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EXHIBIT 3.2
BY-LAWS OF
U.S. AUTOMOBILE ACCEPTANCE SNP-IV, INC.
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BY-LAWS
OF
U.S. AUTOMOBILE ACCEPTANCE SNP-IV, INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of U.S. Automobile
Acceptance SNP-IV, Inc. (the "Corporation") may be within or without the State
of Texas, at such place as the board of directors of the Corporation (the
"Board of Directors") by resolution may from time to time determine.
SECTION 2. OTHER OFFICES. The Corporation may also 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 the business of the Corporation
may require.
ARTICLE II
SHAREHOLDERS
SECTION 1. TIME AND PLACE OF REGULAR AND SPECIAL MEETINGS. Meetings of
the Corporation's shareholders, both regular and special, shall be held at such
time and place, within or outside the State of Texas, as may be determined by
resolution of the Board of Directors from time to time.
SECTION 2. ANNUAL MEETINGS. Annual meetings of the Corporation's
shareholders shall be held at such time and place, and on such date during the
month of April of each year, as shall be determined by or in the manner
authorized by the Board of Directors. At each annual meeting, the shareholders
shall elect a Board of Directors and transact such other business as may
properly be brought before the meeting. The date of the annual meeting of the
shareholders may be held on a date different than that specified herein if the
Board of Directors so determines and so states in the notice of the meeting or
in a duly executed waiver thereof.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by statute, the
Articles of Incorporation or these Bylaws, may be called by the Chairman of the
Board, the President, the Board of Directors or the holders of at least ten
percent (10%) of all the shares entitled to vote at the proposed special
meeting, unless the Articles of Incorporation provide for a number of shares
greater than or less than ten percent (10%), but not greater than fifty percent
(50%), in which event special meetings of the shareholders may be called by the
holders of at least the percentage of shares so specified in the Articles of
Incorporation. Only business within the purpose or purposes described in the
notice of special meeting of shareholders may be conducted at the meeting.
SECTION 4. NOTICE. Written or printed notice stating the place, day
and hour of any shareholders meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not
less than ten (10) nor more than sixty (60) days before the date of the
meeting, either personally or by mail, by or at the direction of the President,
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Secretary or the officer or person calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail, postage
prepaid, addressed to the shareholder at the shareholder's address as it
appears on the stock transfer books of the Corporation. Any notice required to
be given to any shareholder under any provision of the statutes, the Articles
of Incorporation or these Bylaws need not be given to the shareholder if: (1)
notice of two (2) consecutive annual meetings and all notices of meetings held
during the period between those annual meetings, if any, or (2) all (but in no
event less than two (2)) payments (if sent by first class mail) of
distributions or interest on securities during a twelve- (12) month period have
been mailed to that person, addressed at his address as shown on the records of
the Corporation, and have been returned undeliverable. Any action or meeting
taken or held without notice to such a person shall have the same force and
effect as if the notice had been duly given and, if the action taken by the
Corporation is reflected in any articles or document filed with the Secretary
of State, those articles or that document may state that notice was duly given
to all persons to whom notice was required to be given. If such a person
delivers to the Corporation a written notice setting forth his then current
address, the requirement that notice be given to that person shall be
reinstated.
SECTION 5. RECORD DATE. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive a distribution by the Corporation
(other than a distribution involving a purchase or redemption by the
Corporation of any of its own shares) or a share dividend, or in order to make
a determination of shareholders for any other proper purpose, 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 shall not be more than
sixty (60) 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 entitled to vote at any meeting of shareholders
has been made as provided in this Section, and such determination shall apply
to any adjournment thereof. The stock transfer book of the Corporation need
not be closed for the purpose of making a determination of shareholders under
this Section. For purposes of determining the shareholders entitled to vote or
to receive a dividend, if the stock transfer books are not closed and no record
date is fixed for the determination of shareholders, the date on which the
notice of the meeting is mailed, or the date on which the resolution declaring
a dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders entitled
to vote at any meeting of shareholders has been made as provided herein, such
determination shall apply to any adjournment thereof, except where the
determination has been made through closing the stock transfer books and the
stated period of closing has expired.
SECTION 6. LIST OF SHAREHOLDERS. The officer or agent of the
Corporation having charge of the stock transfer book of the Corporation shall
make, at least ten (10) days before each meeting of the shareholders, a
complete list of the shareholders entitled to vote at such meeting or any
adjournment thereof, arranged in alphabetical order, with the address of and
the number of voting shares held by each shareholder, which list, for a period
of ten (10) days prior to such meeting, shall be kept on file at the registered
office of the Corporation and shall be subject to inspection by any shareholder
at any time during the usual business hours. Such list shall also be produced
and kept open at the time and place of the meeting and shall be prima facie
evidence as
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to the identity of the shareholders entitled to examine such list or transfer
books or to vote at any meeting of shareholders. Failure to comply with any
requirements of this Section 6 shall not affect the validity of any action
taken at such meeting.
