AMENDED
AND RESTATED BYLAWS
OF
CENTERPOINT
ENERGY, INC.
(Adopted
and Amended by Resolution of the Board of Directors on
July 24,
2008)
ARTICLE
I
CAPITAL STOCK
Section 1.
Share
Ownership
. Shares for the capital stock of the Company may be
certificated or uncertificated. Owners of shares of the capital stock
of the Company shall be recorded in the share transfer records of the Company
and ownership of such shares shall be evidenced by a certificate or book entry
notation in the share transfer records of the Company. Any
certificates representing such shares shall be signed by the Chief Executive
Officer, the President or a Vice President and either the Secretary or an
Assistant Secretary and shall be sealed with the seal of the Company, which
signatures and seal 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 Company with the same effect as if he were such officer at the date of its
issuance.
Section 2.
Shareholders of Record
. The
Board of Directors of the Company may appoint one or more transfer agents or
registrars of any class of stock of the Company. The Company may be
its own transfer agent if so appointed by the Board of Directors. The
Company shall be entitled to treat the holder of record of any shares of the
Company as the owner thereof for all purposes, and shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or any
rights deriving from such shares, on the part of any other person, including
(but without limitation) a purchaser, assignee or transferee, unless and until
such other person becomes the holder of record of such shares, whether or not
the Company shall have either actual or constructive notice of the interest of
such other person.
Section 3.
Transfer of
Shares
. The shares of the capital stock of the Company shall
be transferable in the share transfer records of the Company by the holder of
record thereof, or his duly authorized attorney or legal
representative. All certificates representing shares surrendered for
transfer, properly endorsed, shall be canceled and new certificates for a like
number of shares shall be issued therefor. In the case of lost,
stolen, destroyed or mutilated certificates representing shares for which the
Company has been requested to issue new certificates, new certificates or other
evidence of such new shares may be issued upon such conditions as may be
required by the Board of Directors or the Secretary for the protection of the
Company and any transfer agent or registrar. Uncertificated shares
shall be transferred in the
share
transfer records of the Company upon the written instruction originated by the
appropriate person to transfer the shares.
Section 4.
Shareholders of Record and
Fixing of 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 a distribution by the Company
(other than a distribution involving a purchase or redemption by the Company of
any of its own shares) or a share dividend, or in order to make a determination
of shareholders for any other proper purpose (other than determining
shareholders entitled to consent to action by shareholders proposed to be taken
without a meeting of shareholders), the Board of Directors may provide that the
share transfer records shall be closed for a stated period of not more than 60
days, and in the case of a meeting of shareholders not less than ten days,
immediately preceding the meeting, or it may fix in advance a record date for
any such determination of shareholders, such date to be not more than 60 days,
and in the case of a meeting of shareholders not less than ten days, prior to
the date on which the particular action requiring such determination of
shareholders is to be taken. If the 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 a distribution (other than a distribution involving a
purchase or redemption by the Company of any of its own shares) or a share
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such distribution or share
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 herein
provided, 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.
ARTICLE
II
MEETINGS OF SHAREHOLDERS
Section 1.
Place of Meetings
. All
meetings of shareholders shall be held at the registered office of the
Company, in the City of Houston, Texas, or at such other place within or without
the State of Texas as may be designated by the Board of Directors or
officer calling the meeting.
Section 2.
Annual Meeting
. The
annual meeting of the shareholders shall be held on such date and at such time
as shall be designated from time to time by the Board of Directors or as may
otherwise be stated in the notice of the meeting. Failure to
designate a time for the annual meeting or to hold the annual meeting at the
designated time shall not work a dissolution of the Company.
Section 3.
Special Meetings
. Special
meetings of the shareholders may be called by the Chairman of the Board, the
Chief Executive Officer, the President, the Secretary or the Board of
Directors. Special meetings of shareholders shall be called by the
President or the Secretary of the Company on the written request of the holders
of shares of capital stock of the Company constituting at least the percentage
of outstanding shares of capital stock of the Company entitled to vote at such
meeting that the Articles of Incorporation (as Section 4 of this Article II
defines
that
term) specify as the minimum percentage necessary to call a special meeting of
the shareholders (or in the absence of such specification, the minimum
percentage necessary to call a special meeting that the Texas Business
Corporation Act, as amended (the “TBCA”), specifies). Such request
shall (a) state the purpose or purposes of that meeting and the matters proposed
to be acted on at that meeting, (b) the name and address, as they appear on
the Company’s books and records, of the shareholder proposing such business, (c)
evidence reasonably satisfactory to the Secretary of the Company, of
such shareholder’s status as such and of the number of shares of each class
of capital stock of the Company of which such shareholder is the beneficial
owner, (d) a description of all arrangements or understandings between such
shareholder and any other person or persons (including their names) in
connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business and (e) a representation
that such shareholder intends to appear in person or by proxy at the special
meeting to bring such business before the meeting. Upon receipt of
such request and any related notice required by these Bylaws, the Board of
Directors shall set a date for the special meeting, set a record date in
accordance with Section 4 of Article I, and shall cause an appropriate officer
of the Company to give the notice required under Section 4 of this Article
II. This Section 3 shall be subject to the rights, if any, of holders
of any class or series of capital stock of the Company to call special
meetings.
Section 4.
Notice of
Meeting
. Written or printed notice of all meetings stating the
place, day and hour of the meeting and, in case of a special meeting, the
purpose or purposes for which the meeting is called (which may include, in the
case of any special meeting called at the written request of shareholders
pursuant to the provisions of Section 3 of this Article II, any purpose or
purposes (in addition to the purpose or purposes stated by the requesting
shareholders pursuant to Section 3 of this Article II) as the Board of Directors
may determine), shall be delivered not less than ten nor more than 60 days
before the date of the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board, the Chief Executive Officer, the
President, the Secretary or the officer or person calling the meeting to each
shareholder of record entitled to vote at such meetings. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the shareholder at his address as it appears on the
share transfer records of the Company, with postage thereon
prepaid.
Any
notice required to be given to any shareholder, under any provision of the TBCA,
the Articles of Incorporation of the Company (as amended from time to time and
including each statement respecting any class or series of preferred stock of
the Company which has been filed by the Company in accordance with the
provisions of Article 2.13 of the TBCA, the “Articles of Incorporation”) or
these Bylaws, need not be given to a shareholder if notice of two consecutive
annual meetings and all notices of meetings held during the period between those
annual meetings, if any, or all (but in no event less than two) payments (if
sent by first class mail) of distributions or interest on securities during a
12-month period have been mailed to that person, addressed at his address as
shown on the share transfer records of the Company, and have been returned
undeliverable. Any action or meeting taken or held without notice to
such person shall have the same force and effect as if the notice had been duly
given. If such a person delivers to the Company a written notice
setting forth his then current address, the requirement that notice be given to
that person shall be reinstated.
