BY-LAWS
AARICA HOLDINGS, INC.
(A Texas Corporation)
ARTICLE I
OFFICES
Section 1. The initial registered office shall be located at 8214
Westchester, Suite 500, Dallas, Texas 75225. The name of the registered agent at
such address is Maurice J. Bates. The Board of Directors may change the
Corporation's registered office or registered agent, or both, in the manner set
forth in Article 2.10 of the Texas Business Corporation Act.
Section 2. The Corporation may also have offices at such other places,
both within and without the State of Texas, as the Board of Directors may from
time to time determine or the business of the Corporation requires.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders shall be held in Dallas, Texas,
or at such other place as may be specified by the Board of Directors in the
notice of such meeting.
Section 2. Annual meetings of shareholders, commencing with the year
2000, shall be held each year on a day selected by the Board of Directors. If
such day is a legal holiday then on the next secular day following at 10:00 a.m.
or at such other hour as may be specified in the notice of meeting. At the
meeting, shareholders shall elect, by a majority vote, a Board of Directors and
transact such other business as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less then ten nor more
than 50 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 of persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders, for any purpose, may be
held at such time and place within or without the State of Texas as shall be
stated in the notice of the meeting.
Section 2. Special meetings of shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation', may be called by the president, the Board of Directors or the
holders of not less then one-tenth (1/10) of all the shares entitled to vote at
the meeting.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and purpose or purposes for which the meeting
is called shall be delivered not less than ten nor more than 50 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.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the Articles of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting, at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the Articles of Incorporation.
Section 3. Each outstanding share of stock having voting power shall
be- entitled to one vote on each matter submitted to a vote at a meeting of
shareholders except to the extent that the voting rights of the shares of any
class or classes are limited or denied by the Articles of Incorporation as
permitted by the Texas Business Corporation Act. A shareholder may vote either
in person or by proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact.
Section 4. Any action required by statute to be taken at a meeting of
the shareholders, or any action which may be taken at a meeting of the
shareholders, may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all the shareholders entitled to
vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The business and affairs of the Corporation shall be managed
by its Board of Directors which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the Articles
of Incorporation or by these Bylaws directed or required to be exercised or done
by the shareholders.
Section 2. The number of directors shall be at least one, the number to
be determined by the Board annually prior to the next annual meeting of the
shareholders. Directors need not be residents of the State of Texas nor
shareholders of the Corporation. The directors, other than the first Board of
Directors, shall be elected at the annual meeting of the shareholders and each
director elected shall serve until the next succeeding annual meeting and until
his successor shall have been elected and qualified. The first Board of
Directors shall hold office until the first annual meeting of shareholders.
Section 3. Any vacancy occurring in the Board of Directors by death,
resignation, removal or otherwise may be filled by the affirmative vote of the
majority of the remaining directors though less than a quorum of the Board of
Directors. A director elected to fill a vacancy shall be elected for the
unexpired portion of the term of his predecessor in office.
Any directorship to be filled by reason of an increase in the number of
directors shall be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose. A director elected to fill a
newly created directorship shall serve until the next succeeding annual meeting
of shareholders and until his successor shall have been elected and qualified.
Section 4. The directors may keep the books of the Corporation, except
such as are required by law to be kept within the state, outside of the State of
Texas at such place or places as they may from time to time determine.
Section 5. The Board of Directors, by the affirmative vote of a
majority of the directors then in office and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the Corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS, OF THE BOARD OF DIRECTORS
Section 1. Meetings of the Board of Directors, regular or special, may be
held either within or without the State of Texas.
Section 2. The first meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of shareholders and at
the same place, and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present, or it may convene at such place and time as shall be fixed by
the consent in writing of all the directors.
Section 3. Regular meetings of the Board of Directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the Board.