SECTION 7. QUORUM. The holders of a simple majority of the issued and
outstanding shares entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the shareholders for the
transaction of business, except as otherwise provided by the Corporation's
Articles of Incorporation, the Texas Business Corporation Act (herein called
the "Act") or other law. If, however, such quorum shall not be present or
represented at any meeting of the shareholders, the shareholders entitled to
vote, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting when a quorum shall be present or represented, any business may be
transacted that might have been transacted at the meeting as originally
notified. Once a quorum is constituted, the shareholders present or
represented by proxy at a meeting may continue to transact business until
adjournment, notwithstanding the subsequent withdrawal therefrom of such number
of shareholders as to leave less than a quorum.
SECTION 8. VOTING. When a quorum is present at any meeting, the vote
of the holders of a majority of the shares present or represented by proxy at
such meeting and entitled to vote shall decide any question brought before such
meeting and shall be the act of the shareholders' meeting, unless the vote of a
greater number is required by these By-Laws, the Articles of Incorporation, the
Act or other law.
Each shareholder shall, at every meeting of the shareholders, be
entitled to one vote in person or by proxy for each share having voting power
held by such shareholder, except to the extent that the voting rights of the
shares of any class or classes are limited or denied by the Articles of
Incorporation. 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 as and to the extent otherwise provided by statute or by the Articles of
Incorporation. At any meeting of the shareholders, every shareholder having
the right to vote shall be entitled to vote either in person or by proxy
executed in writing by such shareholder or by his duly authorized attorney in
fact. 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 the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest. Proxies coupled with an
interest include the appointment as proxy of: (1) a pledgee; (2) a person who
purchased or agreed to purchase, or owns or holds an option to purchase the
shares; (3) a creditor of the Corporation who extended it credit under terms
requiring the appointment; (4) an employee of the Corporation whose employment
contract requires the appointment; or (5) a party to a voting agreement created
under Section B, Article 2.30 of the Texas Business Corporation Act. Each
proxy shall be filed with the Secretary of the Corporation prior to or at the
time of the meeting.
Shares of its own stock belonging to the Corporation or held by it in
a fiduciary capacity shall not be voted, directly or indirectly, at any
meeting, and shall not be counted in determining the total number of
outstanding shares at any given time.
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SECTION 9. ACTION BY UNANIMOUS CONSENT. Any action required to be
taken at any annual or special meeting of the shareholders of the Corporation
may be taken without a meeting, without prior notice, if a consent in writing,
setting forth the action so taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
SECTION 10. PRESENCE AT MEETINGS BY MEANS OF COMMUNICATIONS EQUIPMENT.
Subject to the provisions of Section 4 of this Article, shareholders may
participate in and hold a meeting of shareholders 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 a
meeting held pursuant to this section shall constitute presence in person at
such meeting, except where a person participates in such 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.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by its Board of Directors, which may exercise all
of the powers of the Corporation and do all such lawful acts and things as are
not by these By-Laws, the Articles of Incorporation, the Act or other law
directed or required to be exercised or done by the shareholders.
SECTION 2. NUMBER OF DIRECTORS. Unless otherwise provided in the
Articles of Incorporation, the number of directors of the Corporation shall be
fixed from time to time by resolution of the Board of Directors, but in no case
shall the number of directors be less than one (1). Until otherwise fixed by
resolution of the Board of Directors, the number of Directors shall be one (1).
No decrease in the number of directors shall have the effects of reducing the
term on any incumbent director. Directors shall be elected at each annual
meeting of the shareholders, except as provided in Section 3 of this Article,
and each director shall hold office until the annual meeting of shareholders
following the director's election or until the earlier of the director's death,
resignation, removal from office or until the director's successor is elected
and qualifies. Directors need not be residents of the State of Texas or
shareholders of the Corporation.
