Exhibit 3.2(x)
BYLAWS
OF
ASHTON BROOKSTONE, INC.
a Texas corporation
Organized:
April 11, 2002
BYLAWS
OF
ASHTON BROOKSTONE, INC.
INDEX
Article Page
- ------- ----
I OFFICES
1.01 Registered Office.............................................. 1
1.02 Other Offices.................................................. 1
II SHAREHOLDERS
2.01 Location of Meetings........................................... 1
2.02 Annual Meetings................................................ 1
2.03 List of Shareholders........................................... 1
2.04 Special Meetings............................................... 2
2.05 Notice of Meetings............................................. 2
2.06 Quorum......................................................... 2
2.07 Conduct of Business............................................ 2
2.08 Voting of Shares in Matters other than Election of Directors... 2
2.09 Voting in the Election of Directors............................ 3
2.10 Proxies........................................................ 3
2.11 Action Without Meeting......................................... 3
2.12 Voting of Shares of Certain Holders............................ 4
2.13 Record Dates for Actions other than by Consent................. 4
2.14 Record Dates for Consents to Action............................ 5
III DIRECTORS
3.01 Powers......................................................... 5
3.02 Number and Election............................................ 5
3.03 Removal........................................................ 6
3.04 Elections to Fill Vacancies.................................... 6
3.05 Location of Meetings........................................... 6
3.06 First Meeting of Newly Elected Board........................... 6
3.07 Regular Meetings............................................... 6
3.08 Special Meetings............................................... 6
3.09 Quorum of and Action by Directors.............................. 7
3.10 Committees of the Board........................................ 7
3.11 Action Without Meeting......................................... 7
3.12 Compensation................................................... 7
IV NOTICES
4.01 Content and Method............................................. 7
4.02 Waiver of Notice............................................... 8
4.03 Attendance Construed as Waiver of Notice....................... 8
-i-
V OFFICERS
5.01 Titles......................................................... 8
5.02 Election....................................................... 8
5.03 Other Officers................................................. 8
5.04 Compensation................................................... 8
5.05 Term of Office................................................. 8
5.06 Chairman of the Board.......................................... 9
5.07 President...................................................... 9
5.08 Added Powers of the Chairman of the Board and the President.... 9
5.09 Vice Presidents................................................ 9
5.10 Secretary...................................................... 9
5.11 Assistant Secretaries.......................................... 10
5.12 Treasurer...................................................... 10
5.13 Treasurer's Bond............................................... 10
5.14 Assistant Treasurers........................................... 10
VI CERTIFICATES REPRESENTING SHARES
6.01 Description.................................................... 11
6.02 Facsimile Signatures........................................... 11
6.03 Lost Certificates.............................................. 11
6.04 Transfer of Shares............................................. 11
6.05 Registered Owner............................................... 11
VII GENERAL PROVISIONS
7.01 Distributions.................................................. 12
7.02 Contracts...................................................... 12
7.03 Loans.......................................................... 12
7.04 Reserves....................................................... 12
7.05 Financial Reports.............................................. 12
7.06 Signatures..................................................... 12
7.07 Fiscal Year.................................................... 12
7.08 Books and Records.............................................. 12
7.09 Inspection of Records by Shareholders.......................... 13
7.10 Corporate Seal................................................. 13
VIII INDEMNIFICATION
8.01 Extent......................................................... 13
8.02 Insurance...................................................... 14
IX AMENDMENTS
9.01 Amendment by Shareholders or Directors......................... 14
9.02 Power to Amend................................................. 14
CERTIFICATION........................................................ 15
-ii-
BYLAWS
OF
ASHTON BROOKSTONE, INC.
ARTICLE I
OFFICES
1.01 REGISTERED OFFICE. The registered office shall be located in Dallas,
Texas.
