UNITED SERVICES ADVISORS, INC.
AMENDMENT TO BY-LAWS
The By-Laws of the Corporation are hereby amended by action of the Board of
Directors at a meeting held February 10, 1995.
ARTICLE III DIRECTORS, Section 1. Number of Directors. will be amended to
include an additional Paragraph designated as Section 1.1 and will read as
follows:
Section 1.1. The Board of Directors of the Corporation shall consist of 9
directors, of whom 2 shall be nominated by Marleau, Lemire Inc. ("Marleau")
(or the successors or assignees of its rights under the Shareholders
Agreement hereinafter referred to).
ARTICLE III DIRECTORS, Section 6. Regular Meetings. will be amended to
include an additional Paragraph designated as Section 6.1 and will read as
follows:
Section 6.1 There shall be at least 4 meetings of the Board of Directors of
the Corporation annually and inasmuch as reasonably possible, one such
meeting during each of its fiscal quarters. In the event that any director
nominated by Marleau is unable to attend a meeting of the Board of
Directors, Marleau may delegate an observer (who may speak but will not
have any voting right) to attend such meeting.
ARTICLE III DIRECTORS, Section 8. Quorum. shall be amended to include an
additional Paragraph designated as Section 8.1 and will read as follows:
Section 8.1 A quorum of a meeting of each of the Board of Directors and the
audit or remuneration committee of the Corporation shall consist of a
majority of the directors then forming part of the Board of Directors or
such committee, respectively, provided that at least 1 director nominated
by Marleau is present at such meeting. Notwithstanding the foregoing, the
absence of any or all directors nominated by Marleau at a meeting of the
Board of Directors or the audit or remuneration committee previously
adjourned for such reason and called for the same purpose shall not prevent
a quorum of such meeting if a majority of the directors then forming part
of the Board of Directors or such committee, as the case may be, are
present thereat.
ARTICLE III DIRECTORS, Section 9. Committees. shall be amended to include
an additional Paragraph designated as Section 9.1 and will read as follows:
Section 9. 1. Each of the audit and remuneration committees of the
Corporation shall include at least 1 representative designated by Marleau.
In the event that any such representative of Marleau is unable to attend a
meeting of any such committee,
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Marleau may delegate an observer (who may speak but will not have any
voting right) to attend such meeting.
ARTICLE III DIRECTORS, a Section 12 be included to read as follows:
Section 12. Books of Account and Records. The books of account and records
of the Corporation shall be kept and maintained at all times at the head
office of the Corporation and Marleau shall have the same right of access
to such books of account and records that a director of a corporation
constituted under the BUSINESS CORPORATION ACT (TEXAS) has thereunder.
ARTICLE III NOTICES, Sections 6 and 7. Regular Meetings and Special
Meetings. shall be amended to include an additional Paragraph designated as
Section 7.1 and shall read as follows:
Section 7.1 Notices of convocation in respect of each regular or special
meeting of the Board of Directors or the audit or remuneration committee of
the Corporation shall be given to each director or member of such
committee, respectively, at least 25 hours prior to each such meeting,
containing an agenda for such meeting.
ARTICLE IV NOTICES, Section 2. Waiver. shall be amended to include an
additional Paragraph designated as Section 2.1 and will read as follows:
Section 2.1. The presence in person or participation by conference call of
a director at any such meeting shall be deemed to be a waiver of notice for
the meeting, unless such director objects to the holding of the meeting on
the basis that same is not regularly held or called.
The Board of Directors' action provided further that each of the amendments to
the By-Laws set forth above and as stipulated by the Shareholders Agreement
dated December 7, 1994, will be revoked upon termination of the Shareholders
Agreement.
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UNITED SERVICES ADVISORS INC.
AMENDMENT TO BY-LAWS
RESOLVED: That Article II, Section 2 of the By-Laws of the Company is
hereby amended to read as follows:
"Section 2. Annual Meetings. Annual meeting of the shareholders shall
be held within 120 days after the expiration of the Corporation's
fiscal year, at which meeting the shareholders shall elect Directors
and transact such other business as may properly be brought before the
meeting.
Amended by Action of Board of Directors at a meeting held April 18, 1991.