Section 5.
Voting List
. The
officer or agent having charge of the share transfer records for shares of the
Company shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting or any
adjournment thereof, arranged in alphabetical order, with the address of and the
number of shares held by each, which list, for a period of ten days prior to
such meeting, shall be kept on file at the registered office of the Company
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 transfer records shall be
prima facie
evidence as to
who are the shareholders entitled to examine such list or to vote at any meeting
of shareholders. Failure to comply with any requirements of this
Section 5 shall not affect the validity of any action taken at such
meeting.
Section 6.
Voting;
Proxies
. Except as otherwise provided in the Articles of
Incorporation or as otherwise provided in the TBCA, each holder of shares of
capital stock of the Company entitled to vote shall be entitled to one vote for
each share standing in his name on the records of the Company, either in person
or by proxy executed in writing by him or by his duly authorized
attorney-in-fact. A proxy shall be revocable unless expressly
provided therein to be irrevocable and the proxy is coupled with an
interest. At each election of directors, every holder of shares of
the Company entitled to vote shall have the right to vote, in person or by
proxy, the number of shares owned by him for as many persons as there are
directors to be elected, and for whose election he has a right to vote, but
in no event shall he be permitted to cumulate his votes for one or more
directors.
Section 7.
Quorum and Vote
of Shareholders
. Except as otherwise provided by law, the
Articles of Incorporation or these Bylaws, the holders of a majority of shares
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of shareholders, but, if a quorum is not represented, a majority in
interest of those represented may adjourn the meeting from time to
time. Except as provided in the next sentence with respect to
contested elections of directors, directors to be elected by shareholders shall
be elected by a majority of the votes cast by the holders of shares entitled to
vote in the election of directors at a meeting of shareholders at which a quorum
is present. In a contested election of directors, directors shall be
elected by a plurality of the votes cast by the holders of shares entitled to
vote in the election of directors at a meeting of shareholders at which a quorum
is present. For purposes of this Section, (i) an election of
directors shall be considered contested if, as of the date that is 14 days in
advance of the date the Company files its definitive proxy statement (regardless
of whether or not thereafter revised or supplemented) with the Securities and
Exchange Commission, the number of nominees exceeds the number of directors to
be elected and (ii) a majority of the votes cast means that the number of shares
voted “for” a director must exceed the number of votes cast “against” that
director. The Board and the Governance Committee shall establish
procedures with respect to the resignation from the Board of continuing
directors who are not elected. With respect to each matter other than
the election of directors as to which no other voting requirement is specified
by law, the Articles of Incorporation or in this Section 7 or in Article VII of
these Bylaws, the affirmative vote of the holders of a majority of the shares
entitled to vote on that matter and represented in person or by proxy at a
meeting at which a quorum is present shall be the act of the
shareholders. With respect to a matter submitted to a vote of the
shareholders as to which a shareholder approval requirement is applicable
under the shareholder approval policy of
the New
York Stock Exchange, Rule 16b-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), or any provision of the Internal Revenue Code, in
each case for which no higher voting requirement is specified by law, the
Articles of Incorporation or these Bylaws, the affirmative vote of the
holders of a majority of the shares entitled to vote on, and voted for or
against, that matter at a meeting at which a quorum is present shall be the act
of the shareholders, provided that approval of such matter shall also be
conditioned on any more restrictive requirement of such shareholder approval
policy, Rule 16b-3 or Internal Revenue Code provision, as applicable, being
satisfied. With respect to the approval of independent public
accountants (if submitted for a vote of the shareholders), the affirmative vote
of the holders of a majority of the shares entitled to vote on, and voted for or
against, that matter at a meeting of shareholders at which a quorum is present
shall be the act of the shareholders.
Section 8.
Presiding Officer and
Conduct of Meetings
. The Chairman of the Board, or in his
absence or at his direction, the Chief Executive Officer, or in his absence, the
President shall preside at all meetings of the shareholders or, if such officers
are not present at a meeting, by such other person as the Board of Directors
shall designate or if no such person is designated by the Board of Directors,
the most senior officer of the Company present at the meeting. The
Secretary of the Company, if present, shall act as secretary of each meeting of
shareholders; if he is not present at a meeting, then such person as may be
designated by the presiding officer shall act as secretary of the
meeting. Meetings of shareholders shall follow reasonable and fair
procedure. Subject to the foregoing, the conduct of any meeting of
shareholders and the determination of procedure and rules shall be within
the absolute discretion of the officer presiding at such meeting (the “Chairman
of the Meeting”), and there shall be no appeal from any ruling of the Chairman
of the Meeting with respect to procedure or rules. Accordingly, in
any meeting of shareholders or part thereof, the Chairman of the Meeting shall
have the sole power to determine appropriate rules or to dispense with
theretofore prevailing rules. Without limiting the foregoing, the
following rules shall apply:
(a)
If disorder should arise which prevents continuation of the legitimate
business of meeting, the Chairman of the Meeting may announce the adjournment of
the meeting; and upon so doing, the meeting shall be immediately
adjourned.
(b)
The Chairman of the Meeting may ask or require that anyone not a bona
fide shareholder or proxy leave the meeting.
(c)
A resolution or motion proposed by a shareholder shall only be considered
for vote of the shareholders if it meets the criteria of Article II,
Section 9 (Proper Business - Annual Meeting of Shareholders) or
Article II, Section 10 (Proper Business - Special Meeting of Shareholders),
as the case may be. The Chairman of the Meeting may propose any
resolution or motion for vote of the shareholders.
(d)
The order of business at all meetings of shareholders shall be determined
by the Chairman of the Meeting.
(e)
The Chairman of the Meeting may impose any reasonable limits with respect
to participation in the meeting by shareholders, including, but not limited to,
limits on the amount of time taken up by the remarks or questions of any
shareholder,
limits on
the number of questions per shareholder and limits as to the subject matter and
timing of questions and remarks by shareholders.
