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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
W-H ENERGY SERVICES, INC.
A TEXAS CORPORATION
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TABLE OF CONTENTS
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ARTICLE I. REGISTERED OFFICE.....................................................................................1
ARTICLE II. SHAREHOLDERS.........................................................................................1
Section 1. Place of Meetings......................................................................1
Section 2. Quorum; Required Vote for Shareholder Action; Adjournment of Meetings..................1
Section 3. Annual Meetings........................................................................2
Section 4. Special Meetings.......................................................................2
Section 5. Closing Transfer Books; Record Date....................................................2
Section 6. Notice of Meetings.....................................................................3
Section 7. Voting List............................................................................3
Section 8. Proxies................................................................................3
Section 9. Voting; Elections; Inspectors..........................................................4
Section 10. Conduct of Meetings....................................................................5
Section 11. Treasury Stock.........................................................................6
Section 12. Notice of Shareholder Business.........................................................6
Section 13. Notice of Shareholder Nominees.........................................................6
ARTICLE III. BOARD OF DIRECTORS..................................................................................7
Section 1. Power; Number; Term of Office..........................................................7
Section 2. Quorum; Required Vote for Director Action..............................................7
Section 3. Meetings; Order of Business............................................................8
Section 4. First Meeting..........................................................................8
Section 5. Regular Meetings.......................................................................8
Section 6. Special Meetings.......................................................................8
Section 7. Removal................................................................................8
Section 8. Vacancies; Increases in the Number of Directors........................................8
Section 9. Compensation...........................................................................9
Section 10. Presumption of Assent..................................................................9
Section 11. Approval or Ratification of Acts or Contracts by Shareholders..........................9
ARTICLE IV. COMMITTEES...........................................................................................9
Section 1. Designation; Powers....................................................................9
Section 2. Procedure; Meetings; Quorum...........................................................10
Section 3. Substitution of Members...............................................................10
Section 4. Dissolution...........................................................................10
ARTICLE V. OFFICERS.............................................................................................10
Section 1. Number, Titles and Term of Office.....................................................10
Section 2. Salaries..............................................................................10
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Section 3. Removal...............................................................................10
Section 4. Vacancies.............................................................................10
Section 5. Powers and Duties of the Chief Executive Officer......................................11
Section 6. Powers and Duties of the Chairman of the Board........................................11
Section 7. Powers and Duties of the President....................................................11
Section 8. Vice Presidents.......................................................................11
Section 9. Treasurer.............................................................................11
Section 10. Assistant Treasurers..................................................................11
Section 11. Secretary.............................................................................12
Section 12. Assistant Secretaries.................................................................12
Section 13. Action With Respect to Securities of Other Corporations...............................12
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS........................................12
Section 1. Right to Indemnification..............................................................12
Section 2. Advance Payment.......................................................................13
Section 3. Indemnification of Employees and Agents...............................................13
Section 4. Appearance as a Witness...............................................................13
Section 5. Nonexclusivity of Rights..............................................................13
Section 6. Insurance.............................................................................14
Section 7. Shareholder Notification..............................................................14
Section 8. Savings Clause........................................................................14
ARTICLE VII. CAPITAL STOCK......................................................................................14
Section 1. Certificates of Stock.................................................................14
Section 2. Transfer of Shares....................................................................15
Section 3. Ownership of Shares...................................................................15
Section 4. Regulations Regarding Certificates....................................................15
Section 5. Lost, Stolen, Destroyed or Mutilated Certificates.....................................15
ARTICLE VIII. MISCELLANEOUS PROVISIONS..........................................................................16
Section 1. Fiscal Year...........................................................................16
Section 2. Corporate Seal........................................................................16
Section 3. Notice and Waiver of Notice...........................................................16
Section 4. Resignations..........................................................................16
Section 5. Facsimile Signatures..................................................................16
Section 6. Books and Records.....................................................................16
Section 7. Reliance Upon Books, Reports and Records..............................................16
Section 8. Action Without a Meeting or by Telephone Conference Meeting...........................17
ARTICLE IX. AMENDMENTS..........................................................................................17
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AMENDED AND RESTATED BYLAWS
OF
W-H ENERGY SERVICES, INC.
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A TEXAS CORPORATION
ARTICLE I.
REGISTERED OFFICE
The registered office of the Corporation required by the Texas Business
Corporation Act to be maintained in the State of Texas shall be the registered
office named in the original Articles of Incorporation of the Corporation or
such other office (which need not be a place of business of the Corporation) as
may be designated from time to time by the Board of Directors in the manner
provided by law.
ARTICLE II.
