Exhibit 3.38
AMENDED AND RESTATED BYLAWS
OF
[Company]
(a Texas corporation)
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ARTICLE I
SHAREHOLDERS
1. SHARE CERTIFICATES. Certificates representing shares of the
corporation shall set forth thereon the statements prescribed by Articles
2.19 and 2.22 of the Texas Business Corporation Act and by any other
applicable provision of law, including any limitation or denial of
preemptive rights, which shall be signed by the President or a
Vice-President of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof. The signatures of any such officers
upon a certificate may be facsimiles. In case any 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 he were such officer
at the date of its issuance.
No certificate shall be issued for any share until the
consideration therefor has been fully paid.
2. SHARE TRANSFERS. Upon compliance with any provisions
restricting the transferability of shares that may be set forth in the
Articles of Incorporation, these Bylaws, or any written agreement in
respect thereof, and, in accordance with the provisions of Articles 2.19
and 2.22 of the Texas Business Corporation Act, transfers of shares of the
corporation shall be made only on the share transfer records of the
corporation by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary
of the corporation, or with a transfer agent or a registrar and on
surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon, if any. Except as may be
otherwise provided by law, the person in whose name shares stand on the
share transfer records of the corporation shall be deemed the owner thereof
for all purposes as regards the corporation; provided that whenever any
transfer of shares shall be made for collateral security, and not
absolutely, such fact, if known to the Secretary of the corporation, shall
be so expressed in the entry of transfer.
3. RECORD DATE FOR SHAREHOLDERS. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive a
distribution (other than a distribution involving a purchase or redemption
by the corporation of any of its own shares) or a share dividend, or in
order to make a determination of shareholders for any other proper purpose
(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 not to exceed, in any case,
sixty days. If the share transfer records shall be closed for the purpose
of determining the shareholders entitled to notice of or to vote at a
meeting of shareholders, such share transfer records shall be closed for at
least ten days immediately preceding such meeting. In lieu of closing the
share transfer records, the Board of Directors may fix in advance a date as
the record date for any such determination of shareholders, such date to be
not more than sixty days and, in case of a meeting of shareholders, not
less than ten days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If the share
transfer records are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting
of shareholders, or shareholders entitled to receive a distribution (other
than a distribution involving a purchase or redemption by the corporation
of any of its own shares) or a share dividend, the date on which notice of
the meeting is mailed or the date on which the resolution of the Board of
Directors declaring such distribution or share dividend is adopted, as the
case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, 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. 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 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 the Texas Business Corporation Act, 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 as provided in Section A of Article 9.10 of the Texas Business
Corporation Act 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 of Directors and prior action of the Board of Directors is required
by the Texas Business Corporation 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 of
Directors adopts a resolution taking such prior action.
4. SHAREHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date fixed from
time to time by the Board of Directors; provided that any such date shall
not be more than thirteen months after the date of the preceding annual
meeting. A special meeting shall be held on the date fixed by the directors
except when the Texas Business Corporation Act confers the right to call a
special meeting upon the shareholders.
- PLACE. Annual meetings and special meetings shall be held at
such place within or without the State of Texas as shall be fixed from time
to time by the Board of Directors. In the event of failure of the Board of
Directors to fix such place, any such meeting shall be held at the
registered office of the corporation in Texas.
- CALL. Annual meetings may be called by the directors or the
President or by any officer instructed by the directors or the President to
call the meeting. Special meetings may be called in a like manner or by any
other person or persons authorized to do so by the provisions of the Texas
Business Corporation Act.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall
be given, stating the place, date and hour of the meeting not less than ten
and no more than sixty days before the date of the meeting.
- VOTING LIST. The officer or agent having charge of the share
transfer records for shares of the corporation shall make, at least ten
days before each meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting or any adjournment thereof,
arranged in alphabetical order, with the address of, and the number of
shares held by, each. The list shall be kept on file at the registered
office or principal place of business of the corporation in the State of
Texas for a period of at least ten days prior to the meeting and shall be
subject to inspection by any shareholder at any time during usual business
hours. Such list shall also be produced and kept open at the time and place
of the meeting and shall be subject to the inspection of any shareholder
during the whole time of the meeting. The original share transfer records
shall be prima facie evidence as to who are the shareholders entitled to
examine such list or share transfer records or to vote at any meeting of
shareholders.
- CONDUCT OF MEETING. Meetings of the shareholders shall be
presided over by one of the following officers in the order of seniority
and if present and acting - the Chairman of the Board, if any, the
Vice-Chairman of the Board, if any, the President, a Vice-President, or, if
none of the foregoing is in office and present and acting, by a chairman to
be chosen by the shareholders. The Secretary of the corporation, or in his
absence, an Assistant Secretary, shall act as secretary of every meeting,
but, if neither the Secretary nor an Assistant Secretary is present, the
Chairman of the meeting shall appoint a secretary of the meeting.
