ex3-2.htm
Exhibit
3.2
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AMENDED
AND RESTATED BYLAWS OF
AMERICA’S
CAR MART, INC.
Adopted:
December 4, 2007
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ARTICLE
I.
OFFICES
Section
1. The registered
office shall be located in Irving, Texas; provided, that the registered office
may be moved to another location within the State of Texas as the Board of
Directors may determine from time to time.
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 determine from time to time or the business
of the corporation may require.
ARTICLE
II.
ANNUAL
MEETINGS OF SHAREHOLDERS
Section
1. All meetings of
the shareholders for the election of directors shall be held at such place
and
at such time and date as may be fixed from time to time by the Board of
Directors. Said meetings may be held either within or without the State of
Texas
as shall be designated from time to time by the Board of Directors and stated
in
the notice of the meeting. At such meetings, the shareholders shall elect by
a
plurality vote a Board of Directors, and transact such other business as may
properly be brought before the meeting.
Section
2. Written or
printed notice of the annual meeting stating the place, day and hour of the
meeting, the means of any remote communications by which shareholders may be
considered present and may vote at the meeting, shall be delivered not less
than
ten (10) nor more than sixty (60) days before the date of the meeting, either
personally, by electronic transmission in accordance with Section 3 of this
Article II, 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
3. On consent of a shareholder, notice from the corporation under any
statute, the Articles of Incorporation, or these Bylaws may be given to the
shareholder by electronic transmission in accordance with Texas
law.
ARTICLE
III.
SPECIAL
MEETINGS OF SHAREHOLDERS
Section
1. Special meetings
of shareholders for any purpose other than the election of directors 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 or in a duly executed waiver of notice
thereof.
Section
2. Special meetings
of the shareholders, for any purpose or purposes, unless otherwise prescribed
by
Texas law or by the Articles of Incorporation, may be called by the President,
the Board of Directors, or the holders of not less than one-tenth 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, the means of any remote communications by which shareholders may be
considered present and may vote at the meeting and the purpose or purposes
for
which the meeting is called, shall be delivered not less than ten (10) nor
more
than sixty (60) days before the date of the meeting, either personally, by
electronic transmission in accordance with Section 3 of Article II, 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.
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
represented in person or by proxy at a meeting of shareholders at which a quorum
is not present may adjourn the meeting until such time and to such place as
may
be determined by a vote of the holders of a majority of the shares represented
in person or by proxy at that meeting. At such 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. With respect to
any matter, other than the election of directors or a matter for which the
affirmative vote of the holders of a specified portion of the shares entitled
to
vote is required by the Articles of Incorporation, these Bylaws or Texas law,
the affirmative vote of the holders of a majority of the shares entitled to
vote
on, and that voted for or against or expressly abstained with respect to, that
matter at a meeting of shareholders at which a quorum is present shall be the
act of the shareholders.
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. A shareholder may
vote
either in person or by proxy executed in writing by the shareholder or by his
duly authorized attorney-in-fact.
In
all elections of directors, every
shareholder entitled to vote shall have the right to vote, in person or by
proxy, the number of shares of stock owned by him, for as many persons as there
are directors to be elected and for whose election he has a right to
vote.
Section
4. Any action
required to 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 of the shareholders entitled to vote with respect to the subject
matter thereof.
Section
5. No proposal
submitted by a stockholder of the corporation for consideration at an annual
meeting of stockholders will be considered at any such meeting unless the
Secretary of the corporation has received written notice of the matter proposed
to be presented on or prior to the date which is sixty (60) days prior to the
first anniversary of the date on which the corporation first mailed its proxy
materials for the prior year’s annual meeting of stockholders.
ARTICLE
V.
