AMENDED AND RESTATED BYLAWS
OF
METROCORP BANCSHARES, INC.
A Texas Corporation
TABLE OF CONTENTS
Page
Article 1
Offices
Section 1.1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Article 2
Shareholders
Section 2.1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 2.2. Quorum; Adjournment of Meetings. . . . . . . . . . . . . . . . . . .1
Section 2.3. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.4. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.5. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.6. Notice of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.7. Shareholder List. . . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.8. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.9. Voting; Election; Inspectors. . . . . . . . . . . . . . . . . . . . .4
Section 2.10. Conduct of Meetings . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 2.11. Notifications of Nominations and Proposed Business. . . . . . . . . .5
Section 2.12. Treasury Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Article 3
Board of Directors
Section 3.1. Power; Number; Term of Office . . . . . . . . . . . . . . . . . . . .6
Section 3.2. Classified Board. . . . . . . . . . . . . . . . . . . . . . . . . . .6
Section 3.3. Quorum; Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 3.4. Place of Meetings; Order of Business. . . . . . . . . . . . . . . . .7
Section 3.5. First Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 3.6. Regular Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 3.7. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 3.8. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 3.9. Vacancies; Increases in the Number of Directors . . . . . . . . . . .8
Section 3.10. Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
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Section 3.11. Action Without a Meeting; Telephone Conference Meeting. . . . . . . .8
Section 3.12. Approval or Ratification of Acts or Contracts by Shareholders . . . .9
Article 4
Committees
Section 4.1. Designation; Powers . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 4.2. Procedure; Meetings; Quorum . . . . . . . . . . . . . . . . . . . . .9
Section 4.3. Substitution and Removal of Members; Vacancies. . . . . . . . . . . 10
Article 5
Officers
Section 5.1. Number, Titles and Term of Office . . . . . . . . . . . . . . . . . 10
Section 5.2. Powers and Duties of the Chairman of the Board. . . . . . . . . . . 10
Section 5.3. Powers and Duties of the President. . . . . . . . . . . . . . . . . 11
Section 5.4. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.5. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.6. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.7. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.8. Assistant Treasurers. . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.9. Action with Respect to Securities of Other Corporations . . . . . . 12
Section 5.10. Delegation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Article 6
Capital Stock
Section 6.1. Certificates of Stock . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.2. Transfer of Shares. . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.3. Ownership of Shares . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.4. Regulations Regarding Certificates. . . . . . . . . . . . . . . . . 13
Section 6.5. Lost or Destroyed Certificates. . . . . . . . . . . . . . . . . . . 13
Article 7
Miscellaneous Provisions
Section 7.1. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.2. Corporate Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.3. Notice and Waiver of Notice . . . . . . . . . . . . . . . . . . . . 14
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Section 7.4. Facsimile Signatures. . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.5. Reliance upon Books, Reports and Records. . . . . . . . . . . . . . 15
Section 7.6. Application of Bylaws . . . . . . . . . . . . . . . . . . . . . . . 15
Article 8
Indemnification of Officers and Directors
Section 8.1. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.2. Nonexclusivity. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.3. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.4. Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article 9
Amendments
Section 9.1. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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AMENDED AND RESTATED BYLAWS
OF
METROCORP BANCSHARES, INC.
Article 1
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office of the
Corporation required by the State of Texas to be maintained in the State of
Texas shall be the registered office named in the Articles of Incorporation
of the Corporation, or such other office as may be designated from time to
time by the Board of Directors in the manner provided by law.
SECTION 1.2. OTHER OFFICES. 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
may require.
Article 2
SHAREHOLDERS
SECTION 2.1. PLACE OF MEETINGS. All meetings of the shareholders
shall be held at the principal office of the Corporation, or at such other
place within or without the State of Texas as shall be specified or fixed in
the notices or waivers of notice thereof.
SECTION 2.2. QUORUM; ADJOURNMENT OF MEETINGS. Unless otherwise
required by law or provided in the Articles of Incorporation of the
Corporation or these Bylaws, the holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at any meeting of
shareholders for the transaction of business. 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.
Notwithstanding the other provisions of the Articles of Incorporation of
the Corporation or these Bylaws, the chairman of the meeting or the holders
of a majority of the issued and outstanding stock, present in person or
represented by proxy and entitled to vote thereat, at any meeting of
shareholders, whether or not a quorum is present, shall have the power to
adjourn such meeting from time to time, without any notice other than
announcement at the meeting of the time and place of the holding of the
adjourned meeting. If the adjournment is for more than thirty (30) days, or
if after
the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at such meeting. 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 called.
