Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
CONSYGEN, INC
(a Texas corporation)
February 24, 1998
TABLE OF CONTENTS
TO
BYLAWS
OF
ConSyGen, Inc.
(a Texas corporation)
OFFICES AND RECORDS............................................................1
1. (a) Registered Office and Registered Agent................................1
(b) Corporate Offices.....................................................1
2. (a) Books and Records.....................................................1
(b) Inspection of Records.................................................1
SEAL...........................................................................2
3. Corporate Seal............................................................2
SHAREHOLDERS' MEETINGS.........................................................2
4. Place of Meetings.........................................................2
5. (a) Annual Meetings.......................................................2
(b) Special Meetings......................................................2
(c) Consent of Shareholders in Lieu of Meeting................................2
(d) Meetings by Conference Telephone or Similar Communications Equipment......3
6. (a) Notice................................................................3
(b) Waiver of Notice......................................................3
(c) Presiding Officials...................................................3
7. (a) Business Which May Be Transacted at Annual Meetings...................3
(b) Business Which May Be Transacted at Special Meetings..................4
8. Quorum....................................................................4
9. (a) Proxies...............................................................4
(b) Voting................................................................4
(c) Registered Shareholders - Exceptions - Stock Ownership Presumed.......4
10. Shareholders' Lists.......................................................5
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DIRECTORS......................................................................5
11. Directors - Number........................................................5
12. (a) Powers of the Board...................................................5
(b) Interested Director Transactions......................................6
13. Offices...................................................................6
14. Acceptance of Election....................................................6
15. Regular Meetings - Notice.................................................6
16. Special Meetings - Notice.................................................7
17. Waiver of Notice..........................................................7
18. Meetings by Conference Telephone or Similar Communications Equipment......8
19. Action Without a Meeting..................................................8
20. Quorum....................................................................8
21. Vacancies.................................................................8
22. Indemnification and Expenses; Liability of Directors and Officers.........9
23. Executive and Other Committees............................................9
24. Compensation of Directors and Committee Members..........................10
OFFICERS......................................................................10
25. (a) Officers - Who Shall Constitute......................................10
(b) Term of Office.......................................................10
(c) Other Agents.........................................................10
26. Removal..................................................................11
27. Salaries and Compensation................................................11
28. Delegation of Authority to Hire, Discharge, and Designate Duties.........11
29. The Chairman of the Board................................................11
30. The President............................................................11
31. Vice Presidents..........................................................12
32. The Secretary and Assistant Secretaries..................................12
33. The Treasurer and Assistant Treasurers...................................13
34. Duties of Officers May Be Delegated......................................14
SHARES OF STOCK...............................................................14
35. Payment for Shares of Stock..............................................14
36. Certificates for Shares of Stock.........................................14
37. Transfers of Shares - Transfer Agent - Registrar.........................14
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38. (a) Fixing Record Dates for Meetings, Distributions, Etc.................15
(b) Fixing Record Dates for Consents to Action...........................16
39. Lost, Destroyed, or Stolen Certificates..................................16
40. Regulations..............................................................16
GENERAL.......................................................................17
41. Fixing of Capital - Transfers of Surplus.................................17
42. Distributions or Dividends...............................................17
43. Creation of Reserves.....................................................17
44. Depositories.............................................................17
45. Fiscal Year..............................................................18
46. Directors' Annual Statement..............................................18
47. Amendments...............................................................18
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BYLAWS
OF
ConSyGen, Inc.
(A Texas Corporation)
OFFICES AND RECORDS
1. (a) Registered Office and Registered Agent. The location of the
registered office and the name of the registered agent of the corporation in the
State of Texas shall be as stated in the articles of incorporation or as shall
be determined from time to time by the board of directors and on file in the
appropriate office of the State of Texas pursuant to applicable provisions of
law. Unless otherwise permitted by law, the address of the registered office of
the corporation and the address of the business office of the registered agent
shall be identical.
(b) Corporate Offices. The corporation may have such corporate offices
anywhere within or without the State of Texas as the board of directors from
time to time may determine or the business of the corporation may require. The
"principal place of business" or "principal business office" or "executive
office" of the corporation may be fixed and so designated from time to time by
the board of directors, but the location or residence of the corporation in
Texas shall be deemed for all purposes to be in the county in which its
registered office in Texas is maintained.
2. (a) Books and Records. The corporation shall keep books and records of
account and minutes of the proceedings of the corporation's shareholders, board
of directors and each committee of the board of directors. The corporation shall
keep at its registered office or principal place of business, or at the office
of its transfer agent or registrar, if any, books and records in which shall be
kept a record of the original issuance of shares and a record of each transfer
of those shares that have been presented to the corporation for registration of
transfer. Such share transfer records shall contain the names and addresses of
all past and current shareholders of the corporation, the number, the series,
and the class of the shares owned by them respectively, the amount of shares
paid, and by whom, and the transfer of such shares with the date of transfer.
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.