SHAREHOLDERS
Section 1. Place of Meetings. All meetings of the shareholders
shall be held at the principal place of business of the Corporation or at such
other place within or without the State of Texas as shall be specified or fixed
in the notices or waivers of notice thereof; provided that any or all
shareholders may participate in any such meeting by means of conference
telephone or similar communications equipment pursuant to Article VIII, Section
8 hereof.
Section 2. Quorum; Required Vote for Shareholder Action;
Adjournment of Meetings. Unless otherwise required by law or provided in the
Articles of Incorporation or these bylaws, the holders of issued and outstanding
shares representing a majority of the votes entitled to be cast thereat, present
in person or represented by proxy, shall constitute a quorum at any meeting of
shareholders for the transaction of business, and the act of a majority of the
voting power of such stock so represented at any meeting of shareholders at
which a quorum is present shall constitute the act of the meeting of
shareholders.
Notwithstanding the other provisions of the Articles of Incorporation
or these bylaws, the chairman of the meeting or the holders of a majority of the
voting power of the issued and outstanding stock present in person or
represented by proxy at any meeting of shareholders, whether or not a quorum is
present, shall have the power to adjourn such meeting from time to time, without
any notice other than announcement at the meeting of the time and place of the
holding of the adjourned meeting. At such adjourned meeting any business may be
transacted that might have been transacted at the meeting as originally called.
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Section 3. Annual Meetings. An annual meeting of the shareholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, within or without the State of Texas, on such date
and at such time as the Board of Directors shall fix and set forth in the notice
of the meeting, which date shall be within 13 months subsequent to the date of
incorporation or the last annual meeting of shareholders, whichever most
recently occurred.
Section 4. Special Meetings. Unless otherwise provided in the
Articles of Incorporation, special meetings of the shareholders for any proper
purpose or purposes may be called at any time by (a) the Chairman of the Board
(if any), the President, the Board of Directors, or such other person or persons
as may be authorized in the Articles of Incorporation or (b) unless the Articles
of Incorporation provide otherwise, the holders of issued and outstanding shares
representing at least ten percent of all the votes entitled to be cast at the
proposed special meeting.
If not otherwise stated in or fixed in accordance with the remaining
provisions hereof, the record date for determining shareholders entitled to call
a special meeting is the date any shareholder first signs the notice of that
meeting.
Only business within the purpose or purposes described in the notice
(or waiver thereof) required by these bylaws may be conducted at a special
meeting of the shareholders.
Section 5. Closing Transfer Books; 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 Corporation (other than a distribution involving a purchase or redemption
by the Corporation of any of its own shares) or share dividend, or in order to
make a determination of shareholders for any other purpose, the Board of
Directors of the Corporation may provide that the stock transfer books shall be
closed for a stated period but not to exceed, in any case, 60 days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books shall
be closed for at least ten days immediately preceding such meeting.
In lieu of closing the stock transfer books, 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 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 stock transfer books 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 Corporation
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.
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When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided herein, such determination shall also
apply to any adjournment thereof except where the determination has been made
through the closing of stock transfer books and the stated period of closing has
expired.
Section 6. Notice of Meetings. Written or printed notice stating the
place, day and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, 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 President, the Secretary or the
officer or person calling the meeting, to each shareholder of record entitled to
vote at such meeting. If mailed, any 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 stock transfer books of the Corporation, with
postage thereon prepaid.
Any notice required to be given to any shareholder, under any provision
of the Texas Business Corporation Act or the Articles of Incorporation or these
bylaws need not be given to the shareholder if (a) notice of two consecutive
annual meetings and all notices of meetings held during the period between those
annual meetings, if any, or (b) all (but in no event less than two) payments of
distributions or interest on securities during a 12-month period have been
mailed to that person by first-class mail, addressed to him at his address as
shown on the records of the Corporation, 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 and, if the action
taken by the Corporation is reflected in any articles or document filed with the
Secretary of State, those articles or that document may state that notice was
duly given to all persons to whom notice was required to be given. If such a
person delivers to the Corporation written notice setting forth his then current
address, the requirement that notice be given to that person shall be
reinstated.
Section 7. Voting List. The officer or agent having charge of the
stock transfer books for shares of the Corporation 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 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 stock transfer books shall be prima-facie evidence as
to who are the shareholders entitled to examine such list or transfer books or
to vote at any meeting of shareholders. Failure to comply with the requirements
of this Section shall not affect the validity of any action taken at such
meeting.
Section 8. Proxies. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. Proxies for use at any meeting of shareholders or in
connection with the taking of any action by written consent shall be filed with
the Secretary, or such other officer as the Board of Directors may from time to
time determine by resolution, before or at the time of the meeting or execution
of the written consent, as the case may be. All proxies shall be received and
taken charge of and all ballots shall be
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received and canvassed by the secretary of the meeting who shall decide all
questions touching upon the qualification of voters, the validity of the
proxies, and the acceptance or rejection of votes, unless an inspector or
inspectors shall have been appointed by the chairman of the meeting, in which
event such inspector or inspectors shall decide all such questions.