Section 4. Special meetings of the Board of Directors may be called by
the president on three days' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting to the transaction of any business because the
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. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
Articles of Incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board of Directors,
unless the act of a greater number is required by statute or by the Articles of
Incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting form time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Unless otherwise provided by the Articles of Incorporation or
Bylaws, any action required or permitted to be taken at a meeting of the Board
of Directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, is signed by all the members of the Board of
Directors. Such consent shall have the same force and effect as a unanimous vote
at a meeting. The signed consent, or a signed copy, shall be placed in the
minute book.
Section 8. Unless otherwise provided by the Articles of Incorporation or
Bylaws, any action required or permitted to be taken at a meeting of the Board
of Directors may be taken by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The Board of Directors, by resolution adopted by a majority
of the number of directors fixed by the Bylaws or otherwise, may designate two
or more directors to constitute an Executive Committee, which committee, to the
extent provided in such resolution or in the Articles of Incorporation or
Bylaws, shall have and exercise all of the authority of the Board of Directors
in the management of the Corporation, except as otherwise required by law.
Vacancies in the membership of the Executive Committee shall be filled by the
Board of Directors at a regular or special meeting of the Board of Directors.
The Executive Committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors when required.
Section 2. Any action required or permitted to be taken at a meeting of
the Executive Committee may be taken without a meeting if a consent, in writing,
setting forth the action so taken, is signed by all the members of the Executive
Committee. Such consent shall have the same force and effect as a unanimous vote
at a meeting. The signed consent, or a signed copy, shall be placed in the
minute book.
Section 3. Unless otherwise provided by the Articles of incorporation
or Bylaws, any action required or permitted to be taken at a meeting of the
Executive Committee may be taken by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE VIII
NOTICES
Section 1. Whenever under the provisions of the statutes or of the
Articles of Incorporation or of these Bylaws notice is required to be given to
an' director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder at his address as it appears on the records of the Corporation with
postage thereon prepaid and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors
may also be given by telegram or by facsimilie transmission.
Section 2. Whenever any notice whatsoever is required to be given under
the provisions of the statutes or under the provisions of the Articles of
Incorporation or these Bylaws, a waiver thereof, in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the Corporation shall be a president and a
secretary, each of whom shall be elected by the Board of Directors. Such other
officers, including a chairman of the board, vice presidents, a treasurer 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.
No officer, assistant officer or agent need be a shareholder, a director or a
resident of Texas.
Section 2. The officers of the Corporation to be elected by the Board
of Directors shall be elected annually by the Board of Directors at the first
meeting of the Board of Directors held after each annual meeting of the
shareholders. I f the election of officers shall not be held at such meeting or
such meeting shall not have been held, such election shall be held as soon
thereafter as conveniently may be. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified or until his
death or until he shall resign or shall have been removed in the manner
hereinafter provided.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors.
Section 4. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever, in its judgment,
the best interests of the Corporation will be served thereby. Such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights. Any vacancy occurring in any office of the Corporation may be
filled by the Board of Directors.
Section 5. Officers and agents shall have such authority and perform
such duties in the management of the Corporation as are provided in these Bylaws
or as may be determined by resolution of the Board of Directors not inconsistent
with these Bylaws.
Section 6. The salaries and compensation of officers and agents of the
Corporation shall be fixed from time to time by the Board of Directors.
CHAIRMAN OF THE BOARD
Section 7. If there be a chairman of the Board of Directors, he shall
be chosen from among the directors and shall be the chief executive officer of
the Corporation. He shall have the power to call special meetings of the
shareholders and of the directors for any purpose or purposes, and he shall
preside at all meetings of the shareholders and of the Board of Directors,
unless he shall be absent or unless he shall, at his option, designate the
president to preside in his stead at some particular meeting. The chairman of
the board shall have all of the powers granted by the Bylaws to the president
including the power to make and sign contracts and agreements in the name and on
behalf of the Corporation. He shall, in general, have supervisory power over the
president, the other officers and the business activities of the Corporation,
subject to the approval or review of the Board of Directors.