(b) Inspection of Records. Any person who shall have been a shareholder
of the corporation for at least six (6) months immediately preceding his demand,
or shall be the registered holder of at least five percent (5%) of all the
outstanding shares of the 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, the
corporation's relevant books and records of account, minutes, and share transfer
records, and to make extracts therefrom. No shareholder shall use, permit to be
used, or acquiesce in the use by others of any information so obtained to the
detriment competitively of the corporation, nor shall
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he furnish or permit to be furnished any information so obtained to any
competitor of the corporation. The corporation as a condition precedent to any
shareholder's inspection of the records of the corporation may require the
shareholder to indemnify the corporation, in such manner and for such amount as
may be determined by the board of directors, against any loss or damage which
may be suffered by it arising out of or resulting from any unauthorized
disclosure made or permitted to be made by such shareholder of information
obtained in the course of such inspection.
SEAL
3. Corporate Seal. The corporation shall have power to have a corporate seal
which may be altered at pleasure, and to use the same by causing it, or a
facsimile thereof, to be impressed on, affixed to or in any manner reproduced
upon, instruments of any nature required to be executed by its proper officers.
SHAREHOLDERS' MEETINGS
4. Place of Meetings. All meetings of the shareholders shall be held at the
principal business office of the corporation in Texas, except such meetings as
the board of directors to the extent permissible by law expressly determines
shall be elsewhere, in which case such meetings may be held, upon notice thereof
as hereinafter provided, at such other place or places, within or without the
State of Texas, as the board of directors shall have determined, and as shall be
stated in such notice; and, unless specifically prohibited by law, any meeting
may be held at any place and time, and for any purpose, if consented to in
writing by all of the shareholders entitled to vote thereat.
5. (a) Annual Meetings. An annual meeting of shareholders shall be held on
a date designated by the corporation's president or Board of Directors which
date shall be not later than the last day of Novmber of each year beginning in
1998, or at such other date as shall be designated from time to time by the
board of directors and stated in the notice of the meeting, when they shall
elect a board of directors and transact such other business as may properly be
brought before the meeting.
(b) Special Meetings. Special meetings of the shareholders may be held
for any purpose or purposes and may be called by the chairman of the board, by
the president, by the secretary, by the board of directors, or by the holders
of, or by any officer or shareholder upon the written request of the holders of,
not less than ten percent (10%) of all outstanding shares entitled to vote at
any such meeting, and shall be called by any officer directed to do so by the
board of directors.
The "call" and the "notice" of any such meeting shall be deemed to be
synonymous.
(c) Consent of shareholders in Lieu of Meeting. Any action required to
be taken or which may be taken at any annual or special meeting of the
shareholders may be taken without a meeting, without prior notice, and without a
vote, if a consent or consents in writing, setting forth
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the action so taken, shall have been signed by all the shareholders entitled to
vote with respect to the subject matter thereof. The secretary shall file such
consents with the minutes of the meetings of the shareholders.
(d) Meetings by Conference Telephone or Similar Communications
Equipment. Subject to the requirements for notices of meetings, unless otherwise
restricted by the articles of incorporation or these bylaws or by law,
shareholders may participate in and hold a meeting of shareholders by means of
conference telephone or similar communications equipment whereby all persons
participating in the meeting can hear each other, and participation in a meeting
in this manner shall constitute presence in person at such meeting, except where
a person participates in 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.
6. (a) Notice. Written or printed notice of each meeting of the
shareholders, whether annual or special, stating the place, day and hour of the
meeting and, in case of a special meeting, the purpose or purposes thereof,
shall be delivered or given to each shareholder of record entitled to vote
thereat, either personally or by mail, by or at the direction of the president,
the secretary, or the officer or person calling the meeting, not less than ten
(10) nor more than sixty (60) days before the date of the meeting, unless, as to
a particular matter, other or further notice is required by law, in which case
such other or further notice shall be given.
Any notice of a shareholders' meeting sent by mail shall be deemed to
be delivered when deposited in the United States mail with postage thereon
prepaid addressed to the shareholder at his address as it appears on the share
transfer records of the corporation.
(b) Waiver of Notice. Whenever any notice is required to be given under
the provisions of these bylaws, of the articles of incorporation, or of any law,
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 deemed
equivalent to the giving of such notice.
To the extent provided by law, attendance of a shareholder at any
meeting shall constitute a waiver of notice of such meeting.
(c) Presiding Officials. Every meeting of the shareholders, for
whatever object, shall be convened by the president, or by the officer or any of
the persons who called the meeting by notice as above provided, but it shall be
presided over by the officers specified in Sections 29, 30 and 31 of these
bylaws; provided, however, that the shareholders at any meeting, by a majority
vote in amount of shares represented thereat, and notwithstanding anything to
the contrary contained elsewhere in these bylaws, may select any persons of
their choosing to act as chairman and secretary of such meeting or any session
thereof.