(f)
Before any meeting of shareholders, the Board of Directors may appoint
three persons other than nominees for office to act as inspectors of election at
the meeting or its adjournment. If no inspectors of election are so
appointed, the Chairman of the Meeting may, and on the request of any
shareholder or a shareholder’s proxy shall, appoint inspectors of election at
the meeting of the shareholders and the number of such inspectors shall be
three. If any person appointed as inspector fails to appear or fails
or refuses to act, the Chairman of the Meeting may, and upon the request of any
shareholder or a shareholder’s proxy shall, appoint a person to fill such
vacancy.
The
duties of the inspectors shall be to:
(i) determine
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the authenticity,
validity and effect of proxies and ballots;
(ii) receive
votes or ballots;
(iii) hear
and determine all challenges and questions in any way arising in connection with
the vote;
(iv) count
and tabulate all votes;
(v) report
to the Board of Directors the results based on the information assembled by the
inspectors; and
(vi) do
any other acts that may be proper to conduct the election or vote with fairness
to all shareholders.
Notwithstanding
the foregoing, the final certification of the results of the election or other
matter acted upon at a meeting of shareholders shall be made by the Board of
Directors.
All
determinations of the Chairman of the Meeting shall be conclusive unless a
matter is determined otherwise upon motion duly adopted by the affirmative vote
of the holders of at least 80% of the voting power of the shares of capital
stock of the Company entitled to vote in the election of directors held by
shareholders present in person or represented by proxy at such
meeting.
Section 9.
Proper Business - Annual
Meeting of Shareholders
. At any annual meeting of
shareholders, only such business shall be conducted as shall be a proper subject
for the meeting and shall have been properly brought before the
meeting. To be properly brought before an annual meeting of
shareholders, business (other than business relating to (i) any nomination
or removal of directors, which are governed by Article III, Sections 2
and 8, or (ii) any alteration, amendment or repeal of the Bylaws or any
adoption of new Bylaws, which is governed by Article VII hereof) must
(a) be specified in the notice of such meeting (or any
supplement
thereto) given by or at the direction of the Board of Directors (or any duly
authorized committee thereof), (b) otherwise be properly brought before the
meeting by or at the direction of the Chairman of the Meeting or the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise
(i) be properly requested to be brought before the meeting by a shareholder
of record entitled to vote in the election of directors generally, in compliance
with the provisions of this Section 9 and (ii) constitute a proper
subject to be brought before such meeting. For business to be properly brought
before an annual meeting of shareholders, any shareholder who intends to bring
any matter (other than a matter relating to (i) any nomination or removal
of directors, which are governed by Article III, Sections 2 and 8, or
(ii) any alteration, amendment or repeal of the Bylaws or any adoption of
new Bylaws, which is governed by Article VII hereof) before an annual
meeting of shareholders and is entitled to vote on such matter must deliver
written notice of such shareholder’s intent to bring such matter before the
annual meeting of shareholders, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Company. Such notice
must be received by the Secretary not less than 90 days nor more than 180 days
prior to the date on which the immediately preceding year’s annual meeting of
shareholders was held; provided, however, that if the date of the annual meeting
is advanced more than 30 days prior to or delayed by more than 60 days after the
anniversary of the preceding year's annual meeting, notice by the shareholder to
be timely must be so delivered not earlier than 180 days prior to such annual
meeting and not later than the last to occur of the close of business on (i) the
90th day prior to such annual meeting or (ii) the 10th day following the day on
which the Company first makes public announcement of the date of such meeting by
(A) a mailing to shareholders, (B) a press release or (C) a filing with the
Securities and Exchange Commission (the “Commission”) pursuant to Section 13(a)
or 14(a) of the Exchange Act. In no event shall the public disclosure
of an adjournment of an annual meeting of shareholders commence a new time
period for the giving of a shareholder’s notice as described above.
To be in
proper written form, a shareholder’s notice to the Secretary shall set forth as
to each matter the shareholder proposes to bring before the annual meeting of
shareholders (a) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
(b) the name and address, as they appear on the Company’s books and
records, of the shareholder proposing such business, (c) evidence
reasonably satisfactory to the Secretary of the Company, of such
shareholder’s status as such and of the number of shares of each class of
capital stock of the Company of which such shareholder is the beneficial
owner, (d) a description of all arrangements or understandings between such
shareholder and any other person or persons (including their names) in
connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business and (e) a representation
that such shareholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting. No business shall
be conducted at an annual meeting of shareholders except in accordance with the
procedures set forth in this Section 9. Beneficial ownership shall be
determined in accordance with Rule 13d-3 under the Exchange Act. When
used in these Bylaws, “person” has the meaning ascribed to such term in Section
2(a)(2) of the Securities Act of 1933, as amended, as the context may
require.
Within 30
days after such shareholder shall have submitted the aforesaid items, the
Secretary or the Board of Directors of the Company shall determine whether the
proposed business has been properly requested to be brought before the annual
meeting of shareholders
and shall
notify such shareholder in writing of its determination. If such
shareholder fails to submit a required item in the form or within the time
indicated, or if the Secretary or the Board of Directors of the Company
determines that the proposed business otherwise has not been properly requested,
then such proposal by such shareholder shall not be voted upon by the
shareholders of the Company at such annual meeting of
shareholders. The Chairman of the Meeting shall, if the facts
warrant, determine and declare to the meeting that a proposal made by a
shareholder of the Company pursuant to this Section 9 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 proposal shall
be disregarded.
Nothing
in this Section 9 shall be interpreted or construed to require the
inclusion of information about any such proposal in any proxy statement
distributed by, at the direction of, or on behalf of the Board of Directors or
the Company.
Section 10.
Proper Business - Special
Meeting of Shareholders
. At any special meeting of
shareholders, only such business shall be conducted as shall have been stated in
the notice of such meeting or shall otherwise have been properly brought before
the meeting by or at the direction of the Chairman of the Meeting or the Board
of Directors (or any duly authorized committee thereof).
ARTICLE
III
DIRECTORS
Section 1.
Term and
Qualifications
. (a) The business and affairs of the Company shall be
managed by the Board of Directors.
Each
director elected by the holders of Preferred Stock pursuant to Division A of
Article VI of the Articles of Incorporation (or elected by such directors to
fill a vacancy) shall serve for a term ending upon the earlier of the election
of his successor or the termination at any time of a right of the holders of
Preferred Stock to elect members of the Board of Directors.