SECTION 2.3. ANNUAL MEETINGS. An annual meeting of the shareholders,
for the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place (within or without the State of Texas), on such
date, and at such time as the Board of Directors shall fix and set forth in
the notice of the meeting, which date shall be within thirteen (13) months
subsequent to the last annual meeting of shareholders.
SECTION 2.4. SPECIAL MEETINGS. Unless otherwise provided in the
Articles of Incorporation of the Corporation, special meetings of the
shareholders for any purpose or purposes may be called at any time by the
Chairman of the Board, by the President, by a majority of the Board of
Directors, or by a majority of the executive committee (if any) or by the
holders of 50% of the outstanding shares of the Company entitled to vote at
the proposed special meeting, at such time and at such place as may be stated
in the notice of the meeting. Business transacted at a special meeting shall
be confined to the purpose(s) stated in the notice of such meeting.
SECTION 2.5. RECORD DATE. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders, or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose
of any other lawful action, the Board of Directors of the Corporation may fix
a date as the record date for any such determination of shareholders, which
record date shall not precede the date on which the resolutions fixing the
record date are adopted and which record date shall not be more than sixty
(60) days nor less than ten (10) days before the date of such meeting of
shareholders, nor more than sixty (60) days prior to any other action to
which such record date relates.
If the Board of Directors does not fix a record date for any meeting of
the shareholders, the record date for determining shareholders entitled to
notice of or to vote at such meeting shall be at the close of business on
the day next preceding the day on which notice is given, or, if in accordance
with Article 7, Section 7.3 of these Bylaws notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. The
record date for determining shareholders for any other purpose (other than
the consenting to corporate action in writing without a meeting) shall be at
the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of shareholders of record
entitled to notice of or to vote at a meeting of
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shareholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 2.6. NOTICE OF MEETINGS. Written notice of the place, date
and hour of all meetings, and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given by or at the
direction of the Board of Directors or the other person(s) calling the
meeting to each shareholder entitled to vote thereat not less than ten (10)
nor more than sixty (60) days before the date of the meeting. Such notice
may be delivered either personally or by mail. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the
shareholder at such shareholder's address as it appears on the records of the
Corporation.
SECTION 2.7. SHAREHOLDER LIST. A complete list of shareholders
entitled to vote at any meeting of shareholders, arranged in alphabetical
order for each class of stock and showing the address of each such
shareholder and the number of shares registered in the name of such
shareholder, shall be open to the examination of any shareholder, for any
purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The shareholder list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may
be inspected by any shareholder who is present.
SECTION 2.8. PROXIES. Each shareholder entitled to vote at a meeting
of shareholders or to express consent or dissent to a corporate action in
writing without a meeting may authorize another person or persons to act for
him by proxy. Proxies for use at any meeting of shareholders shall be filed
with the Secretary, or such other officer as the Board of Directors may from
time to time determine by resolution, before or at the time of the meeting.
All proxies shall be received and taken charge of and all ballots shall be
received and canvassed by the secretary of the meeting, who shall decide all
questions touching upon the qualification of voters, the validity of the
proxies, and the acceptance or rejection of votes, unless an inspector or
inspectors shall have been appointed by the chairman of the meeting, in which
event such inspector or inspectors shall decide all such questions.
No proxy shall be valid after eleven (11) months from its date, unless
the proxy provides for a longer period. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power.
Should a proxy designate two or more persons to act as proxies, unless
such instrument shall provide the contrary, a majority of such persons
present at any meeting at which their powers thereunder are to be exercised
shall have and may exercise all the powers of voting or giving consents
thereby conferred, or if only one be present, then such powers may be
exercised by that
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one; or, if an even number attend and a majority do not agree on any
particular issue, each proxy so attending shall be entitled to exercise such
powers in respect of such portion of the shares as is equal to the reciprocal
of the fraction equal to the number of proxies representing such shares
divided by the total number of shares represented by such proxies.