7. (a) Business Which May Be Transacted at Annual Meetings. At each annual
meeting of the shareholders, the shareholders shall elect a board of directors
to hold office until the next succeeding annual meeting or until their
successors shall have been elected and qualified and they may transact such
other business as may be desired, whether or not the same was specified
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in the notice of the meeting, unless the consideration of such other business
without its having been specified in the notice of the meeting as one of the
purposes thereof is prohibited by law.
(b) Business Which May Be Transacted at Special Meetings. Business
transacted at all special meetings of the shareholders shall be confined to the
purposes stated in the notices of such meetings, unless the transaction of other
business is consented to by the holders of all the outstanding shares of stock
of the corporation entitled to vote thereat.
8. Quorum. Unless otherwise provided by law or by the articles of incorporation,
the holders of a majority of the outstanding shares entitled to vote,
represented in person or by proxy, shall constitute a quorum for the transaction
of business at all meetings of the shareholders. Unless otherwise provided by
law or by the articles of incorporation, once 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 by law or by the articles of incorporation, 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. At any subsequent session of the meeting
at which a quorum is present in person or by proxy any business may be
transacted which could have been transacted at the initial session of the
meeting if a quorum had been present.
9. (a) Proxies. At any meeting of the shareholders every shareholder
having the right to vote shall be entitled to vote in person or by proxy
executed in writing by such shareholder. A telegram, telex, cablegram, or
similar transmission by the 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 these purposes. No proxy shall be
valid after eleven (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.
(b) Voting. Each shareholder shall have one vote for each share of
stock entitled to vote under the provisions of the articles of incorporation and
which is registered in his name on the books of the corporation, and in the
election of directors shall have for each such share one vote for one candidate
for each directorship to be filled, cumulative voting not being permitted.
No person shall be admitted to vote on any shares of the corporation
belonging or hypothecated to the corporation.
(c) Registered Shareholders - Exceptions - Stock Ownership Presumed.
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 as the owner of those shares at that time for purposes of
voting those shares, receiving distributions thereon or
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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 applicable law, or giving proxies with respect to
those shares, and the term "shareholder" as used in these bylaws means one who
is a holder of shares so registered in the share transfer records of the
corporation.
10. Shareholders' Lists. A complete list of the shareholders entitled to vote at
each meeting of the shareholders, or any adjournments thereof, arranged in
alphabetical order, with the address of and the number of voting shares held by
each, shall be prepared at least ten (10) days before each such meeting by the
officer or agent of the corporation having charge of the share transfer records
of the corporation, and, for a period of ten (10) days prior to the meeting,
shall be kept on file at the registered office or principal place of business of
the corporation and shall at any time during the usual hours for business be
subject to inspection by any shareholder. Such list or a duplicate thereof also
shall be produced and kept open at the time and place of the meeting and shall
be subject to the inspection of any shareholder during the whole time of the
meeting. Subject to the provisions of Section 38 hereof, the original list or
share transfer records shall be prima facie evidence as to who are the
shareholders entitled to examine such share transfer records or to vote at any
meeting of shareholders.
Failure to comply with the foregoing shall not affect the validity of
any action taken at any such meeting.
DIRECTORS
11. Directors - Number. Unless and until changed by the board of directors as
hereinafter provided, the number of directors to constitute the board of
directors shall be five (5). Directors need not be residents of the state of
Texas or shareholders unless the articles of incorporation at any time so
require. The board of directors shall have the power to change the number of
directors by resolution adopted by a majority of the whole board, provided that
any notice required by law of any such change is duly given, but no decrease in
the number of directors shall have the effect of shortening the term of any
incumbent director. At each annual meeting of shareholders the shareholders
shall elect directors to hold office until the next succeeding annual meeting.
Unless removed in accordance with provisions of these bylaws or the articles of
incorporation, each director shall hold office for the term for which he is
elected and until his successor shall have been elected and qualified.
At any meeting of shareholders called expressly for that purpose any
director or the entire board of directors may be removed, with or without cause,
by a vote of the holders of a majority of the shares then entitled to vote at an
election of directors, subject to any further restrictions on removal that may
be contained in these bylaws.
12. (a) Powers of the Board. 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 of
the corporation, acting as a board. The board shall have and is vested with all
and unlimited powers and authorities, except as may be expressly limited
5
by law, the articles of incorporation or these bylaws, to do or cause to be done
any and all lawful things for and on behalf of the corporation, to exercise or
cause to be exercised any or all of its powers, privileges, and franchises, and
to seek the effectuation of its objects and purposes.
(b) Interested Director Transactions. Unless otherwise provided by law,
the articles of incorporation, or these bylaws, no otherwise valid contract or
transaction between the corporation and one or more of its directors or
officers, or between the corporation and any other domestic or foreign
corporation, or other entity in which one or more of its directors or officers
are directors or officers or have a financial interest, shall be valid
notwithstanding whether the director or officer is present at or participates in
the meeting of the board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if any of the following is satisfied:
(1) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
board of directors or the committee, and the board or committee in good
faith authorizes the contract or transaction by the affirmative vote of
a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(2) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation
as of the time it is authorized, approved, or ratified by the board of
directors, a committee thereof, or the shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
13. Offices. The directors may have one or more offices, and keep the books of
the corporation (except share transfer records and such other books and records
as may by law be required to be kept at a particular place) at such place or
places within or without the State of Texas as the board of directors may from
time to time determine.
