Exhibit 3.2
BYLAWS
OF
MAXXIM MEDICAL, INC.
A Texas Corporation
(Amended and Restated as of November 9, 2001)
TABLE OF CONTENTS
TO
BYLAWS
OF
MAXXIM MEDICAL, INC.
A Texas Corporation
ARTICLE I REGISTERED OFFICE................................................ 1
ARTICLE II SHAREHOLDERS.................................................... 1
Section 1. Place of Meetings........................................ 1
Section 2. Quorum; Required Vote for Shareholder Action;
Adjournment of Meetings................................... 1
Section 3. Annual Meetings.......................................... 2
Section 4. Special Meetings......................................... 2
Section 5. Closing Share Transfer Records; Record Date.............. 2
Section 6. Notice of Meetings....................................... 3
Section 7. Voting List.............................................. 3
Section 8. Proxies.................................................. 4
Section 9. Voting; Inspectors; Elections............................ 5
Section 10. Conduct of Meetings...................................... 5
Section 11. Treasury Shares.......................................... 6
Section 12. Action by Written Consent or Telephone Conference........ 6
Section 13. Fixing Record Dates for Consents to Action............... 7
ARTICLE III BOARD OF DIRECTORS............................................. 7
Section 1. Power; Number; Term of Office............................ 7
Section 2. Quorum; Required Vote for Director Action................ 8
Section 3. Meetings; Order of Business.............................. 8
Section 4. First Meeting............................................ 8
Section 5. Regular Meetings......................................... 8
Section 6. Special Meetings......................................... 8
Section 7. Removal.................................................. 8
Section 8. Vacancies; Increases in the Number of Directors.......... 9
Section 9. Compensation............................................. 9
Section 10. Presumption of Assent.................................... 9
Section 11. Approval or Ratification of Acts or Contracts by
Shareholders.................................................... 9
Section 12. Action by Written Consent or Telephone Conference........ 9
ARTICLE IV COMMITTEES...................................................... 10
Section 1. Designation; Powers...................................... 10
Section 2. Procedure; Meetings; Quorum.............................. 11
Section 3. Dissolution.............................................. 11
ARTICLE V OFFICERS......................................................... 12
Section 1. Number, Titles and Term of Office........................ 12
Section 2. Salaries................................................. 12
Section 3. Removal.................................................. 12
Section 4. Vacancies................................................ 12
Section 5. Powers and Duties of the Chief Executive Officer......... 12
Section 6. Powers and Duties of the Chairman of the Board........... 12
Section 7. Powers and Duties of the President....................... 12
Section 8. Vice Presidents.......................................... 13
Section 9. Treasurer................................................ 13
Section 10. Assistant Treasurers..................................... 13
Section 11. Secretary................................................ 13
Section 12. Assistant Secretaries.................................... 14
Section 13. Action With Respect to Securities of Other Corporations.. 14
ARTICLE VI INDEMNIFICATION OF DIRECTORS,OFFICERS, EMPLOYEES AND AGENTS..... 14
Section 1. Right to Indemnification................................. 14
Section 2. Advance Payment.......................................... 14
Section 3. Indemnification of Employees and Agents.................. 15
Section 4. Appearance as a Witness.................................. 15
Section 5. Nonexclusivity of Rights................................. 15
Section 6. Insurance................................................ 15
Section 7. Shareholder Notification................................. 15
Section 8. Savings Clause........................................... 16
ARTICLE VII CAPITAL STOCK.................................................. 16
Section 1. Certificates of Stock.................................... 16
Section 2. Transfer of Shares....................................... 16
Section 3. Ownership of Shares...................................... 17
Section 4. Regulations Regarding Certificates....................... 17
Section 5. Lost, Stolen, Destroyed or Mutilated Certificates........ 17
ARTICLE VIII MISCELLANEOUS PROVISIONS...................................... 17
Section 1. Fiscal Year.............................................. 17
Section 2. Corporate Seal........................................... 17
Section 3. Notice and Waiver of Notice.............................. 18
Section 4. Resignations............................................. 18
Section 5. Facsimile Signatures..................................... 18
Section 6. Books and Records........................................ 18
ARTICLE IX AMENDMENTS...................................................... 19
BYLAWS
OF
MAXXIM MEDICAL, INC.
A Texas Corporation
ARTICLE I
REGISTERED OFFICE
The registered office of the Corporation required by the Texas Business
Corporation Act (the "TBCA") to be maintained in the State of Texas shall be the
registered office named in the original Articles of Incorporation of the
Corporation or such other office (which need not be a place of business of the
Corporation) as may be designated from time to time by the Board of Directors in
the manner provided by law.
ARTICLE II
SHAREHOLDERS
Section 1. Place of Meetings. All meetings of the shareholders shall be
held at the principal place of business of the Corporation or at such other
place within or without the State of Texas as shall be specified or fixed in the
notices or waivers of notice thereof; provided that any or all shareholders may
participate in any such meeting by means of conference telephone or similar
communications equipment pursuant to Article II, Section 12 of these bylaws.
Section 2. Quorum; Required Vote for Shareholder Action; Adjournment of
Meetings. (a) Quorum. A quorum shall be present at a meeting of shareholders if
the holders of a majority of the shares entitled to vote are represented at the
meeting in person or by proxy, unless otherwise provided in the Articles of
Incorporation in accordance with the TBCA.