1.02 OTHER OFFICES. The corporation may also have offices, including its
principal place of business, at such other places located within or without the
State of Texas as the Board of Directors (the "Board") may from time to time
determine, or as the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
2.01 LOCATION OF MEETINGS. Meetings of shareholders shall be held in the
County of Dallas, State of Texas, or at any other location within or without the
State which may be specified in the notice of the meeting or in a duly executed
waiver thereof. Meetings of shareholders may be held by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
2.02 ANNUAL MEETINGS. Commencing in the year 2003, an annual meeting of
shareholders shall be held at a date and time determined by appropriate
resolution of the Board. The date and time of the annual meeting of shareholders
may be changed by appropriate resolutions of the Board to a time within sixty
(60) days before or following the date first determined by the Board. At this
meeting, the shareholders shall elect a Board, and may transact other business
properly brought before the meeting.
2.03 LIST OF SHAREHOLDERS. At least ten (10) days before each meeting of
shareholders, a complete list of the shareholders entitled to vote at said
meeting arranged in alphabetical order, with the address of each and the number
of voting shares held by each, shall be prepared by the officer or agent having
charge of the share transfer records. This list shall be kept on file at the
registered office or principal place of business of the corporation and shall be
subject to inspection by any shareholder at any time during usual business hours
for a period of ten (10) days prior to such meeting. This list shall be produced
and kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting.
-1-
2.04 SPECIAL MEETINGS. Special meetings of the shareholders may be called
by the President, the Board, the Chairman of the Board, if one is appointed, or
the holders of not less than one-tenth (l/10th) of all shares entitled to vote
at such meetings.
2.05 NOTICE OF MEETINGS. A written or printed notice stating the place, day
and hour of any 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, the Secretary or
the officer or person calling the meeting, to each shareholder of record
entitled to vote at the meeting. If mailed, notice shall be deemed to be
delivered when deposited, postage prepaid, in the United States mail, addressed
to the shareholder at his address as it appears on the share transfer records of
the corporation.
2.06 QUORUM. The holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at meetings of
shareholders except as otherwise provided by statute or by the Articles of
Incorporation. If, however, a quorum shall not be present or represented at any
meeting of the shareholders, the shareholders present in person or represented
by proxy shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
represented. At any adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
2.07 CONDUCT OF BUSINESS. If a quorum is present at a meeting of
shareholders, the shareholders represented in person or by proxy at the meeting
may conduct such business as may be properly brought before the meeting until it
is adjourned, and the subsequent withdrawal from the meeting of any shareholder
or the refusal of any shareholder represented in person or by proxy to vote
shall not affect the presence of a quorum at the meeting. Unless otherwise
provided in the Articles of Incorporation or elsewhere in these Bylaws, the
shareholders represented in person or by proxy at a meeting of shareholders at
which a quorum is not present may adjourn the meeting until such time and to
such place as may be determined by a vote of the holders of a majority of the
shares represented in person or by proxy at that meeting.
2.08 VOTING OF SHARES IN MATTERS OTHER THAN ELECTION OF DIRECTORS. Each
outstanding share, regardless of class, shall be entitled to one vote on each
matter submitted to a vote at a meeting of the shareholders, except to the
extent that the voting rights of the shares of any class shall be limited or
denied by the Articles of Incorporation and except as otherwise provided by
statute. With respect to any matter, other than the election of directors or a
matter for which the affirmative vote of the holders of a specified portion of
the shares entitled to vote is required by law, 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.
-2-
2.09 VOTING IN THE ELECTION OF DIRECTORS. At each election for directors,
every shareholder entitled to vote at such election shall have the right to
vote, in person or by proxy, the number of shares owned by him for as many
persons as there are directors to be elected, and for whose election he has a
right to vote.