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The ByLaws of the Corporation are hereby amended by deleting therefrom
Article VIII - Indemnity, in its entirety, and substituting in its place the
following:
ARTICLE VIII
INDEMNITY
Section 1. Indemnification of Directors and Officers. The Corporation
shall, to the fullest extent to which it is empowered to do so by the Texas
Business Corporation Act or any other applicable laws as may from time to time
be in effect, indemnify any person who was, is or is threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, partner, venturer,
proprietary, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, trust or other enterprise,
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding. The Corporation's obligations under this
Section include, but are not limited to, the convening of any meeting, and the
consideration of any matter thereby, required by statute in order to determine
the eligibility of an officer or director for indemnification. The Corporation's
obligation to indemnify and to prepay expenses under this Section shall arise,
and all rights granted to directors, officers, employees or agents hereunder
shall vest, at the time of the occurrence of the transaction or event to which
such action, suit or proceeding relates, or at the time that the action or
conduct to which such action, suit or proceeding relates was f irst taken or
engaged in (or omitted to be taken or engaged in), regardless of when such
action, suit or proceeding is first threatened, commenced or completed.
Notwithstanding any other provision of these Bylaws or the Articles or
Certificate of Incorporation of the Corporation, no action taken by the
Corporation, either by amendment of the Bylaws or the Certificate of
Incorporation of the Corporation or otherwise, shall diminish or adversely
affect any rights to indemnification or prepayment of expenses granted under
this Article VIII which shall have become vested as aforesaid prior to the date
that such amendment or other corporate action is taken. Further, if any
provision of this Article VIII shall be held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions shall not in any way be
affected or impaired.
Section 2. Insurance. The Board of Directors shall have, in its discretion,
the power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
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serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of the Texas Business Corporation Act, the articles of
incorporation or these Bylaws.
Amended by Action of the Board of Directors at a meeting held October 4, 1988.
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AMENDMENT TO THE BY-LAWS
"RESOLVED: That Article VIII, Section 2 for permissive indemnification of
Directors and Section 5 of that Section of the By- Laws of the Company is hereby
amended to read as follows:
"That United Services Advisors, Inc. hereby does and will indemnify its
Directors, Officers, Employees, Agents and Others who are, or, are
threatened to be made a named defendant or respondent in a proceeding
because the person is or was a Director and/or Officer, Employee, Agent
or Other of the Corporation. Determination of indemnification and
advancement of expenses must be made in the manner specified in Section
4 of Article VIII and the Texas Business Corporation Act ("TBCA"), and
provided that such person otherwise meets the provisions of Section 2.,
3. and 5. of Article VIII of the By-Laws and TBCA."
Amended by Action of the Board of Directors at a meeting held April 29, 1987.
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AMENDMENT TO BY-LAWS
RESOLVED: That Article II, Section 2 of the By-Laws of the Company is
hereby amended to read as follows:
"Section 2. Annual Meetings. Annual meetings of the shareholders shall be
held on the last Friday in February of each year, at which meeting the
shareholders shall elect Directors and transact such other business as may
properly be brought before the meeting."
Amended by Action of Directors by Unanimous Written Consent Dated October 4,
1985.
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BY-LAWS
OF
UNITED SERVICES ADVISORS, INC.
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of the Corporation shall
be 5300 Woodway Park, 11333 IR 10 West, San Antonio, Bexar County, Texas.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Texas as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
SHAREHOLDERS
Section 1. Time and Place of Meeting. All meetings of the shareholders
shall be held at such time and at such place within or without the State of
Texas as shall be determined by the Board of Directors.
Section 2. Annual Meetings. Annual meetings of the shareholders shall be
held within 120 days after the expiration of the Corporation's fiscal vear, at
which meeting the shareholders shall elect Directors and transact such other
business as may properly be brought before the meeting.
Section 3. Special Meetings. Special meetings of the shareholders may be
called at any time by the President or the Board of Directors, and shall be
called by the President or Secretary at the request in writing of the holders of
not less than ten percent (10%) of all the shares issued, outstanding and
entitled to vote at the meeting. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at special meetings shall
be confined to the purposes stated in the notice of the meeting.
