books
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provided for that purpose. He shall attend to the giving and serving of all
notices; he may sign with the President, in the name of the corporation, all
contracts of the corporation and affix the seal of the corporation thereto; he
may sign with the President all certificates for shares of the capital stock of
the corporation; he 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; and he shall in general perform all duties incident to the office of
Secretary, subject to the control of the Board of Directors.
Section 11. Assistant Secretaries. Each Assistant Secretary shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors or the
Secretary. The Assistant Secretaries shall exercise the powers of the Secretary
during that officer's absence or inability to act.
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ARTICLE IV
INDEMNIFICATION
Section 1. Each director and officer of the Company and any person who
may have served at the request of the Company as a director or officer of
another corporation in which it owns shares or of which it is a creditor shall
be indemnified by the Company against any costs and expenses, including counsel
fees, actually and necessarily incurred in connection with the defense of any
civil, criminal, administrative, or other claim, action, suit, or proceeding,
whether by or in the right of the Company or otherwise, in which he may become
involved or with which he may be threatened by reason of his being or having
been a director or officer of the Company or by reason of his serving or having
served at the request of the Company as a director or officer of another
corporation as aforesaid, provided that, in connection with such matter, the
said director or officer acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal action or proceedings, had no reasonable cause to
believe his conduct was unlawful. Costs and expenses indemnified shall include
payments in settlement or in satisfaction of any judgment, fine or penalty.
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The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or equivalent shall
not, of itself, create a presumption that the director, officer, or
representative did not act in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Company, or with respect to
any criminal action or proceeding that he had reasonable cause to believe his
conduct was unlawful.
Section 2. Any indemnification provided for herein, unless ordered by a
court, shall be made by the Company only as authorized in the specific case upon
a determination that indemnification of the director or officer is proper in the
circumstances because he had met the applicable standard of conduct set forth in
Section 1 hereof. Such determination shall be made (a) 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 (b) if such quorum is not obtainable, or,
even if obtainable, and a quorum of disinterested directors so directs, by
independent legal counsel (who may be of counsel to the corporation) in a
written opinion, or (c) by the shareholders.
Section 3. It is specifically intended to provide indemnification with
regard to acts or omissions on the part of
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directors or officers which may be or are adjudged to constitute negligence,
misrepresentations, slander, libel, misconduct, or other breach of duty, but
only to the extent that such indemnification may be provided for under law, and
only upon a determination under Section 2 hereof that such conduct was in good
faith and reasonably believed to be in or not opposed to the best interest of
the Company and, with respect to any criminal action or proceeding, that there
was not reasonable cause for belief that the conduct was unlawful.
Section 4. The Company 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 Company, or is or was serving at the request of the Company as a
director, officer, employee, or agent of the Company, or is or was serving at
the request of the Company 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 itself would
have the power to indemnify him against such liability under law.
Section 5. To the extent permitted by law, expenses incurred in
connection with a civil, criminal, administrative or investigative action, suit
or proceeding, or threat thereof, may
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be paid by the corporation in advance of the final disposition of such action,
suit or proceeding as authorized in the manner provided in Section 2 of this
Article, upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this Article.
Section 6. Should any of the indemnification rights provided for herein
be declared invalid, such declaration shall not invalidate the indemnification
provisions generally, and such of the indemnification rights provided for herein
as are permissible under law shall remain effective.
Section 7. The foregoing right of indemnification shall not be deemed
exclusive of any other rights to which any director, officer, or representative
may be entitled under any other bylaw, agreement, or vote of shareholders or
disinterested directors, as a matter of law 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, or representative and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
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Section 8.
(a) In addition, and not in lieu of, any indemnity provided under the
preceding sections of this Article IV, the Company shall indemnify each
director, officer or employee and each former director, officer or employee of
the Company against any costs and expenses, including counsel fees, actually and
necessarily incurred in connection with the defense of any civil, criminal,
administrative or other claim, action, suit or proceeding, whether by or in the
right of the Company or otherwise, in which he may become involved or with which
he may be threatened with regard to any error or omission or breach of duty
committed or alleged to have been committed in the discharge of his fiduciary
duties, obligations or responsibilities with respect to any employee pension,
deferred compensation, welfare benefit or other benefit plan, including
specifically, but without limitation, plans covered under the Employee
Retirement Income Security Act of 1974 (which plans are herein collectively
called "employee benefit plan"), of the corporation or any other corporation in
which it owns shares of capital stock, or of which it is a creditor (which
entities are herein collectively called the "Company") provided, that in
connection with such matter, the said director, officer or employee acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
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The Company shall be deemed to have requested a director, officer or
employee of the Company to serve an employee benefit plan where the performance
by such person of his duties to the Company also imposes duties on or otherwise
involves services by such person to such employee benefit plan or participants
or beneficiaries thereof; excise taxes assessed on a person with respect to an
employee benefit plan pursuant to said Act of Congress shall be deemed "fines";
and action taken or omitted by such a person with respect to an employee benefit
plan in the performance of such person's duties for a purpose reasonably
believed by such person to be in the interest of the participants and
beneficiaries of the employee benefit plan shall be deemed to be for a purpose
which is not opposed to the best interest of the Company.
Costs and expenses indemnified shall include payments in settlements or
in satisfaction of any judgement, fine or penalty. 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 director, officer, or employee did not act in good faith.