2.10 PROXIES. A shareholder may vote either in person or by proxy executed
in writing by the shareholder or by his duly authorized attorney-in-fact. A
telegram, telex, cablegram or other similar transmission by a shareholder, or a
photographic, photostatic, facsimile, or similar reproduction of a writing
executed by a shareholder shall be treated as an execution in writing for the
purposes of this paragraph. No proxy shall be valid after eleven (11) months
from the date of its execution, unless otherwise provided in the proxy. Each
proxy shall be revocable unless expressly provided therein to be irrevocable and
unless otherwise made irrevocable by law. Each proxy shall be filed with the
Secretary of the corporation prior to, or at the time of, the meeting.
2.11 ACTION WITHOUT MEETING. If permitted by the Articles of Incorporation,
any action required by statute to be taken at any annual or special meeting of
shareholders, or any action which may 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 or shares having not less than
the minimum number of votes that would be necessary to take such action at a
meeting at which the holders of all shares entitled to vote on the action were
present and voted. If this manner of consent is not permitted by the Articles of
Incorporation, the Consent of all shareholders is required.
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 of the consent unless, within sixty (60) days after the date
of the earliest dated consent delivered to the corporation, 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 principal executive office of
the corporation. A telegram, telex, cablegram, or similar transmission by a
shareholder, or a photographic, photostatic, facsimile, or similar reproduction
of a writing signed by a shareholder, shall be regarded as signed by the
shareholder and delivered by hand.
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.
-3-
2.12 VOTING OF SHARES OF CERTAIN HOLDERS.
(a) Shares standing in the name of another corporation may be voted by
such officer, agent or proxy as the bylaws of such corporation may
authorize, or in the absence of such authorization, as the board of
directors of such corporation may determine.
(b) Shares held by an administrator, executor, guardian or conservator
may be voted by him so long as such shares are in the possession and
forming a part of the estate being served by him, either in person or by
proxy, without a transfer of the shares into his name. Shares standing in
the name of a trustee may be voted by him, either in person or by proxy,
but no trustee shall be entitled to vote shares held by him without a
transfer of the shares into his name as trustee.
(c) Shares standing in the name of a receiver may be voted by the
receiver, and shares held by or under the control of a receiver may be
voted by him without the transfer thereof into his name if authority to do
so is contained in an appropriate order of the court by which he was
appointed.
(d) A shareholder whose shares are pledged shall be entitled to vote
such shares until they have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the transferred
shares.
(e) Treasury shares, shares of its own stock owned by another
corporation, the majority of the voting stock of which is owned or
controlled by it, and shares of its own stock held by the corporation 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.
2.13 RECORD DATES FOR ACTIONS OTHER THAN BY CONSENT. For the purpose of
determining shareholders entitled to notice of, or to vote at, any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose (other than determining shareholders entitled to consent to any
action by shareholders proposed to be taken without a meeting), the Board may
provide that the share transfer records shall be closed for a stated period not
to exceed sixty (60) days. If the share transfer records are closed for the
purpose of determining shareholders entitled to notice of, or to vote at, a
meeting of shareholders, the records shall be closed for at least ten (10) days
immediately preceding the meeting.
In lieu of closing the share transfer records, the Board may fix in advance
as the record date for determination of shareholders, a date in any case to be
not more than sixty (60) days and, in the case of a meeting of shareholders, not
less than ten (10) days prior to the date on which the particular action
requiring the determination of shareholders is to be taken.
-4-
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 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 and the date on which the resolution of the Board declaring such
distribution or share dividend is adopted, as the case may be, shall be the
record date for determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made, as provided in this section, such determination
shall apply to any adjournment thereof, except where the determination has been
made through the closing of the share transfer records and the stated period of
closing has expired.
2.14 RECORD DATES FOR CONSENTS TO ACTION. Unless a record date shall have
previously been fixed or determined pursuant to this Article II, whenever any
action by shareholders is proposed to be taken by consent in writing without a
meeting of shareholders, the Board 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 (10) days after, the date upon
which the resolution fixing the record date is adopted by the Board. If no
record date has been fixed by the Board and the prior action of the Board is not
required by this Act, the record date for determining shareholders entitled to
consent to an 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 principal executive officer of the
corporation. If no record date shall have been fixed by the Board and prior
action of the Board is required by this Act, 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 adopts a resolution
taking such prior action.