SECTION 2.9. VOTING; ELECTION; INSPECTORS. Unless otherwise required
by law or provided in the Articles of Incorporation of the Corporation, each
shareholder shall on each matter submitted to a vote at a meeting of
shareholders have one vote for each share of the stock entitled to vote which
is registered in his name on the record date for the meeting. For the
purposes hereof, each election to fill a directorship shall constitute a
separate matter. Shares registered in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or proxy as the
bylaws (or comparable body) of such corporation may determine. Shares
registered in the name of a deceased person may be voted by the executor or
administrator of such person's estate, either in person or by proxy.
All voting, except as required by the Articles of Incorporation of the
Corporation or where otherwise required by law, may be by a voice vote;
provided, however, upon request of the chairman of the meeting or upon demand
therefor by shareholders holding a majority of the issued and outstanding
stock present in person or by proxy at any meeting a stock vote shall be
taken. Every stock vote shall be taken by written ballots, each of which
shall state the name of the shareholder or proxy voting and such other
information as may be required under the procedure established for the
meeting. All elections of directors shall be by written ballots, unless
otherwise provided in the Articles of Incorporation of the Corporation.
At any meeting at which a vote is taken by written ballots, the chairman
of the meeting may appoint one or more inspectors, each of whom shall
subscribe an oath or affirmation to execute faithfully the duties of
inspector at such meeting with strict impartiality and according to the best
of such inspector's ability. Such inspector shall receive the written
ballots, count the votes, and make and sign a certificate of the result
thereof. The chairman of the meeting may appoint any person to serve as
inspector, except no candidate for the office of director shall be appointed
as an inspector.
Unless otherwise provided in the Articles of Incorporation of the
Corporation, cumulative voting for the election of directors shall be
prohibited.
SECTION 2.10. CONDUCT OF MEETINGS. The meetings of the shareholders
shall be presided over by the Chairman of the Board, or, if the Chairman of
the Board is not present, by the President, or, if the President is not
present, by any Vice President, or if no Vice President is present, by a
chairman elected at the meeting. The Secretary of the Corporation, if
present, shall act as secretary of such meetings, or, if the Secretary is not
present, an Assistant Secretary shall so act; if neither the
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Secretary or an Assistant Secretary is present, then a secretary shall be
appointed by the chairman of the meeting.
The chairman of any meeting of shareholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to the chairman in
order.
SECTION 2.11. NOTIFICATIONS OF NOMINATIONS AND PROPOSED BUSINESS.
Subject to the rights of holders of any class of capital stock of the
Corporation (other than the common stock), nominations for the election of
directors and proposals for business to be brought before any shareholder
meeting may be made by the Board of Directors or by any shareholder entitled
to vote in the election of directors generally. However, any such
shareholder may nominate one or more persons for election as directors at a
meeting or propose business to be brought before a meeting, or both, only if
such shareholder has given timely notice in proper written form of his intent
to make such nomination or nominations or to propose such business. To be
timely, a shareholder's notice must be delivered to or mailed and received by
the Secretary of the Corporation not later than sixty (60) days prior to such
meeting. To be in proper written form, a shareholder's notice to the
Secretary shall set forth:
(i) the name and address of the shareholder who intends to make
the nominations or propose the business and, in the case of nominations for
the election of directors, of the person or persons to be nominated;
(ii) a representation that the shareholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice or propose the
business specified in the notice;
(iii) if applicable, a description of all arrangements or
understandings between the shareholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder;
(iv) such other information regarding each nominee or each matter
of business to be proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated or the
matter been proposed by the Board of Directors; and
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(v) if applicable, the consent of each nominee to serve as
director of the Corporation if so elected.
A nomination of any person or proposal of any business not made in
compliance with the foregoing procedures shall not be eligible to be voted
upon by the shareholders at the meeting.
SECTION 2.12. TREASURY STOCK. The Corporation shall not vote, directly
or indirectly, shares of its own stock owned by it and such shares shall not
be counted for quorum purposes. Nothing in this Section 2.11 shall be
construed as limiting the right of the Corporation to vote stock, including
but not limited to its own stock, held by it in a fiduciary capacity.
Article 3
BOARD OF DIRECTORS
SECTION 3.1. POWER; NUMBER; TERM OF OFFICE. The business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors, and, subject to the restrictions imposed by law or the Articles of
Incorporation of the Corporation, the Board of Directors may exercise all the
powers of the Corporation.