(b) Voting on Matters Other Than the Election of Directors. With respect
to any matter, other than the election of directors or a matter for which the
affirmative vote of the holders of a specified portion of the shares entitled to
vote is required by the TBCA, the affirmative vote of the holders of a majority
of the shares entitled to vote on that matter and represented in person or by
proxy at a meeting of shareholders at which a quorum is present shall be the act
of the shareholders, unless otherwise provided in the Articles of Incorporation
or these bylaws in accordance with the TBCA.
(c) Voting in the Election of Directors. Unless otherwise provided in the
Articles of Incorporation or these bylaws in accordance with the TBCA, directors
shall be elected by a plurality of the votes cast by the holders of shares
entitled to vote in the election of directors at a meeting of shareholders at
which a quorum is present.
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(d) Adjournment. Notwithstanding the other provisions of the Articles of
Incorporation or these bylaws, the chairman of the meeting or the holders of a
majority of the shares entitled to vote that are represented in person or by
proxy at any meeting of shareholders, whether or not a quorum is present, shall
have the power to adjourn such meeting from time to time, without any notice
other than announcement at the meeting of the time and place of the holding of
the adjourned meeting. If such meeting is adjourned by the shareholders, such
time and place shall be determined by a vote of the holders of a majority of the
shares entitled to vote that are represented in person or by proxy at such
meeting. Upon the resumption of such adjourned meeting, any business may be
transacted that might have been transacted at the meeting as originally called.
Section 3. Annual Meetings. An annual meeting of the shareholders, for the
election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, within or without the State of Texas, on such date
and at such time as the Board of Directors shall fix and set forth in the notice
of the meeting, which date shall be within 13 months subsequent to the date of
incorporation or the last annual meeting of shareholders, whichever most
recently occurred.
Section 4. Special Meetings. Unless otherwise provided in the Articles of
Incorporation, special meetings of the shareholders for any proper purpose or
purposes may be called at any time by (a) the Chairman of the Board (if any),
the President, the Board of Directors, or such other person or persons as may be
authorized in the Articles of Incorporation or (b) unless the Articles of
Incorporation provide otherwise, the holders of at least ten percent of all the
shares entitled to vote at the proposed special meeting.
If not otherwise stated in or fixed in accordance with the remaining
provisions hereof, the record date for determining shareholders entitled to call
a special meeting is the date any shareholder first signs the notice of that
meeting.
Only business within the purpose or purposes described in the notice (or
waiver thereof) required by these bylaws may be conducted at a special meeting
of the shareholders.
Section 5. Closing Share Transfer Records; Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive a distribution
by the Corporation (other than a distribution involving a purchase or redemption
by the Corporation of any of its own shares) or a share dividend, or in order to
make a determination of shareholders for any other purpose (other than
determining shareholders entitled to consent to action by shareholders proposed
to be taken without a meeting of shareholders), the Board of Directors of the
Corporation may provide that the share transfer records shall be closed for a
stated period but not to exceed, in any case, 60 days. If the share transfer
records shall be closed for the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders, such records shall be closed
for at least ten days immediately preceding such meeting.
In lieu of closing the share transfer records, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be
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not more than 60 days and, in the case of a meeting of shareholders, not less
than ten days, prior to the date on which the particular action requiring such
determination of shareholders is to be taken.
If the share transfer records are not closed and no record date is fixed
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive a distribution
(other than a distribution involving a purchase or redemption by the Corporation
of any of its own shares) or a share dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such distribution or share dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided herein, such determination shall also
apply to any adjournment thereof except where the determination has been made
through the closing of share transfer records and the stated period of closing
has expired.
Section 6. Notice of Meetings. Written or printed notice stating the
place, day and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than 60 days before the date of the meeting, either personally
or by mail, by or at the direction of the President, the Secretary or the
officer or person calling the meeting, to each shareholder entitled to vote at
such meeting. If mailed, any such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at his address
as it appears on the share transfer records of the Corporation, with postage
thereon prepaid.
Any notice required to be given to any shareholder, under any provision of
the TBCA or the Articles of Incorporation or these bylaws need not be given to
the shareholder if (a) notice of two consecutive annual meetings and all notices
of meetings held during the period between those annual meetings, if any, or (b)
all (but in no event less than two) payments of distributions or interest on
securities during a 12-month period have been mailed to that person by
first-class mail, addressed to him at his address as shown on the share transfer
records of the Corporation, and have been returned undeliverable. Any action or
meeting taken or held without notice to such 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 written notice setting forth his then current address, the
requirement that notice be given to that person shall be reinstated.
Section 7. Voting List. The officer or agent having charge of the share
transfer records of the Corporation shall make, at least ten days before each
meeting of shareholders, a complete list of the shareholders entitled to vote at
such meeting or any adjournment thereof, arranged in alphabetical order, with
the address of and the number of shares held by each, which list, for a period
of ten days prior to such meeting, shall be kept on file at the registered
office or principal place of business of the Corporation and shall be subject to
inspection by any shareholder at any
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time during usual business hours. Such list shall also be produced and kept open
at the time and place of the meeting and shall be subject to the inspection of
any shareholder during the whole time of the meeting. The original share
transfer records shall be prima-facie evidence as to who are the shareholders
entitled to examine such list or transfer records or to vote at any meeting of
shareholders. Failure to comply with the requirements of this Section shall not
affect the validity of any action taken at such meeting.
