BYLAWS
OF
REFERRAL
HOLDINGS CORPORATION
PAGE
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ARTICLE I
STOCKHOLDERS
SECTION 1.01. Place of Stockholders' Meetings 1
SECTION 1.02. Day and Time of Regular Meetings of Stockholders 1
SECTION 1.03. Purposes of Regular Meetings 1
SECTION 1.04. Special Meetings of Stockholders 2
SECTION 1.05. Notice of Meetings of Stockholders 2
SECTION 1.06 Quorum of Stockholders 3
SECTION 1.07. Chairman and Secretary of Meeting 3
SECTION 1.08. Voting by Stockholders 3
SECTION 1.09. Proxies 4
SECTION 1.10. Inspectors 4
SECTION 1.11. List of Stockholders 4
SECTION 1.12. Confidential Voting 5
SECTION 1.13. Action by Stockholder 5
ARTICLE II
DIRECTORS
SECTION 2.01. Powers of Directors 5
SECTION 2.02. Method of Election 5
SECTION 2.03. Vacancies on Board 6
SECTION 2.04. Quorum and Action 7
SECTION 2.05. Removal of Directions 7
SECTION 2.06. Meetings of the Board 8
SECTION 2.07. Presiding Officer and Secretary of Meeting 8
SECTION 2.08. Action by Consent Without Meeting 8
SECTION 2.09. Executive and other Committees 8
SECTION 2.10. Compensation of Directors 9
ARTICLE III
OFFICERS
SECTION 3.01. Officers, Titles, Elections, Terms 9
SECTION 3.02. General Powers of Officers 10
SECTION 3.03. Powers and Duties of the Chairman 10
SECTION 3.04. Powers and Duties of the President 10
SECTION 3.05. Powers and Duties of Executive Vice Presidents,
Senior Vice Presidents and Vice Presidents 10
SECTION 3.06. Powers and Duties of the Chief Financial Officer 10
SECTION 3.07. Powers and Duties of the Controller
and Assistant Controllers 10
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SECTION 3.08. Powers and Duties of the Treasurer Powers and
and Assistant Treasurers 11
SECTION 3.09. Duties of the Secretary and Assistant Secretaries 11
SECTION 3.10. Compensation of Officers 12
ARTICLE IV
INDEMNIFICATION
SECTION 4.01. Right to Indemnification 12
SECTION 4.02. Insurance, Contracts and Funding 13
SECTION 4.03. Indemnification; Not Exclusive Right 13
SECTION 4.04. Advancement of Expenses; Procedures; Presumptions
and Effect of Certain Proceedings; Remedies 13
SECTION 4.05. Severability 17
RTICLE V
CAPITAL STOCK
SECTION 5.01. Stock Certificates 17
SECTION 5.02. Record Ownership 17
SECTION 5.03. Transfer of Record Ownership 18
SECTION 5.04. Lost, Stolen or Destroyed Certificates 18
SECTION 5.05. Transfer Agent; Registrar;
Rules Respecting Certificates 18
SECTION 5.06. Fixing Record Date for Determination
of Stockholders of Record 18
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
SECTION 6.01. Voting 19
SECTION 6.02. General Authorization to Transfer
Securities Held by the Corporation 19
ARTICLE VII
DEPOSITARIES AND SIGNATORIES
SECTION 7.01. Depositaries 20
SECTION 7.02. Signatories 20
ARTICLE VIII
Seal 20
ARTICLE IX
Fiscal Year 21
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ARTICLE X
Waiver of or Dispensing With Notice 21
ARTICLE XI
Political Contributions By the Corporation 21
ARTICLE XII
Amendment of Bylaws 21
ARTICLE XIII
Offices and Agent 22
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BYLAWS
OF
REFERRAL HOLDINGS CORPORATION
ARTICLE I
STOCKHOLDERS
SECTION 1.01. Place of Stockholders' Meetings. All meetings of the
stockholders of the Corporation shall be held at such place or places, within or
outside the State of Nevada, as may be fixed by the Corporation's Board of
Directors (the "Board", and each member thereof a "Director") from time to time
or as shall be specified in the respective notices thereof.
SECTION 1.02. Day and Time of Annual Meetings of Stockholders. An annual or
regular meeting of stockholders shall be held at such place (within or outside
the State of Nevada), date and hour as shall be determined by the Board and
designated in the notice thereof. If any meeting is not called and held within
six (6) months after the designated time, any stockholder may call the meeting
at any time thereafter. Failure to hold an annual meeting of stockholders at
such designated time shall not affect otherwise valid corporate acts or work a
forfeiture or dissolution of the Corporation.
SECTION 1.03. Purposes of Annual Meetings.
(a) At each annual meeting, the stockholders shall elect thesuccessors
of the Directors whose term expires at such annual meeting for a term
expiring at the next succeeding annual meeting. At any such annual meeting
any business properly brought before the meeting may be transacted.
(b) To be properly brought before an annual meeting, business must be
(i) specified in the notice of the meeting ( or any supplement thereto)
given by or at the direction of the Board, (ii) otherwise properly brought
before the meeting by or at the direction of the Board, or (iii) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be personally
delivered or sent by United States mail, postage prepaid, to the Secretary
of the Corporation, not less than 90 nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting; provided,
however, that in the event the date of the annual meeting is more than 30
days earlier or more than 60 days later than such anniversary date, notice
by the stockholder must be so delivered or received not earlier than the
120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to the scheduled date of such
annual meeting or the tenth day following the day on which public
announcement of the scheduled date of such annual meeting is first made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the meeting .and
the reasons for conducting such business at the meeting and, in the event
that such business includes a proposal to amend either the Articles of
Incorporation or these Bylaws, the text of the proposed amendment, (ii) the
name and address, as they appear on the Corporation's books, of the
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stockholder proposing such business, (iii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business, (iv) any material interest of the
stockholder in such business, and (v) if the stockholder intends to solicit
proxies in support of such stockholder's proposal, a representation to
that effect. The foregoing notice requirements shall be deemed satisfied by
a stockholder if the stockholder has notified the Secretary of the
Corporation of his or her intention to present a proposal at an annual
meeting and such stockholder's proposal has been included in a proxy
statement that has been prepared by management of the Corporation to
solicit proxies for such annual meeting; provided, however, that if such
stockholder does not appear or send a qualified representative to present
such proposal at such annual meeting, the Corporation need not present such
proposal for a vote at such meeting, notwithstanding that proxies in
respect of such vote may have been received by the Corporation.
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 Bylaw. The Chairman of an annual 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 Bylaw or if the stockholder solicits proxies in support of such
stockholder's proposal without such stockholder having made the
representation required by clause (v) of this Bylaw, and if the Chairman
should so determine, the Chairman shall so declare to the meeting and any
such business not properly brought before the meeting shall not be
transacted.