The number of directors which shall constitute the whole Board of
Directors shall be determined from time to time by the Board of Directors
(provided that no decrease in the number of directors which would have the
effect of shortening the term of an incumbent director may be made by the
Board of Directors). If the Board of Directors makes no such determination,
the number of directors shall be three. Each director shall hold office for
the term for which such director is elected, and until such director's
successor shall have been elected and qualified or until such director's
earlier death, resignation or removal.
Unless otherwise provided in the Articles of Incorporation of the
Corporation, directors need not be shareholders nor residents of the State of
Texas.
SECTION 3.2. CLASSIFIED BOARD. The directors of the Corporation shall
be divided into three classes, with respect to the time that they severally
hold office, as nearly equal in number as possible, with the initial term of
office of the first class of directors (the "Class I Directors") to expire at
the 1999 annual meeting of holders of capital stock of the Corporation, the
initial term of office of the second class of directors (the "Class II
Directors") to expire at the 2000 annual meeting of holders of capital stock
of the Corporation and the initial term of office of the third class of
directors (the "Class III Directors") to expire at the 2001 annual meeting of
holders of capital stock of the Corporation. Directors elected to succeed
those directors whose terms have thereupon expired shall be elected for a
term of office to expire at the third succeeding annual meeting of holders of
capital
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stock of the Corporation after their election. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so
as to maintain or attain, if possible, the equality of the number of
directors in each class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. If such equality is not
possible, the increase or decrease shall be apportioned among the classes in
such a way that the difference in the number of directors in any two classes
shall not exceed one.
SECTION 3.3. QUORUM; VOTING. Unless otherwise provided in the
Articles of Incorporation of the Corporation, a majority of the number of
directors fixed in accordance with Section 3.1 shall constitute a quorum for
the transaction of business of the Board of Directors and the vote of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
SECTION 3.4. PLACE OF MEETINGS; ORDER OF BUSINESS. The directors may
hold their meetings and may have an office and keep the books of the
Corporation, except as otherwise provided by law, in such place or places,
within or without the State of Texas, as the Board of Directors may from time
to time determine. At all meetings of the Board of Directors business shall
be transacted in such order as shall from time to time be determined by the
Chairman of the Board, or in the Chairman of the Board's absence by the
President, or in the President's absence by the Vice President, or by the
Board of Directors.
SECTION 3.5. FIRST MEETING. Each newly elected Board of Directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as
the annual meeting of the shareholders. Notice of such meeting shall not be
required. At the first meeting of the Board of Directors in each year at
which a quorum shall be present, held after the annual meeting of
shareholders, the Board of Directors shall elect the officers of the
Corporation.
SECTION 3.6. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as shall be designated from
time to time by the Chairman of the Board, or in the absence of the Chairman
of the Board, by the President, or in the President's absence, by the Vice
President, or in the absence of the Vice President, by another officer of the
Corporation. Notice of such regular meetings shall not be required.
SECTION 3.7. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President or, on
the written request of any director, by the Secretary, in each case on at
least twenty-four (24) hours personal, written, telegraphic, cable or
wireless notice to each director. Such notice, or any waiver thereof
pursuant to Article 7, Section 7.3 hereof, need not state the purpose or
purposes of such meeting, except as may otherwise be
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required by law or provided for in the Articles of Incorporation of the
Corporation or these Bylaws. Meetings may be held at any time without notice
if all the directors are present or if those not present waive notice of the
meeting in writing.
SECTION 3.8. REMOVAL. Any director or the entire Board of Directors
may be removed, but only for cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
SECTION 3.9. VACANCIES; INCREASES IN THE NUMBER OF DIRECTORS. Unless
otherwise provided in the Articles of Incorporation of the Corporation,
vacancies existing on the Board of Directors for any reason may be filled by
the affirmative vote of a majority of the directors then in office, although
less than a quorum, or by a sole remaining director; and any director so
chosen shall hold office until the next annual meeting held for the election
of directors of the class of directors to which such director has been
appointed and until such director's successor shall have been elected and
qualified, or until such director's earlier death, resignation or removal.
SECTION 3.10. COMPENSATION. Directors and members of standing
committees may receive such compensation as the Board of Directors from time
to time shall determine to be appropriate, and shall be reimbursed for all
reasonable expenses incurred in attending and returning from meetings of the
Board of Directors.