Except as
may be required otherwise in accordance with the immediately preceding
paragraph, at each annual meeting of shareholders, all directors shall be
elected to hold office for a term expiring at the next succeeding annual meeting
of shareholders and until their successors have been elected and qualified;
provided, that any director elected for a longer term before the 2009 annual
meeting of shareholders shall hold office for the entire term for which he or
she was originally elected. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
(b) No
person shall be eligible to serve as a director of the Company subsequent to the
annual meeting of shareholders occurring during the year of such person’s
seventy-third birthday.
No person
shall continue to serve as a member of the Board of Directors if the director
ceases for any reason to hold the principal employment or position he or she
held at the time first elected to the Board of Directors and does not secure a
comparable employment or position, as determined in the sole judgment of the
Board of Directors, within one year thereof.
No person
who is also an employee of the Company or one of its corporate affiliates shall
continue to serve as a member of the Board of Directors after his or her
retirement, termination or downward change in status in the Company, as
determined in the sole judgment of the Board of Directors.
The Board
of Directors may waive any qualification set forth above in this Section 1(b) if
it determines that the director has special skill, experience or distinction
having value to the Company that is not readily available or
transferable. Any such waiver shall be made by a majority of the
Board of Directors, excluding the director whose disqualification is being
waived.
Any
vacancies on the Board of Directors resulting from the disqualification of a
director by virtue of the above qualifications may be filled pursuant to the
terms of the Articles of Incorporation.
The above
qualifications and limitations notwithstanding, each director shall serve until
his successor shall have been duly elected and qualified, unless he or she shall
resign, become disqualified, disabled or shall otherwise be
removed.
Section 2.
Nomination of
Directors
. Nominations for the election of directors may be
made by the Board of Directors or by any shareholder (the “Nominator”)
entitled to vote in the election of directors. Such nominations,
other than those made by the Board of Directors, shall be made in writing
pursuant to timely notice delivered to or mailed and received by the Secretary
of the Company as set forth in this Section 2. To be timely in
connection with an annual meeting of shareholders, a Nominator’s notice, setting
forth the name and address of the person to be nominated, shall be delivered to
or mailed and received at the principal executive offices of the Company not
less than 90 days nor more than 180 days prior to the date on which the
immediately preceding year’s annual meeting of shareholders was held; provided,
however, that if the date of the annual meeting is advanced more than 30 days
prior to or delayed by more than 60 days after the anniversary of the preceding
year's annual meeting, notice by the Nominator to be timely must be so delivered
not earlier than 180 days prior to such annual meeting and not later than the
last to occur of the close of business on (i) the 90th day prior to such annual
meeting or (ii) the 10th day following the day on which the Company first makes
public announcement of the date of such meeting by (A) a mailing to
shareholders, (B) a press release or (C) a filing with the Commission pursuant
to Section 13(a) or 14(a) of the Exchange Act. To be timely in
connection with any election of a director at a special meeting of the
shareholders, a Nominator’s notice, setting forth the name of the person to be
nominated, shall be delivered to or mailed and received at the principal
executive offices of the Company not less than 40 days nor more than 60 days
prior to the date of such meeting; provided, however, that in the event that
less than 47 days’ notice or prior public disclosure of the date of the
special meeting of the shareholders is given or made to the shareholders, the
Nominator’s notice to be timely must be so received not later than the close of
business on the seventh day following the day on which such notice of date of
the meeting was mailed or such public disclosure was made. At such time, the
Nominator shall also submit written evidence, reasonably satisfactory to the
Secretary of the Company, that the Nominator is a shareholder of the Company and
shall identify in writing (a) the name and address of the Nominator, (b) the
number of shares of each class of capital stock of the Company owned
beneficially by the Nominator, (c) the name and address of
each of
the persons with whom the Nominator is acting in concert, (d) the number of
shares of capital stock beneficially owned by each such person with whom the
Nominator is acting in concert, and (e) a description of all arrangements or
understandings between the Nominator and each nominee and any other persons with
whom the Nominator is acting in concert pursuant to which the nomination or
nominations are to be made. At such time, the Nominator shall also
submit in writing (i) the information with respect to each such proposed nominee
that would be required to be provided in a proxy statement prepared in
accordance with Regulation 14A under the Exchange Act, (ii) a notarized
affidavit executed by each such proposed nominee to the effect that, if elected
as a member of the Board of Directors, he will serve and that he is eligible for
election as a member of the Board of Directors and (iii) any agreements and
information with respect to such proposed nominee that are required pursuant to
the procedures established by the Board and the Governance Committee relating to
majority voting for the election of directors. Within 30 days (or
such shorter time period that may exist prior to the date of the meeting) after
the Nominator has submitted the aforesaid items to the Secretary of the Company,
the Secretary of the Company shall determine whether the evidence of the
Nominator’s status as a shareholder submitted by the Nominator is reasonably
satisfactory and shall notify the Nominator in writing of his
determination. The failure of the Secretary of the Company to find
such evidence reasonably satisfactory, or the failure of the Nominator to submit
the requisite information in the form or within the time indicated, shall make
the person to be nominated ineligible for nomination at the meeting at which
such person is proposed to be nominated. The presiding person at each
meeting of shareholders 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. Beneficial ownership shall be determined in accordance
with Rule 13d-3 under the Exchange Act.
Section 3.
Place of Meetings and Meetings by Telephone
. Meetings
of the Board of Directors may be held either within or without the State of
Texas, at whatever place is specified by the officer calling the
meeting. Meetings of the Board of Directors may also be held by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each
other. Participation in such a meeting by means of conference
telephone or similar communications equipment shall constitute presence in
person at such meeting, except where a director participates in a 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. In the
absence of specific designation by the officer calling the meeting, the meetings
shall be held at the principal office of the Company.
Section 4.
Regular Meetings
. The
Board of Directors shall meet each year immediately following the annual meeting
of the shareholders for the transaction of such business as may properly be
brought before the meeting. The Board of Directors shall also meet
regularly at such other times as shall be designated by the Board of
Directors. No notice of any kind to either existing or newly elected
members of the Board of Directors for such annual or regular meetings shall be
necessary.
Section 5.
Special Meetings
. Special
meetings of the Board of Directors may be held at any time upon the call of the
Chairman of the Board, the Chief Executive Officer, the President or the
Secretary of the Company or a majority of the directors then in
office. Notice
shall be
sent by mail, facsimile or telegram to the last known address of the director at
least two days before the meeting, or oral notice may be substituted for such
written notice if received not later than the day preceding such
meeting. Notice of the time, place and purpose of such meeting may be
waived in writing before or after such meeting, and shall be equivalent to the
giving of notice. Attendance of a director at such meeting shall also
constitute a waiver of notice thereof, except where he attends for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened. Except as otherwise
provided by these Bylaws, neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 6.