Section 8. Proxies. A shareholder may vote either in person or by proxy
executed in writing by the shareholder. A telegram, telex, cablegram or similar
transmission by the shareholder, or a photographic, photostatic, facsimile or
similar reproduction of a writing executed by the shareholder shall be treated
as an execution in writing for purposes of this Section. Proxies for use at any
meeting of shareholders or in connection with the taking of any action by
written consent shall be filed with the Secretary, or such other officer as the
Board of Directors may from time to time determine by resolution, before or at
the time of the meeting or execution of the written consent, as the case may be.
All proxies shall be received and taken charge of and all ballots shall be
received and canvassed by the secretary of the meeting who shall decide all
questions touching upon the qualification of voters, the validity of the
proxies, and the acceptance or rejection of votes, unless an inspector or
inspectors shall have been appointed by the chairman of the meeting, in which
event such inspector or inspectors shall decide all such questions.
No proxy shall be valid after 11 months from the date of its execution
unless otherwise provided in the proxy. A 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 shall include the
appointment as proxy of any of the persons set forth in the TBCA, including
without limitation:
(a) a pledgee;
(b) a person who purchased or agreed to purchase, or owns or
holds an option to purchase, the shares;
(c) a creditor of the Corporation who extended it credit under
terms requiring the appointment;
(d) an employee of the Corporation whose employment contract
requires the appointment; or
(e) a party to a voting agreement executed under Section B, Article 2.30
of the TBCA.
Should a proxy designate two or more persons to act as proxies, unless
such instrument shall provide to the contrary, a majority of such persons
present at any meeting at which their powers thereunder are to be exercised
shall have and may exercise all the powers of voting or giving consents thereby
conferred, or if only one be present, then such powers may be exercised by that
one; or, if an even number attend and a majority do not agree on any particular
issue, the Corporation shall not be required to recognize such proxy with
respect to such issue if such proxy does not specify how the shares that are the
subject of such proxy are to be voted with respect to such issue.
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Section 9. Voting; Inspectors; Elections. Unless otherwise required by law
or provided in 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. If the Articles of Incorporation provide for more or
less than one vote per share for all the outstanding shares or for the shares of
any class or series on any matter, every reference in these bylaws or in the
Article of Incorporation (unless expressly stated otherwise therein), in
connection with such matter, to a specified portion of such shares shall mean
such portion of the votes entitled to be cast in respect of such shares by
virtue of the provisions of such Articles of Incorporation.
All voting, except as required by the Articles of Incorporation or where
otherwise required by law, may be by a voice vote; provided, however, that a
vote by ballot shall be taken upon demand therefor by shareholders holding
issued and outstanding shares representing a majority of the voting power
present in person or by proxy at any meeting. Every vote by ballot shall be
taken by written ballots, each of which shall state the name of the shareholder
or proxy voting and such other information as may be required under the
procedure established for the meeting.
At any meeting at which a vote is taken by ballots, the chairman of the
meeting may appoint one or more inspectors, each of whom shall subscribe an oath
or affirmation to execute faithfully the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. Such
inspector shall receive the ballots, count the votes and make and sign a
certificate of the result thereof. The chairman of the meeting may appoint any
person to serve as inspector, except no candidate for the office of director
shall be appointed as an inspector.
At each election of directors each shareholder entitled to vote thereat
shall, unless otherwise provided by law or by the Articles of Incorporation,
have the right to vote the number of shares owned by him for as many persons as
there are to be elected and for whose election he has a right to vote. Unless
expressly prohibited by the Articles of Incorporation, a shareholder shall have
the right to cumulate his votes by giving one candidate as many votes as the
number of such directors multiplied by his shares shall equal, or by
distributing such votes on the same principle among any number of such
candidates. Any shareholder who intends to cumulate his votes shall give written
notice of such intention to the Secretary of the Corporation on or before the
day preceding the election at which such shareholder intends to cumulate his
votes.
Section 10. Conduct of Meetings. All meetings of the shareholders shall be
presided over by the chairman of the meeting, who shall be the Chairman of the
Board (if any), or if he is not present, the President, or if neither the
Chairman of the Board (if any) nor President is present, a chairman elected at
the meeting. The Secretary of the Corporation, if present, shall act as
secretary of such meetings, or if he is not present, an Assistant Secretary (if
any) shall so act; if neither the Secretary nor an Assistant Secretary (if any)
is present, then a secretary shall be appointed by the chairman of the meeting.
The chairman of any meeting of shareholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him in order. Unless
the chairman of the meeting shall otherwise determine or otherwise conduct the
meeting, the order of business shall be as follows:
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(a) Calling of meeting to order.
(b) Election of a chairman, and the appointment of a secretary,
if necessary.
(c) Presentation of proof of the due calling of the meeting.
(d) Presentation and examination of proxies and determination
of a quorum.
(e) Reading and settlement of the minutes of the previous
meeting.
(f) Reports of officers and committees.
(g) The election of directors, if an annual meeting or a
meeting called for that purpose.
(h) Other business.
(i) Adjournment.
Section 11. Treasury Shares. Neither the Corporation nor any other person
shall vote, directly or indirectly, at any meeting, shares of the Corporation's
own stock owned by the Corporation, shares of the Corporation's own stock owned
by another corporation the majority of the voting stock of which is owned or
controlled by the Corporation, and shares of the Corporation's own stock held by
the Corporation in a fiduciary capacity; and such shares shall not be counted in
determining the total number of outstanding shares at any given time.