DIRECTORS
Section
1. The Board of
Directors shall consist of not less than three (3) nor more than fifteen (15)
members, the precise number to be fixed by resolution of the Board of Directors
from time to time. The number of directors may be increased to more than fifteen
or decreased to less than three (but in no event less than one) from time to
time by amendment to these Bylaws, but no decrease shall have the effect of
shortening the term of any incumbent director. 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
2. Nominations of persons for election to the Board of Directors of
the corporation may be made at a meeting of shareholders (i) by or at the
direction of the Board of Directors or (ii) by any shareholder of the
corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section
2. Nominations by shareholders shall be made pursuant to timely
notice in writing to the Secretary of the corporation. No nomination
submitted by a stockholder of the corporation will be submitted to stockholder
vote at an annual meeting of stockholders unless the Secretary of the
corporation has received written notice of the nomination on or prior to the
date which is sixty (60) days prior to the first anniversary of the date on
which the corporation first mailed its proxy materials for the prior year’s
annual stockholders’ meeting. Such shareholder's notice shall include
the following:
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(1) |
the
name and address of the nominating stockholder; |
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(2)
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a
representation that the stockholder is a stockholder of the corporation
and intends to appear in person or by proxy at the meeting to nominate
the
person or persons specified in the
notice;
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(3)
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such
information regarding each nominee as would have been required to
be
included in a proxy statement filed pursuant to Regulation 14A under
the
Securities Exchange Act of 1934 (or pursuant to any successor act
or
regulation) had proxies been solicited with respect to such nominee
by the
Board;
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(4)
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a
description of all arrangements or understandings among the stockholder
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 stockholder;
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(5)
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the
written consent of each nominee to serve as a director of the corporation
if so elected; and
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(6) |
such
other information as may be required by any applicable law or
regulation. |
At
the
request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
corporation that information required to be set forth in a shareholder's notice
of nomination which pertains to the nominee. No person shall be
eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth in these Bylaws. The
chairman of the meeting shall, if the facts warrant, determine and declare
to
the meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
Section
3. Any vacancy
occurring in the Board of Directors may be filled in accordance with Section
4
of this Article V or by the affirmative vote of a 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.
Section
4. Any directorship to be filled by reason of an increase in the
number of directors may be filled by election at an annual meeting or at a
special meeting of shareholders called for that purpose. 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. Any directorship to be filled by reason of an increase in the number
of directors may also be filled by the Board of Directors for a term of office
until the next election of directors by shareholders; provided no more than
two
directorships may be so filled during a period between any two successive annual
meetings of shareholders.
Section
5. Notwithstanding Sections 3 and 4 of this Article V, whenever the
holders of any class or series of shares are entitled to elect one or more
directors by the provisions of the Articles of Incorporation, any vacancies
in
such directorships and any newly created directorships of such class or series
to be filled by reason of an increase in the number of such directors may be
filled by the affirmative vote of a majority of the directors elected by such
class or series then in office or by a sole remaining director so elected,
or by
the vote of the holders of the outstanding shares of such class or series,
and
such directorships shall not in any case be filled by the vote of the remaining
directors or the holders of the outstanding shares as a whole unless otherwise
provided in the Articles of Incorporation.
Section
6. The business 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
7. 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
8. 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. 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
3. Special meetings of the Board of Directors may be called by the
Chairman of the Board or the President on two days' notice to each director,
either personally, by mail, by telegram, or by electronic means as specified
in
Section 5 of this Article VI; special meetings shall be called by the Chairman
of the Board, the President or Secretary in like manner and on like notice
on
the written request of two directors.
Section
4. 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
5. On consent of a director, notice of the date, time, place, or
purpose of a regular or special meeting of the board of directors may be given
to the director by electronic transmission in accordance with Texas
law.
Section
6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by Texas 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 Texas law 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 from time
to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section
7. Unless otherwise restricted by the Articles of Incorporation or
these Bylaws, any action required or permitted to be taken at any meeting of
the
Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board or committee, as the case may be, consent thereto
in
writing which shall set forth the action taken and be signed by all members
of
the Board of Directors or of the committee, as the case may be.
ARTICLE
VII.