SECTION 1.04. Special Meetings of Stockholders. Except as otherwise
expressly required by applicable law, special meetings of the stockholders or of
any class or series entitled to vote may be called for any purpose or purposes
by the Chairman or by a majority vote of the entire Board, to be held at such
place (within or outside the State of Nevada), date and hour as shall be
determined by the Board and designated in the notice thereof. Only such business
as is specified in the notice of any special meeting of the stockholders shall
come before such meeting.
SECTION 1.05. Notice of Meetings of Stockholders. Except as otherwise
expressly required or permitted by provisions of the Nevada Business corporation
Law ,Chapter 78 of the Nevada Revised Statutes, NRSss.ss.78.010 et seq. (the
"NVBCL"), not less than 10 days nor more than 60 days before the date of every
stockholders' meeting the Secretary shall give to each stockholder of record
entitled to vote at such meeting written notice stating the place, day and time
of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Except as provided in Section 1.06 (d) or as
otherwise expressly required by applicable law, notice of any adjourned meeting
of stockholders need not be given if the time and place thereof are announced at
the meeting at which the adjournment is taken. Any previously scheduled meeting
of stockholders may be postponed, and (unless the Articles of Incorporation
otherwise provide) any special meeting of stockholders may be canceled, by
resolution of the Board upon public notice given prior to the date previously
scheduled for such meeting of stockholders. Any notice, if mailed, shall be
deemed to be given when deposited in the United States mail, postage prepaid,
addressed to the stockholder at the address for notices to such stockholder as
it appears on the records of the Corporation.
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SECTION 1.06. Quorum of Stockholders.
(a) Unless otherwise expressly required by applicable law, at any
meeting of the stockholders, the presence in person or by proxy of at least
a majority of the stockholders entitled to cast votes thereat shall
constitute a quorum for the entire meeting, notwithstanding the withdrawal
of stockholders entitled to cast a sufficient number of votes in person or
by proxy to reduce the number of votes represented at the meeting below a
quorum. Shares of the Corporation's stock belonging to the Corporation or
to another corporation, if a majority of the shares entitled to vote in an
election of the directors of such other corporation is held by the
Corporation, shall neither be counted for the purpose of determining the
presence of a quorum nor entitled to vote at any meeting of the
stockholders.
(b) At any meeting of the stockholders at which a quorum shall be
present, a majority of those present in person or by proxy may adjourn the
meeting from time to time without notice other than announcement at the
meeting. In the absence of a quorum, the officer presiding thereat shall
have power to adjourn the meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting other than announcement at the
meeting shall not be required to be given, except as provided in Section
1.06(d) below and except where expressly required by applicable law.
(c) At any adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting
originally called, but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment
or adjournments thereof unless anew record date is fixed by the Board.
(d) If an adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given in the manner specified in Section
1.05 to each stockholder of record entitled to vote at the meeting.
SECTION 1.07. Chairman and Secretary of Meeting. The Chairman or, in his or
her absence, another officer of the Corporation designated by the Chairman,
shall preside at meetings of the stockholders. The Secretary shall act as
secretary of the meeting, or in the absence of the Secretary, an Assistant
Secretary shall so act, or if neither is present, then the presiding officer may
appoint a person to act as secretary of the meeting.
SECTION 1.08. Voting by Stockholders.
(a) Except as otherwise expressly required by applicable law, at every
meeting of the stockholders each stockholder shall be entitled to the
number of votes specified in the Articles of Incorporation, in person or by
proxy, for each share of stock standing in his or her name on the books of
the Corporation on the date fixed pursuant to the provisions of Section
5.06 of these Bylaws as the record date for the determination of the
stockholders who shall be entitled to receive notice of and to vote at such
meeting.
(b) When a quorum is present at any meeting of the stockholders,
questions shall be decided by the vote of a majority in voting power of the
stockholders present in person or by proxy and entitled to vote at such
meeting, unless a question is one upon which by express provision of law,
the Articles of Incorporation or these Bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
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(c) Except as required by applicable law, the vote at any meeting of
stockholders on any question need not be by ballot, unless so directed by
the chairman of the meeting. On a vote by ballot, each ballot shall be
signed by the stockholder voting, or by his or her proxy, if there be such
proxy, and shall state the number of shares voted.
SECTION 1.09. Proxies. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by his or her attorney-in-fact. Every
proxy shall be in writing and shall be subscribed by the stockholder or his or
her duly authorized attorney-in-fact, but need not be sealed, witnessed or
acknowledged.
SECTION 1.10. Inspectors.
(a) The election of Directors and any other vote by ballot at any
meeting of the stockholders shall be supervised by at least two inspectors.
Such inspectors may be appointed by the Chairman before or at the meeting.
If the Chairman shall not have so appointed such inspectors or if one or
both inspectors so appointed shall refuse to serve or shall not be present,
such appointment shall be made by the officer presiding at the meeting.
Each inspector, before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector
with strict impartiality and according to the best of his or her ability.
(b) The inspectors shall
(i) ascertain the number of shares of the Corporation outstanding
and the voting power of each,
(ii) determine the shares represented at any meeting of
stockholders and the validity of the proxies and ballots,
(iii) count all proxies and ballots,
(iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the
inspectors, and
(v) certify their determination of the number of shares
represented at the meeting, and their count of all proxies and
ballots. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of
the inspectors.
SECTION 1.11. List of Stockholders.
(a) At least 10 days before every meeting of stockholders, the Chief
Financial Officer shall cause to be prepared and made a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order and showing the address of each stockholder and the number of shares
registered in the name of each stockholder.
(b) During ordinary business hours, for a period of at least 10 days
prior to the meeting, such list shall be open to examination by any
stockholder for any purpose germane to the meeting, either at a place
within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the
Corporation's registered office.
(c) The list shall also be produced and kept at the time and place of
the meeting during the whole time of the meeting, and it may be inspected
by any stockholder who is present.
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(d) The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by
this Section 1.11 or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
SECTION 1.12. Confidential Voting.
(a) Proxies and ballots that identify the votes of specific
stockholders shall be kept in confidence by the tabulators and the
inspectors of election unless
(i) there is an opposing solicitation with respect to the
election or removal of Directors,
(ii) disclosure is required by applicable law,
(iii) a stockholder expressly requests or otherwise authorizes
disclosure, or
(iv) the Corporation concludes in good faith that a bona fide
dispute exists as to the authenticity of one or more proxies, ballots
or votes, or as to the accuracy of any tabulation of such proxies,
ballots or votes.
