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EXHIBIT 3.4
BYLAWS
OF
POWERBRIEF, INC.
ARTICLE I
SHAREHOLDERS AND SHAREHOLDERS' MEETINGS
Section 1. Place of meetings: All meetings of the shareholders shall be
held at such place within or without the State of Texas as may be determined by
the board of directors and set forth in the respective notice or waivers of
notice of such meeting.
Section 2. Annual Meetings of Shareholders: The annual meeting of the
shareholders of the corporation, for the election of directors and the
transaction of such other business as may properly come before the meeting,
shall be held at such time and date as shall be designated by the board of
directors from time to time and stated in the notice of the meeting. Such annual
meeting shall be called in the same manner as provided in these bylaws for
special meetings of the shareholders, except that the purposes of such meeting
need be enumerated in the notice and proxies of such meeting only to the extent
required by law in the case of annual meetings.
Section 3. Special Meetings of Shareholders: Special meetings of the
shareholders may be called by the chief executive officer and shall be called by
the chief executive officer or secretary at the request of a majority of the
board of directors, or at the request in writing of shareholders owning a
majority of all issued and outstanding shares entitled to vote. Business
transacted at all special meetings shall be confined to the purposes stated in
the call.
Section 4. Notice of Meetings of Shareholders:Written or printed notice
stating the place, day and hour of the meeting and, in case of special meetings,
the purpose or purposes for which the meeting is called, shall be delivered not
less than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the chief executive
officer, the secretary, 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
addressed to the shareholder at his address as it appears on the share transfer
records of the corporation, with postage prepaid.
Section 5. Quorum: The holders of a majority of the shares entitled to
vote at a meeting of shareholders shall constitute a quorum at all meetings of
the shareholders, except as otherwise provided by law or the articles of
incorporation. Once a quorum is present at the meeting of shareholders, the
subsequent withdrawal from the meeting of any shareholder prior to adjournment
or the refusal of any shareholder represented in person or by proxy to vote
shall not affect the presence of a quorum at the meeting. If, however, such
quorum shall not be present or represented at any meeting of the shareholders,
the shareholders entitled to vote at such meeting present in person, or by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until the holders of the requisite
amount of voting shares shall be present or represented. At such adjourned
meeting at which the
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requisite amount of voting shares shall be present or represented any business
may be transacted which might have been transacted at the meeting as originally
noticed. If the 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 to each shareholder of record entitled to
vote at the meeting. The vote of the holders of a majority of the shares
represented at a meeting at which a quorum is present shall be the act of the
shareholders' meeting, unless the vote of a greater number is required by law,
the articles of incorporation or these bylaws.
Section 6. Voting and Proxies: At each meeting of the shareholders
every shareholder having the right to vote shall be entitled to vote in person,
or by proxy appointed by an instrument in writing subscribed by such shareholder
and bearing a date not more than eleven (11) months prior to said meeting,
unless said proxy provides for a longer period. Each shareholder shall have one
vote for each share of stock having voting power registered in his name on the
books of the corporation.
Section 7. Voting on Matters Other Than the Election of Directors: For
purposes of voting on matters other than the election of directors or a matter
for which the affirmative vote of the holders of a specified portion of the
shares entitled to vote is required by the Texas Business Corporation Act, the
act of the shareholders shall be the affirmative vote of the holders of a
majority of the shares entitled to vote on that matter and represented in person
or by proxy at a meeting of shareholders at which a quorum is present.
Section 8. Voting in the Election of Directors: For purposes of voting
on the election of directors, directors shall be elected by a plurality of the
votes cast by the holders of shares entitled to vote in the election of
directors at a meeting of shareholders at which a quorum is present.
Section 9. List of Shareholders Entitled to Vote: The officer or agent
having charge of the share transfer records for shares of a corporation shall
make, at least ten (10) days before each meeting of shareholders, a complete
list of the shareholders entitled to vote at such meeting or any adjournment
thereof, arranged in alphabetical order, with the address of and the number of
shares held by each, which list, for a period of ten (10) days prior to such
meeting, shall be kept on file at the registered office or principal place of
business of the corporation and shall be subject to inspection by any
shareholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder during the whole time of the meeting. The
original share transfer records shall be prima facie evidence as to who are the
shareholders entitled to examine such list or transfer records or to vote at any
meeting of shareholders. Failure to comply with the requirements of this Section
shall not affect the validity of any action taken at such meeting.