14. Acceptance of Election. Each director, upon his election, shall qualify by
accepting the office of director, and his attendance at, or his written approval
of the minutes of, any meeting of the newly-elected directors shall constitute
his acceptance of such office; or he may execute such acceptance by a separate
writing, which shall be placed in the minute book.
15. Regular Meetings - Notice. Regular meetings of the board may be held with or
without notice at such times and places either within or without the State of
Texas as shall from time to
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time be fixed by resolution adopted by the full board of directors. Any business
may be transacted at a regular meeting.
16. Special Meetings - Notice. Special meetings of the board may be called at
any time by the chairman of the board, the president, any vice president, or the
secretary, or by any one or more of the directors. The place may be within or
without the State of Texas as designated in the notice.
Written or printed notice of each special meeting of the board, stating
the place, day, and hour of the meeting and to the extent, if any, required by
the articles of incorporation or by law, the purpose or purposes thereof, shall
be mailed to each director at least three (3) days before the day on which the
meeting is to be held, or shall be delivered to him personally or sent to him by
telegram at least two (2) days before the day on which the meeting is to be
held. If mailed, such notice shall be deemed to be delivered when it is
deposited in the United States mail with postage thereon prepaid and addressed
to the director at his residence or usual place of business. If given by
telegraph, such notice shall be deemed to be delivered when it is delivered to
the telegraph company, addressed to the director at his residence or usual place
of business as indicated on the records of the corporation, with the cost of
transmission prepaid. The notice may be given by any officer having authority to
call the meeting or by any director.
"Notice" and "call" with respect to such meetings shall be deemed to be
synonymous.
17. Waiver of Notice. Whenever any notice is required to be given to any
director under the provisions of these bylaws, the articles of incorporation, or
of any law, a waiver thereof in writing signed by such director, whether before
or after the time stated therein, shall be equivalent to the giving of such
notice. To the extent provided by law, attendance of a director at any meeting
shall constitute a waiver of notice of such meeting.
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18. Meetings by Conference Telephone or Similar Communications Equipment.
Subject to the requirements for notice of meetings, unless otherwise restricted
by the articles of incorporation or these bylaws or by law, members of the board
of directors of the corporation, or members of any committee designated by the
board, may participate in and hold a meeting of such board or committee by means
of conference telephone or similar communications equipment whereby all persons
participating in a meeting in this manner can hear each other, and participation
in a meeting in this manner shall constitute presence in person at such meeting,
except when a person participates in 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.
19. Action Without a Meeting. Any action which is required to be or may be taken
at a meeting of the directors, or of the executive committee or any other
committee of the directors, may be taken without a meeting if a consent in
writing, setting forth the action so taken, is signed by all of the members of
the board or of the committee, as the case may be. Such consent shall have the
same force and effect as a unanimous vote at a meeting duly held. The secretary
shall file such consents with the minutes of the meetings of the board of
directors or of the committee as the case may be.
20. Quorum. At all meetings of the board a majority of the full board of
directors shall, unless a greater number as to any particular matter is required
by law, the articles of incorporation or these bylaws, constitute a quorum for
the transaction of business, and the act of a majority of the directors present
at any meeting at which there is a quorum, except as may be otherwise
specifically provided by law, the articles of incorporation or these bylaws,
shall be the act of the board of directors.
21. Vacancies. Unless otherwise provided in the articles of incorporation or by
law, vacancies on the board of directors may be filled by the affirmative vote
of a majority of the remaining directors, although less than a quorum, or by a
sole remaining director, or by election at an annual or special meeting of
shareholders called for that purpose. 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 meeting or at a special meeting of shareholders called
for that purpose, or by the board of directors for a term of office continuing
only until the next election of one or more directors by the shareholders;
provided that the board of directors may not fill more than two such
directorships during the period between any two successive annual meetings of
shareholders. Notwithstanding the foregoing, whenever the holders of any class
or series of shares are entitled to elect one or more directors by the
provisions of the articles of incorporation, any vacancies in such directorships
and any newly created directorship for such class or series to be filled by
reason of an increase in the number of such directors may be filled by the
affirmative vote of a majority of the directors elected by such class or series
then in office or by a sole remaining director so elected, or by the vote of the
holders of the outstanding shares of such class or series, and such directorship
shall not in any case be filled by the vote of the remaining directors or the
holders of the outstanding shares as a whole unless otherwise provided in the
articles of incorporation.