(b) The tabulators and inspectors of election and any authorized
agents or other persons engaged in the receipt, count and tabulation of
proxies and ballots shall be advised of this Bylaw and instructed to comply
herewith.
(c) The inspectors of election shall certify, to the best of their
knowledge based on due inquiry, that proxies and ballots have been kept in
confidence as required by this Section 1.12.
SECTION 1.13 Action by Stockholders. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected at a duly called
annual or special stockholders' meeting, or by a consent adopted in writing by a
majority of stockholders except if a different proportion of voting power is
required for such action at a meeting, then that same proportion of written
consents is required.
ARTICLE II
DIRECTORS
SECTION 2.01. Powers of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all the powers of the Corporation except such as are by applicable law,
the Articles of Incorporation or these Bylaws required to be exercised or
performed by the stockholders-
SECTION 2.02. Method of Election. The number of Directors which shall
constitute the whole Board shall be as set forth in the Articles of
Incorporation. Directors need not be stockholders of the Corporation or citizens
of the United States of America. Nominations of persons for election as
Directors may be made by the Board or by any stockholder who is a stockholder of
record at the time of giving of the notice of nomination provided for in this
Section 2.02 and who is entitled to vote for the election of Directors. Any
stockholder of record entitled to vote for the election of Directors at a
meeting may nominate a person or persons for election as Directors only if
written notice of such stockholder's intent to make such nomination is given in
accordance with the procedures for bringing business before the meeting set
forth in Section 1.03(b) of these Bylaws, either by personal delivery or by
United States mail, postage prepaid, to the Secretary (i) with respect to an
election to be held at an annual meeting of stockholders, not less than 90 nor
more than 120 days prior to the anniversary date of the immediately preceding
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annual meeting; provided, however, that in the event the date of the annual
meeting is more than 30 days earlier or more than 60 days later than such
anniversary date, notice by the stockholder must be so delivered or received not
earlier than the 120th day prior to the scheduled date of such annual meeting
and not later than the close of business on the later of the 90th day prior to
the scheduled date of such annual meeting or the 10th day following the day on
which public announcement of the date of such annual meeting is first made, and
(ii) with respect to an election to be held at a special meeting of stockholders
for the election of Directors, not earlier than the 90th day prior to such
special meeting and not later than the close of business on the later of the
60th day prior to such special meeting or the 10th day following the date on
which notice of such meeting is first given to stockholders. Each such notice
shall set forth:
(a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice;
(c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder;
(d) such other information regarding each nominee proposed by such
stockholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission
had each nominee been nominated, or intended to be nominated, by the Board;
(e) the consent of each nominee to serve as a Director if so elected;
and
(f) if the stockholder intends to solicit proxies in support of such
stockholder's nominee(s), a representation to that effect.
The chairman of any meeting of stockholders to elect Directors and the
Board may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure or if the stockholder solicits proxies
in support of such stockholder's nominee(s) without such stockholder having made
the representation required by clause (f) of this Bylaw.
Except as specifically required in the Articles of Incorporation, at each
meeting of the stockholders for the election of Directors at which a quorum is
present, the persons receiving the greatest number of votes, up to the number of
Directors to be elected, shall be the Directors.
SECTION 2.03. Vacancies on Board: Increase in Size of Board.
(a) Any Director may resign from office. at any time by delivering a
written resignation to the Chairman or the Secretary. The resignation will
take effect at the time specified therein or, if no time is specified, at
the time of its receipt by the Corporation. The acceptance of a resignation
shall not be necessary to make it effective, unless expressly so provided
in the resignation.
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(b) Newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled by a vote of the majority of directors then in office though less
than a quorum.
SECTION 2.04. Removal of Directors. Provided the Articles of Incorporation
do not require the concurrence of a larger percentage of stock entitled to vote
in order to remove a Director, any Director may be removed from office with or
without cause by the stockholders representing not less than seventy percent
(70%) of the issued and outstanding stock entitled to voting power, except that
if the Articles of Incorporation provide for conculative voting, no Director may
be removed except upon the vote of stockholders owning sufficient shares to have
prevented his or her elections in the first place.
SECTION 2.05. Meetings of the Board.
(a) The Board may hold its meetings, both regular and special, either
within or outside the State of Nevada, at such places as from time to time
may be determined by the Board or as may be designated in the respective
notices or waivers of notice thereof.
(b) Annual meetings of the Board shall be held at such times and at
such places as from time to time shall be determined by the Board.
(c) The first meeting of each newly elected Board shall be held as
soon as practicable after the annual meeting of the stockholders and shall
be for the election of officers and the transaction of such other business
as may come before it.
(d) Special meetings of the Board shall be held whenever called by
direction of the Chairman or at the request of Directors constituting a
majority of the number of Directors then in office.
(e) Members of the Board or any Committee of the Board may participate
in a meeting of the Board or Committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at such meeting.
(f) The Secretary, or an Assistant Secretary designated by the
Secretary, shall give notice to each Director of any meeting of the Board
by mailing the same at least two days before the meeting or by
electronically transmitting or delivering the same not later than the day
before the meeting. Such notice need not include a statement of the
business to be transacted at, or the purpose of, any such meeting. Any and
all business may be transacted at any meeting of the Board. No notice of
any adjourned meeting need be given. No notice to or waiver by any Director
shall be required with respect to any meeting at which the Director is
present.
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SECTION 2.06. Quorum and Action. Except as otherwise expressly required by
applicable law, the Articles of Incorporation or these Bylaws, at any meeting of
the Board, the presence of a majority of the entire Board shall constitute a
quorum for the transaction of business; but if there shall be less than a quorum
at any meeting of the Board, a majority of those present may adjourn the meeting
from time to time. Unless otherwise provided by applicable law, the Articles of
Incorporation or these Bylaws, the vote of a majority of the Directors present (
and not abstaining) at any meeting at which a quorum is present shall be
necessary for the approval and adoption of any resolution or the approval of any
act of the Board.
SECTION 2.07. Presiding Officer and Secretary of Meeting. The Chairman or,
in the absence of 'the Chairman, a member of the Board selected by the members
present, shall preside at meetings of the Board. The Secretary, or an Assistant
Secretary designated by the Secretary, shall act as secretary of the meeting,
but in the absence of the Secretary, or an Assistant Secretary designated by the
Secretary, the presiding officer may appoint a secretary of the meeting.
SECTION 2.08. Action by Consent Without Meeting. Any action required or
permitted to be taken at any meeting of the Board or of any Committee thereof
may be taken without a meeting if all members of the Board or Committee, as the
case may be, consent thereto in writing and the writing or writings are filed
with the minutes of proceedings of the Board or the Committee.