ARTICLE III
DIRECTORS
3.01 POWERS. The powers of the corporation shall be exercised by or under
the authority of, and the business and affairs of the corporation shall be
managed under, the direction of its Board, except that the Board may not do any
acts or things which are required by statute, the Articles of Incorporation or
these Bylaws to be exercised or done by the shareholders.
3.02 NUMBER AND ELECTION. The number of directors constituting the initial
Board of the corporation shall be as set forth in the Articles of Incorporation.
However, such number may be changed by the Board from time to time by
appropriate resolution of the Board. In no event shall there ever be less than
one member of the Board. The directors shall be elected at the annual meeting of
the shareholders, except as provided in Section 3.04, and each director elected
-5-
shall hold office until the next annual election of directors and until his
successor shall have been elected or appointed and qualified. Directors need not
be residents of the State of Texas or shareholders of the corporation.
3.03 REMOVAL. Any director may be removed, with or without cause, by the
affirmative vote of the holders of a majority of the shares represented at any
shareholders' meeting at which a quorum is present, provided that the proposed
removal is stated in the notice of the meeting.
3.04 ELECTIONS TO FILL VACANCIES. Any vacancy occurring on the Board may be
filled by the affirmative vote of a majority of the remaining directors though
less than a quorum of the Board, or by a sole remaining director. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Any directorship to be filled by reason of an increase in
the number of directors may be filled by election at an annual or special
meeting of shareholders called for that purpose, or may be filled by the Board
for a term of office continuing only until the election of one or more directors
by the shareholders; provided, however, that the Board may not fill more than
two (2) such directorships during the period between any two successive annual
meetings of the shareholders.
3.05 LOCATION OF MEETINGS. Regular or special meetings of the Board may be
held either within or without the County of Dallas or the State of Texas.
Members of the Board or of committees thereof may participate in and hold a
meeting of the Board or committee thereof by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
3.06 FIRST MEETING OF NEWLY ELECTED BOARD. The first meeting of each newly
elected Board shall be held at such time and place directly following the annual
meeting of the shareholders or as shall be fixed by the vote of the shareholders
at their annual meeting, and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided
that a quorum shall be present. In the event such meeting is not held after the
annual meeting of the shareholders or in the event of a failure of the
shareholders to fix the time and place of the first meeting of the newly elected
Board; or in the event the meeting is not held at the time and place so fixed by
the shareholders, such meeting maybe held at the time and place specified in a
notice given as provided for special meetings of the Board, or as specified in a
written waiver signed by all of the directors.
3.07 REGULAR MEETINGS. Regular meetings of the Board may be held without
notice at such times and places as shall, from time to time, be determined by
the Board.
3.08 SPECIAL Meetings. Special meetings of the Board may be called by the
Chairman of the Board or the President, and shall be called by the Secretary on
the written request of any two (2) directors. Notice of special meetings of the
Board may be given personally, in writing or by telegram, and shall be given to
each director at least three (3) days before the date
-6-
of the meeting. Notice shall be given by the person calling the meeting or by
the Secretary. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board need be specified in any notice or
waiver of notice, except as may otherwise be expressly provided by statute, the
Articles of Incorporation, or these Bylaws.
3.09 QUORUM OF AND ACTION BY DIRECTORS. A majority of the directors shall
constitute a quorum for the transaction of business, 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, unless a greater number is required by statute, the Articles
of Incorporation or these Bylaws. If a quorum shall not be present at any
meeting of the Board, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement thereof at the meeting,
until a quorum shall be present.