No proxy shall be valid after 11 months from the date of its execution
unless otherwise provided in the proxy. A proxy shall be revocable unless the
proxy form conspicuously states that the proxy is irrevocable and the proxy is
coupled with an interest. Proxies coupled with an interest shall include the
appointment as proxy of any of the persons set forth in the Texas Business
Corporation Act, including without limitation:
(a) a pledgee;
(b) a person who purchased or agreed to purchase, or owns or holds an
option to purchase, the shares;
(c) a creditor of the Corporation who extended it credit under terms
requiring the appointment;
(d) an employee of the Corporation whose employment contract requires
the appointment; or
(e) a party to a voting agreement executed under Section B, Article
2.30 of the Texas Business Corporation Act.
Should a proxy designate two or more persons to act as proxies, unless
such instrument shall provide to the contrary, a majority of such persons
present at any meeting at which their powers thereunder are to be exercised
shall have and may exercise all the powers of voting or giving consents thereby
conferred, or if only one be present, then such powers may be exercised by that
one; or, if an even number attend and a majority do not agree on any particular
issue, the Corporation shall not be required to recognize such proxy with
respect to such issue if such proxy does not specify how the shares that are the
subject of such proxy are to be voted with respect to such issue.
Section 9. Voting; Elections; Inspectors. Unless otherwise required by
law or provided in the Articles of Incorporation, each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders.
All voting, except as required by the Articles of Incorporation or
where otherwise required by law, may be by a voice vote; provided, however, that
a vote by ballot shall be taken upon demand therefor by shareholders holding
issued and outstanding shares representing a majority of the voting power
present in person or by proxy at any meeting. Every vote by ballot shall be
taken by written ballots, each of which shall state the name of the shareholder
or proxy voting and such other information as may be required under the
procedure established for the meeting.
At any meeting at which a vote is taken by ballots, the chairman of the
meeting may appoint one or more inspectors, each of whom shall subscribe an oath
or affirmation to execute
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faithfully the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. Such inspector shall receive the ballots,
count the votes and make and sign a certificate of the result thereof. The
chairman of the meeting may appoint any person to serve as inspector, except no
candidate for the office of director shall be appointed as an inspector.
At each election of directors each shareholder entitled to vote thereat
shall, unless otherwise provided by law or by the Articles of Incorporation,
have the right to vote the number of shares owned by him for as many persons as
there are to be elected and for whose election he has a right to vote. Unless
expressly prohibited by the Articles of Incorporation, a shareholder shall have
the right to cumulate his votes by giving one candidate as many votes as the
number of such directors multiplied by his shares shall equal, or by
distributing such votes on the same principle among any number of such
candidates. Any shareholder who intends to cumulate his votes shall give written
notice of such intention to the Secretary of the Corporation on or before the
day preceding the election at which such shareholder intends to cumulate his
votes. Any shareholder may cumulate his votes if such shareholder or any other
shareholder gives the written notice provided for herein.
Section 10. Conduct of Meetings. All meetings of the shareholders shall
be presided over by the chairman of the meeting, who shall be the Chairman of
the Board (if any), or if he is not present, the President, or if neither the
Chairman of the Board (if any) nor President is present, a chairman elected at
the meeting. The Secretary of the Corporation, if present, shall act as
secretary of such meetings, or if he is not present, an Assistant Secretary (if
any) shall so act; if neither the Secretary nor an Assistant Secretary (if any)
is present, then a secretary shall be appointed by the chairman of the meeting.
The chairman of any meeting of shareholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him in order. Unless
the chairman of the meeting shall otherwise determine or otherwise conduct the
meeting, the order of business shall be as follows:
(a) Calling of meeting to order.
(b) Election of a chairman, and the appointment of a secretary, if
necessary.
(c) Presentation of proof of the due calling of the meeting.
(d) Presentation and examination of proxies and determination of a
quorum.
(e) Reading and settlement of the minutes of the previous meeting.
(f) Reports of officers and committees.
(g) The election of directors, if an annual meeting or a meeting
called for that purpose.
(h) Other business.
(i) Adjournment.
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Section 11. Treasury Stock. Neither the Corporation nor any other
person shall vote, directly or indirectly, at any meeting, shares of the
Corporation's own stock owned by the Corporation, shares of the Corporation's
own stock owned by another corporation the majority of the voting stock of which
is owned or controlled by the Corporation, and shares of the Corporation's own
stock held by the Corporation in a fiduciary capacity; and such shares shall not
be counted in determining the total number of outstanding shares at any given
time.