SECTION 2.09. Executive and other Committees.
(a) Establishment and powers. Unless it is otherwise provided in the
Articles of Incorporation, the Board of Directors may designate one or more
committees which, to the extent provided in the resolution or resolutions
or in these Bylaws, have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the Corporation,
and shall have the power to authorize the seal of the Corporation to be
affixed to all papers on which the corporation desires to place the seal.
The committee or committees must have such name or names as may be stated
in these Bylaws or as may be determined from time to time by resolution
adopted by the Board of Directors. Each committee must include at least one
Director. Unless the Articles of Incorporation provide otherwise, the Board
of Directors may appoint natural persons who are not Directors to serve on
committees.
(b) Alternate committee members. The Board may designate one or more
Directors as alternate members of any committee who may replace any absent
or disqualified member of any meeting of the committee of for the purposes
of any written action by the committee. In the absence or disqualification
of a member and alternate member of members of a committee, the member or
members thereof present at any meeting and not disqualified from voting may
unanimously appoint another Director to act at the meeting in the place of
the absent or disqualified member.
(c) Term. Each committee of the Board shall serve at the pleasure of
the Board.
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(d) Committee procedures. The term "Board of Directors" or "Board,"
when used in any provision of these Bylaws relating to the organization or
procedures of or the manner of taking action by the Board of Directors,
shall be construes to include and refer to any other committee of the
Board.
SECTION 2.10. Compensation of Directors. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, Directors shall receive for their
services on the Board or any Committee thereof such compensation and benefits,
including the granting of options, together with expenses, if any, as the Board
may from time to time determine. The Directors may be paid a fixed sum for
attendance at each meeting of the Board or Committee thereof and/or a stated
annual sum as a Director, together with expenses, if any, of attendance at each
meeting of the Board or Committee thereof. Nothing herein contained shall be
construed to preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor .
ARTICLE III
OFFICERS
SECTION 3.01. Officers, Titles, Elections, Terms.
(a) The Board may from time to time elect a Chairman, a President, one
or more Executive Vice Presidents, one or more Senior Vice Presidents, one
or more Vice Presidents, a Chief Financial Officer, a Controller, a
Treasurer, and a Secretary and a General Counsel to serve at the pleasure
of the Board or otherwise as shall be specified by the Board at the time of
such election and until their successors are elected and qualified or until
their earlier death, retirement, resignation or removal.
(b) The Board may elect or appoint at any time such other officers,
assistant officers, or agents with such duties as it may deem necessary or
desirable. Such other officers or agents shall serve at the pleasure of the
Board or otherwise as shall be specified by the Board at the time of such
election or appointment and, in the case of such other officers, until
their successors are elected and qualified or until their earlier death,
retirement, resignation or removal. Each such officer or agent shall have
such authority and shall perform such duties as may be provided herein or
as the Board may prescribe. The Board may from time to time delegate to any
officer or committee the power to appoint and to retain or remove any other
such officer or agent and to prescribe such person's authority and duties.
(c) Any vacancy in any office may be filled for the unexpired portion
of the term by the Board or each officer or committee to which such power
has been delegated. Each officer elected or appointed during the year shall
hold office for the unexpired portion of the term or until his or her
successor is elected or appointed and qualified or until his or her earlier
death, retirement, resignation or removal.
(d) Any officer or agent elected or appointed by the Board may be
removed at any time by the affirmative vote of a majority of the entire
Board.
(e) Any officer may resign from office at any time. Such resignation
shall be made in writing and given to the President or the Secretary. Any
such resignation shall take effect at the time specified therein, or, if no
time is specified, at the time of its receipt by the Corporation. The
acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation.
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SECTION 3.02. General Powers of Officers. Except as may be otherwise
provided by applicable law or in Article VI or Article VII of these Bylaws,
the Chairman, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Chief Financial Officer, the General
Counsel, the Controller, the Treasurer and the Secretary, or any of them,
may (i) execute and deliver in the name of the Corporation, in the name of
any Division of the Corporation or in both names any agreement, contract,
instrument, power of attorney or other document pertaining to the business
or affairs of the Corporation or any Division of the Corporation,
including, without limitation, agreements or contracts with any government
or governmental department, agency or instrumentality, and (ii) delegate to
any employee or agent the power to execute and deliver any such agreement,
contract, instrument, power of attorney or other document.
SECTION 3.03. Powers and Duties of the Chairman. The Chairman shall be the
Chief Executive of the Corporation and shall report directly to the Board.
Except in such instances as the Board may confer powers in particular
transactions upon any other officer, and subject to the control and direction of
the Board, the Chairman shall manage and direct the business and affairs of the
Corporation and shall communicate to the Board and any Committee thereof
reports, proposals and recommendations for their respective consideration or
action. He or she may do and perform all acts on behalf of the Corporation and
shall preside at meetings of the Board and the stockholders.
SECTION 3.04. Powers and Duties of the President. The President shall have
such powers and perform such duties as the Board or the Chairman may from time
to time prescribe or as may be prescribed in these Bylaws.
SECTION 3.05. Powers and Duties of Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents. Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents shall have such powers and perform such duties as
the Board or the Chairman may from time to time prescribe or as may be
prescribed in these Bylaws.
SECTION 3.06. Powers and Duties of the Chief Financial Officer. The Chief
Financial Officer shall have such powers and perform such duties as the Board or
the Chairman may from time to time prescribe or as may be prescribed in these
Bylaws. The Chief Financial Officer shall cause to be prepared and maintained
(i) a stock ledger containing the names and addresses of all stockholders and
the number of shares held by each and (ii) the list of stockholders for each
meeting of the stockholders as required by Section 1.11 of these Bylaws. The
Chief Financial Officer shall be responsible for the custody of all stock books
and of all unissued stock certificates.
SECTION 3.07. Powers and Duties of the Controller and Assistant
Controllers.
(a) The Controller shall be responsible for the maintenance of
adequate accounting records of all assets, liabilities, capital and
transactions of the Corporation. The Controller shall prepare and render
such balance sheets, income statements, budgets and other financial
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statements and reports as the Board or the Chairman may require, and shall
perform such other duties as may be prescribed or assigned pursuant to
these Bylaws and all other acts incident to the position of Controller.
(b) Each Assistant Controller shall perform such duties as from time
to time may be assigned by the Controller or by the Board. In the event of
the absence, incapacity or inability to act of the Controller, then any
Assistant Controller may perform any of the duties and may exercise any of
the powers of the Controller .
SECTION 3.08. Powers and Duties of the Treasurer and Assistant Treasurers.