SECTION 3. VACANCIES. Subject to the other provisions of this
Section, any vacancy occurring in the Board of Directors may be filled by the
affirmative vote of a majority of the remaining directors, even though the
remaining directors may constitute less than a quorum of the Board of Directors
as fixed by Section 8 of this Article. A director elected to fill a vacancy
shall be elected for the unexpired term of the predecessor in office. Any
directorship to be filled by reason of an increase in the number of directors
may be so filled by the remaining Directors for a term of office continuing
only until the next election of one or more directors by the shareholders;
provided, however, that the Board of Directors may not fill more than two
vacancies due to an increase in the number of directors during the period
between two successive annual meetings of shareholders. Any vacancy occurring
in the Board of Directors or 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 shareholders called for that purpose. Shareholders
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holding a majority of the issued and outstanding shares entitled to vote may,
at any time, with or without cause, terminate the term of office of all or any
of the directors by a vote at any annual or special meeting called for that
purpose; provided, that if cumulative voting is not denied by the Articles of
Incorporation, if less than the entire Board is to be removed, no one of the
directors may be removed if the votes cast against removal would be sufficient
to elect that director if then cumulatively voted at an election of the entire
Board of Directors. Such removal shall be effective immediately upon such
shareholder action even if a successor is not elected simultaneously.
SECTION 4. ANNUAL MEETINGS. The first meeting of each newly elected
Board of Directors shall be held, without further notice, immediately following
the annual meeting of the shareholders at the same place unless, by unanimous
consent of the directors then elected and serving, such time or place shall be
changed.
SECTION 5. REGULAR AND SPECIAL MEETINGS. The Board of Directors of
the Corporation may hold meetings, both regular and special, either within or
without the State of Texas.
SECTION 6. TIME AND PLACE OF REGULAR MEETINGS. Regular meetings of
the Board of Directors may be held with or without notice at such time and
place as the Board of Directors may from time to time determine by resolution.
SECTION 7. TIME AND PLACE OF SPECIAL MEETINGS. Special meetings of
the Board of Directors may be called by or at the request of the President or
the Secretary and shall be called by the President or Secretary at the written
request of a majority of the incumbent directors. The person or persons
authorized to call special meetings of the Board of Directors may fix the time
and place for holding any special meeting of the Board of Directors so called.
Notice of any special meeting shall be given at least twenty-four (24) hours
previous thereto if given either personally (including written notice delivered
personally or telephone) or by telegram, and at least seventy-two (72) hours
previous thereto if given by written notice mailed to each director at the
address of the director's business or residence. 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. If mailed, the notice shall be deemed to be delivered when deposited
in the United States mail addressed, in the above-specified manner, with
postage thereon prepaid. If notice be given by telegram, notice shall be
deemed to be delivered when delivered to the telegraph company for
transmission. Any director may waive notice of any meeting, as provided in
Article IV, Section 2 of these By-Laws. The attendance of a director at a
meeting 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 because the meeting is not lawfully called or
convened.
SECTION 8. QUORUM AND VOTING. At all meetings of the Board of
Directors, the presence of a simple majority of the number of directors fixed
in the manner provided by Section 2 of this Article shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the
affirmative vote of at least a majority of the directors present at any meeting
at which there is a quorum shall be the act of the Board of Directors, except
as may be otherwise
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specifically provided by these By-Laws, the Articles of Incorporation, the Act
or other law. If a quorum shall not be present at any meeting of directors, a
majority of the directors present thereat may adjourn the meeting, from time to
time without notice other than such announcement at the meeting, until a quorum
shall be present.
SECTION 9. CHAIRMAN OF THE BOARD. The Board of Directors may, by
resolution adopted by a majority of the full Board of Directors, designate one
director as Chairman of the Board, who shall, if available, preside at all
meetings of the Board of Directors and all meetings of the shareholders.
SECTION 10. EXECUTIVE AND OTHER COMMITTEES. Subject to the
restrictions of Texas law, the Board of Directors, by resolution adopted by a
majority of the full Board of Directors, may designate among its members an
Executive Committee and one or more other committees to consist of one or more
directors, one of whom may be designated Chairman and who shall preside at all
meetings of such Committee. Each such Committee to the extent provided in such
resolution or in the Articles of Incorporation or in the By-Laws, shall have
and may exercise all of the authority of the Board of Directors, except that no
such 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, recommending to
the shareholders a voluntary dissolution of the Corporation or a revocation
thereof, amending, altering, or repealing these By-Laws or adopting new By-Laws
for the Corporation, filling vacancies in the Board of Directors or any such
committee, electing or removing officers or members of any such committee,
fixing the compensation of any member of such committee or altering or
repealing any resolution of the Board of Directors that by its terms provides
that it shall not be so amendable or repealable; and, unless such resolution,
the Articles of Incorporation, or these By-Laws expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of shares of the Corporation. All such committees shall
keep regular minutes or records of their proceedings and report the same to the
Board of Directors when requested. The designation of such committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors or any member thereof of any responsibility imposed by law.