Section 4. Notice. Written or printed notice stating the place, day and
hour of any shareholders' 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 (10) nor more than fifty (50) days before the date of the meeting,
either personally or by mail, by or at the direction of the President,
Secretarv, or the officer or person calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, postage prepaid, to
the shareholder at his/her address as it appears on the stock transfer books of
the Corporation.
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Section 5. Record Date. The Board of Directors may fix in advance a record
date for the purpose of determining shareholders entitled to notice of or to
vote at a meeting of shareholders, such record date to be not less than ten (10)
nor more than fifty (50) days prior to such meeting, or the Board of Directors
may close the stock transfer books for such purpose for a period of not less
than ten (10) nor more than fifty (50) days prior to such meeting. In the
absence of any action by the Board of Directors, the date upon which the notice
of the meeting is mailed shall be the record date.
Section 6. List of Shareholders. The officer or agent of the Corporation
having charge of the stock transfer books for shares of the Corporation shall
make, at least ten (10) days before each meeting of the 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
voting shares held by each, which list, for a period of ten (10) days prior to
such meeting, shall be kept on file at the registered office of the Corporation
and shall be subject to inspection by any such shareholder at any time during
the 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 meetings of shareholders.
Section 7. Quorum. The holders of a majority of the issued and outstanding
shares and entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum at all meetings of the shareholders for the
transaction of business except as otherwise provided by the Texas Business
Corporation Act (herein called the "Act"). If, however, such quorum shall not be
present or represented at any meeting of the shareholders, the shareholders
entitled to vote, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. When any adjourned
meeting is reconvened and a quorum shall be present or represented, any business
may be transacted which might have been transacted at the meeting as originally
notified. Once a quorum is constituted, the shareholders present or represented
by proxy at a meeting may continue to transact business until adjournment,
notwithstanding the subsequent withdrawal therefrom of such number of
shareholders as to leave less than a quorum.
Section 8. Voting. When a quorum is present at any meeting, the vote of the
holders of a majority of the shares present or represented by proxy at such
meeting and entitled to vote shall be the act of the shareholders, unless the
vote of a different number is required by the Act, the Articles of Incorporation
or these By- Laws. The holders of shares of Class A
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Common Stock shall have full voting rights at any annual or special meeting of
the shareholders and as provided in the Texas Business Corporation Act. The
holders of shares of Class B Common Stock shall have no power to vote at any
annual or special meeting of the shareholders, except as may be required by the
Texas Business Corporation Act.
Section 9. Proxy. Each shareholder shall at every meeting of the
shareholders be entitled to one vote in person or by proxy for each share having
voting power held by such shareholder. Every proxy must be executed in writing
by the shareholder or by his duly authorized attorney-in-fact, and shall be
filed with the Secretary of the Corporation prior to or at the time of the
meeting. No proxy shall be valid after eleven months from the date of its
execution unless otherwise provided therein. Each proxy shall be revocable
unless expressly provided therein to be irrevocable and unless otherwise made
irrevocable by law.
Section 10. Action by Written Consent. Any action required or permitted to
be taken at any meeting of the shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the shareholders entitled to vote with respect to the subject matter thereof,
and such consent shall have the same force and effect as a unanimous vote of
shareholders.
Section 11. Meetings by Conference Telephone. Shareholders may participate
in and hold meetings of shareholders by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transactions of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE III
DIRECTORS
Section 1. Number of Directors. The number of directors of the Corporation
shall be from 3 to 11. The Board of Directors shall each year prior to the
annual shareholders meeting determine the number of directors that the
Corporation shall have for the ensuing year. Directors shall be elected at the
annual meeting of the shareholders, except as provided in Section 2 of this
Article, and each director shall hold office until his/her successor is elected
and qualified. Directors need not be shareholders of the Corporation or
residents of the State of Texas.
Section 2. Vacancies. Any vacancy occurring in the Board of Directors maybe
filled by the affirmative vote of a majority of the remaining directors, though
the remaining directors may constitute less than a quorum of the Board of
Directors as fixed
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by Section 8 of this Article. A director elected to fill a vacancy shall be
elected for the unexpired term of his/her predecessor in office. Any
directorship to be filled by reason of an increase in the number of directors
shall be filled by the Board of Directors for a term of office continuing only
until the next election of one or more directors by the shareholders or by
election at an annual meeting or at a special meeting of shareholders called for
that purpose; provided that the Board of Directors may not fill more than two
such directorships during the period between any two successive annual meetings
of shareholders. At any annual meeting of shareholders, or any special meeting
called for such purpose, any director may be removed from office, for or without
cause, though his/her term may not have expired.