Section 12. Notice of Shareholder Business. At an annual meeting of
shareholders, only such business shall be conducted as shall have been brought
before the meeting (i) by or at the direction of the Board of Directors or (ii)
by any shareholder of the Corporation who complies with the notice procedures
set forth in this Section 12. For business to be properly brought before an
annual meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than twenty (20) days
nor more than sixty (60) days prior to the meeting; provided, however, that in
the event that less than thirty (30) days' notice or prior public disclosure of
the date of the meeting is given or made to the shareholders, notice by the
shareholder to be timely must be received not later than the close of business
on the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure was made. A
shareholder's notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the annual meeting the following
information: (a) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting; (b) the name and address, as they appear on the Corporation's
books, of the shareholder proposing such business; (c) the number of shares of
the Corporation which are beneficially owned by the shareholder; and (d) any
material interest of the shareholder in such business. Notwithstanding anything
in these Bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 12.
The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section 12, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section 12, a shareholder seeking to have a
proposal included in the Corporation's proxy statement shall comply with the
requirements of Regulation 14A under the Securities Exchange Act of 1934, as
amended (including, but not limited to, Rule 14a-8 or its successor provision).
Section 13. Notice of Shareholder Nominees. 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 13. Nominations by a shareholder shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than twenty (20) days
nor more than sixty (60) days prior to the meeting; provided, however, that in
the event that less than thirty (30) days' notice or prior public disclosure of
the date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so
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received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made. Such shareholder's notice shall set forth (a) as to
each person whom the shareholder proposes to nominate for election or reelection
as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected);
and (b) as to the shareholder giving the notice (i) the name and address, as
they appear on the Corporation's books, of such shareholder and (ii) the number
of shares of the Corporation which are beneficially owned by such shareholder.
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.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. Power; Number; Term of Office. The business and affairs of
a Corporation shall be managed by or under the direction of the Board of
Directors, and subject to the restrictions imposed by law or the Articles of
Incorporation, they may exercise all the powers of the Corporation.
Unless otherwise provided in the Articles of Incorporation, the number
of directors that shall constitute the entire Board of Directors shall be
determined from time to time by resolution of the Board of Directors (provided
that no decrease in the number of directors that would have the effect of
shortening the term of an incumbent director may be made by the Board of
Directors). If the Board of Directors makes no such determination, the number of
directors shall be the number set forth in the Articles of Incorporation as the
number of directors constituting the initial Board of Directors. Each director
shall hold office for the term for which he is elected and thereafter until his
successor shall have been elected and qualified, or until his earlier death,
resignation or removal.
Unless otherwise provided in the Articles of Incorporation, directors
need not be shareholders of the Corporation or residents of the State of Texas.
Section 2. Quorum; Required Vote for Director Action. Unless otherwise
required by law or provided in the Articles of Incorporation or these bylaws, a
majority of the total number of directors shall constitute a quorum for the
transaction of business of the Board of Directors, and the vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors.
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Section 3. Meetings; Order of Business. Meetings of the Board of
Directors may be held at such place or places as shall be determined from time
to time by resolution of the Board of Directors. At all meetings of the Board of
Directors business shall be transacted in such order as shall from time to time
be determined by the Chairman of the Board (if any), or in his absence by the
President (if the President is director), or by resolution of the Board of
Directors.
Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business an the ground
that the meeting is not lawfully called or convened.
Section 4. First Meeting. In connection with any annual meeting of
shareholders at which directors were elected, the Board of Directors may, if a
quorum is present, hold its first meeting for the transaction of business
immediately after and at the same place as such annual meeting of the
shareholders. Notice of such meeting at such time and place shall not be
required.
Section 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as shall be designated from
time to time by resolution of the Board of Directors. Notice of such regular
meetings shall not be required.
Section 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board (if any), the President or,
on the written request of any one director, by the Secretary, in each case on at
least 24 hours personal, written, telegraphic, cable or wireless notice to each
director. Such notice, or any waiver thereof pursuant to Article VIII, Section 3
hereof, need not state the purpose or purposes of such meeting, except as may
otherwise be required by law or provided for by the Articles of Incorporation or
these bylaws.
Section 7. Removal. At any meeting of shareholders at which a quorum
of shareholders is present called expressly for that purpose, or pursuant to a
written consent adopted pursuant to Article VIII, Section 8 hereof, any director
may be removed, with or without cause, by vote of the holders of issued and
outstanding shares representing a majority of the votes entitled to be cast for
the election of such director; provided that, if the shareholders have the right
to cumulate votes for the election of directors, and less than the entire Board
of Directors is to be removed, no director may be removed if the votes cast
against his removal would be sufficient to elect him if then cumulatively voted
(a) at an election of the entire Board of Directors, or (b) if there be classes
of directors, at an election of the class of directors of which such director is
a part.