THE PRESIDENT
Section 8. If there be a chairman of the Board of Directors, the powers
and duties of the president shall be subject to the powers and duties of the
Chairman of the Board of Directors. If there be no chairman of the board, the
president shall have all the powers and duties provided for in Section 7,as well
as those provided in this Section 8. The president, who need not be chosen from
among the directors shall be an ex officio member of all standing committees and
shall, subject to the powers conferred upon the chairman of the board under
Section 7 of this Article, have general and active management of the business of
the corporation. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except were required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation.
THE VICE-PRESIDENTS
Section 9. The vice-president or, if there shall be more than one, the
vice-presidents, in the order determined by the Board of Directors, shall, in
the absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 10.
(a) The secretary shall attend all meetings of the Board of Directors
and all meetings of the shareholders and record all the proceedings of the
meetings of the Corporation and of the Board of Directors in a book to be kept
for that purpose and shall perform like duties for the Executive Committee when
required. He shall give, or cause to be given, notice of all meetings of the
shareholders and special meetings of the Board of Directors and shall perform
such other duties as may be prescribed by the Board of Directors or president
under whose supervision he shall be. He shall have custody of the corporate seal
of the Corporation and he, or an assistant secretary, shall have authority to
affix the same to any instrument requiring it and, when so affixed, it may be
attested by his signature or by the signature of such assistant secretary. The
Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature.
(b) The assistant secretary or, if there be more than one, the
assistant secretaries, in the order determined by the Board of Directors, shall,
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11.
(a) The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all monies
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.
(b) He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the president and the Board of Directors, at its regular meeting or
when the Board of Directors so requires, an account of all his transactions as
treasurer and of the financial condition of the Corporation.
(c) If required by the Board of Directors, he shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation in case of his
death, resignation, retirement or removal from office of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
(d) He shall perform such other duties and have such other authority
and powers as the Board of Directors may from time to time prescribe or as the
president may from time to time delegate under whose supervision he shall be.
(e) The assistant treasurer or, if there shall be more than one, the
assistant treasurers, in the order determined by the Board of Directors, shall,
in the absence or disability of the treasurer, perform the duties and exercise
the powers of the treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
ARTICLE X
GENERAL COUNSEL
The Board of Directors may appoint a general counsel for the
Corporation at compensation to be set by the Board. The general counsel, as
such, shall not be an officer of the Corporation unless the Board of Directors
shall so designate him in the resolution of appointment, but the person
designated as general counsel may hold any other office to which he is elected.
The Board may appoint an individual lawyer or a law firm as the general counsel
of the Corporation, as it may elect. If a law firm should be selected, then one
member thereof shall be designated as the particular lawyer in such firm whose
personal services are contemplated. The general counsel shall, when called upon,
counsel and advise with the officers of this Corporation on any legal matters
which may arise in the conduct of the Corporation's business, shall handle all
claims and litigation involving the Corporation, and shall perform such further
legal services as may be contemplated in the contract of employment.
ARTICLE XI
POWER TO INDEMNIFY AND TO PURCHASE
INDEMNITY INSURANCE; DUTY TO INDEMNIFY
Section 1. In this Article XI:
(a) "Corporation," includes any domestic or foreign predecessor entity
of the Corporation in a merger, consolidation, or other transaction in which the
liabilities of the predecessor are transferred to the Corporation by operation
of law and in any other transaction in which the Corporation assumes the
liabilities of the predecessor but does not specifically exclude liabilities
that are the subject matter of this Article.
(b) "Director" means any person who is or was a director of the
Corporation any person who, while a director 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.
(c) "Expenses" include court costs and attorneys' fees.
(d) "Official capacity", means:
(1) when used with respect to a director, the office of director in the
Corporation; and
(2) when used with respect to a person other than a director,
the elective or appointive office in the Corporation held by the
officer or the employment or agency relationship undertaken by the
employee or agent in behalf of the Corporation, but
(3) in both Paragraph (1) and (2) 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.