Section 12. Action by Written Consent or Telephone Conference. Any action
required or permitted to be taken at any annual or special meeting of
shareholders may be taken without a meeting, without prior notice, and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holder or holders of (i) all the shares entitled to vote
with respect to the action that is the subject of the consent, or (ii) if
provided in the Articles of Incorporation, shares having not less than the
minimum number of votes that would be required to take such action at a meeting
at which the holders of all shares entitled to vote on such action were present
and voted.
Every written consent shall bear the date of signature of each shareholder
who signs the consent. No written consent shall be effective to take the action
that is the subject to the consent unless, within 60 days after the date of the
earliest dated consent delivered to the Corporation in the manner required by
this Section, a consent or consents signed by the holder or holders of shares
having not less than the minimum number of votes that would be necessary to take
the action that is the subject of the consent are delivered to the Corporation
by delivery to its registered office, its principal place of business, or an
officer or agent of the Corporation having custody of the books in which
proceedings of meetings of shareholders are recorded. Delivery shall be by hand
or certified or registered mail, return receipt requested. Delivery to the
Corporation's principal place of business shall be addressed to the President or
chief executive officer.
A telegram, telex, cablegram or similar transmission by a shareholder, or
a photostatic, facsimile or similar reproduction of a writing signed by a
shareholder, shall be regarded as signed by the shareholder for purposes of this
Section.
Prompt notice of the taking of any action by shareholders without a
meeting by less than unanimous written consent shall be given to those
shareholders who did not consent in writing to the action.
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If any action by shareholders is taken by written consent, any articles or
documents filed with the Secretary of State as a result of the taking of the
action shall state, in lieu of any statement required by the TBCA concerning any
vote of shareholders, that written consent has been given in accordance with the
provisions of the TBCA and that any written notice required by the TBCA has been
given.
Subject to the provisions of the TBCA, the Articles of Incorporation or
these bylaws for notice of meetings, and unless otherwise restricted by the
Articles of Incorporation, shareholders may participate in and hold a meeting by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in such meeting shall constitute attendance and presence in person
at such meeting, except where a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
Section 13. Fixing Record Dates for Consents to Action. Whenever action by
shareholders is proposed to be taken by consent in writing without a meeting of
shareholders, the Board of Directors may fix a record date for the purpose of
determining shareholders entitled to consent to that action, which record date
shall not precede, and shall not be more than ten days after, the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors and the
prior action of the Board of Directors is not required by law, the Articles of
Incorporation or these bylaws, the record date for determining shareholders
entitled to consent to action in writing without a meeting shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its
registered office, its principal place of business, or an officer or agent of
the Corporation having custody of the books in which proceedings of meetings of
shareholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. Delivery to the Corporation's
principal place of business shall be addressed to the President or the chief
executive officer of the Corporation. If no record date shall have been fixed by
the Board of Directors and prior action of the Board of Directors is required by
the TBCA, the Articles of Incorporation or these bylaws, the record date for
determining shareholders entitled to consent to action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts a resolution taking such prior action.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Power; Number; Term of Office. The powers of the Corporation
shall be exercised by or under the authority of, and the business and affairs of
the Corporation shall be managed under the direction of, the Board of Directors.
Unless otherwise provided in the Articles of Incorporation, the number of
directors that shall constitute the entire Board of Directors shall be
determined from time to time by resolution
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of the Board of Directors (provided that no decrease in the number of directors
that would have the effect of shortening the term of an incumbent director may
be made by the Board of Directors). If the Board of Directors makes no such
determination, the number of directors shall be the number set forth in the
Articles of Incorporation as the number of directors constituting the initial
Board of Directors. Each director shall hold office for the term for which he is
elected and thereafter until his successor shall have been elected and
qualified, or until his earlier death, resignation or removal.
Unless otherwise provided in the Articles of Incorporation, directors need
not be shareholders of the Corporation or residents of the State of Texas.
Section 2. Quorum; Required Vote for Director Action. Unless otherwise
required by law or provided in the Articles of Incorporation or these bylaws, a
majority of the total number of directors fixed by, or in the manner provided
in, the Articles of Incorporation or these bylaws shall constitute a quorum for
the transaction of business of the Board of Directors, and the act of a majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors.
Section 3. Meetings; Order of Business. Meetings of the Board of Directors
may be held at such place or places as shall be determined from time to time by
resolution of the Board of Directors. At all meetings of the Board of Directors
business shall be transacted in such order as shall from time to time be
determined by the Chairman of the Board (if any), or in his absence by the
President (if the President is a director), or by resolution of the Board of
Directors.
Attendance of a director at a 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 ground that the
meeting is not lawfully called or convened.
Section 4. First Meeting. In connection with any annual meeting of
shareholders at which directors were elected, the Board of Directors may, if a
quorum is present, hold its first meeting for the transaction of business
immediately after and at the same place as such annual meeting of the
shareholders. Notice of such meeting at such time and place shall not be
required.
Section 5. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as shall be designated from time to time
by the Chairman of the Board. Notice of such regular meetings shall not be
required.
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, or, as directed by the Chairman of
the Board, by any director, in each case, on at least 24 hours personal,
written, telegraphic, cable or wireless notice, by the Chairman of the Board or,
as directed by the Chairman of the Board, by any director or the Secretary, to
each director. Such notice, or any waiver thereof pursuant to Article VIII,
Section 3 hereof, need not state the purpose or purposes of such meeting, except
as may otherwise be required by law or provided for by the Articles of
Incorporation or these bylaws.