- QUORUM. With respect to any meeting of shareholders, a quorum
shall be present for any matter to be presented at that meeting if the
holders of a majority of the shares entitled to vote at the meeting are
represented at the meeting in person or by proxy. 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 properly be 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. 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.
- VOTING. Shareholders shall not be entitled to cumulate their
votes in the election of directors. In the election of directors, a
plurality of the votes cast shall elect. Except as the Texas Business
Corporation Act, the Articles of Incorporation, or these Bylaws may
otherwise provide, the affirmative vote of the holders of a majority of the
shares entitled to vote on and that voted for or against or expressly
abstained with respect to that matter at a meeting of shareholders at which
quorum is present shall be the act of the shareholders.
5. INFORMAL ACTION. Any action required by the Texas Business
Corporation Act to be taken at a meeting of shareholders, and 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 pursuant
to the provisions of Article 9.10 of the Texas Business Corporation Act.
ARTICLE II
BOARD OF DIRECTORS
1. FUNCTIONS GENERALLY. 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, a Board of Directors.
2. QUALIFICATIONS AND NUMBER. A director need not be a
shareholder, a citizen of the United States, or a resident of the State of
Texas. The number of directors constituting the Board of Directors shall be
one or more. Subject to the foregoing limitation, such number of directors
may be fixed or changed from time to time by the shareholders or by the
Board of Directors.
3. ELECTION AND TERM. Directors who are elected at an annual
meeting of shareholders, and directors who are elected in the interim to
fill vacancies and newly created directorships, shall hold office until the
next succeeding annual meeting of shareholders and until their successors
have been elected and qualified. In the interim between annual meetings of
shareholders or of special meetings of shareholders called for the election
of directors, any vacancies in the Board of Directors, including vacancies
resulting from the removal of directors by the shareholders but which are
not filled by said shareholders, may be filled by the affirmative vote of a
majority of the remaining directors, although less than a quorum exists.
Subject to any limitations imposed by Article 2.34 of the Texas Business
Corporation Act, 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.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall
fix.
- PLACE. Meetings shall be held at such place within or without
the State of Texas as shall be fixed by the Board.
- CALL. No call shall be required for regular meetings for which
the time and place have been fixed. Special meetings may be called by or at
the direction of the Chairman of the Board, if any, the Vice-Chairman of
the Board, if any, of the President, or of a majority of the directors in
office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be
given for special meetings in sufficient time for the convenient assembly
of the directors thereat. The notice of any meeting need not specify the
business to be transacted or the purpose of the meeting. Any requirement of
furnishing a notice shall be waived by any director who signs a waiver of
notice before or after the meeting. Attendance of a director at a meeting
shall constitute a waiver of notice of the meeting, except where the
director attends the meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
- QUORUM AND ACTION. A majority of the full Board of Directors
shall constitute a quorum unless a different number or portion is required
by law. Except as herein otherwise provided, and except as may be otherwise
provided by law, the Articles of Incorporation, or these Bylaws, the act of
a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
5. REMOVAL OF DIRECTORS. The entire Board of Directors or any
individual director may be removed from office in conformance with the
provisions of Article 2.32 of the Texas Business Corporation Act.
6. INFORMAL ACTION. Any action required or permitted to be taken
at a meeting of directors or of any committee, if any, may be taken without
a meeting if a consent in writing, setting forth the action so taken, shall
be signed by all of the members of the Board of Directors or committee, as
the case may be.
ARTICLE III
OFFICERS
The corporation shall have a President and a Secretary, each of
whom shall be elected by the Board of Directors at such time and in such
manner as the Board may deem appropriate. The corporation may have such
other officers, including assistant officers, and agents as may be deemed
necessary, each or any of whom may be elected or appointed by the directors
or may be chosen in such manner as the directors shall determine. Any two
or more offices may be held by the same person.
Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board
of Directors following the next annual meeting of shareholders and until
his successor has been elected and qualified.
The officers and agents of the corporation shall have the
authority and perform the duties in the management of the corporation as
determined by the resolution electing or appointing them, as the case may
be.
The Board of Directors may remove any officer or agent whenever in
its judgment the best interests of the corporation will be served thereby.
ARTICLE IV
SHAREHOLDERS RECORD
The corporation shall keep at its registered office in the State
of Texas or at its principal place of business, or at the office of its
transfer agent or registrar, if any, a record of its shareholders, as
prescribed by Article 2.44 of the Texas Business Corporation Act and shall
keep on file at said registered office the voting list of shareholders for
a period of at least ten days prior to any meeting of shareholders.
ARTICLE V
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the
corporation and shall be in such form and contain such other words and/or
figures as the Board of Directors shall determine or the law require.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
ARTICLE VII
CONTROL OVER BYLAWS
After the adoption of the initial Bylaws by the initial Board of
Directors, the Board of Directors may amend or repeal the Bylaws or adopt
new Bylaws except as otherwise provided by Article 2.23 of the Texas
Business Corporation Act or any other applicable provision of law.