(a) The Treasurer shall have the care and custody of all the funds and
securities of the Corporation, except as may be otherwise ordered by the
Board, and shall cause such funds
(i) to be invested or reinvested from time to time for the
benefit of the Corporation as may be designated by the Board, the
Chairman, the President, the Chief Financial Officer or the Treasurer
or
(ii) to be deposited to the credit of the Corporation in such
banks or depositories as may be designated by the Board, the Chairman,
the President, the Chief Financial Officer or the Treasurer, and shall
cause such securities to be placed in safekeeping in such manner as
may be designated by the Board, the Chairman, the President, the Chief
Financial Officer or the Treasurer.
(b) The Treasurer, any Assistant Treasurer or such other person or
persons as may be designated for such purpose by the Board, the Chairman,
the President, the Chief Financial Officer or the Treasurer may endorse in
the name and on behalf of the Corporation all instruments for the payment
of money, bills of lading, warehouse receipts, insurance policies and other
commercial documents requiring such endorsement.
(c) The Treasurer, any Assistant Treasurer or such other person or
persons as may be designated for such purpose by the Board, the Chairman,
the President, the Chief Financial Officer or the Treasurer (i) may sign
all receipts and vouchers for payments made to the Corporation; (ii) shall
render a statement of the cash account of the Corporation to the Board as
often as it shall require the same; and (iii) shall enter regularly in
books to be kept for that purpose full and accurate account of all moneys
received and paid on account of the Corporation and of all securities
received and delivered by the Corporation.
(d) The Treasurer shall perform such other duties as may be prescribed
or assigned pursuant to these .Bylaws and all other acts incident to the
position of Treasurer. Each Assistant Treasurer shall perform such duties
as may from time to time be assigned by the Treasurer or by the Board. In
the event of the absence, incapacity or inability to act of the Treasurer,
then any Assistant Treasurer may perform any of the duties and may exercise
any of the powers of the Treasurer .
SECTION 3.09. Powers and Duties of the Secretary and Assistant Secretaries.
(a) The Secretary, or an Assistant Secretary designated by the
Secretary, shall keep the minutes of all proceedings of the stockholders,
the Board and the Committees of the Board. The Secretary, or an Assistant
Secretary designated by the Secretary, shall attend to the giving and
serving of all notices of the Corporation, in accordance with the
provisions of these Bylaws and as required by applicable law. The
Secretary, or an Assistant Secretary designated by the Secretary, shall be
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the custodian of the seal of the Corporation. The Secretary shall affix or
cause to be affixed the seal of the Corporation to such contracts,
instruments and other documents requiring the seal of the Corporation, and
when so affixed may attest the same and shall perform such other duties as
may be prescribed or assigned pursuant to these Bylaws and all other acts
incident to the position of Secretary.
(b) Each Assistant Secretary shall perform such duties as may from
time to time be assigned by the Secretary or by the Board. In the event of
the absence, incapacity or inability to act of the Secretary, then any
Assistant Secretary may perform any of the duties and may exercise any of
the powers of the Secretary.
SECTION 3.10. Compensation of Offices. The salaries and other compensation
of officers elected by the Board of Directors shall be fixed from time to time
by the Board of Directors or by such officers as may be designated by resolution
of the Board. The salaries and other compensation of any other officer,
assistant officer, employee and agent shall be fixed from time to time by the
officer or committee to which the power to elect such persons has been
delegated. No officer shall be prevented from receiving such salary or other
compensation by reason of the fact that he or she is also a Director of the
Corporation.
ARTICLE IV
INDEMNIFICATION
SECTION 4.01.
(a) Right to Indemnification. The Corporation, to the fullest extent
permitted by applicable law as then in effect, shall indemnify any person
who is or was involved in any manner (including, without limitation, as a
party or a witness) or is threatened to be made so involved in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, any action, suit or proceeding by or in the
right of the Corporation to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that such person is or was a Director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation, partnership, joint venture, limited liability
company, trust or other enterprise (including, without limitation, any
employee benefit plan) (a "Covered Entity"), against all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably .incurred by such person in connection
with such Proceeding. Any person entitled to indemnification as provided in
this Section 4.01(a) is hereinafter called an "Indemnitee." Any right of an
Indemnitee to indemnification shall be a contract right and shall include
the right to receive, prior to the conclusion of any Proceeding, payment of
any expenses incurred by the Indemnitee in connection with such Proceeding,
consistent with the provisions of applicable law as then in effect and the
other provisions of this Article IV .
(b) Effect of Amendments. Neither the amendment or repeal of, nor the
adoption of a provision inconsistent with, any provision of this Article IV
(including, without limitation, this Section 4.01(b>>shall adversely affect
the rights of any Director or officer under this Article IV : (i) with
respect to any Proceeding commenced or threatened prior to such amendment,
repeal or adoption of an inconsistent provision or (ii) after the
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occurrence of a Change in Control (as defined in Section 4.04(e)(i) of this
Article IV), with respect to any Proceeding arising out of any action or
omission occurring prior to such amendment, repeal or adoption of an
inconsistent provision, in either case without the written consent of such
Director or officer.
SECTION 4.02. Insurance. Contracts and Funding. The Corporation may
purchase and maintain insurance to protect itself and any Indemnitee against any
expenses, judgments, fines and amounts paid in settlement as specified in
Section 4.01(a) or Section 4.05 of this Article IV or incurred by any Indemnitee
in connection with any Proceeding referred to in such Sections, to the fullest
extent permitted by applicable law as then in effect. The Corporation may enter
into contracts with any Director, officer, employee or agent of the Corporation
or any director, officer, employee, fiduciary or agent of any Covered Entity in
furtherance of the provisions of this Article IV and may create a trust fund or
use other means (including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect indemnification as
provided in this Article IV .
SECTION 4.03. Indemnification Not Exclusive Right. The right of
indemnification provided in this Article IV shall not be exclusive of any other
rights to which any Indemnitee may otherwise be entitled, and the provisions of
this Article IV shall inure to the benefit of the heirs and legal
representatives of any Indemnitee and shall be applicable to Proceedings
commenced or continuing after the adoption of this Article IV , whether arising
from acts or omissions occurring before or after such adoption.
SECTION 4.04. Advancement of Expenses: Procedures: Presumptions and Effect
of Certain Proceedings: Remedies In furtherance, but not in limitation, of the
foregoing provisions, the following procedures, presumptions and remedies shall
apply with respect to the advancement of expenses and the right to
indemnification under this Article IV :
(a) Advancement of Expenses. All reasonable expenses incurred by or on
behalf of an Indemnitee inconnection with any Proceeding shall be advanced
to the Indemnitee by the Corporation within 20 days after the receipt by
the Corporation of a statement or statements from the Indemnitee requesting
such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Any such statement or statements shall
reasonably evidence the expenses incurred by the Indemnitee and shall
include any written affirmation or undertaking required by applicable law
in effect at the time of such advance.