SECTION 3.11. ACTION WITHOUT A MEETING; TELEPHONE CONFERENCE MEETING.
Unless otherwise restricted by the Articles of Incorporation of the
Corporation, any action required or permitted to be taken at any meeting of
the Board of Directors or any committee designated by the Board of Directors
may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors
or committee. Such consent shall have the same force and effect as a
unanimous vote at a meeting, and may be stated as such in any document or
instrument filed with the Secretary of State of the State of Texas.
Unless otherwise restricted by the Articles of Incorporation of the
Corporation, subject to the requirement for notice of meetings, members of
the Board of Directors, or members of any committee designated by the Board
of Directors, may participate in a meeting of such Board of Directors or
committee, as the case may be, by means of a conference telephone connection
or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in such a
meeting shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not
lawfully called or convened.
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SECTION 3.12. APPROVAL OR RATIFICATION OF ACTS OR CONTRACTS BY
SHAREHOLDERS. The Board of Directors in its discretion may submit any act or
contract for approval or ratification at any annual meeting of the
shareholders, or at any special meeting of the shareholders called for the
purpose of considering any such act or contract, and any act or contract that
shall be approved or be ratified by the vote of the shareholders holding a
majority of the issued and outstanding shares of stock of the Corporation
entitled to vote and present in person or by proxy at such meeting (provided
that a quorum is present) shall be as valid and as binding upon the
Corporation and upon all the shareholders as if it has been approved or
ratified by every shareholder of the Corporation. In addition, any such act
or contract may be approved or ratified by the written consent of
shareholders holding a majority of the issued and outstanding shares of
capital stock of the Corporation entitled to vote, and such consent shall be
as valid and binding upon the Corporation and upon all the shareholders as if
it had been approved or ratified by every shareholder of the Corporation.
Article 4
COMMITTEES
SECTION 4.1. DESIGNATION; POWERS. The Board of Directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, including, if they shall so determine, an executive committee,
with each such committee to consist of one or more of the directors of the
Corporation. Any such designated committee shall have and may exercise such
of the powers and authority of the Board of Directors in the management of
the business and affairs of the Corporation as may be provided in such
resolution, except that no such committee shall have the power or authority
of the Board of Directors in reference to amending the Articles of
Incorporation of the Corporation, adopting an agreement of merger or
consolidation, recommending to the shareholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the shareholders a dissolution of the Corporation or a
revocation of a dissolution of the Corporation, or amending, altering or
repealing these Bylaws or adopting new bylaws for the Corporation. Any such
designated committee may authorize the seal of the Corporation to be affixed
to all papers which may require it. In addition to the above, such committee
or committees shall have such other powers and limitations of authority as
may be determined from time to time by the Board of Directors.
SECTION 4.2. PROCEDURE; MEETINGS; QUORUM. Any committee designated
pursuant to this Article 4 shall keep regular minutes of its actions and
proceedings in a book provided for that purpose and report the same to the
Board of Directors at its meeting next succeeding such action, shall fix its
own rules or procedures, and shall meet at such times and at such place or
places as may be provided by such rules, or by such committee or the Board of
Directors. Should a committee fail to fix its own rules, the provisions of
these Bylaws, pertaining to the calling of meetings and conduct of business
by the Board of Directors, shall apply as nearly as may be possible. At
every meeting
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of any such committee, the presence of a majority of all the members thereof
shall constitute a quorum, except as provided in Section 4.3 of this Article
4, and the affirmative vote of a majority of the members present shall be
necessary for the adoption by it of any resolution.
SECTION 4.3. SUBSTITUTION AND REMOVAL OF MEMBERS; VACANCIES. The
Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of such committee. In the absence or disqualification of a member of
a committee, the member or members present at any meeting and not
disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of the absent or disqualified member. The Board of
Directors shall have the power at any time to remove any member(s) of a
committee and to appoint other directors in lieu of the person(s) so removed
and shall also have the power to fill vacancies in a committee.