SECTION 11. COMPENSATION OF DIRECTORS. Directors, in their capacity
as Directors, shall not receive any salary or compensation for their services,
but, by resolution of the Board of Directors, or pursuant to contract, a fixed
sum for expenses of attendance, if any, may be allowed for attendance at each
annual, regular or special meeting of the Board of Directors. Members of the
Executive Committee and other Special Committees may, by resolution of the
Board of Directors, or pursuant to contract, be allowed like reimbursement for
attending committee meetings. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
SECTION 12. ACTION BY UNANIMOUS CONSENT. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent, setting
forth the action so taken, is signed by all the members of
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the Board of Directors or the committee, as the case may be, and such written
consent shall have the same force and effect as a unanimous vote at such
meeting.
SECTION 13. PRESENCE AT MEETINGS BY MEANS OF COMMUNICATION EQUIPMENT.
Members of the Board of Directors or any committee created by the Board of
Directors may participate in and hold a meeting of the Board or such 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 a meeting held pursuant to this section shall constitute
presence in person at such meeting, except where a director participates in
such 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.
ARTICLE IV
NOTICES
SECTION 1. FORM OF NOTICE. Whenever under the provisions of these
By-Laws, the Articles of Incorporation, the Act or other law, notice is
required to be given to any director, officer, shareholder or other person and
no provision is made as to how such notice shall be given, it shall not be
construed to mean personal notice exclusively, but any such notice may be given
in writing, by registered or certified mail, postage prepaid, return receipt
requested, addressed to such person at such address as appears on the books of
the Corporation. Any notice required or permitted to be given by mail shall be
deemed to be given when deposited in the United States mail as herein
prescribed.
SECTION 2. WAIVER. Whenever any notice is required to be given to any
director, officer, shareholder or other person under the provisions of these
By-Laws, the Articles of Incorporation, the Act or other law, a waiver thereof
in writing signed by the person or persons entitled to such notice, whether
before or after the time stated in such notice, shall be equivalent to the
giving of such notice.
ARTICLE V
OFFICERS
SECTION 1. GENERAL. The elected officers of the Corporation shall be
a President, a Secretary and a Treasurer. The Board of Directors may also
elect or appoint one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers and such other officers and
assistant officers as may be deemed necessary, all of whom shall also be
officers. Any two or more offices may be held by the same person.
SECTION 2. ELECTION. The Board of Directors shall elect the officers
of the Corporation at each annual meeting of the Board of Directors. The Board
of Directors may from time to time elect or appoint such other officers and
agents as it shall deem necessary and shall determine the remuneration of all
officers and agents if any such compensation is awarded. The officers shall
hold office until the earlier of their death, resignation, removal from office
or until their respective successors are chosen and qualify. Officers need not
be members of the Board of
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Directors. Any officer or agent elected or appointed by the Board of Directors
may be removed, with or without cause, at any time by a majority vote of the
entire Board of Directors. Election of appointment of an officer or agent
shall not of itself create contract rights.
SECTION 3. PRESIDENT. The President shall be the chief executive
officer of the Corporation, shall preside at all meetings of the directors or
shareholders, shall have responsibility for the general and active management
of the business of the Corporation, and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President
and such other officers as the Board of Directors may determine shall execute
all contracts requiring a seal and shall execute any mortgages, conveyances or
other legal instruments in the name of and on behalf of the Corporation, but
this provision shall not prohibit the delegation of such powers by the
President to some other agent or attorney-in-fact of the Corporation.
SECTION 4. VICE PRESIDENTS. Each Vice President, if any, shall
generally assist the President in the management of the Corporation and shall
perform the duties and exercise the powers delegated by the President or from
time to time assigned by the Board of Directors. Each Vice President, in the
order of seniority or in any other order determined by the Board of Directors,
shall, in the absence or disability of the President, perform the duties and
exercise the powers of the President.
SECTION 5. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and the shareholders, record all votes and actions there
taken, maintain the minutes or records of all such proceedings in a book to be
kept for that purpose, keep in safe custody the seal of the Corporation and
shall perform like duties for the Executive Committee and any other committees
of the Board of Directors when requested. The Secretary shall give, or cause
to be given, notice of all meetings of the shareholders and special meetings of
the Board of Directors, and shall perform such other duties as may be
prescribed by the Board of Directors and President.
SECTION 6. ASSISTANT SECRETARIES. Any Assistant Secretary shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as may be
prescribed by the Board of Directors and the President.
