EXHIBIT 3.11
SECOND RESTATED BYLAWS OF
QUALITY TUBING, INC.
December 19, 1995
ARTICLE I.
Offices and Agent
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The Corporation may have such offices, either within or without the State
of Texas, as the Board of Directors may designate or as the business of the
Corporation may require from time to time.
The registered office of the Corporation required by the Texas Business
Corporation Act to be maintained in the State of Texas may be, but need not be,
identical with the principal office in the State of Texas, as designated by the
Board of Directors. The address of the registered office or the identity of the
registered agent may be changed from time to time by the Board of Directors.
The address of the initial registered office of the Corporation and the
name of the initial registered agent of the Corporation at such address are set
out in the Articles of Incorporation of the Corporation.
ARTICLE II.
Shareholders
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SECTION 1. Annual Meeting. The annual meeting of the shareholders shall be
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held on such date in each year and at such time and place as may be determined
by the Board of Directors, for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. If the
election of directors shall not be held on the day designated for any annual
meeting of the shareholders or at any adjournment thereof, the Board of
Directors shall cause the election to be held at a special meeting of the
shareholders as soon thereafter as may be convenient.
SECTION 2. Special Meetings. Special meetings of the shareholders, for any
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purpose or purposes, may be called by the President or by the Board of
Directors, and shall be called by the President at the request of the holders of
not less than 10% of the outstanding shares of the Corporation entitled to vote
at the meeting.
SECTION 3. Place of Meeting. The Board of Directors may designate any
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place, either within or without the State of Texas, as the place of meeting for
any annual or special meeting called by the Board of Directors. A waiver of
notice signed by all shareholders entitled to vote at a meeting may designate
any place, either within or without the State of Texas, as the place for the
holding of such meeting. If no designation is made, or if a special meeting be
called otherwise than by the Board of Directors, the place of meeting shall be
the registered office of the Corporation in the State of Texas.
SECTION 4. Notice of Meeting. Written or printed notice stating the place,
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day and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not fewer 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 persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the shareholder
at his address as it appears on the stock transfer books of the Corporation,
with postage thereon prepaid.
SECTION 5. Closing of Transfer Books and Fixing of Record Date. For the
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purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive a
distribution by the Corporation (other than a distribution involving a purchase
or redemption by the Corporation of 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 stock transfer books shall
be closed for a stated period not to exceed sixty (60) days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books shall
be closed for at least ten (10) days immediately preceding such meeting. In lieu
of closing the stock transfer books, the Board of Directors may, by resolution,
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
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 stock transfer books 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 payment of a
distribution (other than a distribution involving a purchase or redemption by
the Corporation 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 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 the
stock transfer books and the stated period of closing has expired.
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SECTION 6. Fixing Record Dates for Consents to Action. Unless a record date
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shall have previously been fixed or determined pursuant to Section 5 of this
Article II, 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
the Texas Business Corporation Act, the record date for determining shareholders
entitled to consent to action in writing without a meeting shall be the of 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 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.
SECTION 7. Voting Lists. The officer or agent having charge of the stock
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transfer books of the Corporation shall make, at least ten (10) days before each
meeting of shareholders, a complete list of the shareholders entitled to vote at
such meeting, or any adjournment thereof, arranged in alphabetical order, with
the address and the number of shares held by each, which list, for a period of
ten (10) days prior to such meeting, shall be kept on file at the registered
office of the Corporation, and shall be subject to inspection by any shareholder
at any time during usual business hours. Such list shall also be produced and
opened at the time and place of the meeting and shall be subject to the
inspection by any shareholder during the whole time of the meeting. The original
stock transfer book shall be prima facie evidence as to who are the shareholders
entitled to examine such list or transfer books or to vote at any meeting of
shareholders.