Section 10. Closing of Transfer Books and Record Dates: For the purpose
of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive a distribution
by a corporation (other than a distribution involving a purchase or redemption
by the corporation of any of its own shares) or a share dividend, or in order to
make a determination of shareholders for any other proper purpose (other than
determining shareholders entitled to consent to action by the shareholders
proposed
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to be taken without a meeting of shareholders), the board of directors of a
corporation may provide that the share transfer records shall be closed for a
stated period but not to exceed, in any case, sixty (60) days. If the share
transfer records shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such records
shall be closed for at least ten (10) days immediately preceding such meeting.
In lieu of closing the share transfer records, the bylaws, or in the absence of
an applicable bylaw, the board of directors, may fix in advance a date as the
record date for any such determination of shareholders, such date in any case to
be not more than sixty (60) days and, in the case of a meeting of shareholders,
not less than ten (10) days, prior to the date on which the particular action
requiring such determination of shareholders is to be taken. If the share
transfer records are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive a distribution (other than a
distribution involving a purchase or redemption by the corporation of any of its
own shares) or a share dividend, the date on which notice of the meeting is
mailed or the date on which the resolution of the board of directors declaring
such distribution or share dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this Section, such determination shall apply to any adjournment
thereof except where the determination has been made through the closing of the
share transfer records and the stated period of closing has expired. If the
share transfer books are not closed, and no record date is fixed for
determination of shareholders entitled to execute a consent in writing in lieu
of a meeting of shareholders, and the prior action of the board of directors is
not required by law, the record date for determining shareholders 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, and, if no record date shall have been fixed by
the board of directors and prior action by the board of directors is required by
applicable law, the record date for determining shareholders entitled to consent
to the 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.
Section 11. Registered Shareholders: The corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact of such share or shares for all purposes, and accordingly shall not be
bound to recognize any equitable or other claim to or interest in such share on
the part of any other person, whether or not it shall have express or other
notice of such claim or interest, except as expressly provided by the laws of
Texas.
ARTICLE II
Board of Directors
Section 1. Number and qualifications: The power of the corporation
shall be exercised by or under the authority of, and the business and affairs of
the corporation shall be managed under the direction of a board of not less than
one (1) director, as may be determined by the shareholders or the board of
directors from time to time, but no decrease in the number of directors shall
have the effect of shortening the term of any incumbent director. Directors need
not be shareholders nor be residents of the State of Texas. The board in its
discretion may elect a chairman of the board who shall preside at board meetings
and generally manage the affairs of the board.
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Section 2. Election: At each annual meeting of the shareholders, the
shareholders shall elect directors to hold office until the next succeeding
annual meeting. Each director shall hold office for the term for which he is
elected and until his successor shall be elected and qualified unless sooner
removed by action of the shareholders.
Section 3. Vacancies: Any vacancy occurring in the board of directors
may be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the board of directors. Any directorship to be
filled by reason of any increase in the number of directors may be filled by (a)
the shareholders of the corporation at an annual or special meeting; or (b) the
board of directors (subject, however, to the limitations set forth in Article
2.34 of the Texas Business Corporation Act).
Section 4. Place of Meetings: All meetings of the board of directors of
the corporation may be held either within or without the State of Texas.
Section 5. Annual Meeting of the Board: The annual meeting of each
newly elected board shall be held, without further notice, immediately following
the annual meeting of shareholders, and at the same place, or at such other time
and place as shall be fixed with the consent in writing of all the directors.
Section 6. Regular Meetings: Regular meetings of the board may be held
without notice at such time and place either within or without the State of
Texas as shall from time to time be determined by the board.
Section 7. Special Meetings: Special meetings of the board may be
called by the chief executive officer on 48 hours' notice to each director,
either personally or by mail, telephone or by telegram; special meetings shall
be called by the chief executive officer or secretary in like manner and on like
notice on the written request of two directors.