3.10 COMMITTEES OF THE BOARD. The Board, by resolution adopted by a
majority of the full Board, 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 limitation imposed by the Board, replace absent or
disqualified members at any meeting of that committee. Any such committee, to
the extent provided in such resolution, the Articles of Incorporation or these
Bylaws, and as otherwise limited by statute, shall have and may exercise all of
the authority of the Board; PROVIDED, HOWEVER, that unless the resolution
designating a particular committee expressly so provides, no committee of the
Board shall have the authority to authorize a distribution or to authorize the
issuance of shares of the corporation. The designation of a committee of the
Board and the delegation thereto of authority shall not operate to relieve the
Board, or any member thereof, of any responsibility imposed by law.
3.11 ACTION WITHOUT MEETING. Any action that may be taken by the executive
committee, if any, or the Board at a meeting may be taken without a meeting if a
consent in writing setting forth the actions so taken shall be signed by all of
the members of the executive committee or all of the directors.
3.12 COMPENSATION. Directors, as such, shall not receive any salary for
their services, but, by resolution of the Board may receive a fixed sum and
necessary expenses of attendance of each regular or special meeting of the
Board. Members of the executive committee, by resolution of the Board, may be
allowed like compensation 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.
ARTICLE IV
NOTICES
4.01 CONTENT AND METHOD. Notices to directors and shareholders shall be in
writing unless otherwise provided in these Bylaws, shall specify the time and
place of the meeting, and shall be delivered personally or mailed to the
directors or shareholders at their addresses
-7-
appearing on the books of the corporation. Notice by mail shall be deemed given
at the time when the notice is placed in the United States mail, postage
prepaid. Notice to directors may also be given by telegram.
4.02 WAIVER OF NOTICE. Whenever any notice is required to be given to any
shareholder or director under the provisions of applicable statutes, the
Articles of Incorporation or these Bylaws, a waiver thereof in writing, signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be equivalent to the giving of notice.
4.03 ATTENDANCE CONSTRUED AS WAIVER OF NOTICE. 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.
ARTICLE V
OFFICERS
5.01 TITLES. The officers of the corporation shall consist of a President
and a Secretary and, in the discretion of the Board, such other officers as are
contemplated by Section 5.03 hereof, each of whom shall be elected by the Board.
Any two or more offices may be held by the same person.
5.02 ELECTION. The Board, at its first meeting after each annual meeting of
shareholders, shall elect a President and a Secretary, and may elect one or more
Vice Presidents and a Treasurer, none of whom needs to be a member of the Board,
and may appoint a member of the Board as its Chairman.
5.03 OTHER OFFICERS. Such other officers and assistant officers and agents
as may be deemed necessary may be elected or appointed by the Board.
5.04 COMPENSATION. The compensation of the President, any Vice Presidents,
the Secretary and the Treasurer shall be fixed by the Board, but the
compensation of all minor officers and all other agents and employees of the
corporation may be fixed by the President, unless by resolution the Board shall
determine otherwise; PROVIDED, HOWEVER, that without the express approval of the
Board, the President may not enter into any employment agreement on behalf of
the corporation with any person which may not be terminated by the corporation,
either at will or upon thirty (30) days written notice.
5.05 TERM OF OFFICE. Each officer shall hold office until his successor is
chosen and qualifies, or until his death or removal or resignation from office.
Any officer, agent or member of any committee of the Board elected or appointed
by the Board may be removed by a majority vote of the entire Board 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. Any vacancy occurring in an office for any reason may be
filled by the Board.
-8-
5.06 CHAIRMAN OF THE BOARD. In the event that a Chairman of the Board is
appointed, the Chairman shall be the chief executive officer of the corporation,
and preside over all meetings of the shareholders and of the Board. He shall see
that all orders and resolutions of the Board are carried into effect. The
Chairman shall have such other powers and duties as usually pertain to such
office or as may be assigned to him from time to time by the Board.