(e) "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. The Corporation may indemnify a person who was, is, or is
threatened to be made a named defendant or respondent in a proceeding because
the person is or was a director of the Corporation only if it is determined in
accordance with Section 6 of this Article XI that the person:
(a) conducted himself in good faith;
(b) reasonably believed:
(1) in the case of conduct in his official capacity as a director
of the Corporation, that his conduct was in the Corporation's best
interests; and (2) 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 his conduct was unlawful.
Section 3. Except to the extent permitted by Section 5 of this Article,
a director may not be indemnified under Section 2 of this Article in respect of
a proceeding:
(a) in which the person is found to be liable on the basis that
personal benefit was improperly received by him, whether or not the benefit
resulted from an action taken in the person's official capacity; or
(b) in which the person is found liable to the Corporation.
Section 4. The termination of a proceeding by judgment, order,
settlement, or conviction, or on a plea of nolo contenders or its equivalent is
not of itself determinative that the person did not meet the requirements set
forth in Section 2 of this Article. A person shall be deemed to have been found
liable in respect of any claim, issue or matter only after the person shall have
been so adjudged by a court of competent jurisdiction after exhaustion of all
appeals therefrom.
Section 5. A person may be indemnified under Section 2 of this Article
against judgments, penalties (including excise and similar taxes), fines,
settlement, and reasonable expenses actually incurred by the person in
connection with the proceeding; but if the person is found liable to the
Corporation or is found liable on the basis that personal benefit was improperly
received by the person, the indemnification:
(a) is limited to reasonable expenses actually incurred by the person in
connection with the proceeding; and
(b) shall not be made in respect of any proceeding in which the person
shall have been found liable for willful or intentional misconduct in the
performance of his duty to the Corporation.
Section 6. A determination of indemnification under Section 2 of this
Article XI must be made:
(a) by a majority vote of a quorum consisting of directors who at the time
of the vote are not named defendants or respondents in the proceeding;
(b) if such a quorum cannot be obtained, by a majority vote of a
committee of the Board of Directors designated to act in the matter by a
majority vote of all directors, consisting solely of two or more directors who
at the time of the vote are not named defendants or respondents in the
proceeding;
(c) by special legal counsel selected by the Board of Directors or a
committee of the Board by vote as set forth in Subsection (a) or (b) of this
Section, or, if such a quorum cannot be obtained and such a committee cannot be
established, by a majority vote of all directors; or
(d) by the shareholders in a vote that excludes the shares held by
directors who are named defendants or respondents in the proceeding.
Section 7. Authorization of indemnification and determination as to
reasonableness of expenses must 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, authorization
of indemnification and determination as to reasonableness of expenses must be
made in the manner specified by Subsection (C) of Section 6 of this Article XI
for the selection of special legal counsel. A provision contained in the
Articles of Incorporation, the Bylaws, a resolution of shareholders or
directors, or an agreement that makes mandatory the indemnification permitted
under Section 2 of this Article XI shall be deemed to constitute authorization
of indemnification in-the manner required by this Section 7 even though such
provision may not have been adopted or authorized in the same manner as the
determination that indemnification is permissible.
Section 8. The Corporation shall indemnify a director against
reasonable expenses incurred by him in connection with a proceeding in which he
is a named defendant or respondent because he is or was a director if he has
been wholly successful, on the merits or otherwise, in the defense of the
proceeding.
Section 9. If, in a suit for the indemnification required by Section 8
of this Article XI, a court of competent jurisdiction determines, that the
director is entitled to indemnification under that Section, the court shall
order indemnification and shall award to the director the expenses incurred in
securing the indemnification.
Section 10. If, upon application of a director, a court of competent
jurisdiction determines, after giving any notice the court considers necessary,
that the director is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances, whether or not he has met the requirements
set forth in Section 2 of this Article XI or has been adjudged liable in the
circumstances described by Section 3 of this Article XI, the court may order the
indemnification that the court determines is proper and equitable. The court
shall limit indemnification to reasonable expenses if the proceeding is brought
by or in behalf of the Corporation or if the director is 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 person's official capacity.