Section 8. Vacancies; Increases in the Number of Directors. Any
directorship to be filled by reason of an increase in the number of directors
may be filled (a) by the Board of Directors for a term of office continuing only
until the next election of one or more directors by the shareholders; provided,
however, that during the period between any two successive annual meetings of
shareholders, the Board of Directors may not fill more than two such
directorships; or (b) by election at an annual or special meeting of
shareholders entitled to vote in the election of such directors called for that
purpose.
Any vacancy occurring in the Board of Directors other than by reason of
an increase in the number of directors may be filled (i) by election at an
annual or special meeting of the
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shareholders called for that purpose or (ii) 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 occurring other than by reason
of an increase in the number of directors shall be elected for the unexpired
term of his predecessor in office.
Section 9. Compensation. Unless restricted by the Articles of
Incorporation, the Board of Directors shall have the authority to fix the
compensation, if any, of directors.
Section 10. Presumption of Assent. A director who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken shall be presumed to have assented to the action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to the
Secretary immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 11. Approval or Ratification of Acts or Contracts by
Shareholders. The Board of Directors in its discretion may submit any act or
contract for approval or ratification at any annual meeting of the shareholders,
or at any special meeting of the shareholders called for the purpose of
considering any such act or contract, and any act or contract that shall be
approved or be ratified by the vote of the shareholders holding a majority of
the issued and outstanding shares of stock of the Corporation entitled to vote
and present in person or by proxy at such meeting (provided that a quorum is
present), shall be as valid and as binding upon the Corporation and upon all the
shareholders as if it shall have been approved or ratified by every shareholder
of the Corporation.
ARTICLE IV.
COMMITTEES
Section 1. Designation; Powers. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate from among
its members one or more committees, each of which, to the extent provided in
such 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,
approving a plan of merger or consolidation, 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 these
bylaws or adopting new bylaws for the Corporation, filling vacancies in the
Board of Directors or any such 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 of any such committee, fixing the
compensation of any member of such 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 in such manner; and, unless such resolution or
the Articles of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
shares of the Corporation.
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Section 2. Procedure; Meetings; Quorum. Any committee designated
pursuant to Section 1 of this Article shall choose its own chairman and
secretary, shall keep regular minutes of its proceedings and report the same to
the Board of Directors when requested, shall fix its own rules or procedures,
and shall meet at such times and at such place or places as may be provided by
such rules, or by resolution of such committee or of the Board of Directors. At
every meeting of any such committee, the presence of a majority of all the
members thereof shall constitute a quorum, and the affirmative vote of a
majority of the members present shall be necessary for the adoption by it of any
resolution.
Section 3. Substitution of Members. The Board of Directors, by
resolution adopted by a majority of the full Board of Directors, may designate
one or more, directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of such committee.
Section 4. Dissolution. The Board of Directors may dissolve any
committee at any time, unless otherwise provided in the Articles of
Incorporation or these bylaws.
ARTICLE V.
OFFICERS
Section 1. Number, Titles and Term of Office. The officers of the
Corporation shall be a President and a Secretary and such other officers as the
Board of Directors may from time to elect or appoint, including, without
limitation, a chairman of the Board, one or more Vice Presidents (any one or
more of whom may be designated Executive Vice President or Senior Vice
President), a Treasurer, one or more Assistant Treasurers and one or more
Assistant Secretaries. Each officer shall hold office until his successor shall
be duly elected and shall qualify or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided. Any number of
offices may be held by the same person. Except for the Chairman of the Board, if
any, no officer need be a director.
Section 2. Salaries. The salaries or other compensation, if any, of
the officers and agents of the Corporation shall be fixed from time to time by
the Board of Directors.
Section 3. Removal. Any officer or agent or member of a committee
elected or appointed by the Board of Directors may be removed, either with or
without cause, 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 or member of a committee shall
not of itself create contract rights.
Section 4. Vacancies. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
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Section 5. Powers and Duties of the Chief Executive Officer. The
President shall be the chief executive officer of the Corporation unless the
Board of Directors designates the Chairman of the Board (if any) or other
officer as chief executive officer. Subject to the control of the Board of
Directors, the chief executive officer shall have general executive charge,
management and control of the properties, business and operations of the
Corporation with all such powers as may be reasonably incident to such
responsibilities; he may agree upon and execute all leases, contracts, evidences
of indebtedness and other obligations in the name of the Corporation and may
sign all certificates for shares of capital stock of the Corporation; and he
shall have such other powers and duties as designated in accordance with these
bylaws and as from time to time may be assigned to him by the Board of
Directors.