5.07 PRESIDENT. If a Chairman of the Board is not designated as provided in
Section 5.06 hereof, the President shall be the chief executive officer of the
corporation and shall have such powers and duties as usually pertain to that
office, except as the same may be modified by the Board. In the absence of the
Chairman of the Board, the President shall preside at all meetings of the
shareholders and, if the President is also a member of the Board, at all
meetings of the directors. Unless the Board shall otherwise direct, the
President shall have general and active management responsibility for the
business of the corporation.
5.08 ADDED POWERS OF THE CHAIRMAN OF THE BOARD AND THE PRESIDENT. The
President, and the Chairman of the Board, shall execute, with the Secretary or
any other officer so authorized by the Board, certificates for shares of the
corporation, and any deeds, mortgages, bonds, contracts or other instruments
that the Board has authorized for execution, except when the signing and
execution thereof shall be expressly delegated by the Board or by these Bylaws
to some other officer or agent or shall be required by law to be otherwise
signed or executed.
5.09 VICE PRESIDENTS. In the event that the Board shall provide for one or
more Vice Presidents, then each of the Vice Presidents, in the order of his
seniority, unless otherwise determined by the Board, shall in the absence or
disability of the President, serve in the capacity of the President and perform
the duties and exercise the powers of the President. Each Vice President shall
perform such other duties and have such other powers as the Board shall from
time to time prescribe.
5.10 SECRETARY. The Secretary shall:
(a) attend all meetings of the Board and of the shareholders, and
shall record all votes and keep the minutes of all such proceedings in one
or more books kept for that purpose;
(b) perform like services for the committees of the Board, if any;
(c) give, or cause to be given, notice of all meetings of the
shareholders and special meetings of the Board;
(d) keep in safe custody the seal of the corporation, and when
authorized by the Board, affix the same to any instrument requiring it and
when so affixed, it shall be attested by the Secretary's signature, or by
the signature of the Treasurer, if any, or any Assistant Secretary or
Assistant Treasurer; and
-9-
(e) perform all duties incidental to the office of Secretary and such
other duties as, from time to time, may be assigned to the Secretary by the
President or Board, under whose supervision the Secretary shall function.
5.11 ASSISTANT SECRETARIES. Each Assistant Secretary, if any, in the order
of his seniority, unless otherwise determined by the Board, in the absence or
disability of the Secretary, shall perform the duties and exercise the powers of
the Secretary, and shall perform such other duties and have such other powers as
the Board may, from time to time, prescribe.
5.12 TREASURER. The Treasurer or such other officer as designated by the
Board shall:
(a) have custody of the corporate funds and securities;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the corporation;
(c) deposit all money and other valuable effects in the name and to
the credit of the corporation in such depositories as may be designated by
the Board;
(d) disburse such funds of the corporation as may be ordered by the
Board, taking proper vouchers for all disbursements;
(e) render to the Board at the regular meetings of the Board, or
whenever the Board may require, an account of all transactions entered into
under this Section 5.12 and of the financial condition of the corporation;
and
(f) perform all such other duties as, from time to time, may be
assigned to him by the Board.
5.13 TREASURER'S BOND. If required by the Board, the Treasurer or such
other officer as designated by the Board to perform the duties enumerated in
Section 5.12 above shall give the corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board for the faithful
performance of the duties of his office, and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
5.14 ASSISTANT TREASURERS. Each Assistant Treasurer, if any, in the order
of his seniority unless otherwise determined by the Board, in the absence or
disability of the Treasurer, shall perform the duties and exercise the powers of
the Treasurer, and shall perform such other duties and have such other powers as
the Board may, from time to time, prescribe.