(b) Procedures for Determination of Entitlement to Indemnification.
(i) To obtain indemnification under Article IV , an Indemnitee
shall submit to the Secretary of the Corporation a written request,
including such documentation and information as is reasonably
available to the Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documentation"). The determination of
the Indemnitee's entitlement to indemnification shall be made not
later than 60 days after receipt by the Corporation of the written
request for indemnification together with the Supporting
Documentation. The Secretary of the Corporation shall, promptly upon
receipt of such a request for indemnification, advise the Board in
writing that the Indemnitee has requested indemnification.
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(ii) The Indemnitee's entitlement to indemnification under this
Article shall be determined in one of the following ways:
(A) by a majority vote of the Disinterested Directors (as
hereinafter defined), if they constitute a quorum of the Board;
(B) by a written opinion of Independent Counsel (as
hereinafter defined) if (x) a Change in Control (as hereinafter
defined) shall have occurred and the Indemnitee so requests or
(y) a quorum of the Board consisting of Disinterested Directors
is not obtainable or, even if obtainable, a majority of such
Disinterested Directors so directs;
(C) by the stockholders of the Corporation (but only if a
majority of the Disinterested Directors, if they constitute a
quorum of the Board, presents the issue of entitlement to
indemnification to the stockholders for their determination); or
(D) as provided in Section 4.04(c) of this Article
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 4.04(b)(ii), a majority of the Disinterested Directors shall
select the Independent Counsel, but only an Independent Counsel to
which the Indemnitee does not reasonably object; provided, however,
that if a Change in Control shall have occurred, the Indemnitee shall
select such Independent Counsel, but only an Independent Counsel to
which a majority of the Disinterested Directors does not reasonably
object.
(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Article IV, if a Change in Control
shall have occurred, the Indemnitee shall be presumed to be entitled to
indemnification under this Article IV (with respect to actions or failures
to act occurring prior to such Change in Control) upon submission of a
request for indemnification together with the Supporting Documentation in
accordance with Section 4.04(b ) of this Article IV, and thereafter the
Corporation shall have the burden of proof to overcome that presumption in
reaching a contrary determination. In any event, if the person or persons
empowered under Section 4.04(b) of this Article IV, to determine
entitlement to indemnification shall not have been appointed or shall not
have made a determination within 60 days after receipt by the Corporation
of the request therefor together with the Supporting Documentation, the
Indemnitee shall be deemed to be, and shall be, entitled to indemnification
unless (A) the Indemnitee misrepresented or failed to disclose a material
fact in making the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by law. The
termination of any Proceeding described in Section 4.01.of this Article IV,
or of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, adversely affect the right of the Indemnitee to indemnification
or create a presumption that the Indemnitee did not act in good faith and
in a manner which the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Corporation or, with respect to any
criminal Proceeding, that the Indemnitee had reasonable cause to believe
that his or her conduct was unlawful-
(d) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant to Section
4.04(b) of this Article IV that the Indemnitee is not entitled to
indemnification under this Article IV,
(A) the Indemnitee shall be entitled to seek an adjudication
of his or her entitlement to such indemnification either, at the
Indemnitee's sole option, in (x) an appropriate court of the
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State of Texas or any other court of competent jurisdiction or
(y) an arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association
provided that all hearings shall be conducted in Travis County,
Texas;
(B) any such judicial proceeding or arbitration shall be de
novo and the Indemnitee shall not be prejudiced by reason of such
adverse determination; and
(C) if a Change in Control shall have occurred, in any such
judicial proceeding or arbitration the Corporation shall have the
burden of proving that the Indemnitee is not entitled to
indemnification under this Article IV (with respect to actions or
failures to act occurring prior to such Change in Control).
(ii) If a determination shall have been made or deemed to have
been made, pursuant to Section 4.04(b) or ( c ) of this Article IV ,
that the Indemnitee is entitled to indemnification, the Corporation
shall be obligated to pay the amounts constituting such
indemnification within five days after such determination has been
made or deemed to have been made and shall be conclusively bound by
such determination unless
(A) the Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the
Supporting Documentation or
(B) such indemnification is prohibited by law. In the event
that (x) advancement of expenses is not timely made pursuant to
Section 4.04(a) of this Article IV or (y) payment of
indemnification is not made within five days after a
determination of entitlement to indemnification has been made or
deemed to have been made pursuant to Section 4.04(b) or ( c ) of
this Article IV , the Indemnitee shall be entitled to seek
judicial enforcement of the Corporation's obligation to pay
to the Indemnitee such advancement of expenses or
indemnification. Notwithstanding the foregoing, the Corporation
may bring an action, in an appropriate court in the State of
Texas or any other court of competent jurisdiction, contesting
the right of the Indemnitee to receive indemnification hereunder
due to the occurrence of an event described in Subclause (A) or
(B) of this clause (ii) (a "Disqualifying Event");
provided, however, that in any such action the Corporation shall
have the burden of proving the occurrence of such Disqualifying
Event.
(iii) The Corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section
4.04(d) that the procedures and presumptions of this Article IV are
not valid, binding and enforceable and shall stipulate in any such
court or before any such arbitrator that the Corporation is bound by
all the provisions of this Article IV .. (iv) In the event that the
Indemnitee, pursuant to this Section 4.04(d), seeks a judicial
adjudication of or an award in arbitration to enforce his or her
rights under, or to recover damages for breach of, this Article IV ,
the Indemnitee shall be entitled to recover from the Corporation, and
shall be indemnified by the Corporation against, any expenses actually
and reasonably incurred by the Indemnitee if the Indemnitee prevails
in such judicial adjudication or arbitration. If it shall be
determined in such judicial adjudication or arbitration 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 or arbitration shall be prorated accordingly.
(e) Definitions. For purposes of this Article IV:
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(i) "Change in Control" means a change in control of the
Corporation of a nature that would be required to be reported in
response to Item 6(e) (or any successor provision) of Schedule 14A of
Regulation 14A (or any amendment or successor provision thereto)
promulgated under the Securities Exchange Act of 1934 (the "Act"),
whether or not the Corporation is then subject to such reporting
requirement; provided that, without limitation, a change in control
shall be deemed to have occurred if
(A) any "person" (as such term is used in Sections l3(d) and
14(d) of the Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Corporation representing 25% or more of the
voting power of all outstanding shares of stock of the
Corporation entitled to vote generally in an election of
Directors without the prior approval of at least two-thirds of
the members of the Board in office immediately prior to such
acquisition;
(B) the Corporation is a party to any merger, exchange or
consolidation in which the Corporation is not the continuing or
surviving corporation or pursuant to which shares of the
Corporation's common stock would be converted into cash,
securities or other property, other than a merger of the
Corporation in which the holders of the Corporation's common
stock immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation
immediately after the merger;
(C) there is a sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all, or
substantially all, the assets of the Corporation, or liquidation
or dissolution of the Corporation;
(D) the Corporation is a party to a merger, exchange,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less
than a majority of the Board thereafter; or
(E) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board
(including for this purpose any new Director whose election or
nomination for election by the stockholders 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.