Article 5
OFFICERS
SECTION 5.1. NUMBER, TITLES AND TERM OF OFFICE. The officers of the
Corporation shall be a Chairman of the Board, a President, one or more Vice
Presidents (any one or more of whom may be designated Executive Vice
President or Senior Vice President), a Treasurer, a Secretary, and such other
officers as the Board of Directors may from time to time elect or appoint
(including, but not limited to, one or more Assistant Secretaries and one or
more Assistant Treasurers). Each officer shall hold office until such
officer's successor shall be duly elected and shall qualify or until such
officer's death or until such officer shall resign or shall have been
removed. Any number of offices may be held by the same person, unless the
Articles of Incorporation of the Corporation provide otherwise. Except for
the Chairman of the Board, no officer need be a director.
SECTION 5.2. POWERS AND DUTIES OF THE CHAIRMAN OF THE BOARD. The
Chairman of the Board shall be the chief executive officer of the
Corporation. Subject to the control of the Board of Directors and the
Executive Committee (if any), the Chairman of the Board shall have general
executive charge, management and control of the properties, business and
operations of the Corporation with all such powers as may be reasonably
incident to such responsibilities; may agree upon and execute all leases,
contracts, evidences of indebtedness and other obligations in the name of the
Corporation and may sign all certificates for shares of capital stock of the
Corporation; and shall have such other powers and duties as designated in
accordance with these Bylaws and as from time to time may be assigned to the
Chairman of the Board by the Board of Directors. The Chairman of the Board
shall preside at all meetings of the shareholders and of the Board of
Directors.
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SECTION 5.3. POWERS AND DUTIES OF THE PRESIDENT. Unless the Board of
Directors otherwise determines, the President shall have the authority to
agree upon and execute all leases, contracts, evidences of indebtedness and
other obligations in the name of the Corporation; and, unless the Board of
Directors otherwise determines, the President shall, in the absence of the
Chairman of the Board or if there be no Chairman of the Board, preside at all
meetings of the shareholders and of the Board of Directors; and the
President shall have such other powers and duties as designated in accordance
with these Bylaws and as from time to time may be assigned to the President
by the Board of Directors or the Chairman of the Board.
SECTION 5.4. VICE PRESIDENTS. Each Vice President shall at all times
possess power to sign all certificates, contracts and other instruments of
the Corporation, except as otherwise limited in writing by the Chairman of
the Board or the President of the Corporation. Each Vice President shall
have such other powers and duties as from time to time may be assigned to
such Vice President by the Board of Directors, the Chairman of the Board or
the President.
SECTION 5.5. SECRETARY. The Secretary shall keep the minutes of all
meetings of the Board of Directors, committees of the Board of Directors and
the shareholders, in books provided for that purpose; shall attend to the
giving and serving of all notices; may in the name of the Corporation affix
the seal of the Corporation to all contracts and attest the affixation of the
seal of the Corporation thereto; may sign with the other appointed officers
all certificates for shares of capital stock of the Corporation; shall have
charge of the certificate books, transfer books and stock ledgers, and such
other books and papers as the Board of Directors may direct, all of which
shall at all reasonable times be open to inspection of any director upon
application at the office of the Corporation during business hours; shall
have such other powers and duties as designated in these Bylaws and as from
time to time may be assigned to the Secretary by the Board of Directors, the
Chairman of the Board or the President; and shall in general perform all
acts incident to the office of Secretary, subject to the control of the Board
of Directors, the Chairman of the Board or the President.
SECTION 5.6. ASSISTANT SECRETARIES. Each Assistant Secretary shall
have the usual powers and duties pertaining to such offices, together with
such other powers and duties as designated in these Bylaws and as from time
to time may be assigned to an Assistant Secretary by the Board of Directors,
the Chairman of the Board, the President or the Secretary. The Assistant
Secretaries shall exercise the powers of the Secretary during that officer's
absence or inability or refusal to act.
SECTION 5.7. TREASURER. The Treasurer shall have responsibility for
the custody and control of all the funds and securities of the Corporation,
and shall have such other powers and duties as designated in these Bylaws and
as from time to time may be assigned to the Treasurer by the Board of
Directors, the Chairman of the Board or the President. The Treasurer shall
perform all acts
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incident to the position of Treasurer, subject to the control of the Board of
Directors, the Chairman of the Board or the President; and the Treasurer
shall, if required by the Board of Directors, give such bond for the faithful
discharge of the Treasurer's duties in such form as the Board of Directors
may require.