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22. Indemnification and Expenses; Liability of Directors and Officers. The
corporation shall (i) indemnify any person who is or was a director, officer,
employee, or agent of the corporation, or while a director, officer, employee,
or agent of the corporation, is or was serving at the request of the corporation
as a director, officer, partner, venturer, proprietor, trustee, employee, agent,
or similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise, to the fullest extent that a corporation may or is required to grant
indemnification to a director under the Texas Business Corporation Act as now
written or as hereafter amended, and (ii) shall pay or reimburse reasonable
expenses (including court costs and attorneys' fees) incurred by any such person
who was, is, or is threatened to be named defendant or respondent in a
proceeding (including any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in any such action, suit, or proceeding, and any
inquiry or investigation that could lead to such an action, suit, or
proceeding), in advance of the final disposition of the proceeding, to the
fullest extent that a corporation may or is required to advance such expenses to
a director under the Texas Business Corporation Act as now written or as
hereafter amended. The corporation may indemnify and advance expenses to any
person to such further extent as permitted by law.
The corporation may purchase and maintain insurance on behalf of any
person who holds or who has held any position named hereinabove as allowed under
the Texas Business Corporation Act, as now written or as hereafter amended.
Except as otherwise provided by the Texas Business Corporation Act, as
now written or as hereafter amended, with respect to directors and shareholders,
no person shall be liable to the corporation for any loss, damage, liability, or
expense suffered by it on account of any action taken or omitted to be taken by
him as a director or officer of the corporation or of any other corporation
which he serves as a director or officer at the request of the corporation, if
such person (i) exercised the same degree of care and skill as a prudent man
would have exercised under the circumstances in the conduct of his own affairs,
or (ii) took or omitted to take such action in reliance upon advice of counsel
for the corporation, or for such other corporation, or upon statements made or
information furnished by directors, officers, employees, or agents of the
corporation, or of such other corporation, which he had no reasonable grounds to
disbelieve.
23. Executive and Other Committees. The board of directors, by resolution or
resolutions adopted by a majority of the full board of directors, may designate
from among its members an executive committee and one or more other committees,
each of which committees, to the extent provided in said resolution or
resolutions, shall have and may exercise all the authority of the board of
directors in the management of the corporation, except to the extent expressly
prohibited by the Texas Business Corporation Act; provided, however, that the
designation of any such committee and the delegation thereto of authority shall
not operate to relieve the board of directors, or any member thereof, of any
responsibility imposed upon it or him by law.
Each committee so designated shall keep regular minutes of its
proceedings, which minutes shall be recorded in the minute book of the
corporation. The secretary or an assistant
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secretary of the corporation may act as secretary for any such committee if such
committee so requests.
24. Compensation of Directors and Committee Members. Directors and members of
all committees shall not receive any stated salary for their services as such,
unless authorized by resolution of the board. Also, by resolution of the board,
a fixed sum and expenses of attendance, if any, may be allowed for attendance at
each regular or special meeting of the board of directors or any committee
thereof. Nothing herein contained shall be construed to preclude any director or
committee member from serving the corporation in any other capacity and
receiving compensation therefor.
OFFICERS
25. (a) Officers - Who Shall Constitute. The officers of the corporation
shall consist of a chairman of the board, a president, one or more vice
presidents, a secretary, a treasurer, one or more assistant secretaries, and one
or more assistant treasurers. The board shall elect a president and a secretary
at its first meeting after each annual meeting of the shareholders. The board
then, or from time to time, also may elect one or more of the other prescribed
officers as it shall deem advisable, but need not elect any officers other than
a president and a secretary. The board may, if it desires, elect or appoint
additional officers as may be deemed necessary, and may further identify or
describe any one or more of the officers of the corporation.
The officers of the corporation need not be members of the board of
directors. Any two or more offices may be held by the same person.
An officer shall be deemed qualified when he enters upon the duties of
the office to which he has been elected or appointed and furnishes any bond
required by the board; but the board also may require his written acceptance and
promise faithfully to discharge the duties of such office.
(b) Term of Office. Each officer of the corporation shall hold his
office at the pleasure of the board of directors or for such other period as the
board may specify at the time of his election or appointment, or until his
death, resignation, or removal by the board, whichever first occurs. In any
event, each officer of the corporation who is not reelected or reappointed at
the annual election of officers by the board next succeeding his election or
appointment shall be deemed to have been removed by the board, unless the board
provides otherwise at the time of his election or appointment.
(c) Other Agents. The board from time to time also may appoint such
other agents for the corporation as it shall deem necessary or advisable, each
of whom shall serve at the pleasure of the board or for such period as the board
may specify, and shall exercise such powers, have such titles and perform such
duties as shall be determined from time to time by the board or by an officer
empowered by the board to make such determinations.
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26. Removal. Any officer or agent or member of a committee elected or appointed
by the board of directors, and any employee, may be removed or discharged by the
board whenever in its judgment the best interests of the corporation would be
served thereby, but such removal or discharge shall be without prejudice to the
contract rights, if any, of the person so removed or discharged. Election or
appointment of an officer or agent or member of a committee shall not of itself
create contract rights.