Section 6. Powers and Duties of the Chairman of the Board. The
chairman of the Board (if any) shall preside at all meetings of the shareholders
and of the Board of Directors; and the Chairman shall have such other powers and
duties as designated in these bylaws and as from time to time may be assigned to
him by the Board of Directors.
Section 7. Powers and Duties of the President. Unless the Board of
Directors otherwise determines, the President shall have the authority to agree
upon and execute all leases, contracts, evidences of indebtedness and other
obligations in the name of the Corporation; and, unless the Board of Directors
otherwise determines, he shall, in the absence of the Chairman of the Board or
if there be no Chairman of the Board, preside at all meetings of the
shareholders and (should he be a director) of the Board of Directors; and the
President shall have such other powers and duties as designated in accordance
with these bylaws and as from time to time may be assigned to him by the Board
of Directors.
Section 8. Vice Presidents. The Vice President(s), if any, shall
perform such duties and have such powers as the Board of Directors may from time
to time prescribe. In addition, in the absence of the Chairman of the Board (if
any) or President, or in the event of their inability or refusal to act, (i) a
Vice President designated by the Board of Directors or (ii) in the absence of
such designation, the Vice President who is present and who is senior in terms
of time as a Vice President of the Corporation, shall perform the duties of the
Chairman of the Board (if any), or the President, as the case may be, and when
so acting shall have all the powers of and be subject to all the restrictions
upon the Chairman of the Board (if any), or the President; provided that he
shall not preside at meetings of the Board of Directors unless he is a director.
Section 9. Treasurer. The Treasurer, if any, shall have responsibility
for the custody and control of all the funds and securities of the Corporation,
and he shall have such other powers and duties as designated in these bylaws and
as from time to time may be assigned to him by the Board of Directors. He shall
perform all acts incident to the position of Treasurer subject to the control of
the chief executive officer and the Board of Directors; and the Treasurer shall,
if required by the Board of Directors, give such bond for the faithful discharge
of his duties in such form as the Board of Directors may require.
Section 10. Assistant Treasurers. Each Assistant Treasurer, if any,
shall have the usual powers and duties pertaining to his office, together with
such other powers and duties as designated in these bylaws and as from time to
time may be assigned to him by the chief
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executive officer or the Board of Directors or the Treasurer. The Assistant
Treasurers shall exercise the powers of the Treasurer during that officer's
absence or inability or refusal to act.
Section 11. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors, and the minutes of all meetings of the
shareholders, in books provided for that purpose; he shall attend to the giving
and serving of all notices; he may in the name of the Corporation affix the seal
(if any) of the Corporation to all contracts of the Corporation and attest
thereto; he may sign with the other appointed officers all certificates for
shares of capital stock of the Corporation; he shall have charge of the
certificate books, transfer books and stock ledgers, and such other books and
papers as the Board of Directors may direct, all of which shall at all
reasonable times be open to inspection of any director upon application at the
office of the Corporation during business hours; he shall have such other powers
and duties as designated in these bylaws and as from time to time may be
assigned to him by the chief executive officer or the Board of Directors; and he
shall in general perform all duties incident to the office of Secretary, subject
to the control of the chief executive officer and the Board of Directors.
Section 12. Assistant Secretaries. Each Assistant Secretary, if any,
shall have the usual powers and duties pertaining to his office, together with
such other powers and duties as designated in these bylaws and as from time to
time may be assigned to him by the chief executive officer or the Board of
Directors or the Secretary. The Assistant Secretaries shall exercise the powers
of the Secretary during that officer's absence or inability or refusal to act.
Section 13. Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, each of the chief executive
officer and the Treasurer (if any), or either of them, shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of shareholders of or with respect to any action of shareholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 1. Right to Indemnification. Subject to the limitations and
conditions as provided in this Article VI, each person who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative arbitrative or investigative (hereinafter a "proceeding"), or any
appeal in such a proceeding or any inquiry or investigation that could lead to
such a proceeding, by reason of the fact that he or she, or a person of whom he
or she is the legal representative, is or was a director or officer of the
Corporation or while a director or officer of the Corporation is or was serving
at the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise shall be indemnified by the
Corporation to the fullest extent permitted by the
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Texas Business Corporation Act , as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment) against judgments,
penalties (including excise and similar taxes and punitive damages), fines,
settlements and reasonable expenses (including, without limitation, attorneys'
fees) actually incurred by such person in connection with such proceeding, and
indemnification under this Article VI shall continue as to a person who has
ceased to serve in the capacity which initially entitled such person to
indemnity hereunder. The rights granted pursuant to this Article VI shall be
deemed contract rights, and no amendment, modification or repeal of this Article
VI shall have the effect of limiting or denying any such rights with respect to
actions taken or proceedings arising prior to any such amendment, modification
or repeal. It is expressly acknowledged that the indemnification provided in
this Article VI could involve indemnification for negligence or under theories
of strict liability.