SECTION 8. Quorum. A majority of the outstanding shares of the Corporation
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entitled to vote, and represented in person or by proxy, shall constitute a
quorum at a meeting of shareholders unless otherwise provided in the Articles of
Incorporation of the Corporation. 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 such adjournment meeting at which a quorum shall be present or
represented, any business may be transacted that might have been transacted as
originally notified. The shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
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SECTION 9. Proxies. At all meetings of shareholders, a shareholder may vote
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by proxy executed in writing by the shareholder or by his duly authorized
attorney in fact. A telegram, telex, cablegram or similar transmission by the
shareholder or his duly authorized attorney in fact, or a photographic,
photostatic, facsimile or similar reproduction of a writing executed by the
shareholder or his duly authorized attorney in fact shall be treated as an
execution in writing for purposes of this section. Such proxy shall be filed
with the Secretary of the Corporation before or at the time of the meeting. No
proxy shall be valid after 11 months from the date of its execution, unless
otherwise provided in the proxy. Each proxy shall be revocable before it has
been voted unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest, including the appointment
as proxy of (a) a pledgee, (b) a person who purchased or agreed to purchase, or
owns or holds an option to purchase, the shares, (c) a creditor of the
corporation who extends its credit under terms requiring the appointment, (d) an
employee of the corporation whose employment contract requires the appointment,
or (e) a party to a voting agreement created under the Texas Business
Corporation Act. A revocable proxy shall be deemed to have been revoked if the
Secretary of the Corporation shall have received at or before the meeting
instructions of revocation or a proxy bearing a later date, which instructions
or proxy shall have been duly executed and dated in writing by the shareholder.
SECTION 10. Voting of Shares. Except as otherwise provided by the Texas
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Business Corporation Act, and unless otherwise. expressly provided in the
Articles of Incorporation of the Corporation, each outstanding share entitled to
vote shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders.
SECTION 11. Actions Without a Meeting. Any action required or permitted by
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the Texas Business Corporation Act to be taken at any annual or special meeting
of shareholders, may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holder or holders of 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
presented and voted. Such writing, which may be in counterparts, shall be
manually executed if practicable; provided, however, that if circumstances so
require, effect shall be given to written consent transmitted by telegraph,
telex, telecopy or similar means of visual data transmission.
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 in the manner
required by this Section 11, 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 by 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 officer of the Corporation.
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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.
SECTION 12. Telephone Meetings. Subject to the provisions required or
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permitted by the Texas Business Corporation Action for notice of meetings,
meetings of the shareholders of the Corporation may be conducted by means of
conference telephone or similar communications equipment whereby all persons
participating in the meeting can hear and speak to each other, and participation
in a meeting pursuant to this section shall constitute presence in person at
such meeting, except where a person attends the meeting for the express purpose
of objecting to the transaction of any business because that meeting is not
lawfully called or convened.
ARTICLE III.
Board of Directors
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SECTION 1. General Power. The powers of the Corporation shall be exercised
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by or under the authority of, and the business and affairs of the Corporation
shall be managed by its Board of Directors except as the Board of Directors
shall delegate the power to so manage to the Executive Committee or other
committee.
SECTION 2. Number, Tenure and Qualifications. The number of directors
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composing the Board of Directors shall be not less than four (4) or more than
eight (8), the exact number of which shall be fixed from time to time by the
Board of Directors. The directors shall be elected at the annual meeting of the
shareholders (except as provided in Section 8 or 9 of this Article) by a
plurality of the votes cast by the holders of shares entitled to vote in the
election of directors. Each director shall hold office until the next annual
meeting of the shareholders and until his successor shall have been elected and
qualified, unless he resigns or is removed at an earlier date. Subject to any
limitations specified by the Texas Business Corporation Act or in the Articles
of Incorporation of the Corporation, the number of directors may be increased or
decreased by resolution adopted by a majority of the Board of Directors. No
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. A director need not be a resident of the State of
Texas or a shareholder of the Corporation. Any director may resign at any time
by giving written notice to the President or Secretary of the Corporation.
SECTION 3. Regular Meetings. Regular meetings of the Board of Directors
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shall be held without notice at such time and place, either within or without
the State of Texas, as shall from time to time be determined by the Board of
Directors.
SECTION 4. Special Meetings. Special meetings of the Board of Directors may
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be called by or at the request of the Chairman of the Board, if one shall be
elected, the President or any two directors. The person or persons authorized to
call special meetings of the Board of Directors may fix any place, either within
or without the State of Texas, as the place for holding any special meeting
called by them.
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SECTION 5. Notice. Notice of any special meeting shall be given at least
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one day prior thereto by written notice delivered personally or mailed to each
director at his business address, or by telegram, telex, telecopy or similar
means of visual data transmission. If mailed, such notice shall be deemed to be
delivered two days after such notice has been deposited in the United States
mail so addressed, with postage thereon prepaid. If notice be given by telegram,
telex, telecopy or similar means of visual data transmission, such notice shall
be deemed to be delivered when transmitted for delivery to the recipient. Any
director may waive notice of any meeting. The 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 because that meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the Board of Directors need be specified in the
notice, or waiver of notice of such meeting.
