Exhibit 3.5
BY-LAWS
OF
ATHENS BRICK COMPANY
---00000---
SECTION 1. In addition to its principal office in the State of
Delaware, the Corporation may also have offices at such other places both within
and without the State of Delaware as the Board of Directors shall from time to
time determine.
SECTION 2. All meetings of the stockholders for the election of
directors shall be held in the City of Dallas, State of Texas, at such place
within such city as the Board of Directors may determine and which shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof. Meetings of stockholders for any other purpose may be held at such time
and place, within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 3. An annual meeting of the stockholders of the Corporation,
commencing with the year 1967, shall be held on the third Friday of October in
each year, at 10:00 o'clock in the forenoon, unless such day is a legal holiday,
in which case such meeting shall be held on the first day thereafter which
is not a legal holiday. At such meeting the stockholders entitled to vote
thereat shall elect by a plurality vote a board of directors, and may transact
such other business as may properly be brought before the meeting.
SECTION 4. Special meetings of the stockholders of the Corporation,
for any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be held, upon call of the Chairman of the
Board of Directors, the President, the Board of Directors or the Executive
Committee and shall be held at the request in writing of stockholders owning a
majority in amount of the entire outstanding capital stock having voting power.
Such call shall state the time, place and purposes of the meeting.
SECTION 5. Notice of the time and place
of every meeting of stockholders and of the business to be acted on at such
meeting shall be mailed by the Secretary or the officer performing his duties,
at least ten days before the meeting, to each stockholder of record having
voting power and entitled to such notice at his last known post office address;
provided, however, that if a stockholder be present at a meeting, or in writing
waives notice thereof before or after the meeting, notice of the meeting to such
stockholder shall be unnecessary.
SECTION 6. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every election of
directors, a complete list of the stockholders entitled to vote at said
election, arranged in alphabetical order, showing the address of and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, during ordinary business hours, for a period
of at least ten days prior to the election, either at a place within the city,
town or village where the election is to be held and which place shall be
specified in the notice of the meeting,
or, if not specified, at the place where said meeting is to be held, and the
list shall be produced and kept at the time and place of election during the
whole time thereof, and subject to the inspection of any stockholder who may be
present.
SECTION 7. The holders of a majority of the stock of the Corporation
issued and outstanding and having voting power present in person or represented
by proxy shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute, by the
certificate of incorporation, or by these by-laws, but less than a quorum shall
have power to adjourn any meeting from time to time without notice other than
announcement at the meeting. The holders of a majority of the stock present and
entitled to vote at a duly qualified meeting of stockholders shall have power to
act, unless the question is one upon which by express provision of the statutes
or of the certificate of incorporation or of these by-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
SECTION 8. At every meeting of stockholders each stockholder entitled
to vote thereat shall be entitled to one vote for each share of stock having
voting power registered in his name on the books of the Corporation, and may
vote and otherwise act in person or by proxy appointed by an instrument in
writing subscribed by such stockholder; but no proxy shall be voted upon more
than three (3) years after its date unless such proxy provides for a longer
period.
SECTION 9. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken in connection with any corporate action by any
provisions of the statutes or of the certificate of incorporation or of these
by-laws, the meeting and vote of stockholders may be dispensed with if all the
stockholders who would have been entitled to vote upon the action if such
meeting were held shall consent in writing to such corporate action being taken.
SECTION 10. The property and business of the Corporation shall be
managed by a Board of not less than 3, nor more than 15 directors. The first
board shall consist of three directors. Thereafter, within the limits herein
specified, the number of directors shall be fixed and may be changed, from time
to time, by resolution of the Board of Directors or by the stockholders at the
annual meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 11 of these by-laws, and each
director elected shall hold office until his successor shall be elected and
shall qualify. Directors need not be stockholders.
SECTION 11. If any vacancies occur in the Board of Directors caused by
death, resignation, retirement, disqualification or removal from office of any
director or otherwise, or any new directorship is created by any increase in the
authorized number of directors, a majority of the directors then in office,
though less than a quorum, may choose a successor or successors, or fill the
newly created directorship, and the directors so chosen shall hold office until
the next annual election of directors and until their successors shall be duly
elected and qualified, unless sooner displaced.