COMMITTEES
OF DIRECTORS
Section
1. The Board of Directors, by resolution adopted by a majority of the
full Board of Directors, may designate from among its members an executive
committee and one or more other committees, each of which shall be comprised
of
one or more members and, to the extent provided in the resolution, shall have
and may exercise all of the authority of the Board of Directors, except that
no
such committee shall have the authority of the Board of Directors in reference
to amending the Articles of Incorporation, proposing a reduction of the stated
capital of the corporation, approving a plan of merger, share exchange or
conversion of the corporation, recommending to the shareholders the sale, lease,
or exchange of all or substantially all of the property and assets of the
corporation otherwise than in the usual and regular course of its business,
recommending to the shareholders a voluntary dissolution of the corporation
or a
revocation thereof, amending, altering, or repealing the Bylaws of the
corporation or adopting new Bylaws for the corporation, filling vacancies or
designating alternate members of the Board of Directors or any committee,
filling any directorship to be filled by reason of an increase in the number
of
directors, electing or removing officers of the corporation or members or
alternate members of any committee, fixing the compensation of any member or
alternate members of a committee, or altering or repealing any resolution of
the
Board of Directors that by its terms provides that it shall not be so amendable
or repealable; and, unless the resolution designating a particular committee
or
the Articles of Incorporation expressly so provides, no committee shall have
the
power or authority to declare a dividend or to authorize the issuance of shares
of the corporation.
ARTICLE
VIII.
NOTICES
Section
1. Whenever, under the provisions of Texas law or of the Articles of
Incorporation or of these Bylaws, notice is required to be given to any director
or shareholder, it shall not be construed to mean personal notice, but such
notice may be given in writing: (i) 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;
(ii) by electronic transmission (including: facsimile, electronic mail, posting
to an electronic network, or other consented to form) to such director or
shareholder if consented to; or (iii) in the case of a director, notice may
also
be given by telegram.
Section
2. Whenever any notice whatever is required to be given under the
provisions of Texas law 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, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein, shall
be
deemed equivalent to the giving of such notice. The business to be
transacted at a regular or special meeting of the shareholders, directors,
or
members of a committee of directors for the purpose of a meeting is not required
to be specified in a written waiver of notice, a waiver by electronic
transmission, or a waiver by telegram, unless required by the Articles of
Incorporation.
ARTICLE
IX.
OFFICERS
Section
1. The officers of the corporation shall be chosen by the Board of
Directors and there shall be a President and a Secretary. The Board
of Directors may also elect or 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
2. The Board of Directors at its first meeting after each annual
meeting of shareholders shall elect the officers of the corporation, none of
whom need be a member of the Board, other than the Chairman of the
Board.
Section
3. The salaries of all officers and agents of the corporation shall
be fixed by the Board of Directors.
Section
4. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer 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, but 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 shall be filled by the Board of Directors, in its
discretion.
CHIEF
EXECUTIVE OFFICER
Section
5. The Board of
Directors may designate a Chief Executive Officer of the
corporation. The Chief Executive Officer shall have responsibility
for the general management and direction of the business of the corporation
and
for the execution of all orders and resolutions of the Board of
Directors. In addition to the powers prescribed in these Bylaws, he
shall have all of the powers usually vested in the chief executive officer
of a
corporation and such other powers as may be prescribed from time to time by
the
Board of Directors. He may delegate any of his powers and duties to
any other officer with such limitations as he may deem proper. Should
the Board of Directors fail to designate a Chief Executive Officer, the
President shall have the powers and perform the duties specified in this Section
5.
THE
PRESIDENT
Section
6. The President may execute deeds, conveyances, notes, bonds, and
other contracts either with or without the attestation of the Secretary required
thereon and either with or without the seal of the corporation. In
addition to the powers prescribed in these Bylaws, he shall have all of the
powers as may be prescribed from time to time by the Board of Directors. If
he
is not designated as Chief Executive Officer, the President shall have such
powers and perform such duties as may be delegated to him by the Chief Executive
Officer, and shall be vested with all the powers and authorized to perform
all
the duties of the Chief Executive Officer in his absence or inability to
act. He may delegate any of his powers and duties to any other
officer with such limitations as he may deem proper.
THE
VICE
PRESIDENTS
Section
7. The Vice-President, if there is one, 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
8. 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 standing committees
when
required. The Secretary 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, the Chief Executive Officer or President, under whose supervision
he
shall be. The Secretary shall have custody of the corporate seal of the
corporation and shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature. 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.
Section
9. The Assistant Secretary, if there is one, 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
10. The Treasurer, if there is one, 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 moneys 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.
Section
11. The Treasurer 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 meetings, or when the Board of Directors so requires, an account
of
all his transactions as Treasurer and of the financial condition of the
corporation.
Section
12. If required by the Board of Directors, the Treasurer 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 the office and for the restoration to the corporation, in case of
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.