SECTION 6. Quorum. A majority of the number of directors fixed in
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accordance with Section 2 of this Article III shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such majority is present at a meeting, a majority of the directors present
may adjourn the meeting from time to time without further notice.
SECTION 7. Manner of Acting.
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(a) Actions at a Meeting. Except as provided in Paragraph (b) of this
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Section 7, the act of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
(b) Actions Without a Meeting. Any action required or permitted to be
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taken at a meeting of the Board of Directors or any committee thereof 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 of Directors, Executive
Committee or other committee, as the case may be. Such consent shall have the
same force and effect as a unanimous vote at a meeting. Such writing, which may
be in counterparts, shall be manually executed if practicable; provided,
however, that if circumstances so require, effect shall be given to written
consent transmitted by telegraph, telex, telecopy, or similar means of visual
data transmission.
(c) Telephone Meetings. Subject to the provisions required or permitted by
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the Texas Business Corporation Act for notice of meetings, meetings of the Board
of Directors of the Corporation or any committee may be conducted by means of
conference telephone or similar communications equipment whereby all persons
participating in the meeting can hear and speak to each other, and participation
in a meeting pursuant to this section shall constitute presence in person at
such meeting, except where a person attends the meeting for the express purpose
of objecting to the transaction of any business because that meeting is not
lawfully called or convened.
SECTION 8. Vacancies. Any vacancy occurring in the Board of Directors
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(except by reason of an increase in the number of directors) may be filled by
(a) election at an annual or
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special meeting of shareholders called for that purpose, or (b) the affirmative
vote of a majority of the remaining directors though less than a quorum of the
Board of Directors. A person elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office.
A directorship to be filled by reason of an increase in the number of
directors may be filled by (a) election at an annual or special meeting of
shareholders called for that purpose or (b) 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.
SECTION 9. Removal. At any meeting of shareholders called expressly for the
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purpose of removal, 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. Removal of directors
with or without cause may also be accomplished by unanimous written consent of
the shareholders without a meeting. In case the entire board or any one or more
of the directors are so removed, new directors may be elected at the same
meeting, or by the same written consent, for the unexpired term of the director
or directors so removed. Failure to elect directors to fill the unexpired term
of the directors so removed shall be deemed to create a vacancy or vacancies in
the Board of Directors.
SECTION 10. Compensation. The directors shall be paid their reasonable
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expenses, if any, of attendance at each meeting of the Board of Directors, and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION 11. Presumption of Assent. A director of the Corporation who is
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present at a meeting of the Board of Directors in which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting, or unless he shall
file his written dissent to such action with the person acting as Secretary of
the meeting before the adjournment thereof, or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
SECTION 12. Committees. The Board of Directors, by resolution adopted by a
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majority of the full Board of Directors, may designate from among its members
(a) one (1) or more committees, each of which shall be comprised of one or more
of its members and shall have and may exercise all of the authority of the Board
of Directors in the business and affairs of the Corporation, except in those
cases where the authority of the Board of Directors is specifically denied to
such committee or committees by the Texas Business Corporation Act, the Articles
of Incorporation of the Corporation or these Bylaws and (b) one (1) or more
Directors as alternate members of any such committee, who may, subject to any
limitations imposed by the Board of Directors, replace absent or disqualified
members at any meeting of that committee. The
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designation of any 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. The members of each such committee
shall serve at the pleasure of the Board of Directors. The Board of Directors
shall have the power, at any time to fill vacancies in, to change membership of,
or to dissolve any committee.
ARTICLE IV.
Officers
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SECTION 1. Number. The officers of the Corporation shall be a Chairman of
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the Board, a President, one or more Vice-Presidents (the number and specific
titles thereof to be determined by the Board of Directors), a Secretary, and a
Treasurer, each of whom shall be elected by the Board of Directors. Such other
officers and assistant officers as may be deemed necessary may be elected or
appointed by the Board of Directors. Any two or more offices may be held by the
same person.
SECTION 2. Election and Term of Office. The officers of the Corporation
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shall be elected annually by the Board of Directors at its first meeting held
after each annual meeting of the shareholders. If the election shall not be held
at such meeting, such election shall be held as soon thereafter as may be
convenient. Each officer shall hold office until his successor shall have been
duly elected and qualified or until his death, or until he shall resign or shall
have been removed in the manner hereinafter provided.