Section 3. General Powers. The business of the Corporation shall be managed
by its Board of Directors, which may exercise all powers of the Corporation and
do all such lawful acts and things as are not by the Act, the Articles of
Incorporation or by these By- Laws directed or required to be exercised or done
by the shareholders.
Section 4. Place of Meetings. The directors of the Corporation may hold
their meetings, both regular and special, either within or without the State of
Texas.
Section 5. Annual Meetings. The first meeting of each newly elected Board
of Directors shall be held without further notice immediately following the
annual meeting of the shareholders, and at the same place, unless by unanimous
consent of the directors then elected and serving such time or place shall be
changed.
Section 6. Regular Meetings. Regular meetings of the Board of Directors may
be held without notice at such time and place as shall from time to time be
determined by the Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of Directors may
be called by the President on two days' notice to each director, either
personally or by mail or by telegram. Special meetings shall be called by the
President or Secretary in like manner and on like notice on the written request
of any two (2) directors.
Section 8. Quorum. At all meetings of the Board of Directors the presence
of a majority of the then serving directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the affirmative vote of
at least a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by the Act, the Articles of Incorporation or these
By-Laws. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to
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time without notice other than announcement at the meeting, until a quorum shall
be present.
Section 9. Committees. The Board of Directors may, by resolution passed by
a majority of the whole Board, designate committees, each committee to consist
of two or more directors, which committees shall have such power and authority
and shall perform such functions as may be provided in such resolution. Such
committee or committees shall have such name or names as may be designated by
the Board of Directors and shall keep regular minutes of their proceedings and
report the same to the Board of Directors when required.
Section 10. Action by Written Consent. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee designated
by the Board of Directors may be taken without a meeting if a written consent,
setting forth the action so taken, is signed by all the members of the Board of
Directors or of such committee, and such consent shall have the same force and
effect as a unanimous vote at a meeting.
Section 11. Meetings by Conference Telephone. 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 Board or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
such a meeting shall constitute presence in person at such meeting, except where
a person participates in the meeting for the express purpose of objecting to the
transactions of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE IV
NOTICES
Section 1. Form of Notice. Whenever under the provisions of the Act, the
Articles of Incorporation or these By-Laws, notice is required to be given to
any director or shareholder, and no provision is made as to how such notice
shall be given, it shall not be construed to mean personal notice, but any such
notice may be given in writing, by mail, postage prepaid, addressed to such
director or shareholder at such address as appears on the books of the
Corporation. Any notice required or permitted to be given by mail shall be
deemed to be given at the time when the same be thus deposited, postage prepaid,
in the United States mail as aforesaid.
Section 2. Waiver. Whenever any notice is required to be given to any
director or shareholder of the Corporation, under the provisions of the Act, the
Articles of Incorporation or these By- Laws, a waiver thereof in writing signed
by the person or persons entitled to such notice, whether before or after the
time
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stated in such notice, shall be deemed equivalent to the giving of such notice.
ARTICLE V
OFFICERS
Section 1. In General. The officers of the Corporation shall be elected by
the Board of Directors and shall be a President, a Vice President, a Secretary,
a Treasurer and/or a Comptroller. The Board of Directors may also, if it chooses
to do so, elect a Chairman of the Board, additional Vice Presidents, one or more
Assistant Secretaries and one or more Assistant Treasurers, all of whom shall
also be officers. Two or more offices may be held by the same person.
Section 2. Election. The Board of Directors at its first meeting after such
annual meeting of the shareholders shall elect a President and, if it so
chooses, may elect a Chairman of the Board, both of whom shall be members of the
Board, but-the other officers need not be members of the Board. The Board of
Directors may appoint such other officers and agents as it shall deem necessary
and may determine the salaries of all officers and agents from time to time. The
officers shall hold office until their successors are chosen and qualified. Any
officer elected or appointed by the Board of Directors may be removed, for or
without cause, at any time by a majority vote of the whole Board. Election or
appointment of an officer or agent shall not of itself create contract rights.