SECTION 5.8. ASSISTANT TREASURERS. Each Assistant Treasurer shall
have the usual powers and duties pertaining to such office, together with
such other powers and duties as designated in these Bylaws and as from time
to time may be assigned to each Assistant Treasurer by the Board of
Directors, the Chairman of the Board, the President, or the Treasurer. The
Assistant Treasurers shall exercise the powers of the Treasurer during that
officer's absence or inability or refusal to act.
SECTION 5.9. ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS.
Unless otherwise directed by the Board of Directors, the Chairman of the
Board or the President, together with the Secretary or any Assistant
Secretary shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of security holders of or
with respect to any action of security holders of any other corporation in
which this Corporation may hold securities and otherwise to exercise any and
all rights and powers which this Corporation may possess by reason of its
ownership of securities in such other corporation.
SECTION 5.10. DELEGATION. For any reason that the Board of Directors
may deem sufficient, the Board of Directors may, except where otherwise
provided by statute, delegate the powers or duties of any officer to any
other person, and may authorize any officer to delegate specified duties of
such office to any other person. Any such delegation or authorization by the
Board shall be effected from time to time by resolution of the Board of
Directors.
Article 6
CAPITAL STOCK
SECTION 6.1. CERTIFICATES OF STOCK. The certificates for shares of
the capital stock of the Corporation shall be in such form, not inconsistent
with that required by law and the Articles of Incorporation of the
Corporation, as shall be approved by the Board of Directors. Every holder of
stock represented by certificates shall be entitled to have a certificate
signed by or in the name of the Corporation by the Chairman of the Board, the
President or a Vice President and the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer of the Corporation representing the
number of shares (and, if the stock of the Corporation shall be divided into
classes or series, certifying the class and series of such shares) owned by
such shareholder which are registered in certified form; provided, however,
that any of or all the signatures on the certificate may be facsimile. The
stock record books and the blank stock certificate books shall be kept by the
Secretary or at the office of such transfer agent or transfer agents as the
Board of Directors may from
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time to time determine. In case any officer, transfer agent or registrar who
shall have signed or whose facsimile signature or signatures shall have been
placed upon any such certificate or certificates shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued by the
Corporation, such certificate may nevertheless be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue. The stock certificates shall be
consecutively numbered and shall be entered in the books of the Corporation
as they are issued and shall exhibit the holder's name and number of shares.
SECTION 6.2. TRANSFER OF SHARES. The shares of stock of the
Corporation shall be transferable only on the books of the Corporation by the
holders thereof in person or by their duly authorized attorneys or legal
representatives upon surrender and cancellation of certificates for a like
number of shares. Upon surrender to the Corporation or a transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall
be the duty of the Corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its books.
SECTION 6.3. OWNERSHIP OF SHARES. The Corporation shall be entitled
to treat the holder of record of any share or shares of capital stock of the
Corporation as the holder in fact thereof and, accordingly, 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
the State of Texas.
SECTION 6.4. REGULATIONS REGARDING CERTIFICATES. The Board of
Directors shall have the power and authority to make all such rules and
regulations as they may deem expedient concerning the issue, transfer and
registration or the replacement of certificates for shares of capital stock
of the Corporation.
SECTION 6.5. LOST OR DESTROYED CERTIFICATES. The Board of Directors
may determine the conditions upon which the Corporation may issue a new
certificate of stock in place of a certificate theretofore issued by it which
is alleged to have been lost, stolen or destroyed and may require the owner
of such certificate or such owner's legal representative to give bond, with
surety sufficient to indemnify the Corporation and each transfer agent and
registrar against any and all losses or claims which may arise by reason of
the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate in the place of the one so lost, stolen or
destroyed.
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Article 7
MISCELLANEOUS PROVISIONS
SECTION 7.1. FISCAL YEAR. The fiscal year of the Corporation shall
begin on the first day of January of each year.
SECTION 7.2. CORPORATE SEAL. The corporate seal shall be circular in
form and shall have inscribed thereon the name of the Corporation and the
state of its incorporation, which seal shall be in the charge of the
Secretary and shall be affixed to certificates of stock, debentures, bonds,
and other documents, in accordance with the direction of the Board of
Directors or a committee thereof, and as may be required by law; however,
the Secretary may, if the Secretary deems it expedient, have a facsimile of
the corporate seal inscribed on any such certificates of stock, debentures,
bonds, contract or other documents. Duplicates of the seal may be kept for
use by any Assistant Secretary.