Section 2. Advance Payment. The right to indemnification conferred in
this Article VI shall include the right to be paid or reimbursed by the
Corporation the reasonable expenses incurred by a person of the type entitled to
be indemnified under Section 1 who was, is or is threatened to be made a named
defendant or respondent in a proceeding in advance of the final disposition of
the proceeding and without any determination as to the person's ultimate
entitlement to indemnification; provided, however, that the payment of such
expenses incurred by any such person in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of a written
affirmation by such director or officer of his or her good faith belief that he
or she has met the standard of conduct necessary for indemnification under this
Article VI and a written undertaking, by or on behalf of such person, to repay
all amounts so advanced if it shall ultimately be determined that such
indemnified person is not entitled to be indemnified under this Article VI or
otherwise.
Section 3. Indemnification of Employees and Agents. The Corporation,
by adoption of a resolution of the Board of Directors, may indemnify and advance
expenses to an employee, or agent of the Corporation to the same extent and
subject to the same conditions under which it may indemnify and advance expenses
to directors and officers under this Article VI; and, the Corporation may
indemnify and advance expenses to persons who are not or were not directors,
officers, employees or agents of the Corporation but who are or were serving at
the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise against any liability asserted against
him and incurred by him in such a capacity or arising out of his status as such
a person to the same extent that it may indemnify and advance expenses to
directors under this Article VI.
Section 4. Appearance as a Witness. Notwithstanding any other
provision of this Article VI, the Corporation may pay or reimburse expenses
incurred by a director or officer in connection with his or her appearance as a
witness or other participation in a proceeding at a time when he or she is not a
named defendant or respondent in the proceeding.
Section 5. Nonexclusivity of Rights. The right to indemnification and
the advancement and payment of expenses conferred in this Article VI shall not
be exclusive of any
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other right which a director or officer or other person indemnified pursuant to
Section 3 of this Article VI may have or hereafter acquire under any law (common
or statutory), provision of the Articles of Incorporation of the Corporation or
these bylaws, agreement, vote of shareholders or disinterested directors or
otherwise.
Section 6. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was
serving as a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, proprietorship,
employee benefit plan, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under this Article VI.
Section 7. Shareholder Notification. To the extent required by law,
any indemnification of or advance of expenses to a director or officer in
accordance with this Article VI 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.
Section 8. Savings Clause. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify and hold harmless each director,
officer or any other person indemnified pursuant to this Article VI as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative to the 'full extent permitted
by any applicable portion of this Article VI. that shall not have been
invalidated and to the fullest extent permitted by applicable law.
ARTICLE VII.
CAPITAL STOCK
Section 1. Certificates of Stock. The certificates for shares of the
capital stock of the Corporation shall be in such form, not inconsistent with
that required by law and the Articles of Incorporation, as shall be approved by
the Board of Directors. The Chairman of the Board (if any), President or a Vice
President (if any) shall cause to be issued to each shareholder one or more
certificates, which shall be signed by the Chairman of the Board (if any),
President or a Vice President (if any) and the Secretary or an Assistant
Secretary (if any) or the Treasurer or an Assistant Treasurer (if any)
certifying the number of shares (and, if the stock of the Corporation shall be
divided into classes or series, the class and series of such shares) owned by
such shareholder in the Corporation; provided, however, that any of or all the
signatures on the certificate may be facsimile. If the Board of Directors shall
have provided for a seal, such certificates shall bear such seal or a facsimile
thereof. The stock record books and the blank stock certificate books shall be
kept by the Secretary, or at the office of such transfer agent or
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transfer agents as the Board of Directors may from time to time by resolution
determine. In case any officer, transfer agent or registrar who shall have
signed or whose facsimile signature or signatures shall have been placed upon
any such certificate or certificates shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued by the
Corporation, such certificate may nevertheless be issued by the Corporation with
the same affect as if such person were such officer, transfer agent or registrar
at the date of issue. The stock certificates shall be consecutively numbered and
shall be entered in the books of the Corporation as they are issued and shall
exhibit the holder's name and number of shares.
Each certificate shall conspicuously bear any legend required pursuant
to Article 2.19 or Article 2.22 of the Texas Business Corporation Act, as well
as any other legend required by law.
Section 2. Transfer of Shares. The shares of stock of the Corporation,
shall be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal
representatives, upon surrender and cancellation of certificates for a like
number of shares (or upon compliance with the provisions of Section 5 of this
Article VII, if applicable). Upon such surrender to the Corporation or a
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer (or upon compliance with the provisions of Section 5 of this Article
VII, if applicable) and of compliance with any transfer restrictions applicable
thereto contained in an agreement to which the Corporation is a party or of
which the Corporation has knowledge by reason of legend with respect thereto
placed an any such surrendered stock certificate, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 3. Ownership of Shares. The Corporation shall be entitled to
treat the holder of record of any share or shares of capital stock of the
Corporation as the holder in fact thereof and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
Section 4. Regulations Regarding Certificates. The Board of Directors
shall have the power and authority to make all such rules and regulations as
they may deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the Corporation.