SECTION 3. Removal. Any officer may be removed by the Board of Directors
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whenever in its judgment the best interests of the Corporation would be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
SECTION 4. Vacancies. A vacancy in any office because of death,
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resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
SECTION 5. Chairman of the Board. The Chairman of the Board shall be an
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executive officer of the Corporation and he shall have such powers and duties as
may be prescribed by the Board of Directors from time to time.
SECTION 6. President. The President shall be the chief executive officer of
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the Corporation and, subject to the control of the Board of Directors, shall in
general supervise and control all of the day to day business and affairs of the
Corporation. He shall perform all duties incident to the office of President and
such other duties as may be prescribed by the Board of Directors from time to
time.
SECTION 7. The Vice Presidents. In the absence of the President or in the
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event of his death, inability or refusal to act, the Vice President (or should
there be more than one Vice
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President, the Vice Presidents in the order designated at the time of their
election, or in the absence of any designation then in the order of their
election) shall perform the duties of President, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the President. He
shall perform such other duties as from time to time may be assigned to him by
the President or the Board of Directors.
SECTION 8. The Secretary. The Secretary shall: (a) keep the minutes of the
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shareholders' and the Board of Directors' meetings in one or more books provided
for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws, or as required by law; (c) be custodian of the
corporate records and of the seal of the Corporation, and see that the seal of
the Corporation is affixed to all documents as may be necessary or appropriate;
(d) keep a register of the post office address of each shareholder which shall
be furnished to the Secretary of such shareholder; (e) have general charge of
the stock transfer books of the Corporation; and (f) in general, perform all
duties incident to the office of Secretary, and such other duties as from time
to time may be designated to him by the President or the Board of Directors.
SECTION 9. The Treasurer. If required by the Board of Directors, the
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Treasurer shall give a bond for the faithful discharge of his duties in such
sum, and with such surety or sureties, as the Board of Directors shall
determine. He shall: (a) have charge and custody of, and be responsible for, all
funds and securities of the Corporation from any source whatsoever, and deposit
all such moneys in the name of the Corporation in such banks, trust companies,
or other depositories as shall be selected by the Board of Directors; and (b) in
general perform all of the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the President or by
the Board of Directors.
SECTION 10. Assistant Secretaries and Assistant Treasurers. The Assistant
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Secretaries when authorized by the Board of Directors may sign with the
President, or a Vice President, certificates for shares of the Corporation the
issuance of which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall, respectively, if required by the
Board of Directors, give bonds for the faithful discharge of their duties in
such sums and with such sureties as the Board of Directors shall determine. The
Assistant Secretaries and Assistant Treasurers, in general, shall perform such
duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
SECTION 11. Salaries. The salaries, if any, of the officers shall be fixed
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from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a director of
the Corporation.
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ARTICLE V.
Certificates for Shares, Transfer and Replacement
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SECTION 1. Certificates for Shares. Certificates representing shares of the
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Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or a Vice
President, and by the Secretary or an Assistant Secretary. If such certificates
are signed or countersigned by a transfer agent or registrar, other than the
Corporation, such signature of the President or a Vice President and Secretary
or Assistant Secretary, and the seal of the Corporation, or any of them, may be
executed in facsimile, engraved or printed. If any officer who has signed or
whose facsimile signature has been placed on any certificate shall have ceased
to be such officer before the certificate is issued, it may be issued by the
Corporation with the same effect as if the officer has not ceased to be such at
the date of issue. All certificates for shares shall be consecutively numbered
or otherwise identified. The name and address of the person to whom the shares
represented thereby are issued with the number of shares and date of issue,
shall be entered on the stock transfer books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be cancelled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled, except that in case
of a lost, stolen or destroyed certificate a new one may be issued therefor
provided in Section 3 of this Article V.
SECTION 2. Transfer of Shares. Transfer of shares of the Corporation shall
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be made only on the stock transfer books of the Corporation upon surrender for
cancellation of the certificate for such shares together with a request to
transfer and such other documents and opinion as counsel to the Corporation may
require. The person in whose name shares stand on the books of the Corporation
shall be deemed by the Corporation to be the owner thereof for all purposes.