Section 3. Chairman. The Chairman of the Board of Directors, if there be a
Chairman, shall preside at all meetings of the shareholders and the Board of
Directors and shall have such other powers as may from time to time be assigned
by the Board of Directors.
Section 4. President. The President shall be the chief executive officer of
the Corporation, shall preside at all meetings of the shareholders and the Board
of Directors, if a Chairman of the Board has not been elected, and shall have
the general and active management of the business of the Corporation and shall
see that all orders and resolutions of the Board of Directors are carried into
effect. The President shall execute all contracts requiring a seal and shall
also execute any mortgages, conveyances or other legal instruments in the name
of and on behalf of the Corporation, but this provision shall not prohibit the
delegation of such powers by the Board of Directors to some other officer, agent
or attorney-in-fact of the Corporation.
Section 5. Vice Presidents. The Vice President or, if there be more than
one, the Vice Presidents in the order of their seniority or in any other order
determined by the Board of Directors, shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and
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shall generally assist the President and perform such other duties as the Board
of Directors shall prescribe.
Section 6. Secretary. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the shareholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose, and shall
perform like duties for any other committees of the Board when required. He/she
shall give, or cause to be given, notice of all meetings of the shareholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or President, under whose
supervision he/she shall be. He/she shall keep in safe custody the seal of the
Corporation.
Section 7. Assistant Secretaries. Any Assistant Secretary shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as may be prescribed
by the Board of Directors or the President.
Section 8. Treasurer. The Treasurer shall have the custody of all corporate
funds and securities, and shall keep full and accurate accounts of receipts and
disbursements of the Corporation, and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. He/she shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, AND shall render to
the President and Directors, at the regular meetings of the Board or whenever
they may require it, an account of all his/her transactions as Treasurer and of
the financial condition of the Corporation, and shall perform such other duties
as may be prescribed by the Board of Directors or the President.
Section 9. Comptroller. The Comptroller shall, in the absence or disability
of the Treasurer, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties as may be prescribed by the Board of
Directors or the President.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES/UNCERTIFICATED SHARES
Section 1. Form of Certificates/Uncertificated Shares. The Corporation
shall deliver certificates representing all shares to which shareholders are
entitled; or the shares of the Corporation may be uncertificated shares as
provided by resolution of the Board of Directors. Certificates representing
shares of the Corporation shall be in such form as shall be determined by the
Board of Directors and shall be numbered consecutively and entered in the books
of the Corporation as they are issued. Each certificate shall state on the face
thereof the holder's name,
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the number, class of shares, and the par value of the shares or a statement that
the shares are without par value. They shall be signed by the President or a
Vice President and the Secretary or an Assistant Secretary, and may be sealed
with the seal of the Corporation or a facsimile thereof if the Corporation shall
then have a seal. If any certificate is countersigned by a transfer agent or
registered by a registrar, either of which is other than the Corporation or an
employee of the Corporation, the signatures of the Corporation's officers may be
facsimilies. In case any officer or officers who have signed, or whose facsimile
signature or signatures have been used on such certificate or certificates,
shall cease to be such officer or officers of the Corporation, whether because
of death, resignation or otherwise, before such certificate or certificates have
been delivered by the Corporation or its agents, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed the certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the Corporation.
Section 2. Lost Certificates. The Board of Directors may direct that a new
certificate be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost or
destroyed. When authorizing the issue of a new certificate, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of the lost or destroyed certificate, or his/her
legal representative, to advertise the same in such manner as it shall require
and/or give the Corporation a bond in such form, in such sum, and with such
surety or sureties as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
Section 3. Transfer of Shares. Shares of stock shall be transferable only
on the books of the Corporation by the holder thereof in person or by his duly
authorized attorney and, upon surrender to the Corporation or to the transfer
agent of the Corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation or the transfer agent 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 4. Registered Shareholders. The Corporation shall be entitled to
recognize the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the outstanding shares of the
Corporation, subject to the provisions of the Act and of the Articles of
Incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting. Dividends may be declared and paid in cash, in property, or
in shares of the Corporation, provided that all such declarations and payments
of dividends shall be in strict compliance with all applicable laws and the
Articles of Incorporation. The Board of Directors may fix in advance a record
date for the purposes of determining shareholders entitled to receive payment of
any dividend, such record date to be not more than fifty (50) days prior to the
payment date of such dividend, or the Board of Directors may close the stock
transfer books for such purpose for a period of not more than fifty (50) days
prior to the payment date of such dividend. In the absence of any action by the
Board of Directors, the date upon which the Board of Directors adopts the
resolution declaring such dividend shall be the record date.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be the
period from July 1 through June 30 of each year.