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Section 7. Removal. At any meeting of shareholders at which a quorum of
shareholders is present called expressly for that purpose, or pursuant to a
written consent adopted pursuant to Article II, Section 12 hereof, any director
may be removed, with or without cause, by vote of the holders of issued and
outstanding shares representing a majority of the votes entitled to be cast for
the election of such director; provided that, if the shareholders have the right
to cumulate votes for the election of directors, and less than the entire Board
of Directors is to be removed, no director may be removed if the votes cast
against his removal would be sufficient to elect him if then cumulatively voted
(a) at an election of the entire Board of Directors, or (b) if there be classes
of directors, at an election of the class of directors of which such director is
a part.
Section 8. Vacancies; Increases in the Number of Directors. Any
directorship to be filled by reason of an increase in the number of directors
may be filled (a) by the Board of Directors for a term of office continuing only
until the next election of one or more directors by the shareholders; provided,
however, that during the period between any two successive annual meetings of
shareholders, the Board of Directors may not fill more than two such
directorships; or (b) by election at an annual or special meeting of
shareholders entitled to vote in the election of such directors called for that
purpose.
Any vacancy occurring in the Board of Directors other than by reason of an
increase in the number of directors may be filled (a) by election at an annual
or special meeting of the shareholders called for that purpose or (b) by the
affirmative vote of a majority of the remaining directors though less than a
quorum of the Board of Directors. A director elected to fill a vacancy occurring
other than by reason of an increase in the number of directors shall be elected
for the unexpired term of his predecessor in office.
Section 9. Compensation. Unless restricted by the Articles of
Incorporation, the Board of Directors shall have the authority to fix the
compensation, if any, of directors.
Section 10. Presumption of Assent. A director who is present at a meeting
of the Board of Directors at which action on any corporate matter is taken shall
be presumed to have assented to the action unless his dissent shall be entered
in the minutes of the meeting or unless he shall file his written dissent to
such action with the person acting as secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 11. Approval or Ratification of Acts or Contracts by Shareholders.
The Board of Directors in its discretion may submit any act or contract for
approval or ratification at any annual meeting of the shareholders, or at any
special meeting of the shareholders called for the purpose of considering any
such act or contract, and any act or contract that shall be approved or be
ratified by the vote of the shareholders holding a majority of the issued and
outstanding shares of stock of the Corporation entitled to vote and represented
in person or by proxy at such meeting (provided that a quorum is present), shall
be as valid and as binding upon the Corporation and upon all the shareholders as
if it shall have been approved or ratified by every shareholder of the
Corporation.
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Section 12. Action by Written Consent or Telephone Conference. Any action
permitted or required by the TBCA, the Articles of Incorporation or these bylaws
to be taken at a meeting of the Board of Directors or any committee designated
by the Board of Directors may be taken without a meeting if a consent in
writing, setting forth the action to be taken, is signed by all the members of
the Board of Directors or committee, as the case may be. Such consent shall have
the same force and effect as a unanimous vote at a meeting and may be stated as
such in any document or instrument filed with the Secretary of State, and the
execution of such consent shall constitute attendance or presence in person at a
meeting of the Board of Directors or any such committee, as the case may be.
Subject to the requirements of the TBCA, the Articles of Incorporation or these
bylaws for notice of meetings, unless otherwise restricted by the Articles of
Incorporation, members of the Board of Directors, or members of any committee
designated by the Board of Directors, may participate in and hold a meeting of
the Board of Directors or any committee of directors, as the case may be, by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in such meeting shall constitute attendance and presence in person
at such meeting, except where a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
ARTICLE IV
COMMITTEES
Section 1. Designation; Powers. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate from among
its members one or more committees, each of which shall be comprised of one or
more of its members, and may designate one or more of its members as alternate
members of any committee, who may, subject to any limitations imposed by the
Board of Directors, replace absent or disqualified members at any meeting of
that committee. Any such committee, to the extent provided in such resolution or
in the Articles of Incorporation or bylaws shall have and may exercise all of
the authority of the Board of Directors, subject to the limitations set forth in
the TBCA or below.
No committee of the Board of Directors shall have the authority of the
Board of Directors in reference to:
(1) amending the Articles of Incorporation, except that a committee
may, to the extent provided in the resolution designating that committee
or in the Articles of Incorporation or these bylaws, exercise the
authority of the Board of Directors vested in it in accordance with
Article 2.13 of the TBCA;
(2) proposing a reduction in the stated capital of the Corporation
in the manner permitted by Article 4.12 of the TBCA;
(3) approving a plan of merger or share exchange of the Corporation;
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(4) recommending to the shareholders the sale, lease or exchange of
all or substantially all of the property and assets of the Corporation
otherwise than in the usual and regular course of its business;
(5) recommending to the shareholders a voluntary dissolution of the
Corporation or a revocation thereof;
(6) amending, altering or repealing the bylaws of the Corporation or
adopting new bylaws of the Corporation;
(7) filling vacancies in the Board of Directors;
(8) filling vacancies in or designating alternate members of any
such committee;
(9) filling any directorship to be filled by reason of an increase
in the number of directors;
(10) electing or removing officers of the Corporation or members or
alternate members of any such committee;
(11) fixing the compensation of any member or alternate members of
such committee; or
(12) altering or repealing any resolution of the Board of Directors
that by its terms provides that it shall not be so amendable or
repealable.