SECTION 3. Lost, Stolen or Destroyed Certificates. The Corporation shall
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issue a new certificate in place of any certificate for shares previously issued
if the registered owner of the certificate: (a) makes proof in affidavit form
that it has been lost, destroyed or wrongfully taken; (b) requests the issuance
of a new certificate before the Corporation has notice that the certificate has
been acquired by a purchaser for value in good faith and without notice of an
adverse claim; (c) gives a bond in such form, and with such surety or sureties,
with fixed or open penalty, as the Corporation may direct, or indemnifies the
Corporation (and its transfer agent and registrar, if any) against any claim
that may be made on account of the alleged loss, destruction or theft of the
certificates; and (d) satisfies any other reasonable requirements imposed by the
Corporation. When a certificate has been lost, apparently destroyed or
wrongfully taken, and the holder of record fails to notify the Corporation
within a reasonable time after he has notice of it, and the Corporation
registers a transfer of the shares represented by the certificate before
receiving such notification, the holder of record is precluded from making any
claim against the Corporation for the transfer or for a new certificate.
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ARTICLE VI.
Fiscal Year
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The Board of Directors shall, by resolution, fix the fiscal year of the
Corporation.
ARTICLE VII.
Distributions
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The Board of Directors may from time to time declare, and the Corporation
may make distributions in the manner provided by law.
ARTICLE VIII.
Seal
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The Board of Directors shall provide a corporate seal, which shall be
circular in form and shall have inscribed thereon the name of the Corporation,
the state of incorporation, and the five-pointed Texas star.
ARTICLE IX.
Waiver of Notice
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Whenever any notice is required to be given to any shareholder or director
of the Corporation under the provisions of these Bylaws, the Articles of
Incorporation or the Texas Business Corporation Act, 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.
ARTICLE X.
Procedure
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Meetings of the shareholders and of the Board of Directors shall be
conducted in accordance with the procedure as contained in Robert's Rules of
Order, to the extent applicable.
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ARTICLE XI.
Participation of Directors and Officers in Related Business
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Unless otherwise provided by contract and subject to the Texas Business
Corporation Act, officers and directors of this Corporation may hold positions
as officers and directors of other corporations, in related businesses, and
their efforts to advance the interest of those corporations will not create a
breach of fiduciary duty to this Corporation in the absence of bad faith.
ARTICLE XII.
Amendments
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The Board of Directors shall have the power to alter, amend or repeal these
Bylaws or adopt new Bylaws, subject to amendment, repeal or adoption of new
Bylaws by action of the shareholders and unless the shareholders in amending,
repealing or adopting a new Bylaw expressly provide that the Board of Directors
may not amend or repeal that Bylaw. The Board of Directors may exercise this
power at any regular or special meeting at which a quorum is present by the
affirmative vote of a majority of the Directors present at the meeting and
without any notice of the action taken with respect to the Bylaws having been
contained in the notice or waiver of notice of such meeting. Unless the
Corporation's Articles of Incorporation or a Bylaw adopted by the shareholders
provides otherwise as to all or some portion of the Bylaws, the Corporation's
shareholders may amend, repeal or adopt new Bylaws even though the Bylaws may
also be amended by the Board.
ARTICLE XIII.
Indemnification
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SECTION 1. Definitions. In this Article:
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(a) "Indemnitee" means (i) any present or former director, advisory
director or officer of the Corporation, (ii) any person who while serving in any
of the capacities referred to in clause (i) hereof served at the Corporation's
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, and (iii) any person nominated or designated
by (or pursuant to authority granted by) the Board of Directors or any committee
thereof to serve in any of the capacities referred to in clauses (i) or (ii)
hereof.
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(b) "Official Capacity" means (i) when used with respect to a director,
the office of Director of the Corporation, and (ii) when used with respect to a
person other than a director, the elective or appointive office of the
Corporation held by such person or the employment or agency relationship
undertaken by such person on behalf of the Corporation, but in each case does
not include service for any other foreign or domestic corporation or any
partnership, joint venture, sole proprietorship, trust, employee benefit plan or
other enterprise.
(c) "Proceeding" means any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, arbitrative or
investigative, any appeal in such an action, suit or proceeding, and any inquiry
or investigation that could lead to such an action, suit or proceeding.