Section 3. Seal. The Corporation shall have a seal and said seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
manner reproduced. Any officer of the Corporation shall have authority to affix
the seal to any document requiring it.
Section 4. Annual Statement. The Board of Directors shall present at each
annual meeting and when called for by vote of the shareholders at any special
meeting of the shareholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VIII
INDEMNITY
Section 1. Definitions. When used in this Article, unless the context
otherwise requires:
(a) the term "Corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger, consolidation, or other
transaction in which the liabilities of the predecessor are transferred to
the Corporation by operation of law and in any other transaction in which
the Corporation assumes the liabilities of the predecessor but does not
specifically exclude liabilities that are the subject matter of this
Article;
(b) the term "director" means any person who is or was a director of
the Corporation and any person who, while a director of the Corporation, is
or was serving at the
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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;
(c) the term "expenses" includes court costs and attorneys' fees;
(d) the term "official capacity" means (a) when used with respect to a
director, the office of director in the Corporation and (b) when used with
respect to a person other than a director, the elective or appointive
office in the Corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the
Corporation, but in each case does not include service for any other
foreign or domestic corporation or any partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise; and
(e) the term "proceeding" means any threatened, pending, or
contemplated action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that could
lead to such an action, suit, or proceeding.
Section 2. Permissive Indemnification of Directors. The Corporation may
indemnify a person who was, is, or is threatened to be made a named defendant or
respondent in a proceeding because the person is or was a director of the
Corporation only if it is determined in accordance with the procedure set forth
in Section 4 of this Article that the person:
(a) conducted himself/herself in good faith,
(b) reasonably believed (a) in the case of conduct in his/her official
capacity as a director of the Corporation, that his/her conduct was in the
Corporation's best interest and (b) in all other cases, that his/her
conduct was at least not opposed to the Corporation's best interests, and
(c) in the case of any criminal proceeding, had no reasonable cause to
believe his/her conduct was unlawful.
A person may not be indemnified under this Section for obligations
resulting from a proceeding (a) in which he/she is found liable on the basis
that personal benefit was improperly received by him/her, whether or not the
benefit resulted from an action taken in his/her official capacity, or (b) in
which he/she is found liable to the Corporation. The termination of a proceeding
by judgment, order, settlement, or conviction, or on a plea of nolo contenders
or its equivalent is not of itself determinative that the person did not meet
the requirements set forth in this
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Section. A person may be indemnified under this Section against judgments,
penalties (including excise and similar taxes), fines, settlements, and
reasonable expenses actually incurred by him/her in connection with the
proceeding; but, if the proceeding was brought by or on behalf of the
Corporation, the indemnification is limited to reasonable expenses actually
incurred by the person in connection with the proceeding.
Section 3. Payment or Reimbursement of Expenses in Advance of Final
Disposition. Reasonable expenses incurred by a director who was, is, or is
threatened to be made a named defendant or respondent in a proceeding may be
paid or reimbursed by the Corporation in advance of the final disposition of the
proceeding after:
(a) the Corporation receives a written affirmation by the person of
his/her good faith belief that he has met the standard of conduct necessary
for indemnification under this Article and a written undertaking by or on
behalf of the person to repay the amount paid or reimbursed if it is
ultimately determined that he/she has not met those require- ments, and
(b) a determination that the facts then known to those making the
determination would not preclude indemnification under this Article.
The written undertaking required by this Section must be an unlimited
general obligation of the director but need not be secured. It may be accepted
without reference to financial ability to make repayment. Determinations and
authorizations of payment under this Section must be made in the manner
specified by Section 4 of this Article for determining that indemnification is
permissible. Notwithstanding any other provision of this Article, the
Corporation may pay or reimburse expenses incurred by a director in connection
with his/her appearance as a witness or other participation in a proceeding at a
time when he/she is not a named defendant or respondent in the proceeding.