Unless the resolution designating a particular committee, the Articles of
Incorporation or these bylaws expressly so provide, no committee of the Board of
Directors shall have the authority to authorize a distribution (as such term is
defined in the TBCA) or to authorize the issuance of shares of the Corporation.
Section 2. Procedure; Meetings; Quorum. Any committee designated pursuant
to Section 1 of this Article shall choose its own chairman and secretary, shall
keep regular minutes of its proceedings and report the same to the Board of
Directors when requested, shall fix its own rules or procedures, and shall meet
at such times and at such place or places as may be provided by such rules, or
by resolution of such committee or of the Board of Directors. At every meeting
of any such committee, the presence of a majority of all the members thereof
shall constitute a quorum, and the affirmative vote of a majority of the members
present shall be necessary for the adoption by it of any resolution.
Section 3. Dissolution. The Board of Directors may dissolve any
committee at any time, unless otherwise provided in the Articles of
Incorporation or these bylaws.
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ARTICLE V
OFFICERS
Section 1. Number, Titles and Term of Office. The officers of the
Corporation shall be a President and a Secretary and such other officers as the
Board of Directors may from time to time elect or appoint, including, without
limitation, a Chairman of the Board, one or more Vice Presidents (any one or
more of whom may be designated Executive Vice President or Senior Vice
President), a Treasurer, one or more Assistant Treasurers and one or more
Assistant Secretaries. Each officer shall hold office until his successor shall
be duly elected and shall qualify or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided. Any number of
offices may be held by the same person. Except for the Chairman of the Board, if
any, no officer need be a director.
Section 2. Salaries. The salaries or other compensation, if any, of
the officers and agents of the Corporation shall be fixed from time to time
by the Board of Directors.
Section 3. Removal. Any officer or agent or member of a committee elected
or appointed by the Board of Directors may be removed, either with or without
cause, by the Board of Directors whenever in its judgment the best interests of
the Corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent or member of a committee shall not of itself
create contract rights.
Section 4. Vacancies. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
Section 5. Powers and Duties of the Chief Executive Officer. The President
shall be the chief executive officer of the Corporation unless the Board of
Directors designates the Chairman of the Board (if any) or other officer as
chief executive officer. Subject to the control of the Board of Directors, the
chief executive officer shall have general executive charge, management and
control of the properties, business and operations of the Corporation with all
such powers as may be reasonably incident to such responsibilities; he may agree
upon and execute all leases, contracts, evidences of indebtedness and other
obligations in the name of the Corporation and may sign all certificates for
shares of capital stock of the Corporation; and he shall have such other powers
and duties as designated in accordance with these bylaws and as from time to
time may be assigned to him by the Board of Directors.
Section 6. Powers and Duties of the Chairman of the Board. The Chairman of
the Board (if any) shall preside at all meetings of the shareholders and of the
Board of Directors; and the Chairman 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 7. Powers and Duties of the President. Unless the Board of
Directors otherwise determines, the President shall have the authority to agree
upon and execute all leases, contracts, evidences of indebtedness and other
obligations in the name of the Corporation; and, unless the Board of Directors
otherwise determines, he shall, in the absence of the Chairman of the Board or
if there be no Chairman of the Board, preside at all meetings of the
shareholders and (should
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he be a director) of the Board of Directors; and the President shall have such
other powers and duties as designated in accordance with these bylaws and as
from time to time may be assigned to him by the Board of Directors.
Section 8. Vice Presidents. The Vice President(s), if any, shall perform
such duties and have such powers as the Board of Directors may from time to time
prescribe. In addition, in the absence of the Chairman of the Board (if any) or
President, or in the event of their inability or refusal to act, (i) a Vice
President designated by the Board of Directors or (ii) in the absence of such
designation, the Vice President who is present and who is senior in terms of
time as a Vice President of the Corporation, shall perform the duties of the
Chairman of the Board (if any), or the President, as the case may be, and when
so acting shall have all the powers of and be subject to all the restrictions
upon the Chairman of the Board (if any), or the President; provided that he
shall not preside at meetings of the Board of Directors unless he is a director.
Section 9. Treasurer. The Treasurer, if any, shall have responsibility for
the custody and control of all the funds and securities of the Corporation, and
he 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. He shall
perform all acts incident to the position of Treasurer subject to the control of
the chief executive officer and the Board of Directors; and the Treasurer 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 10. Assistant Treasurers. Each Assistant Treasurer, if any, shall
have the usual powers and duties pertaining to his office, together with such
other powers and duties as designated in these bylaws and as from time to time
may be assigned to him by the chief executive officer or the Board of Directors
or the Treasurer. The Assistant Treasurers shall exercise the powers of the
Treasurer during that officer's absence or inability or refusal to act.
Section 11. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors, and the minutes of all meetings of the
shareholders, in books provided for that purpose; he shall attend to the giving
and serving of all notices; he may in the name of the Corporation affix the seal
(if any) of the Corporation to all contracts of the Corporation and attest
thereto; he may sign with the other appointed officers all certificates for
shares of 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; he 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 chief executive officer or the Board of Directors; and he
shall in general perform all duties incident to the office of Secretary, subject
to the control of the chief executive officer and the Board of Directors.