Quorum and
Voting
. Except as otherwise provided by law, the Articles of
Incorporation or these Bylaws, a majority of the number of directors fixed in
the manner provided in the Articles of Incorporation and these Bylaws, as from
time to time amended, shall constitute a quorum for the transaction of
business. Except as otherwise provided by law, the Articles of
Incorporation or these Bylaws, the affirmative vote 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. Any regular or special directors’ meeting may
be adjourned from time to time by those present, whether a quorum is present or
not.
Section 7.
Compensation
. Directors
shall receive such compensation for their services as shall be determined by the
Board of Directors.
Section 8.
Removal
. No
proposal by a shareholder to remove a director of the Company, regardless of
whether such director was elected by holders of outstanding shares of Preferred
Stock (or elected by the directors to fill a vacancy), shall be voted upon at a
meeting of the shareholders unless such shareholder shall have delivered or
mailed in a timely manner (as set forth in this Section 8) and in writing to the
Secretary of the Company (a) notice of such proposal, (b) a statement of
the grounds, if any, on which such director is proposed to be removed, (c)
evidence, reasonably satisfactory to the Secretary of the Company, of such
shareholder’s status as such and of the number of shares of each class of the
capital stock of the Company beneficially owned by such shareholder, (d) a list
of the names and addresses of other beneficial owners of shares of the capital
stock of the Company, if any, with whom such shareholder is acting in concert,
and of the number of shares of each class of the capital stock of the Company
beneficially owned by each such beneficial owner, and (e) an opinion of counsel,
which counsel and the form and substance of which opinion shall be reasonably
satisfactory to the Board of Directors of the Company (excluding the director
proposed to be removed), to the effect that, if adopted at a duly called special
or annual meeting of the shareholders of the Company by the required vote as set
forth in the Articles of Incorporation, such removal would not be in conflict
with the laws of the State of Texas, the Articles of Incorporation or these
Bylaws. To be timely in connection with an annual meeting of
shareholders, a shareholder’s notice and other aforesaid items shall be
delivered to or mailed and received at the principal executive offices of the
Company not less than 90 days nor more than 180 days prior to the date on which
the immediately preceding year’s annual meeting of shareholders was held;
provided, however, that if the date of the annual meeting is advanced more than
30 days prior to or delayed by more than 60 days after the anniversary of the
preceding year’s annual meeting, notice by the shareholder to be timely must be
so delivered not earlier than 180 days prior to such annual
meeting
and not later than the last to occur of the close of business on (i) the 90th
day prior to such annual meeting or (ii) the 10th day following the day on which
the Company first makes public announcement of the date of such meeting by (A) a
mailing to shareholders, (B) a press release or (C) a filing with the Commission
pursuant to Section 13(a) or 14(a) of the Exchange Act. To be timely
in connection with the removal of any director at a special meeting of the
shareholders, a shareholder’s notice and other aforesaid items shall be
delivered to or mailed and received at the principal executive offices of the
Company not less than 40 days nor more than 60 days prior to the date of such
meeting; provided, however, that in the event that less than 47 days’ notice or
prior public disclosure of the date of the special meeting of shareholders is
given or made to the shareholders, the shareholder’s notice and other aforesaid
items to be timely must be so received not later than the close of business on
the seventh day following the day on which such notice of date of the meeting
was mailed or such public disclosure was made. Within 30 days (or
such shorter period that may exist prior to the date of the meeting) after such
shareholder shall have delivered the aforesaid items to the Secretary of the
Company, the Secretary and the Board of Directors of the Company shall
respectively determine whether the items to be ruled upon by them are reasonably
satisfactory and shall notify such shareholder in writing of their respective
determinations. If such shareholder fails to submit a required item
in the form or within the time indicated, or if the Secretary or the Board of
Directors of the Company determines that the items to be ruled upon by them are
not reasonably satisfactory, then such proposal by such shareholder may not be
voted upon by the shareholders of the Company at such meeting of
shareholders. The presiding person at each meeting of shareholders
shall, if the facts warrant, determine and declare to the meeting that a
proposal to remove a director of the Company 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 proposal shall be
disregarded. Beneficial ownership shall be determined as specified in
accordance with Rule 13d-3 under the Exchange Act.
Section 9.
Executive and Other
Committees
. The Board of Directors, by resolution or
resolutions adopted by a majority of the full Board of Directors, may designate
one or more members of the Board of Directors to constitute an Executive
Committee, and one or more other committees, which shall in each case be
comprised of such number of directors as the Board of Directors may determine
from time to time. Subject to such restrictions as may be contained
in the Articles of Incorporation or that may be imposed by the TBCA, any such
committee shall have and may exercise such powers and authority of the Board of
Directors in the management of the business and affairs of the Company as the
Board of Directors may determine by resolution and specify in the respective
resolutions appointing them, or as permitted by applicable law, including,
without limitation, the power and authority to (a) authorize a distribution, (b)
authorize the issuance of shares of the Company and (c) exercise the authority
of the Board of Directors vested in it pursuant to Article 2.13 of the TBCA or
such successor statute as may be in effect from time to time. Each
duly-authorized action taken with respect to a given matter by any such
duly-appointed committee of the Board of Directors shall have the same force and
effect as the action of the full Board of Directors and shall constitute for all
purposes the action of the full Board of Directors with respect to such
matter.
The
designation of any such committee and the delegation thereto of authority shall
not operate to relieve the Board of Directors, or any member thereof, of any
responsibility imposed upon it or him by law, nor shall such committee function
where action of the Board of Directors
cannot be
delegated to a committee thereof under applicable law. The Board of
Directors shall have the power at any time to change the membership of any
such committee and to fill vacancies in it. A majority of the members
of any such committee shall constitute a quorum. The Board of
Directors shall name a chairman at the time it designates members to a
committee. Each such committee shall appoint such subcommittees and
assistants as it may deem necessary. Except as otherwise provided by
the Board of Directors, meetings of any committee shall be conducted in
accordance with the provisions of Sections 4 and 6 of this Article III as the
same shall from time to time be amended. Any member of any such
committee 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 Company
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 a member of a committee shall not of itself create contract
rights.
ARTICLE
IV
OFFICERS
Section 1.