(ii) "Disinterested Director" means a Director who is not or was
not a party to the proceeding in respect of which indemnification is
sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a law
firm that neither presently is, nor in the past five years has been,
retained to represent:
(A) the Corporation or the Indemnitee in any matter material
to either such party; or
(B) any other party to the Proceeding giving rise to a claim
for indemnification under this Article IV.
Notwithstanding the foregoing, the term "Independent Counsel,"
shall not include any person who, under applicable standards of
professional conduct, would have a conflict of interest in
representing either the Corporation or the Indemnitee in an action to
determine the Indemnitee's rights under this Article.
SECTION 4.05. Severability. If any provision of this Article N shall be
held to be invalid, illegal or unenforceable for any reason whatsoever:
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(a) the validity, legality and enforceability of the remaining
provisions of this Article IV (including, without limitation, all portions
of any Section of this Article IV containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal
or unenforceable) shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Article IV
(including, without limitation, all portions of any Section of this Article
IV containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
ARTICLE V
CAPITAL STOCK
SECTION 5.01. Stock Certificates. (a) Every holder of stock in the
Corporation shall be entitled to have a certificate certifying the number of
shares owned by him or her in the Corporation and designating the class and
series of stock to which such shares belong, which certificate shall otherwise
be in such form as the Board shall prescribe and as provided in Section 5.01(d).
Each such certificate shall be signed by, or in the name of, the Corporation by
the Chairman or the President or any Vice President, and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary.
(b) If such certificate is countersigned by a transfer agent other
than the Corporation or its employee, or by a registrar other than the
Corporation or its employee, the signatures of the officers of the
Corporation may be facsimiles, and, if permitted by applicable law, any
other signature on the certificate may be a facsimile.
(c) In case any officer who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the Corporation with
the same effect as if such person were such officer at the date of issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Articles of Incorporation. They shall be numbered and
registered in the order in which they are issued. No certificate shall be
issued until fully paid.
(e) All certificates surrendered to the Corporation shall be canceled
(other than treasury shares) with the date of cancellation and shall be
retained by the Chief Financial Officer, together with the powers of
attorney to transfer and the assignments of the shares represented by such
certificates, for such period of time as such officer shall designate.
SECTION 5.02. Record Ownership. A record of the name of the person, firm or
corporation and address of such holder of each certificate, the number of shares
represented thereby and the date of issue thereof shall be made on the
Corporation's books. The Corporation shall be entitled to treat the holder of
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record of any share of stock as the holder in fact thereof, and accordingly
shall not be bound to recognize any equitable or other claim to or interest in
any share on the part of any person, whether or not it shall have express or
other notice thereof, except as required by applicable law.
SECTION 5.03. Transfer of Record Ownership. Transfers of stock shall be
made on the books of the orporation only by direction of the person named in the
certificate or such person's attorney, lawfully constituted in writing, and only
upon the surrender of the certificate therefor and a written assignment of the
shares evidenced thereby. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and transferee request the Corporation to do so.
SECTION 5.04. Lost Stolen or Destroyed Certificates. Certificates
representing shares of the stock of the Corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board from time to time may authorize in
accordance with applicable law.
SECTION 5.05. Transfer Agent: Registrar: Rules Respecting Certificates. The
Corporation shall maintain one or more transfer offices or agencies where stock
of the Corporation shall be transferable. The Corporation shall also maintain
one or more registry offices where such stock shall be registered. The Board may
adopt such rules and regulations as it may deem proper concerning the issue,
transfer and registration of stock certificates in accordance with applicable
law.
SECTION 5.06. Fixing Record Date for Determination of Stockholders of
Record.
(a) The Board may fix, in advance, a date as the record date for the
purpose of determining the stockholders entitled to notice of, or to vote
at, any meeting of the stockholders or any adjournment thereof, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board, and which record date shall not be
more than 60 days nor less than 10 days before the date of a meeting of the
stockholders. If no record date is fixed by the Board, the record date for
determining the stockholders entitled to notice of or to vote at a
stockholders' meeting shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for
the adjourned meeting.
(b) The Board may fix, in advance, a date as the record date for the
purpose of determining the stockholders entitled to receive payment of any
dividend or other distribution or the allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
stock, or in order to make a determination of the stockholders for the
purpose of any other lawful action, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the
Board, and which record date shall not be more than 60 calendar days prior
to such action. If no record date is fixed by the Board, the record date
for determining the stockholders for any such purpose shall be at the close
of business on the day on which the Board adopts the resolution relating
thereto.
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(c) Unless a record date shall have previously been fixed or
determined pursuant to this section, whenever action by stockholders is
proposed to be taken by consent in writing without a meeting of
stockholders, the Board of Directors may fix a record date for the purpose
of determining stockholders entitled to consent to that action, which
record date shall not precede, and shall not be more than ten (10) days
after, the date upon which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board of
Directors and the prior action of the Board of Directors is not required by
the NVBCL, the record date for determining stockholders entitled to consent
to action in writing without a meeting shall be the first date on which a
signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered office,
its principal place of business, or an officer or agent of the Corporation
having custody of the books in which proceedings of meetings of
stockholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. Delivery to the Corporation's
principal place of business shall be addressed to the president or the
principal executive officer of the Corporation. If no record date shall
have been fixed by the Board of Directors and prior action of the Board of
Directors is required by the NVBCL, the record date for determining
stockholders entitled to consent to action in writing without a meeting
shall be at the close of business on the date on which the Board of
Directors adopts a resolution taking such prior action.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
SECTION 6.01. Voting. Unless the Board shall otherwise order, the Chairman,
the President, any Executive Vice President, any Senior Vice President, any Vice
President, the Chief Financial Officer, the Controller, the Treasurer or the
Secretary shall have full power and authority, on behalf of the Corporation, to
attend, act and vote at any meeting of the stockholders of any corporation in
which the Corporation may hold stock and at such meeting to exercise any or all
rights and powers incident to the ownership of such stock, and to execute on
behalf of the Corporation a proxy or proxies empowering another or others to act
as aforesaid. The Board from time to time may confer like powers upon any other
person or persons.