Section 12. Assistant Secretaries. Each Assistant Secretary, if any, shall
have the usual powers and duties pertaining to his office, together with such
other powers and duties as designated in these bylaws and as from time to time
may be assigned to him by the chief executive officer or the Board of Directors
or the Secretary. The Assistant Secretaries shall exercise the powers of the
Secretary during that officer's absence or inability or refusal to act.
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Section 13. Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, each of the chief executive
officer and the Treasurer (if any), or either of them, shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of shareholders of or with respect to any action of shareholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 1. Right to Indemnification. Subject to the limitations and
conditions as provided in this Article VI, each person who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative (hereinafter a "proceeding"), or
any appeal in such a proceeding or any inquiry or investigation that could lead
to such a proceeding, by reason of the fact that he or she, or a person of whom
he or she is the legal representative, is or was a director or officer of the
Corporation or while a director or officer of the Corporation is or was serving
at the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise shall be indemnified by the
Corporation to the fullest extent permitted by the TBCA, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) against judgments, penalties (including excise and similar
taxes and punitive damages), fines, settlements and reasonable expenses
(including, without limitation, attorneys' fees) actually incurred by such
person in connection with such proceeding, and indemnification under this
Article VI shall continue as to a person who has ceased to serve in the capacity
which initially entitled such person to indemnity hereunder. The rights granted
pursuant to this Article VI shall be deemed contract rights, and no amendment,
modification or repeal of this Article VI shall have the effect of limiting or
denying any such rights with respect to actions taken or proceedings arising
prior to any such amendment, modification or repeal. It is expressly
acknowledged that the indemnification provided in this Article VI could involve
indemnification for negligence or under theories of strict liability.
Section 2. Advance Payment. The right to indemnification conferred in this
Article VI shall include the right to be paid or reimbursed by the Corporation
the reasonable expenses incurred by a person of the type entitled to be
indemnified under Section 1 who was, is or is threatened to be made a named
defendant or respondent in a proceeding in advance of the final disposition of
the proceeding and without any determination as to the person's ultimate
entitlement to indemnification; provided, however, that the payment of such
expenses incurred by any such person in advance of the final disposition of a
proceeding, shall be made only upon
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delivery to the Corporation of a written affirmation by such director or officer
of his or her good faith belief that he or she has met the standard of conduct
necessary for indemnification under this Article VI and a written undertaking,
by or on behalf of such person, to repay all amounts so advanced if it shall
ultimately be determined that such indemnified person is not entitled to be
indemnified under this Article VI or otherwise.
Section 3. Indemnification of Employees and Agents. The Corporation, by
adoption of a resolution of the Board of Directors, may indemnify and advance
expenses to an employee or agent of the Corporation to the same extent and
subject to the same conditions under which it may indemnify and advance expenses
to directors and officers under this Article VI; and, the Corporation may
indemnify and advance expenses to persons who are not or were not directors,
officers, employees or agents of the Corporation but who are or were serving at
the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise against any liability asserted against
him and incurred by him in such a capacity or arising out of his status as such
a person to the same extent that it may indemnify and advance expenses to
directors under this Article VI.
Section 4. Appearance as a Witness. Notwithstanding any other provision of
this Article VI, the Corporation may pay or reimburse expenses incurred by a
director or officer in connection with his or her appearance as a witness or
other participation in a proceeding at a time when he or she is not a named
defendant or respondent in the proceeding.
Section 5. Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses conferred in this Article VI shall not be
exclusive of any other right which a director or officer or other person
indemnified pursuant to Section 3 of this Article VI may have or hereafter
acquire under any law (common or statutory), provision of the Articles of
Incorporation of the Corporation or these bylaws, agreement, vote of
shareholders or disinterested directors or otherwise.
Section 6. Insurance. The Corporation may purchase and maintain insurance,
at its expense, to protect itself and any person who is or was serving as a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, proprietorship, employee
benefit plan, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under this Article VI.
Section 7. Shareholder Notification. To the extent required by law, any
indemnification of or advance of expenses to a director or officer in accordance
with this Article VI shall be reported in writing to the shareholders with or
before the notice or waiver of notice of the next 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.
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Section 8. Savings Clause. If this Article VI or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each director,
officer or any other person indemnified pursuant to this Article VI as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative to the full extent permitted by
any applicable portion of this Article VI that shall not have been invalidated
and to the fullest extent permitted by applicable law.
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates of Stock. The certificates for shares of the
capital stock of the Corporation shall be in such form, not inconsistent with
that required by law and the Articles of Incorporation, as shall be approved by
the Board of Directors. The Chairman of the Board (if any), President or a Vice
President (if any) shall cause to be issued to each shareholder one or more
certificates, which shall be signed by the Chairman of the Board (if any),
President or a Vice President (if any) and the Secretary or an Assistant
Secretary (if any) or the Treasurer or an Assistant Treasurer (if any)
certifying the number of shares (and, if the stock of the Corporation shall be
divided into classes or series, the class and series of such shares) owned by
such shareholder in the Corporation; provided, however, that any of or all the
signatures on the certificate may be facsimile. If the Board of Directors shall
have provided for a seal, such certificates shall bear such seal or a facsimile
thereof. The stock record books and the blank stock certificate books shall be
kept by the Secretary, or at the office of such transfer agent or transfer
agents as the Board of Directors may from time to time by resolution determine.
In case any officer, transfer agent or registrar who shall have signed or whose
facsimile signature or signatures shall have been placed upon any such
certificate or certificates shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued by the Corporation, such
certificate may nevertheless be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue. The stock certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall exhibit the
holder's name and number of shares.