Officers
. The
officers of the Company shall consist of a President and a Secretary and such
other officers and agents as the Board of Directors may from time to time elect
or appoint. The Board of Directors may delegate to the Chairman of
the Board and/or the Chief Executive Officer the authority to appoint and remove
additional officers and agents of the Company. Each officer shall
hold office until his successor shall have been duly elected or appointed and
shall qualify or until his death or until he shall resign or shall have been
removed in the manner hereinafter provided. Any two or more offices
may be held by the same person.
Section 2.
Vacancies;
Removal
. Whenever any vacancies shall occur in any office by
death, resignation, increase in the number of offices of the Company, or
otherwise, the officer so elected shall hold office until his successor is
chosen and qualified. Any officer of the Company may be removed at
any time by the Board of Directors, whenever in its judgment the best interests
of the Company will be served thereby, or, except in the case of an officer
appointed by the Board of Directors, by the Chairman of the Board and/or the
Chief Executive Officer on whom the power of removal is conferred by the Board
of Directors, 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.
Section 3.
Powers and Duties of
Officers
. The officers of the Company shall have such powers
and duties as generally pertain to their offices as well as such powers and
duties as from time to time shall be conferred by the Board of
Directors.
ARTICLE
V
INDEMNIFICATION
Section 1.
General
. The
Company shall indemnify and hold harmless the Indemnitee (as this and all other
capitalized words are defined in this Article V or in Article 2.02-1 of the
TBCA), to the fullest extent permitted, or not prohibited, by the TBCA or other
applicable law as the same exists or may hereafter be amended (but in the case
of any such amendment, with respect to Matters occurring before such amendment,
only to the extent that such amendment
permits
the Company to provide broader indemnification rights than said law permitted
the Company to provide prior to such amendment). The provisions set
forth below in this Article V are provided as means of furtherance and
implementation of, and not in limitation on, the obligation expressed in this
Section 1.
Section 2.
Advancement or Reimbursement
of Expenses
. The rights of the Indemnitee provided under
Section 1 of this Article V shall include, but not be limited to, the right to
be indemnified and to have Expenses advanced (including the payment of expenses
before final disposition of a Proceeding) in all Proceedings to the fullest
extent permitted, or not prohibited, by the TBCA or other applicable
law. In addition, to the extent the Indemnitee is, by reason of his
Corporate Status, a witness or otherwise participates in any Proceeding at a
time when he is not named a defendant or respondent in the Proceeding, he shall
be indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. The Indemnitee shall be
advanced Expenses, within ten days after any request for such advancement, to
the fullest extent permitted, or not prohibited, by Article 2.02-1 of the
TBCA; provided that the Indemnitee has provided to the Company all affirmations,
acknowledgments, representations and undertakings that may be required of the
Indemnitee by Article 2.02-1 of the TBCA.
Section 3.
Request for
Indemnification
. To obtain indemnification, the Indemnitee
shall submit to the Secretary of the Company a written claim or
request. Such written claim or request shall contain sufficient
information to reasonably inform the Company about the nature and extent of the
indemnification or advance sought by the Indemnitee. The Secretary of
the Company shall promptly advise the Board of Directors of such
request.
Section 4.
Determination of
Request
. Upon written request to the Company by an Indemnitee
for indemnification pursuant to these Bylaws, a determination, if required by
applicable law, with respect to an Indemnitee’s entitlement thereto shall be
made in accordance with Article 2.02-1 of the TBCA; provided, however, that
notwithstanding the foregoing, if a Change in Control shall have occurred, such
determination shall be made by a Special Legal Counsel selected by the Board of
Directors, unless the Indemnitee shall request that such determination be made
in accordance with Article 2.02-1F (1) or (2). If entitlement to
indemnification is to be determined by a Special Legal Counsel, the Company
shall furnish notice to the Indemnitee within ten days after receipt of the
claim of or request for indemnification, specifying the identity and address of
the Special Legal Counsel. The Indemnitee may, within fourteen days
after receipt of such written notice of selection, deliver to the Company a
written objection to such selection. Such objection may be asserted
only on the ground that the Special Legal Counsel selected does not meet the
requirements of a Special Legal Counsel as defined in Section 10 of this Article
V, and the objection shall set forth with particularity the factual basis for
that assertion. If there is an objection to the selection of the
Special Legal Counsel, either the Company or the Indemnitee may petition the
Court for a determination that the objection is without a reasonable basis
and/or for the appointment of a Special Legal Counsel selected by the
Court. The Company shall pay any and all reasonable fees and expenses
of the Special Legal Counsel incurred in connection with any such
determination. If a Change in Control shall have occurred, the
Indemnitee shall be presumed (except as otherwise expressly provided in this
Article) to be entitled to indemnification under this Article V upon
submission of a request to the Company for indemnification, and
thereafter
the
Company shall have the burden of proof in overcoming that presumption in
reaching a determination contrary to that presumption. The
presumption shall be used by the Special Legal Counsel, or such other person or
persons determining entitlement to indemnification, as a basis for a
determination of entitlement to indemnification unless the Company provides
information sufficient to overcome such presumption by clear and convincing
evidence or the investigation, review and analysis of the Special Legal Counsel
or such other person or persons convinces him or them by clear and convincing
evidence that the presumption should not apply.
Section 5.
Effect of Certain
Proceedings
. The termination of any Proceeding or of any
Matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere
or its
equivalent, shall not (except as otherwise expressly provided in this Article V)
of itself adversely affect the right of the Indemnitee to indemnification or
create a presumption that (a) the Indemnitee did not conduct himself in good
faith and in a manner which he reasonably believed, in the case of conduct in
his official capacity as a director of the Company, to be in the best interests
of the Company, or, in all other cases, that at least his conduct was not
opposed to the Company’s best interests, or (b) with respect to any criminal
Proceeding, that the Indemnitee had reasonable cause to believe that his conduct
was unlawful.
Section 6.
Expenses of Enforcement of
Article
. In the event that an Indemnitee, pursuant to this
Article V, seeks a judicial adjudication to enforce his rights under, or to
recover damages for breach of, rights created under or pursuant to this Article
V, the Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all Expenses actually and reasonably
incurred by him in such judicial adjudication but only if he prevails
therein. If it shall be determined in said judicial adjudication that
the Indemnitee is entitled to receive part but not all of the indemnification or
advancement of Expenses sought, the Expenses incurred by the Indemnitee in
connection with such judicial adjudication shall be reasonably prorated in good
faith by counsel for the Indemnitee. Notwithstanding the foregoing,
if a Change in Control shall have occurred, the Indemnitee shall be entitled to
indemnification under this Section 6 regardless of whether indemnitee ultimately
prevails in such judicial adjudication.