Section
13. The Assistant Treasurer, if there is one, 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.
CERTIFICATES
REPRESENTING SHARES
Section
1. The corporation
shall deliver certificates representing shares to which shareholders are
entitled, or the shares of the corporation may be uncertificated
shares. Unless otherwise provided by the Articles of Incorporation or
Bylaws, the Board of Directors of the corporation may provide by resolution
that
some or all of any or all classes and series of its shares shall be
uncertificated shares, provided that such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
corporation. Certificates representing shares shall be signed by the
President and Secretary or such other officers as may be designated by the
Board
of Directors, and may be sealed with the seal of the corporation or a facsimile
thereof. The signatures of such officer or officers upon a
certificate may be facsimiles. In case any officer who has signed or
whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer before such certificate is issued, it may be issued
by
the corporation with the same effect as if he or she were such officer at the
date of its issuance.
Section
2. In accordance
with Chapter 8, Business & Commerce Code, the corporation shall, after the
issuance or transfer of uncertificated shares, send to the registered owner
of
uncertificated shares a written notice containing the information required
to be
set forth or stated on certificates pursuant to the Texas Business Corporation
Act. Except as otherwise expressly provided by Texas law, the rights
and obligations of the holders of uncertificated shares and the rights and
obligations of the holders of certificates representing shares of the same
class
and series shall be identical. No share shall be issued until the
consideration therefor, fixed as provided by Texas law, has been fully
paid.
Section
3. Each certificate representing shares shall state upon the face
thereof: (i) that the corporation is organized under the laws of the
State of Texas; (ii) the name of the person to whom issued; (iii) the number
and
class of shares and the designation of the series, if any, which such
certificate represents; (iv) the par value of each share represented by such
certificate, or a statement that the shares are without par value.
Section
4. In the event the corporation is authorized to issue shares of more
than one class or series, each certificate representing shares issued by such
corporation (1) shall conspicuously set forth on the face or back of the
certificate a full statement of all the designations, preferences, limitations,
and relative rights of the shares of each class or series to the extent they
have been fixed and determined and the authority of the Board of Directors
to
fix and determine the designations, preferences, limitations, and relative
rights of subsequent series; or (2) shall conspicuously state on the face
or back of the certificate that (a) such a statement is set forth in the
Articles of Incorporation on file in the office of the Secretary of State and
(b) the corporation will furnish a copy of such statement to the record
holder of the certificate without charge on written request to the corporation
at its principal place of business or registered office.
LOST
CERTIFICATES
Section 5. If an owner of a certificated security, whether in
registered or bearer form, claims that the certificate has been lost, destroyed,
or wrongfully taken, the Board of Directors shall direct that a new certificate
be issued in place of any certificate theretofore issued by the corporation
if
the owner: (i) so requests before the corporation has notice that the
certificate has been acquired by a protected purchaser; (ii) files with the
corporation a sufficient indemnity bond; and (iii) satisfies other reasonable
terms and conditions that the Board of Directors deems expedient 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.
TRANSFERS
OF SHARES
Section 6. If a certificated security in registered form is presented
to the corporation or the transfer agent of the corporation with a request
to
register transfer, or an instruction is presented to the corporation or the
transfer agent of the corporation with a request to register transfer of an
uncertificated security, the corporation shall register the transfer as
requested if accompanied by proper evidence of succession, assignment or
authority to transfer. If a new certificate is requested, the
corporation shall issue the new certificate to the person entitled thereto,
and
the old certificate shall be cancelled. All transactions in
certificated and uncertificated shares shall be recorded upon the books of
the
corporation.
CLOSING
OF TRANSFER BOOKS
Section
7. 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 in order to make a determination
of shareholders for any other proper purpose, the Board of Directors may provide
that the share transfer records shall be closed for a stated period but not
to
exceed, in any case, sixty (60) days. If the share transfer records shall be
closed for the purpose of determining shareholders entitled to notice of or
to
vote at a meeting of shareholders, such records shall be closed for at least
ten
(10) days immediately preceding such meeting. In lieu of closing the share
transfer records, the Board of Directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be
not
more than sixty (60) days and, in case of a meeting of shareholders, not less
than ten (10) days prior to the date on which the particular action, requiring
such determination of shareholders, is to be taken. If the share
transfer records are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting
of
shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as
the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section 7, such determination
shall apply to any adjournment thereof except where the determination has been
made through the closing of the share transfer records and the stated period
of
closing has expired.