SECTION 7. TREASURER. The Treasurer shall be the chief financial and
accounting officer of the Corporation and, subject to the direction of the
President and the Board of Directors, shall have custody of all corporate funds
and securities, shall deposit all monies and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
from time to time by the Board of Directors, shall manage the disbursements of
the Corporation's funds in satisfaction of its corporate obligations and in a
manner consistent with its business objectives, taking proper receipts or
vouchers for such disbursements, shall keep full and accurate records and books
of account of all the Corporation's receipts and disbursements, shall render to
the President and/or the Board of Directors upon request an accounting of all
the financial transactions taken on behalf of the Corporation and the financial
condition of the Corporation, shall be responsible for planning and budgeting
the Corporation's receipts,
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disbursements and capital requirements, and shall perform such other duties as
may from time to time be prescribed by the Board of Directors and the
President.
SECTION 8. ASSISTANT TREASURERS. Any Assistant Treasurer shall, in
the absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as may be
prescribed by the Board of Directors and the President.
SECTION 9. BONDING. If required by the Board of Directors, all or
some of the officers, employees or agents of the Corporation shall give the
Corporation a bond in such form, 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 their office or position and for the restoration
to the Corporation, in case of their death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property belonging
to the Corporation of whatever kind in their possession or under their custody
or control.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
SECTION 1. FORM OF CERTIFICATES. The Corporation shall deliver
certificates representing all shares to which shareholders are entitled.
Certificates representing shares of the Corporation shall be in such form as
shall be approved and adopted by the Board of Directors and shall be numbered
consecutively and entered in the books of the Corporation as they are issued.
Each certificate shall state on the face thereof that the Corporation is
organized under the laws of the State of Texas, the corporate name registered
under the laws of the State of Texas, the name of the registered holder, the
number, class of shares, and the designation of the series, if any, which said
certificate represents, the par value of the shares or a statement that the
share are without par value and such other information as required by these
By-Laws, the Articles of Incorporation, the Act or other law. Certificates
shall be signed by the President or any Vice President and by the Secretary or
any Assistant Secretary, and may be sealed with the seal of the Corporation or
a facsimile thereof. If any certificate is countersigned by a transfer agent
or registered by a registrar, either of which is other than the Corporation or
an employee of the Corporation, the signatures of the Corporation's officers
may be facsimiles. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on such certificate or
certificates, shall cease to be such officer or officers of the Corporation
before such certificate or certificates have been delivered by the Corporation
or its agents, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed the certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the Corporation.
SECTION 2. LOST CERTIFICATES. The Corporation may direct that a new
certificate be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost or
destroyed. When authorizing the issue of a new certificate, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of the lost or destroyed certificate, or the
owner's legal representative, to advertise the same in such manner
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as it shall require and/or give the Corporation a bond in such form, in such
sum, and with such surety or sureties as it may direct, as indemnity against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
SECTION 3. TRANSFER OF SHARES. Shares of stock shall be transferable
only on the books of the Corporation by the holder thereof in person or by his
duly authorized attorney. Subject to compliance with any restrictions on
transfer conspicuously noted on any certificate, upon surrender to the
Corporation or to the transfer agent of the Corporation of a certificate
representing shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation or the transfer agent of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate, and record the
transaction upon its books.
SECTION 4. REGISTERED SHAREHOLDERS. The Corporation shall be entitled
to recognize the holder of record of any share or share 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.
SECTION 5. UNCERTIFICATED SHARES. Notwithstanding any other provision
of this Article, the Board of Directors may by resolution provide that some or
all of any or all classes and series of shares of the Corporation shall be
uncertificated shares; provided, that such resolution shall not apply to shares
already represented by a certificate until such certificate is surrendered to
the Corporation. After the issuance or transfer of uncertificated shares, the
Corporation shall send to the registered owner of such uncertificated shares a
written notice containing the information required to be set forth or stated on
certificates pursuant to these By-Laws, the Articles of Incorporation, the Act,
the Texas Business and Commerce Code or other law. Except as otherwise
expressly provided by law, the rights and obligations of the holders of
uncertificated shares and the rights and obligations of the holders of
certificates representing shares of the same class and series shall be
identical.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
1. INDEMNIFICATION OF DIRECTORS. The Corporation shall indemnify
a person who was, is, or is threatened to be made, a named defendant or
respondent in a proceeding because the person is or was a director against any
judgments, penalties (including excise and similar taxes), fines, settlements
and reasonable expenses actually incurred by the person in connection with the
proceeding if it is determined, in the manner described below, that the person
(a) conducted himself in good faith, (b) reasonably believed, in the case of
conduct in his official capacity as a director of the Corporation, that his
conduct was in the Corporation's best interests, and in all other cases, that
his conduct was at least not opposed to the Corporation's best interests and
(c) in the case of any criminal proceeding, had no reasonable cause to believe
his conduct was unlawful; provided that if the person is found liable to the
Corporation or is found liable on the basis that personal benefit was
improperly received by the person, the indemnification (i) shall be
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limited to reasonable expenses actually incurred by the person in connection
with the proceeding and (ii) shall not be made in respect of any proceeding in
which the person shall have been found liable for willful or intentional
misconduct in the performance of his duty to the Corporation.