27. Salaries and Compensation. Salaries and compensation of all elected officers
of the corporation shall be fixed, increased, or decreased by the board of
directors, but this power, except as to the salary or compensation of the
chairman of the board and the president, unless prohibited by law, may be
delegated by the board to the chairman of the board, the president, or a
committee. Salaries and compensation of all appointed officers and agents, and
of all employees of the corporation, may be fixed, increased, or decreased by
the board of directors, but until action is taken with respect thereto by the
board of directors, the same may be fixed, increased or decreased by the
president or by such other officer or officers as may be empowered by the board
of directors to do so.
28. Delegation of Authority to Hire, Discharge, and Designate Duties. The board
from time to time may delegate to the chairman of the board, the president or
other officer or executive employee of the corporation, authority to hire,
discharge, fix, and modify the duties, salary or other compensation of employees
of the corporation under their jurisdiction, and the board may delegate to such
officer or executive employee similar authority with respect to obtaining and
retaining for the corporation the services of attorneys, accountants, and other
experts.
29. The Chairman of the Board. If a chairman of the board be elected, he shall,
except as otherwise provided for in Section 6(c) of these bylaws, preside at all
meetings of the shareholders and directors at which he may be present and shall
have such other duties, powers, and authority as may be prescribed elsewhere in
these bylaws. The board of directors may delegate such other authority and
assign such additional duties to the chairman of the board, other than those
conferred by law exclusively upon the president, as it may from time to time
determine, and, to the extent permissible by law, the board may designate the
chairman of the board as the chief executive officer of the corporation with all
of the powers otherwise conferred upon the president of the corporation under
Section 30 of these bylaws, or it may, from time to time, divide the
responsibilities, duties, and authority for the general control and management
of the corporation's business and affairs between the chairman of the board and
the president. If the chairman of the board is designated as the chief executive
officer of the corporation, notice thereof shall be given to the extent and in
the manner as may be required by law.
30. The President. Unless the board otherwise provides, the president shall be
the chief executive officer of the corporation with such general executive
powers and duties of supervision and management as usually are vested in the
office of the chief executive officer of a corporation, and he shall carry into
effect all directions and resolutions of the board. Except as otherwise provided
for in Section 6(c) of these bylaws, the president, in the absence of the
chairman of the board or if there be no chairman of the board, shall preside at
all meetings of the shareholders and directors.
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The president may execute all bonds, notes, debentures, mortgages, and
other contracts requiring a seal, under the seal of the corporation, may cause
the seal to be affixed thereto, and may execute all other instruments for and in
the name of the corporation.
Unless the board otherwise provides, the president, or any person
designated in writing by him, may (i) attend meetings of shareholders of other
corporations to represent this corporation thereat and to vote or take action
with respect to the shares of any such corporation owned by this corporation in
such manner as he or his designee may determine, and (ii) execute and deliver
waivers of notice and proxies for and in the name of this corporation with
respect to shares of any such corporation owned by this corporation.
He shall, unless the board otherwise provides, be an ex officio member
of all standing committees.
He shall have such other or further duties and authority as may be
prescribed elsewhere in these bylaws or from time to time by the board of
directors.
If a chairman of the board be elected and designated as the chief
executive officer of the corporation, as provided in Section 29 of these bylaws,
the president shall perform such duties as may be specifically delegated to him
by the board of directors or are conferred by law exclusively upon him, and in
the absence, disability, or inability or refusal to act of the chairman of the
board, the president shall perform the duties and exercise the powers of the
chairman of the board.
31. Vice Presidents. In the absence, disability, or inability or refusal to act
of the president, any vice president may perform the duties and exercise the
powers of the president, until the board otherwise provides. Vice presidents
shall perform such other duties as the board shall from time to time prescribe.
32. The Secretary and Assistant Secretaries. The secretary shall attend all
sessions of the board and, except as otherwise provided for in Section 6(c) of
these bylaws, all meetings of the shareholders, shall prepare minutes of all
proceedings at such meetings, and shall preserve them in a minute book of the
corporation. He shall perform similar duties for the executive and other
standing committees when requested by the board or any such committee.
He shall see that all books, records, lists, and information, or
duplicates, required to be maintained at the registered or other office of the
corporation in Texas, or elsewhere, are so maintained.
He shall keep in safe custody the seal of the corporation and, when
duly authorized to do so, shall affix it to any instrument requiring a corporate
seal, and, when so affixed, he shall attest the seal by his signature.
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He shall perform such other duties and have such other responsibility
and authority as may be prescribed elsewhere in these bylaws or from time to
time by the board of directors or the chief executive officer of the
corporation, under whose direct supervision he shall be.
He shall have the general duties, powers, and responsibilities of a
secretary of a corporation.
Any assistant secretary, in the absence, disability, or inability or
refusal to act of the secretary, may perform the duties and exercise the powers
of the secretary until the board otherwise provides. Assistant secretaries shall
perform such other duties and have such other authority as the board may from
time to time prescribe.