SECTION 12. Meetings of the Board of Directors shall be held at the
times fixed by resolutions of the Board or upon call of the Chairman of the
Board, the President or any two directors and such meetings, whether regular or
special, may be held either within or without the State of Delaware. The
Secretary or officer performing his duties shall give reasonable notice (which
need not in any event exceed two (2) days) of all meetings of directors,
provided that a meeting may be held without notice immediately after the annual
election, and notice need not be given of regular meetings held at times fixed
by resolution of the Board. Meetings may be held at any time without notice if
all the directors are present or if these not present waive notice either before
or after the meeting. Notice by mail or telegraph to the usual business or
residence address of the directors not less than the time above specified before
the meeting shall be sufficient. One-third of the directors, but in no case less
than 2 directors, shall consitute a quorum for the transaction of business, and
the act of a majority of the directors present at any meeting at which there is
a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute or by the certificate of incorporation or by these by-laws.
SECTION 13. The Board of Directors shall have power to authorize the
payment of compensation to the directors for services to the Corporation,
including fees for attendance at meetings of the Board of Directors, of the
Executive Committee and of other committees and to determine the amount of such
compensation and fees.
SECTION 14. The Board of Directors, as soon as may be after the
election of directors in each year, may appoint one of their number Chairman of
the Board and shall appoint one of their number President of the Corporation,
and shall also appoint one or more Vice-Presidents, a Secretary and a Treasurer,
and shall from time to time appoint such other officers as they may deem proper,
none of whom need to be a member of the Board of Directors. Two or more offices
may be held by the same person, except that where the offices of president and
secretary are held by the same person, such person shall not hold any other
office.
SECTION 15. The term of office of all officers shall be until the next
election of directors and until their respective successors are chosen and
qualified, or until they shall die or resign but any officer may be removed from
office at any time by the Board of Directors. Vacancies in any office may be
filled by the Board at any meeting.
SECTION 16. The officers of the Corporation shall have such powers and
duties as usually pertain to their offices, except as modified by the Board of
Directors, and shall also have such powers and duties as may from time to time
be conferred upon them by the Board of Directors. Without limiting the
generality of the foregoing provision, the Chairman of the Board of Directors or
the President, if there be no Chairman of the Board, shall be the chief
executive officer of the corporation and shall preside at all meetings of the
stockholders and directors at which such officer is present.
SECTION 17. The Board of Directors, as soon as may be after the
election in each year, may, by a resolution passed by a majority of the whole
Board, appoint an Executive Committee, to consist
of the Chairman of the Board, or the President, and such number of the directors
as the Board may from time to time determine, which shall have and may exercise
during the intervals between the meetings of the Board all the powers vested in
the Board except the power to fill vacancies in the Board, the power to change
the membership of or fill vacancies in said Committee and the power to change
the By-laws. The Board shall have the power at any time to change the membership
of such Committee and to fill vacancies in it. The Executive Committee may make
rules for the conduct of its business and may appoint such committees and
assistants as it may deem necessary. A majority of the members of said Committee
shall constitute a quorum. The Chairman of the Board or the President, if there
is no Chairman of the Board, shall be the Chairman of the Executive Committee.
SECTION 18. In addition to the Executive Committee, the Board of
Directors may, by resolution passed by a majority of the whole Board, designate
one or more other committees, each committee to consist of two or more of the
directors of the Corporation, which, to the extent provided in said resolu-
tion, shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to
authorize the seal of the Corporation to be affixed to all papers which may
require it. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
SECTION 19. Whenever under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder at such address as appears on the books of the
Corporation, and such notice shall be deemed to be given at the time when the
same shall be thus mailed. Whenever notice is required to be given, a waiver
thereof in writing signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
SECTION 20. Certificates of stock shall be of such form and device as
the Board of Directors may elect and shall be signed by the Chairman of the
Board of Directors, the President, or a Vice-President and the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, but where any
such certificate is signed (1) by a transfer agent or an assistant transfer
agent or (2) by a transfer clerk acting on behalf of the Corporation and by a
registrar, the signatures of any such officers of the Corporation may be
facsimiles, engraved or printed.