Section 11. Reasonable expenses incurred by a director who was, is, or
is threatened to be made a named defendant or respondent in a proceeding may be
paid or reimbursed by the Corporation, in advance of the final disposition of
the proceeding and without any of the determination specified in Section 6 and 7
of this Article XI, after the Corporation receives a written affirmation by the
director of his good faith belief that he has met the standard of conduct
necessary for indemnification under this Article XI and a written undertaking by
or on behalf of the director to repay the amount paid or reimbursed if it is
ultimately determined that he has not met those requirements.
Section 12. The written undertaking required by Section 11 of this
Article XI must be an unlimited general obligation of the director but need not
be secured. It may be accepted without reference to financial ability to make
repayment.
Section 13. A provision for the Corporation to indemnify or to advance
expenses to a director who was, is, or is threatened to be made a named
defendant or respondent in a proceeding, whether contained in the Articles of
Incorporation, the Bylaws, a resolution of shareholders or directors, an
agreement or otherwise, except in accordance with Section 18 of this Article XI,
is valid only to the extent it is consistent with this Article XI as limited by
the Articles of Incorporation, if such a limitation exists.
Section 14. Notwithstanding any other provision of this Article XI, the
Corporation may pay or reimburse expenses incurred by a director in connection
with his appearance as a witness or other participation in a proceeding at a
time when he is not a named defendant or respondent in the proceeding.
Section 15. An officer of the Corporation shall be indemnified as, and
to the same extent, provided by Sections 8, 9, and 10 of this Article XI for a
director and is entitled to seek indemnification under those sections to the
same extent as a director. The Corporation may indemnify and advance expenses to
an officer, employee, or agent of the Corporation to the same extent that it may
indemnify and advance expenses to directors under this Article XI.
Section 16. The Corporation may indemnify and advance expenses to
persons who are not or were not officers, employees, or agents of the
Corporation who are or were serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent, or
similar functionary of another foreign or domestic corporation, partnership,
joint venturer sole proprietorship, trust, employee benefit plan or other
enterprise, to the same extent that it may indemnify and advance expenses to
directors under this Article XI.
Section 17. The Corporation may indemnify and advance expenses to an
officer, employee or agent, or person who is identified in Section 16 of this
Article XI and who is not a director to such further extent, consistent with
law, as may be provided by the Articles of Incorporation, Bylaws, general or
specific action of the Board of Directors, or contract or as permitted or
required by common law.
Section 18. The Corporation may purchase and maintain insurance or
another arrangement on behalf of any person who is or was a director, officer,
employee, or agent of the Corporation or who is or was serving at the request of
the Corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise, against any liability asserted against him
and incurred by him in such a capacity or arising out of his status as such a
person, whether or not the Corporation would have the power to indemnify him
against that liability under this Article XI. If the insurance or other
arrangement is with a person or entity that is not regularly engaged in the
business of providing insurance coverage, the insurance or arrangement may
provide for payment of a liability with respect to which the Corporation would
not have the power to indemnify the person only if including coverage for the
additional liability has been approved by the shareholders of the Corporation.
Without limiting the power of the Corporation to procure or maintain any kind of
insurance or other arrangement, the Corporation may, for the benefit of persons
indemnified by the Corporation:
(a) create a trust fund;
(b) establish any form of self-insurance;
(c) secure its indemnity obligation by grant of a security interest or
other lien on the assets of the Corporation; or
(d) establish a letter of credit, guaranty, or surety arrangement.
The insurance or other arrangement may be procured, maintained, or
established within the Corporation or with any insurer or other person deemed
appropriate by the Board of Directors regardless of whether all or part of the
stock or other securities of the insurer `or other person are owned in whole or
part by the Corporation. In the absence of fraud, the judgment of the Board of
Directors as to the terms and conditions of the insurance or other arrangement
and the identity of the insurer or other person participating in an arrangement
shall be conclusive and the insurance or arrangement shall not be voidable and
shall not subject the directors approving the insurance or arrangement to
liability, on any ground, regardless of whether directors participating in the
approval are beneficiaries of the insurance or arrangement.