The determinations required above that the person has satisfied the
prescribed conduct and belief standards must be made (1) by a majority vote of
a quorum consisting of directors who at the time of the vote are not named
defendants or respondents in the proceeding, (2) if such a quorum cannot be
obtained, by a majority vote of a committee of the Board of Directors,
designated to act in the matter by a majority vote of all directors, consisting
solely of two (2) or more directors who at the time of the vote are not named
defendants or respondents in the proceeding, (3) by special legal counsel
selected by the Board of Directors or a committee of the Board by vote as set
forth in clause (1) or (2) of this sentence, or, if such a quorum cannot be
obtained and such a committee cannot be established, by a majority vote of all
directors, or (4) the shareholders in a vote that excludes the shares held by
directors who are named defendants or respondents in the proceeding. The
determination as to reasonableness of expenses must be made in the same manner
as the determination that the person has satisfied the prescribed conduct and
belief standards, except that if the determination that the person has
satisfied the prescribed conduct and belief standards is made by special legal
counsel, the determination as to reasonableness of expenses must be made by the
Board of Directors or a committee of the Board by vote as set forth in clause
(1) or (2) of the immediately preceding sentence or, if such a quorum cannot be
obtained and such a committee cannot be established, by a majority vote of all
directors.
The termination of a proceeding by judgment, order, settlement or
conviction, or on a plea of nolo contendere or its equivalent is not of itself
determinative that the person did not meet the requirements for indemnification
set forth above. A person shall be deemed to have been found liable in
respect of any claim, issue or matter only after the person shall have been so
adjudged by a court of competent jurisdiction after exhaustion of all appeals
therefrom.
Notwithstanding any other provision of these Bylaws, the Corporation
shall pay or reimburse expenses incurred by a director in connection with his
appearance as a witness or other participation in a proceeding at a time when
he is not a named defendant or respondent in the proceeding.
2. ADVANCEMENT OF EXPENSES TO DIRECTORS. Reasonable expenses
incurred by a director who was, is, or is threatened to be made, a named
defendant or respondent in a proceeding shall be paid or reimbursed by the
Corporation, in advance of the final disposition of the proceeding and without
any of the determinations specified in Section 1 of this Article, after the
Corporation receives a written affirmation by the director of his good faith
belief that he has met the standard of conduct necessary for indemnification
under Section 1 of this Article and a written undertaking by or on behalf of
such director to repay the amount paid or reimbursed if it is ultimately
determined that he has not met those requirements. The written undertaking
described in the immediately preceding sentence to repay the amount paid or
reimbursed to the director by the Corporation must be an unlimited general
obligation of the director but need not be secured and it may be accepted
without reference to financial ability to make repayment.
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3. OFFICERS. The Corporation shall indemnify and advance
expenses to an officer of the Corporation to the same extent that it is
required to indemnify and advance expenses to directors under these Bylaws or
by statute. In addition, the Corporation may indemnify and advance expenses to
an officer of the Corporation to such further extent, consistent with law, as
may be provided by the Articles of Incorporation, these Bylaws, general or
specific action of the Board of Directors, or contract or as permitted or
required by common law.
4. OTHERS. The Corporation may indemnify and advance expenses to
an employee or agent of the Corporation to the same extent that it is required
to indemnify and advance expenses to directors under these Bylaws or by
statute. The Corporation may indemnify and advance expenses to persons who are
not or were not officers, employees or agents of the Corporation but who are or
were serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another corporation for profit subject to the provisions of the Texas Business
Corporation Act, corporation for profit organized under laws other than the
laws of Texas, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise to the same extent that it is required to
indemnify and advance expenses to directors under this Article or by statute.
The Corporation may indemnify and advance expenses to an employee, agent or
other person serving at the request of the Corporation (as described above in
this Section 4) who is not a director to such further extent, consistent with
law, as may be provided by the Articles of Incorporation, these Bylaws, general
or specific action of the Board of Directors, or contract or as permitted or
required by common law.
5. INSURANCE AND OTHER ARRANGEMENT. The Corporation may purchase
and maintain insurance or establish and maintain another arrangement on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation or who 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 corporation for profit subject to the provisions
of the Texas Business Corporation Act, corporation for profit organized under
laws other then the laws of Texas, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, against or in
respect of any liability asserted against him and incurred by him in such a
capacity or arising out of his status as such a person, whether or not the
Corporation would have the power to indemnify him against that liability under
these Bylaws or by statute. If the insurance or other arrangement is with a
person or entity that is not regularly engaged in the business of providing
insurance coverage, the insurance or arrangement may provide for payment of a
liability with respect to which the Corporation would not have the power to
indemnify the person only if including coverage for the additional liability
has been approved by the shareholders of the Corporation.