Section 7.
Nonexclusive
Rights
. The rights of indemnification and to receive
advancement of Expenses as provided by this Article V shall not be deemed
exclusive of any other rights to which the Indemnitee may at any time be
entitled under applicable law, the Articles of Incorporation, these Bylaws,
agreement, insurance, arrangement, a vote of shareholders or a resolution of
directors, or otherwise. No amendment, alteration or repeal of this
Article V or any provision thereof shall be effective as to any Indemnitee for
acts, events and circumstances that occurred, in whole or in part, before such
amendment, alteration or repeal. The provisions of this Article V
shall continue as to an Indemnitee whose Corporate Status has ceased and shall
inure to the benefit of his heirs, executors and administrators.
Section 8.
Invalidity
. If
any provision or provisions of this Article V shall be held to be invalid,
illegal or unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby; and, to the fullest extent possible, the provisions of this
Article V shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
Section 9.
Indemnification of Other
Persons
. The Company may, by adoption of a resolution of the
Board of Directors, indemnify and advance expenses to any other person who is,
or is threatened to be made, a witness in or a party to any Proceeding as
described in Section 1 or Section 2 of this Article V by reason of that person's
Corporate Status to the same extent and subject to the same conditions (or to a
lesser extent and/or with other conditions as the Board of Directors may
determine) under which it may indemnify and advance expenses to an Indemnitee
under this Article V.
Section 10.
Definitions
. For
purposes of this Article V:
“Change
of Control” means a change in control of the Company occurring after the date of
adoption of these Bylaws in any of the following circumstances: (a)
there shall have occurred an event required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on
any similar schedule or form) promulgated under the Exchange Act, whether or not
the Company is then subject to such reporting requirement; (b) any “person” (as
such term is used in Section 13(d) and 14(d) of the Exchange Act), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation or other entity owned directly or indirectly by the
shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company, shall have become the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined voting power
of the Company’s then outstanding voting securities without prior approval of at
least two-thirds of the members of the Board of Directors in office immediately
prior to such person attaining such percentage interest; (c) the Company is a
party to a merger, consolidation, share exchange, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; (d) during
any fifteen-month period, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any new director
whose election or nomination for election by the Company’s shareholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
“Corporate
Status” describes the status of a person as a director, officer, partner,
venturer, proprietor, trustee, employee (including an employee acting in his
Designated Professional Capacity), or agent or similar functionary of the
Company or of any other foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise
which such person is or was serving in such capacity at the request of the
Company. The Company hereby acknowledges that unless and until the
Company provides the Indemnitee with written notice to the contrary, the
Indemnitee’s service as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of an Affiliate of the Company
shall be conclusively presumed to be at the Company’s request. An
Affiliate of the Company shall be deemed to be (a) any foreign or domestic
corporation in which the Company owns or controls, directly or indirectly, 5% or
more of the shares entitled to be voted in
the
election of directors of such corporation; (b) any foreign or domestic
partnership, joint venture, proprietorship or other enterprise in which the
Company owns or controls, directly or indirectly, 5% or more of the revenue
interests in such partnership, joint venture, proprietorship or other
enterprise; or (c) any trust or employee benefit plan the beneficiaries of which
include the Company, any Affiliate of the Company as defined in the foregoing
clauses (a) and (b) or any of the directors, officers, partners, venturers,
proprietors, employees, agents or similar functionaries of the Company or of
such Affiliates of the Company.
“Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in a
Proceeding.
“Indemnitee” includes
any officer or director of the Company who is, or is threatened to be made, a
witness in or a party to any Proceeding as described in Section 1 or Section 2
of this Article V by reason of his Corporate Status.
“Matter” is
a claim, a material issue, or a substantial request for relief.
“Proceeding” includes
any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution proceeding, investigation, administrative hearing and any
other proceeding, whether civil, criminal, administrative, investigative or
other, any appeal in such action, suit, arbitration, proceeding or hearing, or
any inquiry or investigation, whether conducted by or on behalf of the Company,
a subsidiary of the Company or any other party, formal or informal, that the
Indemnitee in good faith believes might lead to the institution of any such
action, suit, arbitration, proceeding, investigation or hearing, except one
initiated by an Indemnitee pursuant to Section 6 of this Article V.
“Special
Legal Counsel” means a law firm, or member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the five years
previous to his selection or appointment has been, retained to
represent: (a) the Company or the Indemnitee in any matter material
to either such party; (b) any other party to the Proceeding giving rise to a
claim for indemnification hereunder; or (c) the beneficial owner, directly or
indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company’s then outstanding voting
securities. Notwithstanding the foregoing, the term “Special Legal
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or the Indemnitee in an action to determine the
Indemnitee’s rights to indemnification under these Bylaws.
For the
purposes of this Article V, an employee acting in his “Designated Professional
Capacity” shall include, but not be limited to, a physician, nurse, psychologist
or therapist, registered surveyor, registered engineer, registered
architect,
attorney,
certified public accountant or other person who renders such professional
services within the course and scope of his employment, who is licensed by
appropriate regulatory authorities to practice such profession and who, while
acting in the course of such employment, committed or is alleged to have
committed any negligent acts, errors or omissions in rendering such professional
services at the request of the Company or pursuant to his employment (including,
without limitation, rendering written or oral opinions to third
parties).
Section 11.
Notice
. Any
communication required or permitted to the Company under this Article V shall be
addressed to the Secretary of the Company and any such communication to the
Indemnitee shall be addressed to the Indemnitee’s home address unless he
specifies otherwise and shall be personally delivered or delivered by overnight
mail or courier delivery.
Section 12.