Section 4. Determination of Indemnification and Payment or Reimbursement of
Expenses. A determination of indemnification or payment or reimbursement of
expenses under this Article must be made:
(a) by a majority vote of a quorum consisting of directors who at the
time of the vote are not named defen- dants or respondents in the
proceeding;
(b) if such a quorum cannot be obtained, by a majority vote of a
committee of the Board of Directors, designated to act in the matter by a
majority vote of all directors, consisting solely of two or more directors
who at the time of the vote are not named defendants or respondents in the
proceeding;
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(c) by special legal counsel selected by the Board of Directors or a
committee thereof by vote as hereinbefore set forth in this paragraph, or,
if such a quorum cannot be obtained and such a committee cannot be
established, by a majority vote of all directors; or
(d) by the shareholders in a vote that excludes the shares held by
directors who are named defendants or respon- dents in the proceeding.
Authorization of indemnification and determination as to reason- ableness
of expenses must be made in the same manner as set forth in this Section for the
determination that indemnification is permissible, except that if the
determination that indemnifica-tion is permissible is made by special legal
counsel, authoriza-tion of indemnification and determination as to
reasonableness of expenses must be made in the manner specified by this Section
for the selection of special legal counsel.
Section 5. Permissive Indemnification of Officers, Em- ployees, Agents and
Other. The Corporation may indemnify and advance expenses to an officer,
employee, or agent of the Corpo- ration and to nominees and designees (who are
not or were not officers, employees, or agents of the Corporation) 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 corpora-tion, partnership, joint venture, sole
proprietorship, trust, or other enterprise, or employee benefit plan to the same
extent that it may indemnify and advance expenses to directors under this
Article. Determinations of indemnification and advancement of expenses under
this Section must be made in the manner speci-fied by Section 4 of this Article.
Section 6. Mandatory Indemnification of Directors and Officers. The
Corporation shall indemnify any director or officer of the Corporation against
reasonable expenses incurred by him/her in connection with a proceeding in which
he/she is a party because he/she is a director or officer of the Corporation if
he/she has been wholly successful, on the merits or otherwise, in the defense of
the proceeding. If, in a suit for the indemnification required by this Section,
a court of competent jurisdiction determines that the director or officer is
entitled to indemnification under this Section and Article 2.02-1 H of the Texas
Business Corporation Act, the court shall order indemnification and shall award
to the director or officer the expenses incurred in securing the
indemnification.
Section 7. Liability Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation or who is or was serving at the request of the
Corporation as a director, officer, partner,, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or
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domestic corporation, partnership, joint venture, sole proprie- torship, trust,
other enterprise, or employee benefit plan, against any liability asserted
against him/her and incurred by him/her in such a capacity or arising out of
his/her status as such a person, whether or not the Corporation would have the
power to indemnify him/her against that liability under this Article and the
provisions of the Texas Business Corporation Act.
Section S. Report to Shareholders. Any indemnification of or advance of
expenses to a director in accordance with this Article 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 pursuant to Article 9.10A of the Texas
Business Corporation Act and, in any case, within the twelve-month period
immediately following the date of the indemnification or advance.
Section 9. Special Provisions for Employee Benefit Plans. For purposes of
this Article, the Corporation is deemed to have requested a director to serve an
employee benefit plan whenever the performance by him/her of his/her duties to
the Corporation also imposes duties on or otherwise involves services by him/her
to the plan or participants or beneficiaries of the plan. Excise taxes assessed
on a director with respect to an employee benefit plan pursuant to applicable
law are deemed fines. Action taken or omitted by a director with respect to an
employee benefit plan in the performance of his/her duties or a purpose
reasonably believed by him/her to be in the interest of the participants and
beneficiaries of the plan is deemed to be for a purpose which is not opposed to
the best interests of the Corporation.
ARTICLE IX
BY-LAWS
Section 1. Amendments. These By-Laws may be altered, amended or repealed
and new By-Laws may be adopted by the Board of Directors at any regular meeting
or at any special meeting called for that purpose.
Section 2. When By-Laws Silent. It is expressly recognized that when the
By-Laws are silent as to the manner of performing any corporate function, the
provisions of the Texas Business Corporation Act shall control.
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