-10-
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
6.01 DESCRIPTION. The corporation shall deliver certificates representing
all shares to which shareholders are entitled. Certificates shall be signed by
the President and the Secretary, or in the absence of the President and/or
Secretary, a Vice President and/or Assistant Secretary if such offices have been
appointed or elected by the Board and may be sealed with the seal of the
corporation or a facsimile thereof if a corporate seal is adopted. Failure to
affix the corporate seal, if one is adopted, shall not invalidate a share
certificate. No certificate shall be issued for any share until the
consideration therefor has been fully paid. Each certificate shall be
consecutively numbered and shall be entered in the books of the corporation as
issued. Each certificate representing shares shall state upon the face thereof
that the corporation is organized under the laws of the State of Texas, the name
of the person to whom issued, the number and class of shares and the designation
of the series, if any, which such certificate represents, and the par value of
each share or a statement that the shares are without par value, and shall
further contain on the face or back of the certificate a statement of all
additional information required by statute to be set forth.
6.02 FACSIMILE SIGNATURES. The signatures of the President and the
Secretary upon a certificate may be facsimiles. In the event that an officer who
has signed or whose facsimile signature has been placed upon a certificate shall
cease to be such officer before the certificate is issued, the certificate may
be issued with the same effect as if he were such officer at the date of the
issuance.
6.03 LOST CERTIFICATES. The Board may direct new certificate(s) to be
issued in place of any certificate(s) previously issued alleged to have been
lost or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate(s) to be lost or destroyed. When authorizing such
issuance of new certificate(s), the Board may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of the lost or
destroyed certificate(s), or his legal representative, to advertise the same in
such manner as it shall require and/or to give the corporation a bond in such
sum and form and with such sureties as it may direct as an indemnity against any
claim that may be made against the corporation with respect to the
certificate(s) alleged to have been lost or destroyed.
6.04 TRANSFER OF SHARES. Shares shall be transferable only on the share
transfer records of the corporation by the holder thereof in person or by his
duly authorized attorney-in-fact. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
6.05 REGISTERED OWNER. The corporation may regard the person in whose name
any shares issued are registered in the share transfer records of the
corporation at any particular time as the owner of those shares at that time for
purposes of (1) voting those shares, (2) receiving distributions thereon or
notices in respect thereof, (3) transferring those shares, (4) exercising rights
of dissent with respect to those shares, (5) exercising or waiving any
preemptive right with
-11-
respect to those shares, (6) entering into agreements with respect to those
shares in accordance with Article 2.22 or 2.30 of the Texas Business Corporation
Act, or (7) giving proxies with respect to those shares. 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 these
purposes, regardless of whether that person does not possess a certificate for
those shares.
ARTICLE VII
GENERAL PROVISIONS
7.01 DISTRIBUTIONS. Subject to any restrictions imposed by law or by the
Articles of Incorporation, the Board may declare and the corporation may make
distributions on its outstanding shares in cash, property or its own shares.
7.02 CONTRACTS. The Board may authorize any officer or officers, agent or
agents, to enter into any contract or to execute and deliver any instrument in
the name, and on behalf of, the corporation. This authority may be general or
confined to specific instances.
7.03 LOANS. No loans shall be contracted on behalf of the corporation and
no evidence of indebtedness shall be issued in its name unless authorized by a
resolution of the Board or any executive committee. This authority may be
general or confined to specific instances.
7.04 RESERVES. The Board by resolution may create a reserve or reserves out
of earned surplus for any purpose or purposes, and may abolish any such reserve
in the same manner.
7.05 FINANCIAL REPORTS. When requested by the holders of at least one-third
of the outstanding shares of the corporation, the Board must present written
reports concerning the condition and business of the corporation.
7.06 SIGNATURES. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or other person or
persons as the Board may, from time to time, designate.
7.07 FISCAL YEAR. The fiscal year of the corporation shall be fixed by
resolution of the Board.
7.08 BOOKS AND RECORDS. The corporation shall keep books and records of
account and shall keep minutes of the proceedings of the shareholders, the
Board, and each committee of the Board. 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 shall
be kept at the registered office or principal place of business, or at the
office of the transfer agent or registrar, as appropriate. Such records shall
contain the names and addresses of all past and current shareholders and the
number and class of shares issued by the corporation held by each of them. The
books, records, minutes, and share transfer records
-12-
may be in written form or in any other form capable of being converted into
written form within a reasonable time. The office of the corporation's transfer
agent or registrar may be located outside the State of Texas.