Section 5. Lost, Stolen, Destroyed or Mutilated Certificates. The
Board of Directors may determine the conditions upon which a now certificate of
stock may be issued in place of a certificate that is alleged to have been lost,
stolen, destroyed or mutilated; and may, in its discretion, require the owner of
such certificate or his legal representative to give bond, with sufficient
surety, to indemnify the Corporation and each transfer agent and registrar
against any and all losses or claims which may arise by reason of the issuance
of a new certificate in the place of the one so lost, stolen, destroyed or
mutilated.
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ARTICLE VIII.
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
such as established from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may provide a
suitable seal, containing the name of the Corporation. The Secretary shall have
charge of the seal (if any). If and when so directed by the Board of Directors,
duplicates of the seal may be kept and used by the Treasurer, if any, or by any
Assistant Secretary or Assistant Treasurer.
Section 3. Notice and Waiver of Notice. Whenever any notice is
required to be given by law, the Articles of Incorporation or these bylaws,
except with respect to notices of meetings of shareholders (with respect to
which the provisions of Article II, Section 6 apply) and except with respect to
notices of special meetings of directors (with respect to which the provisions
of Article VIII, Section 6 apply), said notice shall be deemed to be sufficient
if given (a) by telegraphic, cable or wireless transmission or (b) by deposit of
same in a post office box in a sealed prepaid wrapper addressed to the person
entitled thereto at his address as it appears on the records of the Corporation,
and such notice shall be deemed to have been given on the day of such
transmission or mailing, as the case may be.
Whenever notice is required to be given by law, the Articles of
Incorporation or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice.
Section 4. Resignations. Any director, member of a committee or
officer may resign at any time. Such resignation shall be made in writing and
shall take effect at the time specified therein, or if no time be specified, at
the time of its receipt by the chief executive officer or secretary. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
Section 5. Facsimile Signatures. In addition to the provisions for the
use of facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and an authorized by the Board of Directors.
Section 6. Books and Records. The corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of its shareholders and Board of Directors and shall keep at its registered
office or principal place of business, or at the office of its transfer agent or
registrar, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of the shares held by each. Any books,
records and minutes may be in written form or in any other form capable of being
converted into written form within a reasonable time.
Section 7. Reliance Upon Books, Reports and Records. Neither a
director nor a member of any committee of directors shall be liable if, in the
exercise of ordinary care, he relied
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and acted in good faith (a) upon financial statements or other information of
the Corporation represented to him to be correct in all material respects by the
President or by the officer of the Corporation having charge of its books of
account, or reported by an independent public or certified public accountant or
firm of such accountants to present fairly the financial position of the
Corporation, or (b) upon the written opinion of an attorney for the Corporation;
nor shall he be so liable if, in the exercise of ordinary care and in good
faith, in voting for or assenting to a distribution by the Corporation, he
considered the assets of the Corporation to be of their book value.
Section 8. Action Without a Meeting or by Telephone Conference
Meeting. Any action permitted or required by law, the Articles of Incorporation
or these bylaws, to be taken at a meeting of the shareholders, the Board of
Directors or any committee designated by the Board of Directors may be taken
without a meeting if a consent in writing, setting forth the action to be taken
is signed by all the shareholders or members of the Board of Directors or
committee, as the case may be. Such consent shall have the same force and effect
as a unanimous vote at a meeting and may be stated as such in any document or
instrument filed with the Secretary of State, and the execution of such consent
shall constitute attendance or presence in person at a meeting of shareholders,
the Board of Directors or any such committee, as the case may be. Subject to the
requirements by law, the Articles of Incorporation or these bylaws for notice of
meetings, unless otherwise restricted by the Articles of Incorporation,
shareholders, members of the Board of Directors, or members of any committee
designated by the Board of Directors, may participate in and hold a meeting of
such shareholders, Board of Directors or any committee of directors, as the case
may be, by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in such meeting shall constitute attendance and presence in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE IX.
AMENDMENTS
The Board of Directors may amend or repeal the Corporation's bylaws, or
adopt new bylaws, unless: (a) the Articles of Incorporation or the Texas
Business Corporation Act reserves the power exclusively to the shareholders in
whole or part; or (b) the shareholders, in amending, repealing or adopting
particular bylaw, expressly provide that the Board of Directors may not amend or
repeal that bylaw.
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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