Insurance and Self-Insurance
Arrangements
. The Company may procure or maintain insurance or
other similar arrangements, at its expense, to protect itself and any Indemnitee
against any expense, liability or loss asserted against or incurred by such
person, incurred by him in such a capacity or arising out of his Corporate
Status as such a person, whether or not the Company would have the power to
indemnify such person against such expense or liability. In
considering the cost and availability of such insurance, the Company (through
the exercise of the business judgment of its directors and officers) may, from
time to time, purchase insurance which provides for any and all of (a)
deductibles, (b) limits on payments required to be made by the insurer, or
(c) coverage which may not be as comprehensive as that previously included
in insurance purchased by the Company. The purchase of insurance with
deductibles, limits on payments and coverage exclusions will be deemed to be in
the best interest of the Company but may not be in the best interest of certain
of the persons covered thereby. As to the Company, purchasing
insurance with deductibles, limits on payments, and coverage exclusions is
similar to the Company’s practice of self-insurance in other
areas. In order to protect the Indemnitees who would otherwise be
more fully or entirely covered under such policies, the Company shall indemnify
and hold each of them harmless as provided in Section 1 or Section 2 of this
Article V, without regard to whether the Company would otherwise be entitled to
indemnify such officer or director under the other provisions of this Article,
or under any law, agreement, vote of shareholders or directors or other
arrangement, to the extent (i) of such deductibles, (ii) of amounts exceeding
payments required to be made by an insurer or (iii) that prior policies of
officer’s and director’s liability insurance held by the Company or its
predecessors would have provided for payment to such officer or
director. Notwithstanding the foregoing provision of this Section 12,
no Indemnitee shall be entitled to indemnification for the results of such
person’s conduct that is intentionally adverse to the interests of the
Company. This Section 12 is authorized by Section 2.02-1(R) of the
TBCA as in effect on August 31, 2001, and further is intended to establish an
arrangement of self-insurance pursuant to that section.
ARTICLE
VI
MISCELLANEOUS PROVISIONS
Section 1.
Offices
. The
principal office of the Company shall be located in Houston, Texas, unless and
until changed by resolution of the Board of Directors. The Company
may also
have
offices at such other places as the Board of Directors may designate from time
to time, or as the business of the Company may require. The principal
office and registered office may be, but need not be, the same.
Section 2.
Resignations
. Any
director or officer may resign at any time. Any such resignation
shall be made in writing and shall take effect on the date of its receipt by the
Chairman of the Board, the Chief Executive Officer, the President or the
Secretary, unless the resignation prescribes a later effective date or states
that the resignation takes effect on the occurrence of a future
event. If the resignation is to take effect on a later date or on the
occurrence of a future event, the resignation takes effect on the later date or
when the event occurs. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the
resignation. A resignation is irrevocable when it takes
effect. A resignation is revocable before it takes effect unless it
expressly states that it is irrevocable.
Section 3.
Seal
. The
Corporate Seal shall be circular in form, shall have inscribed thereon the name
of the Company and may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
Section 4.
Separability
. If
one or more of the provisions of these Bylaws shall be held to be invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability shall
not affect any other provision hereof and these Bylaws shall be construed as if
such invalid, illegal or unenforceable provision or provisions had never been
contained herein.
ARTICLE
VII
AMENDMENT
OF BYLAWS
Section 1.
Vote
Requirements
. The Board of Directors shall have the power to
alter, amend or repeal the Bylaws or adopt new Bylaws. Any
alteration, amendment or repeal of the Bylaws or adoption of new Bylaws shall
require: (1) the affirmative vote of at least 80% of all directors then in
office at any regular or special meeting of the Board of Directors or (2) the
affirmative vote of the holders of at least 80% of the voting power of all the
shares of the corporation entitled to vote in the election of directors, voting
together as a single class.
Section 2.
Shareholder
Proposals
. No proposal by a shareholder made pursuant to
Article VIII of the Articles of Incorporation and Section 1 of this Article
VII may be voted upon at an annual meeting of shareholders unless such
shareholder shall have delivered or mailed in a timely manner (as set forth in
this Section 2) and in writing to the Secretary of the Company (a) notice of
such proposal and the text of the proposed alteration, amendment or repeal, (b)
evidence reasonably satisfactory to the Secretary of the Company, of such
shareholder’s status as such and of the number of shares of each class of
capital stock of the Company of which such shareholder is the beneficial owner,
(c) a list of the names and addresses of other beneficial owners of shares of
the capital stock of the Company, if any, with whom such shareholder is acting
in concert, and the number of shares of each class of capital stock of the
Company beneficially owned by each such beneficial owner and (d) an opinion of
counsel, which counsel and the form and substance of which opinion shall be
reasonably satisfactory to the Board of Directors of the Company, to the effect
that the Bylaws (if any) resulting from the adoption of
such
proposal would not be in conflict with the Articles of Incorporation or the laws
of the State of Texas. To be timely in connection with an annual
meeting of shareholders, a shareholder’s notice and other aforesaid items shall
be delivered to or mailed and received at the principal executive offices of the
Company not less than 90 days nor more than 180 days prior to the date on which
the immediately preceding year’s annual meeting of shareholders was held;
provided, however, that if the date of the annual meeting is advanced more than
30 days prior to or delayed by more than 60 days after the anniversary of the
preceding year's annual meeting, notice by the shareholder to be timely must be
so delivered not earlier than 180 days prior to such annual meeting and not
later than the last to occur of the close of business on (i) the 90th day prior
to such annual meeting or (ii) the 10th day following the day on which the
Company first makes public announcement of the date of such meeting by (A) a
mailing to shareholders, (B) a press release or (C) a filing with the Commission
pursuant to Section 13(a) or 14(a) of the Exchange Act. In no event
shall the public disclosure of an adjournment of an annual meeting of
shareholders commence a new time period for the giving of a shareholder’s notice
as described above.
Within 30
days after such shareholder shall have submitted the aforesaid items, the
Secretary or the Board of Directors of the Company shall determine whether the
items to be ruled upon by them are reasonably satisfactory and shall notify such
shareholder in writing of its determination. If such shareholder
fails to submit a required item in the form or within the time indicated, or if
the Secretary or the Board of Directors of the Company determines that the items
to be ruled upon by them are not reasonably satisfactory, then such proposal by
such shareholder may not be voted upon by the shareholders of the Company at
such annual meeting of shareholders. The Chairman of the Meeting
shall, if the facts warrant, determine and declare to the meeting that a
proposal by a shareholder of the Company made pursuant to Article VIII of
the Articles of Incorporation and Section 1 of this Article VII 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 proposal shall
be disregarded. Beneficial ownership shall be determined in
accordance with Rule 13d-3 under the Exchange Act.
Nothing
in this Section 2 shall be interpreted or construed to require the
inclusion of information about any such proposal in any proxy statement
distributed by, at the direction of, or on behalf of the Board of Directors or
the Company.
No
proposal by a shareholder made pursuant to Article VIII of the Articles of
Incorporation and Section 1 of this Article VII shall be voted upon at a special
meeting of shareholders unless such proposal has been stated in the notice of
such special meeting or shall otherwise have been properly brought before the
meeting by or at the direction of the Chairman of the Meeting or the Board of
Directors (or any duly authorized committee thereof).