7.09 INSPECTION OF RECORDS BY SHAREHOLDERS. Any person who shall have been
a shareholder for at least six (6) months immediately preceding his demand, or
shall be the holder of at least five percent (5%) of all the outstanding shares
of a corporation, upon written demand stating the purpose thereof, shall have
the right to examine, in person or by agent, accountant, or attorney, at any
reasonable time or times, for any proper purpose, its relevant books and records
of account, minutes, and share transfer records, and to make extracts therefrom.
A holder a beneficial interest in a voting trust entered into pursuant to
Article 2.30 of the Texas Business Corporation Act shall be regarded as a holder
of the shares represented by such beneficial interest for the purposes of this
Section 7.09.
7.10 CORPORATE SEAL. If a corporate seal is adopted, it shall have
inscribed thereon the name of the corporation and shall be in the form
determined by the Board. The seal may be used by causing it, or a facsimile
thereof, to be impressed, affixed or in any other manner reproduced.
ARTICLE VIII
INDEMNIFICATION
Subject to the provisions of Article 2.02-1 of the Texas Business
Corporation Act, the corporation may indemnify directors, officers, agents and
employees as follows:
8.01 EXTENT.
(a) Statutorily Required Indemnification. The corporation shall
indemnify its directors and officers against reasonable expenses incurred
in connection with a proceeding in which the director or officer is named
as a defendant or respondent because he is or was a director or officer of
the corporation if he has been wholly successful, on the merits or
otherwise, in the defense of the proceeding. The corporation may, at the
direction of and in the sole discretion of the Board, pay for or reimburse
the director or officer for the payment of his reasonable expenses in
advance of the final disposition of the proceeding, provided that the
corporation receives in writing (i) an affirmation by the director or
officer of his good faith belief that he has met the standards of conduct
necessary for indemnification under Article 2.02-1 of the Texas Business
Corporation Act, and (ii) an undertaking by or on behalf of the director or
officer to repay the amount paid or reimbursed if it is ultimately
determined such standards of conduct have not been met.
(b) Permitted Indemnification. The corporation, at the direction of
and in the sole discretion of the Board, shall have the right, to such
further extent as permitted by law, but not the obligation to indemnify
-13-
any person who (i) is or was a director, officer, employee, or agent of the
corporation, or (ii) while a director, officer, employee, or agent of the
corporation, is or was serving at its request 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.
8.02 INSURANCE. The corporation may purchase and maintain insurance or
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 its request 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, whether or not
the corporation would have the power to indemnify him against that liability
pursuant to the provisions of the Texas Business Corporation Act. Furthermore,
the corporation may, for the benefit of persons indemnified by the corporation,
(i) create a trust fund; (ii) establish any form of self-insurance; (iii) secure
its indemnity obligation by grant of a security interest or other lien on the
assets of the corporation; or (iv) establish a letter of credit, guaranty, or
surety arrangement.
ARTICLE IX
AMENDMENTS
9.01 AMENDMENT BY SHAREHOLDERS OR DIRECTORS. Unless otherwise provided in
the Articles of Incorporation, these Bylaws may be altered, amended or repealed,
and new Bylaws may be adopted by the affirmative vote of a majority of either
the Board or the holders of a majority of the shares entitled to vote, present
at any meeting at which a quorum of each respective body is present, provided
that notice of the proposed alteration, amendment, repeal or adoption shall be
contained in the notice of the meeting.
9.02 POWER TO AMEND. This power to alter, amend or repeal the Bylaws, and
to adopt new Bylaws, may be modified or divested by action of the holders of a
majority of the shares entitled to vote taken at any regular or special meeting
of the shareholders.
-14-