SECTION 7.3. NOTICE AND WAIVER OF NOTICE. Whenever any notice is
required to be given by law, the Articles of Incorporation of the Corporation
or under the provisions of these Bylaws, said notice shall be deemed to be
sufficient if given (i) by telegraphic, cable or wireless transmission
(including by telecopy or facsimile transmission) or (ii) by deposit of the
same in a post office box or by delivery to an overnight courier service
company in a sealed prepaid wrapper addressed to the person entitled thereto
at such person's post office address, as it appears on the records of the
Corporation, and such notice shall be deemed to have been given on the day of
such transmission or mailing or delivery to courier, as the case may be.
Whenever notice is required to be given by law, the Articles of
Incorporation of the Corporation or under any of the provisions of these
Bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent
to notice. Attendance of a person, including without limitation a director,
at a meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, 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
shareholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the Articles
of Incorporation of the Corporation or these Bylaws.
SECTION 7.4. FACSIMILE SIGNATURES. In addition to the provisions for
the use of facsimile signatures elsewhere specifically authorized in these
Bylaws, facsimile signatures of any officer or officers of the Corporation
may be used whenever and as authorized by the Board of Directors.
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SECTION 7.5. RELIANCE UPON BOOKS, REPORTS AND RECORDS. A member of
the Board of Directors, or a member of any committee designated by the Board
of Directors, shall, in the performance of such person's duties, be protected
to the fullest extent permitted by law in relying upon the records of the
Corporation and upon information, opinion, reports or statements presented to
the Corporation.
SECTION 7.6. APPLICATION OF BYLAWS. In the event that any provisions
of these Bylaws is or may be in conflict with any law of the United States,
of the State of Texas or of any other governmental body or power having
jurisdiction over this Corporation, or over the subject matter to which such
provision of these Bylaws applies, or may apply, such provision of these
Bylaws shall be inoperative to the extent only that the operation thereof
unavoidably conflicts with such law, and shall in all other respects be in
full force and effect.
Article 8
INDEMNIFICATION OF OFFICERS AND DIRECTORS
SECTION 8.1. INDEMNIFICATION. As permitted by Section G of Article
2.02-1 of the Texas Business Corporation Act or any successor statute (the
"Indemnification Article"), the Corporation hereby:
(a) makes mandatory the indemnification permitted under Section B
of the Indemnification Article as contemplated by Section G thereof;
(b) makes mandatory its payment or reimbursement of the reasonable
expenses incurred by a former or present director who was, is, or is
threatened to be made a named defendant or respondent in a proceeding upon
such director's compliance with the requirements of Section K of the
Indemnification Article; and
(c) extends the mandatory indemnification referred to in Section
8.1(a) above and the mandatory payment or reimbursement of expenses referred
to in Section 8.1(b) above (i) to all former or present officers of the
Corporation and (ii) to all persons who are or were serving at the request of
the Corporation as a director, officer, partner or trustee of another foreign
or domestic corporation, partnership, joint venture, trust or employee
benefit plan, to the same extent that the Corporation is obligated to
indemnify and pay or reimburse expenses to directors.
SECTION 8.2. NONEXCLUSIVITY. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which the person
indemnified may be entitled under any bylaw, agreement, authorization of
shareholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such
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office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall enure to the benefit of such person's
heirs and legal representatives.
SECTION 8.3. INSURANCE. The Corporation shall have power to purchase
and maintain insurance 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
business, foreign, domestic or non-profit corporation, partnership, joint
venture, sole proprietorship, trust or other enterprise or employee benefit
plan, against any liability asserted against such person and incurred by such
person in such a capacity or arising out of such person's status as such a
person, whether or not the Corporation would have the power to indemnify such
person against that liability under the provisions of this Article or the
Texas Business Corporation Act.
SECTION 8.4. WITNESSES. Notwithstanding any other provision of this
Article, the Corporation shall pay or reimburse expenses incurred by any
director, officer, employee or agent in connection with such person's
appearance as a witness or other participation in a proceeding at a time when
such person is not a named defendant or respondent in such proceeding.
Article 9
AMENDMENTS
SECTION 9.1. AMENDMENTS. The Board of Directors shall have the power
to adopt, amend and repeal from time to time Bylaws of the Corporation. The
shareholders of the Corporation shall not have the power to adopt, amend or
repeal the Bylaws of the Corporation.
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