Without limiting the power of the Corporation to purchase, procure,
establish or maintain any kind of insurance or other arrangement, the
Corporation may, for the benefit of persons indemnified by the Corporation, (1)
create a trust fund; (2) establish any form of self-insurance; (3) secure its
indemnity obligation by grant of a security interest or other lien on the
assets of the Corporation; or (4) establish a letter of credit, guaranty or
surety arrangement. The insurance or
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other arrangement may be purchased, procured, maintained or established within
the Corporation or with any insurer or other person deemed appropriate by the
Board of Directors regardless of whether all or part of the stock or other
securities of the insurer or other person are owned in whole or part by the
Corporation. In the absence of fraud, the judgment of the Board of Directors
as to the terms and conditions of the insurance or other arrangement and the
identity of the insurer or other person participating in an arrangement shall
be conclusive and the insurance or arrangement shall not be voidable and shall
not subject the directors approving the insurance or arrangement to liability,
on any ground, regardless of whether directors participating in the approval
are beneficiaries of the insurance or arrangement.
6. REPORT TO SHAREHOLDERS. Any indemnification of or advance of
expenses to a director in accordance with this Article or the provisions of any
statute shall be reported in writing to the shareholders with or before the
notice or waiver of notice of the next shareholders' meeting or with or before
the next submission to shareholders of a consent to action without a meeting
and, in any case, within the 12-month period immediately following the date of
the indemnification or advance.
7. ENTITLEMENT. These indemnification provisions shall inure to
each of the directors, officers, employees and agents of the Corporation, and
other persons serving at the request of the Corporation (as provided in this
Article), whether or not the claim asserted against him is based on matters
that antedate the adoption of this Article, and in the event of his death shall
extend to his legal representatives; but such rights shall not be exclusive of
any other rights to which he may be entitled.
8. DEFINITIONS. For purposes of this Article:
(a) The term "expenses" includes court costs and attorneys' fees;
(b) 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;
(c) The term "director" means any person who is or was a director
of the Corporation and any person who, while a director 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 corporation for profit subject to the provisions of the Act.
(d) The term "corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger, consolidation, or other
transaction in which the liabilities of the predecessor are transferred to the
Corporation by operation of law and in any other transaction in which the
Corporation by operation of law and in any other transaction in which the
Corporation assumes the liabilities of the predecessor but does not
specifically exclude liabilities that are the subject matter of this article.
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(e) The term "official capacity means (a) when used with respect to
a director, the office of director in the Corporation, and (b) when used with
respect to a person other than a director, the elective or appointive office in
the Corporation held by the officer or the employment or agency relationship
undertaken by the employee or agent in behalf of the Corporation but (c) in
both Paragraphs (a) and (b) does not include service for any other foreign or
domestic corporation or any partnership, joint venture, sole proprietorship,
trust, employee benefit plan, or other enterprise.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the outstanding shares of the
Corporation, subject to the provisions of these By-Laws, the Articles of
Incorporation, the Act or other law and any agreements or obligations of the
Corporation, if any, may be declared by the Board of Directors at any regular
or special meeting. Dividends may be declared and paid in cash, in property,
or in shares of the Corporation, provided that all such declarations and
payments of dividends shall be in strict compliance with all applicable laws,
these By-Laws and the Articles of Incorporation. The Board of Directors, or a
committee thereof, may fix in advance a record date for the purposes of
determining shareholders entitled to receive payment of any dividend, such
record date to be not more than fifty (50) days prior to the payment date of
such dividend. In the absence of any action by the Board of Directors, or a
committee thereof, the date upon which the Board of Directors, or a committee
thereof, adopts the resolution declaring such dividend shall be the record
date.
SECTION 2. RESERVES. There may be created by resolution of the Board
of Directors out of the earned surplus of the Corporation such reserve or
reserves as the Board of Directors from time to time, in its discretion, deems
proper to provide for contingencies, or to equalize dividends, or to repair or
maintain any property of the Corporation, or for such other proper purpose as
the Board of Directors shall deem beneficial to the Corporation, and the Board
of Directors may modify or abolish any reserve in the same manner in which it
was created.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed from time to time by resolution of the Board of Directors, but unless
otherwise fixed by the Board of Directors, it shall begin on January 1 and end
on December 31 of each calendar year.