SECTION 2. Indemnification. The Corporation shall indemnify every
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Indemnitee against all judgments, penalties (including excise and similar
taxes), fines, amounts paid in settlement and reasonable expenses actually
incurred by the Indemnitee in connection with any Proceeding in which he was, is
or is threatened to be named defendant or respondent, or in which he was or is a
witness without being named a defendant or respondent, by reason, in whole or in
part, of his serving or having served, or having been nominated or designated to
serve, in any of the capacities referred to in Section 1 of this Article, if it
is determined in accordance with Section 4 of this Article that the Indemnitee
(a) conducted himself in good faith, (b) reasonably believed, in the case of
conduct in his Official Capacity, that his conduct was in the Corporation's best
interests and, in all other cases, that his conduct was at least not opposed to
the Corporation's best interests, and (c) in the case of any criminal
proceeding, had no reasonable cause to believe that his conduct was unlawful;
provided, however, that in the event that an Indemnitee is found liable to the
Corporation or is found liable on the basis that personal benefit was improperly
received by the Indemnitee the indemnification (i) is limited to reasonable
expenses actually incurred by the Indemnitee in connection with the Proceeding
and (ii) shall not be made in respect of any Proceeding in which the Indemnitee
shall have been found liable for willful or intentional misconduct in the
performance of his duty to the Corporation. Except as provided in the
immediately preceding proviso to the first sentence of this Section 2 of this
Article, no indemnification shall be made under this Section 2 of this Article
in respect of any Proceeding in which such Indemnitee shall have been (x) found
liable on the basis that personal benefit was improperly received by him,
whether or not the benefit resulted from an action taken in the Indemnitee's
Official Capacity, or (y) found liable to the Corporation. The termination of
any Proceeding by judgment, order, settlement or conviction, or on a plea of
nolo contendere or its equivalent, is not of itself determinative that the
Indemnitee did not meet the requirements set forth in clauses (a), (b) or (c) in
the first sentence of this Section 2 of this Article. An Indemnitee shall be
deemed to have been found liable in respect of any claim, issue or matter only
after the Indemnitee shall have been so adjudged by a court of competent
jurisdiction after exhaustion of all appeals therefrom. Reasonable expenses
shall include, without limitation, all court costs and all fees and
disbursements of attorneys for the Indemnitee. The indemnification provided
herein shall be applicable whether or not negligence or gross negligence of the
Indemnitee is alleged or proven.
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SECTION 3. Successful Defense. Without limitation of Section 2 of this
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Article and in addition to the indemnification provided for in Section 2 of this
Article, the Corporation shall indemnify every Indemnitee against reasonable
expenses incurred by such person in connection with any Proceeding in which he
is a witness or a named defendant or respondent because he served in any of the
capacities referred to in Section 1 of this Article, if such person has been
wholly successful, on the merits or otherwise, in defense of the Proceeding.
SECTION 4. Determinations. Any indemnification under Section 2 of this
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Article (unless ordered by a court of competent jurisdiction) shall be made by
the Corporation only upon a determination that indemnification of the Indemnitee
is proper in the circumstances because he has met the applicable standard of
conduct. Such determination shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of directors who, at the time of such vote,
are not named defendants or respondents in the Proceeding, (b) if such a quorum
cannot be obtained, then by a majority vote of a committee of the Board of
Directors, duly designated to act in the matter by a majority vote of all
directors (in which designation directors who are named defendants or
respondents in the Proceeding may participate), such committee to consist solely
of two (2) or more directors who, at the time of the committee vote, are not
named defendants or respondents in the Proceeding, (c) by special legal counsel
selected by the Board of Directors or a committee thereof by vote as set forth
in clauses (a) or (b) of this Section 4 of this Article or, if the requisite
quorum of all of the directors cannot be obtained therefor and such committee
cannot be established, by a majority vote of all of the directors (in which
directors who are named defendants or respondents in the Proceeding may
participate); or (d) by the shareholders in a vote that excludes the shares held
by directors that are named defendants or respondents in the Proceeding.
Determination as to reasonableness of expenses shall be made in the same manner
as the determination that indemnification is permissible, except that if the
determination that indemnification is permissible is made by special legal
counsel, determination as to reasonableness of expenses must be made in the
manner specified in clause (c) of the preceding sentence for the selection of
special legal counsel. In the event a determination is made under this Section 4
of this Article that the Indemnitee has met the applicable standard of conduct
as to some matters but not as to others, amounts to be indemnified may be
reasonably prorated.