(b) Any indemnification provided for herein, unless ordered by a court,
shall be made by the Company only as authorized in the specific case upon a
determination that indemnification of the director, officer or employee is
proper in the circumstances because he had met the applicable standard of
conduct set forth in
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Section 8 (a) hereof. Such determination shall be made (a) 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 (b) if such quorum is not
obtainable, or even if obtainable, and a quorum of disinterested directors so
directs, by independent legal counsel (who may be of counsel to the corporation)
in a written opinion, or (c) by the shareholders.
(c) It is specifically intended to provide indemnification with regard
to acts or omissions on the part of directors, officers or employees which may
be or are adjudged to constitute negligence, misrepresentations, slander, libel,
misconduct, or other breach of duty, but only to the extent that such
indemnification may be provided for under law, and only upon a determination
under Section 8 (b) hereof that such conduct was in good faith.
(d) The Company 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 Company, or is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise (and "other enterprise" shall in this Section 8 be
deemed to include an employee benefit plan), against any liability asserted
against him and incurred by him in any such capacity or arising out of his
status as such, whether or
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not the corporation itself would have the power to indemnify him against such
liability under law. (e) To the extent permitted by law, expenses incurred in
connection with a civil, criminal, administrative or investigative action, suit
or proceeding, or threat thereof, may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding as authorized in the
manner provided in Section 8 (b) hereof, upon receipt of an undertaking by or on
behalf of the director, officer or employee to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Article.
(f) Should any of the indemnification rights provided for herein be
declared invalid, such declaration shall not invalidate the indemnification
provisions generally, and such of the indemnification rights provided for herein
as are permissible under law shall remain effective.
(g) The foregoing right of indemnification shall not be deemed
exclusive of any other rights to which any director, officer, employee or
representative may be entitled under any other bylaw, agreement, or vote of
shareholders or disinterested directors, as a matter of law or otherwise, both
as to action in his official capacity and as to action in another capacity while
holding such office or performing such of his duties and shall continue as to a
person who has ceased to be a director, officer,
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employee or representative and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
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ARTICLE V
CAPITAL STOCK
Section 1. Certificates of Shares. The certificates for shares of the
capital stock of the corporation shall be in such form as shall be approved by
the Board of Directors. The certificates shall be signed by the President or a
Vice President, and also by the Secretary or an Assistant Secretary or by the
Treasurer or an Assistant Treasurer and may be sealed with the seal of this
corporation or a facsimile thereof. Where any such certificate is countersigned
by a transfer agent, or registered by a registrar, either of which is other than
the corporation itself or an employee of the corporation, the signatures of any
such President or Vice President and Secretary or Assistant Secretary may be
facsimiles. They 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 the 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.
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Section 3. Closing of Transfer Books. 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 payment of any dividend, or in
order to make a determination of shareholders for any other proper purpose, the
Board of Directors of the corporation may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any case, fifty (50)
days. If stock transfer books shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at least ten (10) days immediately preceding such
meeting. In lieu of closing the stock transfer books 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 fifty (50) days and, in
case of a meeting of shareholders, not less than ten (10) days prior to the date
on which the particular action requiring such determination of shareholders is
to be taken. If the stock transfer books 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 stockholders entitled to receive payment of a
dividend, the date on which the notice of the meeting is mailed or the date on
which the resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination of
shareholders.
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Section 4. Regulations. The Board of Directors shall have power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of the capital stock of the corporation.
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ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 1. Offices. Until the Board of Directors otherwise determines,
the registered office of the corporation required by the Texas Business
Corporation Act to be maintained in the State of Texas shall be the principal
place of business of the corporation, but such registered office may be changed
from time to time by the Board of Directors in the manner provided by law and
need not be identical to the principal place of business of the corporation.
Section 2. Fiscal Year. The fiscal year of the corporation shall be
such as the Board of Directors shall, by resolution, establish.
Section 3. Seal. The seal of the corporation shall be such as from time
to time may be approved by the Board of Directors.
Section 4. Notice and Waiver of Notice. Whenever any notice whatever is
required to be given under the provisions of these bylaws, said notice shall be
deemed to be sufficient if given by depositing the same in a post office box in
a sealed postpaid wrapper addressed to the person entitled thereto at his post
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office address, as it appears on the books of the corporation, and such notice
shall be deemed to have been given on the day of such mailing. A waiver of
notice, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent thereto.
Section 5. Resignations. Any director or officer may resign at any
time. Such resignations shall be made in writing and shall take effect at the
time specified therein, or, if not time be specified, at the time of its receipt
by the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
Section 6. Securities of Other Corporation. The Chairman of the Board,
the President or any Vice President of the corporation shall have power and
authority to transfer, endorse for transfer, vote, consent or take any other
action with respect to any securities of another issuer which may be held or
owned by the corporation and to make, execute and deliver any waiver, proxy or
consent with respect to any such securities.
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ARTICLE VII
AMENDMENTS
Except as set forth below, bylaws may be altered, amended or repealed,
or new bylaws may be adopted, by the affirmative vote of the holders of a
majority of the outstanding shares of capital stock entitled to vote thereon at
any annual meeting, or at any special meeting if notice of the proposed
amendment is contained in the notice of said special meeting, or by the
affirmative vote of a majority of the full Board of Directors at any regular or
special meeting, provided notice of said proposed amendment is contained in the
notice of the meeting.
Notwithstanding the provisions of the preceding paragraph, the
affirmative vote of the holders of at least four-fifths of the outstanding
shares of capital stock of the Corporation entitled to vote thereon at a meeting
called for that purpose shall be required to amend or repeal, or to adopt any
provisions inconsistent with, Section 1, Article II or Article VII of the
corporation's Bylaws.
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