REGISTERED
SHAREHOLDERS
Section
8. The corporation shall be entitled to recognize the exclusive right
of a person registered in its share transfer records at any particular time
as
the owner of shares at that time to receive dividends, and to vote as such
owner, and to hold liable for calls and assessments a person registered on
its
records 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 Texas law.
LIST
OF
SHAREHOLDERS
Section
9. The officer or agent having charge of the transfer books for
shares shall make, at least ten (10) 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 (10) days prior to such meeting, shall
be
kept on file at the registered office of the corporation and shall be subject
to
inspection by any shareholder at any time during usual business hours. Such
list
shall also be produced and 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 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. Alternatively, the list of the shareholders may be kept
on a reasonably accessible electronic network in accordance with applicable
law.
ARTICLE
XI.
INDEMNIFICATION
DEFINITIONS
FOR INDEMNIFICATION PROVISIONS
Section
1. As used in this Article XI, the term:
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1)
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“Corporation”
includes any domestic or foreign predecessor entity of the corporation
in
a merger, conversion, or other transaction in which some or all of
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
XI.
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(2)
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“Director”
means any person who is or was a director of the corporation and
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, employee benefit plan, other enterprise,
or other entity.
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(3)
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“Expenses”
include court costs and attorneys’
fees.
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(4)
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“Official
capacity” means:
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(a)
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when
used with respect to a director, the office of director in the
corporation, and
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(b)
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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
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(c)
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in
both Paragraphs (a) and (b) does not include service for any other
foreign
or domestic corporation or any employee benefit plan, other enterprise,
or
other entity.
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(5)
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“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.
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STANDARDS
FOR INDEMNIFICATION
Section 2. The corporation shall 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 if it is determined in accordance with Section
6
of this Article XI that the person:
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(1)
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conducted
himself in good faith;
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(a)
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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
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(b)
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in
all other cases, that his conduct was at least not opposed to the
corporation's best interests; and
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(3)
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in
the case of any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful.
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DENIAL
OF
INDEMNIFICATION IN CERTAIN CASES
Section
3. Except to the
extent permitted by Section 5 of this Article XI, a director may not be
indemnified under Section 2 of this Article XI in respect of a
proceeding:
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(1)
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in
which the person 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;
or
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(2)
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in
which the person is found liable to the
corporation.
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OUTCOME
NOT DETERMINATIVE OF INDEMNIFICATION
Section
4. The termination
of a proceeding by judgment, order, settlement, or conviction, or on a plea
of
nolo contendere or its equivalent is not of itself determinative that the person
did not meet the requirements set forth in Section 2 of this Article XI. 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.
EXTENT
OF
INDEMNIFICATION
Section
5. A person shall
be indemnified under Section 2 of this Article XI against judgments, penalties
(including excise and similar taxes), fines, settlements, and reasonable
expenses (including attorney’s fees) 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 (1) is limited to reasonable
expenses actually incurred by the person in connection with the proceeding
and
(2) 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.
REQUIREMENTS
FOR DETERMINATION OF INDEMNIFICATION
Section
6. A determination
of indemnification under Section 2 of this Article XI must be made:
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(1)
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by
a majority vote of the directors who at the time of the vote are
not named
defendants or respondents in the proceeding, regardless of whether
the
directors not named defendants or respondents constitute a
quorum;
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(2)
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by
a majority vote of a committee of the Board of Directors,
if:
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(a)
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the
committee is designated by a majority vote of the directors who at
the
time of the vote are not named defendants or respondents in the
proceeding, regardless of whether the directors not named defendants
or
respondents constitute a quorum;
and
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(b)
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the
committee consists solely of one or more of the directors not named
as
defendants or respondents in the
proceeding;
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(3)
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by
special legal counsel selected by the Board of Directors or a committee
of
the Board by vote as set forth in Subsection (1) or (2) of this section;
or
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(4)
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by
the shareholders in a vote that excludes the shares held by directors
who
are named defendants or respondents in the
proceeding.