SECTION 6.02. General Authorization to Transfer Securities Held by the
Corporation.
(a) Any of the following officers, to wit: the Chairman, the
President, any Executive Vice President, any Senior Vice President, any
Vice President, the Chief Financial Officer, the Controller, the Treasurer,
any Assistant Controller, any Assistant Treasurer, and each of them, hereby
is authorized and empowered to transfer, convert, endorse, sell, assign,
set over and deliver any and all shares of stock, bonds, debentures, notes,
subscription warrants, stock purchase warrants, evidences of indebtedness,
or other securities now or hereafter standing in the name of or owned by
the Corporation, and to make, execute and deliver any and all written
instruments of assignment and transfer necessary or proper to effectuate
the authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of assignment
and transfer executed pursuant to and in accordance with the foregoing
Section 6.02(a), a certificate of the Secretary or any Assistant Secretary
in office at the date of such certificate setting forth the provisions
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hereof and stating that they are in full force and effect and setting forth
the names of persons who are then officers of the corporation, all persons
to whom such instrument and annexed certificate shall thereafter come shall
be entitled, without further inquiry or investigation and regardless of the
date of such certificate, to assume and to act in reliance upon the
assumption that (i) the shares of stock or other securities named in such
instrument were theretofore duly and properly transferred, endorsed, sold,
assigned, set over and delivered by the Corporation, and (ii) with respect
to such securities, the authority of the provisions of these Bylaws and of
such officers is still in full force and effect.
ARTICLE VII
DEPOSITARIES AND SIGNATORIES
SECTION 7.01. Depositaries. The Chairman, the President, the Chief
Financial Officer and the Treasurer are each authorized to designate
depositaries for the funds of the Corporation deposited in its name or that of a
Division of the Corporation, or both, and the signatories with respect thereto
in each case, and from time to time, to change such depositaries and
signatories, with the same force and effect as if each such depositary and the
signatories with respect thereto and changes therein had been specifically
designated or authorized by the Board; and each depositary designated by the
Board or by the Chairman, the President, the Chief Financial Officer or the
Treasurer shall be entitled to rely upon the certificate of the Secretary or any
Assistant Secretary of the Corporation or of a Division of the Corporation
setting forth the fact of such designation and of the appointment of the
officers of the Corporation or of the Division or of both or of other persons
who are to be signatories with respect to the withdrawal of funds deposited with
such depositary, or from time to time the fact of any change in any depositary
or in the signatories with respect thereto.
SECTION 7 .02. Signatories. Unless otherwise designated. by the Board or by
the Chairman, the President, the Chief Financial Officer or the Treasurer, all
notes, drafts, checks, acceptances, orders for the payment of money and all
other negotiable instruments obligating the Corporation for the payment of money
shall be (a) signed by the Treasurer or any Assistant Treasurer and (b)
countersigned by the Controller or any Assistant Controller, or (c) either
signed or countersigned by the Chairman, the President, any Executive Vice
President, any Senior Vice President or any Vice President in lieu of either the
officers designated in clause (a) or the officers designated in clause (b) of
this Section 7.02.
ARTICLE VIII
SEAL
The seal of the Corporation shall be in such form and shall have such
content as the Board shall from time to time determine.
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ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall end on March 31 in each year, or
on such other date as the Board shall determine.
ARTICLE X
WAIVER OF OR DISPENSING WITH NOTICE
(a) Whenever any notice of the time, place or purpose of any meeting
of the stockholders is required to be given by applicable law, the Articles
of Incorporation or these Bylaws, a written waiver of notice, signed by a
stockholder entitled to notice of a stockholders' meeting, whether by
telegraph, cable or other form of recorded communication, whether signed
before or after the time set for a given meeting, shall be deemed
equivalent to notice of such meeting. Attendance of a stockholder in person
or by proxy at a stockholders' meeting shall constitute a waiver of notice
to such stockholder of such meeting, except when the stockholder attends
the meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting was not
lawfully called or convened.
(b) Whenever any notice of the time or place of any meeting of the
Board or Committee of the Board is required to be given by applicable law,
the Articles of Incorporation or these Bylaws, a written waiver of notice
signed by a Director, whether by telegraph, cable or other form of recorded
communication, whether signed before or after the time set for a given
meeting, shall be deemed equivalent to notice of such meeting. Attendance
of a Director at a meeting shall constitute a waiver of notice to such
Director of such meeting.
(c) No notice need be given to any person with whom communication is
made unlawful by any law of the United States or any rule, regulation,
proclamation or executive order issued under any such law.
ARTICLE XI
POLITICAL CONTRIBUTIONS BY THE CORPORATION
The Corporation and its direct and indirect subsidiaries shall be permitted
to make contributions or expenditures
(a) in connection with the election of any candidate for state or
local political office in jurisdictions which permit such contributions,
including contributions to any committee supporting such a candidate, to
the extent such contributions or expenditures are permitted by applicable
law, and
(b) to the extent necessary to permit in the United States the
expenditure of corporate assets for the payment of expenses for
establishing, registering and administering any political action committee
and of soliciting contributions thereto, all as may be authorized by
Federal or state laws.
ARTICLE XII
AMENDMENT OF BYLAWS
Subject to the provisions of the Articles of Incorporation, the Bylaws of
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the Corporation may be altered, amended or repealed at any annual meeting of the
stockholders (or at any special meeting thereof duly called for that purpose or
by a consent adopted in writing by such shareholders) by an affirmative vote of
the shares of at least seventy percent (70%) of the voting power of all shares
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class; provided, that in the notice of such meeting,
if any, notice of such purpose shall be given. Subject to the laws of the State
of Nevada, the Articles of Incorporation and the Bylaws of the Corporation, the
Board of Directors may, be majority vote of those present at any meeting at
which a quorum is present, amend the Bylaws of the Corporation, or enact such
other Bylaws as in their judgment may be advisable for the regulation of the
conduct of the affairs of the Corporation.
ARTICLE XIII
OFFICES AND AGENT
(a) Registered Office and Agent. The registered office of the
Corporation in the State of Nevada shall be 711 S. Carson, Suite 4, Carson
City, Nevada 89701. The name of the registered agent is Resident Agents of
Nevada. Such registered agent has a business office identical with such
registered office.
(b) Other Offices. The Corporation shall also have an office at 12885
North Research Blvd., Suite 202, Austin, Texas 78750 and may have offices
at such places, either within or outside the State of Nevada, as the Board
of Directors may from time to time determine or as the business of the
Corporation may require.
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