Each certificate shall conspicuously bear any legend required pursuant to
Article 2.19 or Article 2.22 of the TBCA, as well as any other legend required
by law.
Section 2. Transfer of Shares. The shares of stock of the Corporation
shall be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal
representatives, upon surrender and cancellation of certificates for a like
number of shares (or upon compliance with the provisions of Section 5 of this
Article VII, if applicable). Upon such surrender to the Corporation or a
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer (or upon compliance with the provisions of Section 5 of this Article
VII, if applicable) and of compliance with any transfer restrictions applicable
thereto contained in an agreement to which the Corporation is a party or of
which the
16
Corporation has knowledge by reason of legend with respect thereto placed on any
such surrendered stock certificate, it shall be the duty of the Corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 3. Ownership of Shares. Unless otherwise provided in the TBCA, and
subject to the provisions of Chapter 8 - Investment Securities of the Texas
Business & Commerce Code:
(i) the Corporation may regard the person in whose name any shares
issued by the Corporation are registered in the share transfer records of the
Corporation at any particular time (including, without limitation, as of a
record date fixed pursuant to Article 2.26B or 2.26C of the TBCA) as the owner
of those shares at that time for purposes of voting those shares, receiving
distributions thereon or notices in respect thereof, transferring those shares,
exercising rights of dissent with respect to those shares, exercising or waiving
any preemptive right with respect to those shares, entering into agreements with
respect to those shares in accordance with Article 2.22 or 2.30 of the TBCA, or
giving proxies with respect to those shares; and
(ii) neither the Corporation nor any of its officers, directors,
employees, or agents shall be liable for regarding that person as the owner of
those shares at that time for those purposes, regardless of whether that person
does not possess a certificate for those shares.
Section 4. Regulations Regarding Certificates. The Board of Directors
shall have the power and authority to make all such rules and regulations as
they may deem expedient concerning the issuance, transfer and registration or
the replacement of certificates for shares of capital stock of the Corporation.
Section 5. Lost, Stolen, Destroyed or Mutilated Certificates. The Board of
Directors may determine the conditions upon which a new certificate of stock may
be issued in place of a certificate that is alleged to have been lost, stolen,
destroyed or mutilated; and may, in its discretion, require the owner of such
certificate or his legal representative to give bond, with sufficient surety, to
indemnify the Corporation and each transfer agent and registrar against any and
all losses or claims which may arise by reason of the issuance of a new
certificate in the place of the one so lost, stolen, destroyed or mutilated.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
such as established from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation. The Secretary shall have charge of
the seal (if any). If and when so directed by the Board of Directors, duplicates
of the seal may be kept and used by the Treasurer, if any, or by any Assistant
Secretary or Assistant Treasurer.
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Section 3. Notice and Waiver of Notice. Whenever any notice is required to
be given by law, the Articles of Incorporation or these bylaws, except with
respect to notices of meetings of shareholders (with respect to which the
provisions of Article II, Section 6 apply) and except with respect to notices of
special meetings of directors (with respect to which the provisions of Article
VIII, Section 6 apply), said notice shall be deemed to be sufficient if given
(a) by telegraphic, cable or wireless transmission or (b) by deposit of same in
a post office box in a sealed prepaid wrapper addressed to the person entitled
thereto at his address as it appears on the records of the Corporation, and such
notice shall be deemed to have been given on the day of such transmission or
mailing, as the case may be.
Whenever notice is required to be given by law, the Articles of
Incorporation or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice.
Section 4. Resignations. Any director, member of a committee or officer
may resign at any time. Such resignation shall be made in writing and shall take
effect at the time specified therein, or if no time be specified, at the time of
its receipt by the chief executive officer or Secretary. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
Section 5. Facsimile Signatures. In addition to the provisions for the use
of facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors.
Section 6. Books and Records. The Corporation shall keep books and records
of account and shall keep minutes of the proceedings of its shareholders, its
Board of Directors and each committee of its Board of Directors. The Corporation
shall keep at its registered office or principal place of business, or at the
office of its transfer agent or registrar, a record of the original issuance of
shares issued by the Corporation and a record of each transfer of those shares
that have been presented to the Corporation for registration of transfer. Such
records shall contain the names and addresses of all past and current
shareholders of the Corporation and the number and class of shares issued by the
Corporation held by each of them. Any books, records, minutes and share transfer
records may be in written form or in any other form capable of being converted
into written form within a reasonable time.
Section 7. Recordings of Meetings. The recording of meetings of the Board
or of any committee of the Board shall be prohibited, unless such recording is
permitted by prior written consent of the Chairman of the Board.
ARTICLE IX
AMENDMENTS
The Board of Directors may amend or repeal the Corporation's bylaws, or
adopt new bylaws, unless: (a) the Articles of Incorporation or the TBCA reserves
the power exclusively to
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the shareholders in whole or part; or (b) the shareholders, in amending,
repealing or adopting a particular bylaw, expressly provide that the Board of
Directors may not amend or repeal that bylaw.
Unless the Articles of Incorporation or a bylaw adopted by the
shareholders provides otherwise as to all or some portion of the Corporation's
bylaws, the Corporation's shareholders may amend, repeal or adopt the
Corporation's bylaws even though the bylaws may also be amended, repealed or
adopted by the Board of Directors.
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