Section 19. Any indemnification of or advance of expenses to a director
in accordance with this Article XI shall be reported in writing to the
shareholders with or before the notice or waiver of notice of the next
shareholders' meeting or with or before the next submission to the shareholders
of a consent to action without a meeting pursuant to Section A, Article 9.10 of
the Texas Business Corporation Act and, in any case, within the 12-month period
immediately following the date of the indemnification or advance.
Section 20. For purposes of this Article XI, the Corporation is deemed
to have requested a director 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 a director with respect to an employee
benefit plan pursuant to applicable law are deemed fines. Action taken or
omitted by him with respect to an employee benefit plan in the performance of
hisduties for a purpose reasonably believed by him to be in the interest of the
participants and beneficiaries of the plan is deemed to be for a purpose which
is not opposed to the best interests of the Corporation.
ARTICLE XII
CERTIFICATES FOR SHARES
Section 1. The shares of capital stock of the Corporation shall be
represented by certificates signed by the president or a vice president and the
secretary or an assistant secretary of the Corporation and may be sealed with
the seal of the Corporation or a facsimile thereof.
When the Corporation is authorized to issue shares of more than one
class, every certificate shall set forth upon the face or back of such
certificate, or shall state that the Corporation will furnish to any shareholder
upon request and without charge a full statement of the designations,
preferences, limitations and relative rights of the shares of each class
authorized to be issued and, if the Corporation is authorized to issue any
preferred or special class in series, the variations in the relative rights and
preferences between the shares of each such series so far as the same have been
fixed and determined and the authority of the Board of Directors to fix and
determine the relative rights and preferences of subsequent series.
Section 2. The signatures of the officers of the Corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation itself or an
employee of the Corporation. 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 was issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the Board of Directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the Corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFER OF SHARES
Section 4. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate canceled and the transaction recorded upon the books of the
Corporation.
REGISTERED SHAREHOLDERS
Section 5. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, to vote as such owner and to hold liable for calls and assessments a
person registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Texas.
LIST OF SHAREHOLDERS
Section 6. The officer or agent having charge of the transfer books for
shares shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten days prior to such meeting, shall be kept
on file at the registered office 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 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 ledger or transfer book, or a duplicate thereof,
shall be prima facie evidence as to who are the shareholders entitled to examine
such list or share ledger or transfer book or to vote at any meeting of the
shareholders.
ARTICLE XIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the Articles of Incorporation, dividends may be
declared by the Board of Directors at any regular or special meeting. Dividends
may be paid in cash, in property or in shares of the capital stock, subject to
any provisions of the Articles of Incorporation. The declaration and payment of
dividends shall be at the discretion of the Board of Directors.
Section 2. Before 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
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies or for equalizing dividends or for repairing
or maintaining any property of the Corporation or for such other purpose as the
Directors shall think conducive to the interest of the Corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
CHECKS
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the Corporation shall be fixed resolution
of the Board of Directors.
SEAL
Section 5. . The corporation seal shall have inscribed thereon the name
of the Corporation and indicate that it is incorporated in the State of Texas.
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or in any manner reproduced. There shall be no requirement for the
Corporation to have a corporate seal.
ARTICLE XIV
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted at any regular or special meeting of the Board of
Directors at which a quorum is present or represented by the affirmative vote of
a majority of the directors present, provided notice of the proposed alteration,
amendment or repeal be contained in the notice of such meeting subject to repeal
or change by action of the shareholders.
Section 2. No Bylaw shall be adopted by the directors which shall
require more than a majority of the voting shares for a quorum at a meeting of
shareholders, nor more than a majority of the votes cast to constitute action by
the shareholders, except where higher percentages are required by law or by the
Articles of Incorporation.