SECTION 21. The stock of the Corporation shall be transferable or
assignable only on the books of the Corporation by the holders in person, or by
attorney, on the surrender of the certificates therefor. The Board of Directors
may appoint one or more transfer agents and registrars of the stock.
SECTION 22. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock 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
Delaware.
SECTION 23. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
SECTION 24. The Board of Directors shall have the power to close the
stock transfer books of the Corporation for a period not exceeding Fifty (50)
days preceding the date of any meeting of stockholders, or the date for payment
of any dividend, or the date for the allotment of rights, or the date when any
change or conversion or exchange of capital stock shall go into effect or for a
period of not exceeding fifty (50) days in connection with obtaining the consent
of stockholders for any purpose. In lieu of closing the stock transfer books as
aforesaid, the Board of Directors is hereby authorized to fix in advance a date,
not exceeding fifty (50) days preceding the date of any meeting of stockholders
or the date for the payment of any dividend or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital stock
shall go into effect, or a date in connection with obtaining such consent, as a
record date for the determination of the stockholders entitled to notice of and
to vote at, any such meeting and any adjournment thereof, or entitled to receive
payment of any such dividends, or to any such allotment
SECTION 27. Every person who now is or hereafter shall be a director,
officer or employee of the Corporation, shall be indemnified by the Corporation
against all costs and expenses (including counsel fees) actually and necessarily
incurred by him in connection with or resulting from any action, suit or
proceeding of whatever nature to which he is or shall be made a party by reason
of his being or having been a director, officer or employee of the Corporation,
or of another company in which this Corporation owns shares of capital stock or
of which it is a creditor (whether or not he is such director, officer or
employee at the time he is made a party to such action, suit or proceeding or at
the time such costs or expenses are incurred by him), except in relation to
matters as to which he shall be adjudged in such action, suit or proceeding to
be liable for negligence or misconduct in the performance of his duties as such
director, officer or employee; provided, however, that in the event such action,
suit or proceeding shall be settled or compromised, such right of
indemnification shall be applicable only if it shall be determined by a majority
of the Board of Directors (with-
of rights, or to exercise the rights in respect of any such change, conversion
or exchange of capital stock, or to give such consent, and in such case such
stockholders and only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend, or
to receive such allotment of rights, or to exercise such rights, or to give such
consent, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as aforesaid.
SECTION 25. The Board of Directors is authorized to select such
depositaries as they shall deem proper for the funds of the Corporation. All
checks and drafts against such deposited funds shall be signed and countersigned
by persons to be specified by the Board of Directors.
SECTION 26. The corporate seal of the Corporation shall be in such
form as the Board of Directors shall prescribe. Said seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
out including any such director for the purpose of determining the majority or a
quorum) that said director, officer or employee had not in any substantial way
been derelict in the performance of his duties, as charged in such action, suit
or proceeding. Such right of indemnification shall not be deemed exclusive of
any other rights to which any such person may now or hereafter be otherwise
entitled pursuant to statute, agreement, vote of stockholders, or otherwise.
SECTION 28. These by-laws may be altered or repealed at any regular
meeting of the stockholders or at any special meeting of the stockholders at
which a quorum is present or represented, provided notice of the proposed
alteration or repeal be contained in the notice of such special meeting, by the
affirmative vote of a majority of the stock entitled to vote at such meeting and
present or represented thereat, or by the affirmative vote of a majority of the
board of directors at any regular meeting of the board or at any special meeting
of the board if notice of the proposed alteration or repeal be contained in the
notice of such special meeting; provided, however, that no change of the
time or place of the meeting for the election of directors shall be made within
sixty days next before the day on which such meeting is to be held, and that in
case of any change of such time or place, notice thereof shall be given to each
stockholder in person or by letter mailed to his last known post-office address
at least twenty days before the meeting is held.