33. The Treasurer and Assistant Treasurers. The treasurer shall have
responsibility for the safekeeping of the funds and securities of the
corporation, shall keep or cause to be kept full and accurate accounts of
receipts and disbursements in books belonging to the corporation, and shall
keep, or cause to be kept, all other books of account and accounting records of
the corporation. He shall deposit or cause to be deposited all moneys and other
valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the board of directors or by any officer of
the corporation to whom such authority has been granted by the board.
He shall disburse, or permit to be disbursed, the funds of the
corporation as may be ordered, or authorized generally, by the board, and shall
render to the chief executive officer of the corporation and the directors,
whenever they may require it, an account of all his transactions as treasurer
and of those under his jurisdiction, and of the financial condition of the
corporation.
He shall perform such other duties and shall have such other
responsibility and authority as may be prescribed elsewhere in these bylaws or
from time to time by the board of directors.
He shall have the general duties, powers, and responsibility of a
treasurer of a corporation, and shall, unless otherwise provided by the board,
be the chief financial and accounting officer of the corporation.
If required by the board, he shall give the corporation a bond in a sum
and with one or more sureties satisfactory to the board for the faithful
performance of the duties of his office and for the restoration to the
corporation, in the 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 which belong to the corporation.
Any assistant treasurer, in the absence, disability, or inability or
refusal to act of the treasurer, may perform the duties and exercise the powers
of the treasurer until the board otherwise provides. Assistant treasurers shall
perform such other duties and have such other authority as the board may from
time to time prescribe.
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34. Duties of Officers May Be Delegated. If any officer of the corporation be
absent or unable to act, or for any other reason that the board may deem
sufficient, the board may delegate, for the time being, some or all of the
functions, duties, powers, and responsibilities of any officer to any other
officer, or to any other agent or employee of the corporation or other
responsible person, provided a majority of the whole board of directors concurs.
SHARES OF STOCK
35. Payment for Shares of Stock. The board of directors may authorize shares to
be issued for consideration consisting of any tangible or intangible benefit to
the corporation or other property of any kind or nature, including cash,
promissory notes, services performed, contracts for services to be performed,
other securities of the corporation, or securities of any other corporation,
domestic or foreign, or other entity. In addition, shares may be issued pursuant
to a plan of conversion or plan of merger in the manner and for such
consideration as may be provided for in the plan of conversion or plan of
merger. Shares may not be issued until the full amount of the consideration,
fixed as provided by law, has been paid or delivered as required in connection
with the authorization of the shares. When such consideration shall have been so
paid or delivered, the shares shall be deemed to have been issued and the
subscriber or shareholder entitled to receive such issue shall be a shareholder
with respect to such shares, and the shares shall be considered fully paid and
non-assessable.
36. Certificates for Shares of Stock. The corporation shall deliver certificates
representing shares to which shareholders are entitled. The certificates for
shares of stock of the corporation shall be numbered and shall be in such form
as may be prescribed by the board of directors in conformity with law. The
issuance of shares shall be entered in the share transfer records of the
corporation as they are issued. Such entries shall show the name and address of
the person, firm, partnership, corporation, or association to whom each
certificate is issued. Each certificate shall state upon the face thereof: that
the corporation is organized under the laws of Texas, the name of the person,
firm, partnership, corporation, or association to whom it is issued, the number
of shares represented thereby, and the par value of each share represented by
such certificate, or a statement that such shares are without value. It shall be
signed by an officer of the corporation, and may be sealed with the seal of the
corporation, which signature and seal may be facsimiles. In case such officer
who has signed or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if such
officer were such officer at the date of its issuance.
37. Transfers of Shares - Transfer Agent - Registrar. Transfers of shares of
stock shall be made in the share transfer records of the corporation only by the
person named in the stock certificate, or by his attorney lawfully constituted
in writing, and upon surrender of the certificate therefor. The share transfer
records shall be in the possession of the secretary or of a transfer agent for
the corporation. The corporation, by resolution of the board, may from time to
time appoint a transfer agent and, if desired, a registrar, under such
arrangements and upon such terms and conditions as the board deems advisable,
but until and unless the board appoints some other person, firm, or corporation
as its transfer agent (and upon the revocation of any such
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appointment, thereafter until a new appointment is similarly made), the
secretary of the corporation shall be the transfer agent of the corporation
without the necessity of any formal action of the board, and the secretary, or
any person designated by him, shall perform all of the duties thereof.
38. (a) Fixing Record Dates for Meetings, Distributions, Etc. 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 any
distribution or dividend (other than a purchase or redemption by the corporation
of any of its own shares) or share dividend, or in order to make a determination
of shareholders for any other proper purpose (other than determining
shareholders entitled to consent to action 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,
which shall not exceed sixty (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
(10) days immediately preceding such meeting. In lieu of closing the share
transfer records, the board of directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
more than 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 such determination of shareholders is to be taken. If the share
transfer records are not closed and no record date is fixed by the board of
directors for the determination of shareholders entitled to notice of or to vote
at a meeting of shareholders, or shareholders entitled to receive a distribution
or dividend (other than a repurchase or redemption by the corporation of any of
its own shares), 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
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 herein provided, such
determination shall 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.