SECTION 4. SEAL. The Corporation may have a seal that may be used by
causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced. Any officer of the Corporation shall have authority to affix the
seal to any document requiring it.
SECTION 5. RESIGNATION. Any director, officer, or employee or agent
of the Corporation may resign by giving written notice to the Board of
Directors, the President or the Secretary. The resignation shall take effect
at the time specified therein, or immediately upon delivery if no time is
specified therein. Unless specified in such notice, the acceptance of such
resignation shall not be necessary to make it effective.
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SECTION 6. REPAYMENT REQUIREMENT. If any payment made to an officer,
employee or agent of the Corporation for salary, commission, bonus, interest,
rent, entertainment reimbursement or otherwise shall be disallowed in whole or
in part by the Internal Revenue Service as an expenses deductible by the
Corporation, the full amount disallowed shall be reimbursed by such officer,
employee or agent to the Corporation. It shall be the duty of the Board of
Directors to enforce repayment of each such amount disallowed. In lieu of
payment by the officer or agent, subject to the determination of the Board of
Directors, proportionate amounts may be withheld from the officer, employee or
agent's future compensation payment or reimbursements until the amount owed to
the Corporation has been recovered. The provisions of this section shall be
deemed part of the contract of employment between the Corporation and each of
its officers, employees and agents.
SECTION 7. GUARANTY OF OBLIGATIONS OF DIRECTORS, AND OFFICERS AND
EMPLOYEES. When determined by the Board of Directors to be in the best
interest of the Corporation, the Corporation may guaranty the obligations of
any director, officer or employee of the Corporation. As used in this Section,
the term "guaranty" means a guaranty, mortgage, pledge, security agreement or
other agreement making the Corporation or its assets responsible respecting the
obligation or obligations of such director, officer, or employee.
SECTION 8. INTERESTED DIRECTORS AND OFFICERS. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between any corporation, partnership, association or other
organization in which one or more of the directors or officers of the
Corporation are directors, officers or partners, or have a financial interest,
shall be void or voidable solely by reason of such relationship, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors of the Corporation or a committee thereof that
authorizes the contract or transaction, or solely because such person's votes
are counted for such purposes, if any one of the following conditions are met:
(A) the material facts as to the relationship or interest of
the director or officer and as to the contract or transaction are
disclosed or are known to the Board of Directors of the Corporation,
or the committee thereof that authorizes the contract or transaction,
and the Board of Directors of the Corporation or committee thereof, in
good faith authorizeS the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(B) the material facts as to the relationship or interest of
the director or officer and as to the contract or transaction are
disclosed or are known to the shareholders of the Corporation entitled
to vote thereon, and the contract or transaction is specifically
approved in good faith by the shareholders of the Corporation at the
annual or special meeting of shareholders called for that purpose; or
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(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 of the Corporation, a committee thereof, or the shareholders
of the Corporation.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or the Corporation
or of a committee thereof that authorizes the contract or transaction.
SECTION 9. MISCELLANEOUS. These By-Laws and any amendments hereto
shall be interpreted and enforced under the laws of the State of Texas. Unless
expressly provided for otherwise in these By-Laws or the Articles of
Incorporation the Corporation, its shareholders, directors, officers, employees
and agents shall be governed by, and exercise the full range of powers
permitted or authorized by then prevailing Texas law, including amendments to
the Act that may be made from time to time. If a court or other administrative
body determines that any provision or clause in these By-Laws or any amendment
hereto is void, illegal, unreasonable or unenforceable, the other provisions
and clauses shall remain in full force and effect, and any provision or clause
so decreed to be void, illegal, unreasonable or unenforceable shall, to the
extent permissible by law, be limited so that it is enforceable and shall
remain in effect to the greatest extent permissible. The headings herein of
articles and sections are inserted for convenience only and shall not be deemed
to constitute a part of these By-Laws. Use of masculine terminology in these
By-Laws shall be construed to include the feminine as well as the neuter, and
unless the context requires otherwise, the singular shall include the plural
and vice versa.
ARTICLE IX
AMENDMENTS TO BY-LAWS
SECTION 1. AMENDMENTS. Unless specifically provided for otherwise
herein, these By-Laws may be altered, amended, modified or repealed, or new
By-Laws may be adopted, at any meeting of the Board of Directors at which a
quorum is present by the affirmative vote of a majority of the directors
present at such meeting.
CERTIFICATE OF ADOPTION
The undersigned, Secretary of the Corporation, hereby certifies that
the foregoing By-Laws were duly adopted by the Board of Directors of the
Corporation effective the 5th day of January, 1998.
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Michael R. Marshall, Secretary
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