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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 (3) of Section 6 of this Article XI for the selection
of
special legal counsel. A provision contained in the Articles of Incorporation,
these 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 even though such provision may not have been adopted
or
authorized in the same manner as the determination that indemnification is
permissible.
MANDATORY
INDEMNIFICATION UPON SUCCESSFUL DEFENSE
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.
ADVANCEMENT
OF EXPENSES; WRITTEN UNDERTAKING
Section
9. Reasonable
expenses incurred by a present or former director who was, is, or is threatened
to be made a named defendant or respondent in a proceeding in which he is or
is
threatened to be a named defendant or respondent because he is or was a
director, shall be paid or reimbursed by the corporation, in advance of the
final disposition of the proceeding and without the determination specified
in
Section 6 of this Article XI or the authorization or determination specified
in
Section 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 that standard
or
if it is ultimately determined that indemnification of the director against
expenses incurred by him in connection with that proceeding is prohibited by
Section 5 of this Article XI. A provision contained in the Articles
of Incorporation, these Bylaws, a resolution of shareholders or directors,
or an
agreement that makes mandatory the payment or reimbursement permitted under
this
section shall be deemed to constitute authorization of that payment or
reimbursement.
Section
10. The written
undertaking required by Section 9 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
11. 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, these Bylaws, a resolution
of shareholders or directors, an agreement, or otherwise, except in accordance
with Section 14 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.
PAYMENT
OF EXPENSES WHEN NOT A NAMED DEFENDANT
Section
12. Notwithstanding any other provision of this Article XI, the
corporation shall pay or reimburse expenses incurred by a presently serving
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.
INDEMNIFICATION
FOR OFFICERS
Section
13. An officer of
the corporation shall be indemnified as, and to the same extent, provided by
Section 8 of this Article XI for a director and is entitled to seek
indemnification under that section to the same extent as a director. The
corporation shall indemnify and advance expenses to an officer of the
corporation to the same extent that it shall indemnify and advance expenses
to
directors under this Article XI.
PURCHASE
AND MAINTENANCE OF INSURANCE
Section
14. 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, employee benefit
plan, other enterprise, or other entity, 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, (1) create a trust fund; (2) establish any
form
of self-insurance; (3) secure its indemnity obligation by grant of a security
interest or other lien on the assets of the corporation; or (4) 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.
REPORTS
TO SHAREHOLDERS
Section
15. 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 shareholders of a consent to action without a meeting
and, in any case, within the 12-month period immediately following the date
of
the indemnification or advance.
SPECIAL
PROVISION FOR EMPLOYEE BENEFIT PLANS
Section
16. For purposes
of this Article XI, the corporation is deemed to have requested a director
to
serve as a trustee, employee, agent, or similar functionary of 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 a director with respect to an employee benefit
plan in the performance of his duties for a purpose reasonably believed by
him
to be in the interest of the participants and beneficiaries of the plan is
deemed to be for a purpose which is not opposed to the best interests of the
corporation.
ARTICLE
XII.
GENERAL
PROVISIONS
DIVIDENDS
Section
1. Subject to the provisions of the Articles of Incorporation
relating thereto, if any, dividends may be declared by the Board of Directors
at
any regular or special meeting, pursuant to Texas law. Dividends may be paid
in
cash, in property or in shares of the capital stock, subject to any provisions
of the Articles of Incorporation.
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 end of the corporation shall be April 30, unless
otherwise fixed by resolution of the Board of Directors.
SEAL
Section
5. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words “Corporate Seal, Texas”.
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or in any manner reproduced.
ARTICLE
XIII.
AMENDMENTS
Section
1. The Board of Directors may amend or repeal the corporation’s
Bylaws, or adopt new Bylaws, unless:
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(1)
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the
Articles of Incorporation or Texas law reserves the power exclusively
to
the shareholders in whole or part;
or
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(2)
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the
shareholders in amending, repealing, or adopting a particular Bylaw
expressly provide that the Board of Directors may not amend or repeal
that
Bylaw.
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Section
2. Unless the Articles of Incorporation or a Bylaw adopted by the
shareholders provides otherwise as to all or some portion of the corporation’s
Bylaws, the corporation’s shareholders may amend, repeal, or adopt the
corporation’s Bylaws even though the Bylaws may also be amended, repealed, or
adopted by the Board of Directors.
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