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(b) Fixing Record Dates for Consents to Action. Unless a record date
shall have previously been fixed or determined pursuant to this section,
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 (10) days
after, the date upon which the resolution fixing the record date is adopted by
the board of directors. If no record date has been fixed by the board of
directors and the prior action of the board of directors is not required by law,
the record date for determining shareholders entitled to consent to action in
writing without a meeting shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the corporation by delivery to its registered office, its principal place of
business, or an officer or an 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 of directors and prior action of
the board of directors is required by law, the record date for determining
shareholders entitled to consent to action in writing without a meeting shall be
at the close of business on the date on which the board of directors adopts a
resolution taking such prior action.
39. Lost, Destroyed, or Stolen Certificates. The board of directors may direct a
new certificate to be issued in lieu of any theretofore issued by the
corporation that is alleged to have been lost, destroyed, or wrongfully taken,
if before the corporation has notice that the shares represented by such
certificate have been acquired by a bona fide purchaser, the owner of such
shares submits to the corporation an affidavit in form and substance
satisfactory to the corporation's counsel, of the fact of loss, destruction, or
wrongful taking by the person alleging the certificate to have been lost,
destroyed, or wrongfully taken. When authorizing such issuance of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may require the owner of such lost,
destroyed, or wrongfully taken certificate, or his legal representative, to give
the corporation a bond in such sum and form, and with such surety or sureties,
as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost,
destroyed, or wrongfully taken, or may require both such conditions or any other
reasonable conditions or requirements; provided, however, that a new certificate
may be issued without requiring a bond when in the judgment of the board it is
proper to do so.
40. Regulations. The board of directors shall have power and authority to make
all such rules and regulations as it may deem expedient concerning the issue,
transfer, conversion, and registration of certificates for shares of stock of
the corporation, that are not inconsistent with the laws of Texas, the articles
of incorporation, or these bylaws.
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GENERAL
41. Fixing of Capital - Transfers of Surplus. Except as may be specifically
otherwise provided in the articles of incorporation or by law, the board of
directors is expressly empowered to exercise all authority conferred upon it or
the corporation by any law or statute, and in conformity therewith, relative to:
(i) determining what part of the consideration received for shares of
the corporation shall be stated capital;
(ii) increasing stated capital;
(iii) transferring surplus to stated capital;
(iv) determining the consideration to be received by the corporation
for its shares; and
(v) determining all similar or related matters;
provided that any concurrent action or consent by or of the corporation and its
shareholders, required to be taken or given pursuant to law, shall be duly taken
or given in connection therewith.
42. Distributions of Dividends. Distributions or dividends upon the outstanding
shares of the corporation, subject to the provisions of the articles of
incorporation and of any applicable law, may be declared by the board of
directors at any meeting. Distributions or dividends may be paid in cash, in
property, or in shares of the corporation's stock.
Liquidating distributions or dividends or distributions or dividends
representing paid-in surplus or a return of capital shall be made only when and
in the manner permitted by law.
43. Creation of Reserves. Before the payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the board of directors from time to time deems proper as a reserve fund
or funds to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for any other purpose deemed by
the board to be conducive to the interests of the corporation, and the board may
abolish any such reserve in the manner in which it was created.
44. Depositories. The moneys of the corporation shall be deposited in the name
of the corporation in such bank or banks or other depositories as the board of
directors shall designate, and shall be drawn out only by check signed by
persons designated by resolution adopted by the board of directors. The board of
directors may by resolution authorize an officer or officers of the corporation
to designate any bank or banks or other depositories in which moneys of the
corporation may be deposited, and to designate the persons who may sign checks
drawn on any particular account or accounts of the corporation, whether created
by direct designation of the board of directors or by an authorized officer or
officers as aforesaid.
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45. Fiscal Year. The board of directors shall have power to fix and from time to
time change the fiscal year of the corporation. In the absence of action by the
board of directors, the fiscal year of the corporation shall end each year on
the date which the corporation treated as the close of its first fiscal year,
until such time, if any, as the fiscal year shall be changed by the board of
directors.
46. Directors' Annual Statement. The board of directors may present at each
annual meeting, and when called for by vote of the shareholders shall present to
any annual or special meeting of the shareholders, a full and clear statement of
the business and condition of the corporation.
47. Amendments. The bylaws of the corporation may from time to time be altered,
amended or repealed, or new bylaws may be adopted, in the manner provided by law
and the articles of incorporation, if any provision be made therein.
CERTIFICATE
The undersigned secretary of, ConSyGen, Inc., a Texas corporation,
hereby certifies that the foregoing bylaws are the bylaws of said corporation
adopted by the board of directors of said corporation, as amended, effective on
the date hereof.
DATED as of February 24, 1998.
/s/Leslie F. Stewart
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Leslie F. Stewart, Secretary
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