SECTION 5. Advancement of Expenses. Reasonable expenses (including court
-----------------------
costs and attorneys' fees) incurred by an Indemnitee who was or is a witness or
was, is or is threatened to be made a named defendant or respondent in a
Proceeding shall be paid by the Corporation at reasonable intervals in advance
of the final disposition of such Proceeding, and without making the
determination specified in Section 4 of this Article, after receipt by the
Corporation of (a) a written affirmation by such Indemnitee of his good faith
belief that he has met the standard of conduct necessary for indemnification by
the Corporation under this Article and (b) a written undertaking by or on behalf
of such Indemnitee to repay the amount paid or reimbursed by the Corporation if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article. Such written undertaking shall be
an unlimited obligation of the Indemnitee but need not be secured and it may be
accepted without reference to financial ability to make repayment.
Notwithstanding any other provision of this Article, the
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Corporation may pay or reimburse expenses incurred by an Indemnitee in
connection with his appearance as a witness or other participation in a
Proceeding at a time when he is not named a defendant or respondent in the
Proceeding.
SECTION 6. Employee Benefit Plans. For purposes of this Article, the
-----------------------
Corporation shall be deemed to have requested an Indemnitee to serve an employee
benefit plan whenever the performance by him of his duties to the Corporation
also imposes duties on or otherwise involves services by him to the plan or
participants or beneficiaries of the plan. Excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall be deemed fines. Action taken or omitted by an Indemnitee with respect to
an employee benefit plan in the performance of his duties for a purpose
reasonably believed by him to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Corporation.
SECTION 7. Other Indemnification and Insurance. The indemnification
-----------------------------------
provided by this Article shall (a) not be deemed exclusive of, or to preclude,
any other rights to which those seeking indemnification may at any time be
entitled under the Corporation's Articles of Incorporation, any law, agreement
or vote of shareholders or disinterested directors, or otherwise, or under any
policy or policies of insurance purchased and maintained by the Corporation on
behalf of any Indemnitee, both as to action in his Official Capacity and as to
action in any other capacity, (b) continue as to a person who has ceased to be
in the capacity by reason of which he was an Indemnitee with respect to matters
arising during the period he was in such capacity, and (c) inure to the benefit
of the heirs, executors and administrators of such a person.
SECTION 8. Notice. Any indemnification of or advance of expenses to an
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Indemnitee in accordance with this Article shall be reported in writing to the
shareholders of the Corporation with or before the notice or waiver of notice of
the next shareholders' meeting or with or before the next submission to
shareholders of a consent to action without a meeting and, in any case, within
the twelve-month period immediately following the date of the indemnification or
advance.
SECTION 9. Construction. The indemnification provided by this Article shall
------------
be subject to all valid and applicable laws, including, without limitation,
Article 2.02-1 of the TBCA, and, in the event this Article or any of the
provisions hereof or the indemnification contemplated hereby are found to be
inconsistent with or contrary to any such valid laws, the latter shall be deemed
to control and this Article shall be regarded as modified accordingly, and, as
so modified, to continue in full force and effect.
SECTION 10. Continuing Offer, Reliance, etc. The provisions of this Article
--------------------------------
(a) are for the benefit of, and may be enforced by, each Indemnitee of the
Corporation, the same as if set forth in their entirety in a written instrument
duly executed and delivered by the Corporation and such Indemnitee and (b)
constitute a continuing offer to all present and future Indemnitees. The
Corporation, by its adoption of these Bylaws, (x) acknowledges and agrees that
each Indemnitee
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of the Corporation has relied upon and will continue to rely upon the provisions
of this Article in becoming, and serving in any of the capacities referred to in
Section 8.1(a) of this Article, (y) waives reliance upon, and all notices of
acceptance of, such provisions by such Indemnitees and (z) acknowledges and
agrees that no present or future Indemnitee shall be prejudiced in his right to
enforce the provisions of this Article in accordance with their terms by any act
or failure to act on the part of the Corporation.
SECTION 11. Effect of Amendment. No amendment, modification or repeal of
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this Article or any provision hereof shall in any manner terminate, reduce or
impair the right of any past, present or future Indemnitees to be indemnified by
the Corporation, nor the obligation of the Corporation to indemnify any such
Indemnitees, under and in accordance with the provisions of the Article as in
effect immediately prior to such amendment, modification or repeal with respect
to claims arising from or relating to matters occurring, in whole or in part,
prior to such amendment, modification or repeal, regardless of when such claims
may arise or be asserted.
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