Section 8. Quorum: At all meetings of the board the presence of a
majority of the number of directors fixed by Section 1 of this Article II shall
be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise provided by law or the articles of incorporation or these
bylaws. If a quorum shall not be present at any meeting of directors, the
directors present at the meeting may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present.
Section 9. Powers of Board of Directors: In addition to the powers and
authorities expressly conferred by these bylaws upon them, the board may
exercise all such powers of the corporation and do all such lawful acts and
things as are not directed or required to be exercised or done by the
shareholders by statute or the articles of incorporation or these bylaws.
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Section 10. Compensation of Directors: Directors, as such, shall not
receive any stated salary for their services, but shall receive such
compensation for their services as may be from time to time fixed by resolution
of the board of directors. In addition, a fixed sum and expenses of attendance,
if any, may be allowed for attendance at each regular or special meeting of the
board by resolution of the board, provided that nothing contained in these
bylaws shall be construed to preclude any director from serving the corporation
in any other capacity and receiving compensation for such service.
Section 11. Attendance and Waiver of Notice: Attendance of a director
at any meeting shall constitute a waiver of notice of such meeting, except where
a director attends a meeting for the sole purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened. Neither the business to be transacted at nor the purpose of
any regular or special meeting of the board of directors need be specified in
the notice or waiver of notice of such meeting, except that notice shall be
given of any proposed amendment to these bylaws if it is to be adopted at any
special meeting or with respect to any other matter where notice is required by
statute.
Section 12. Removal of Directors: Any director may be removed (with or
without cause) by the affirmative vote of the holders of a majority of the
shares then entitled to vote in the election of directors at any duly called
shareholders' meeting.
Section 13. Executive and Other Committees: The board of directors may,
by resolution or resolutions passed by a majority of the whole board, designate
one or more committees, each committee to consist of one or more of the
directors of the corporation, and may designate one or more of its members as
alternate members of the committee who may, subject to any limitations imposed
by the board of directors, replace absent or disqualified members at any meeting
of that committee. Any such committee, to the extent provided in said resolution
or resolutions, shall have and may exercise the powers of the board of directors
in the management of the business and affairs of the corporation, but no such
committee shall have the power or authority in reference to amending the
articles of incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all property and assets of the corporation, recommending to the
stockholders a dissolution of the corporation or a revocation of dissolution, or
amending the bylaws of the corporation; and, unless the resolution or the
certificate of incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors and
shall keep regular minutes of their proceedings and report the same to the board
when required.
ARTICLE III
Officers
Section 1. Number: The officers of the corporation shall be chosen by
the board of directors and shall be a president and a secretary. The board of
directors, in its discretion, may also choose a chief executive officer, a chief
financial officer, a treasurer and one or more vice presidents, assistant
secretaries, assistant treasurers or other officers. Any two or more offices
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may be held by the same person. Such officers shall be chosen by the board of
directors at such time and in such manner and for such terms as the board of
directors may prescribe.
Section 2. General Duties: All officers and agents of the corporation,
as between themselves and the corporation, shall have such authority, perform
such duties and manage the corporation as may be provided in these bylaws or as
may be determined by resolution of the board of directors not inconsistent with
these bylaws.
Section 3. Election, Term of Office and Qualifications: The officers
shall be chosen annually by the board of directors at its annual meeting, or as
soon after such annual meeting as may conveniently be possible. Each officer
shall hold office until his successor is chosen and qualified, or until his
death, or until he shall have resigned, or shall have been removed in the manner
provided in Section 4.
Section 4. Removal: Any officer or agent elected or appointed by the
board of directors may be removed (with or without cause) by the affirmative
vote of a majority of the board of directors whenever in its judgment the best
interests of the corporation will be served by such removal, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 5. Resignation: Any officer may resign at any time by giving
written notice to the board of directors or to the chief executive officer,
president or secretary. Such resignation shall take effect at the time specified
in the notice, and, unless otherwise specified in the notice, the acceptance of
such resignation shall not be necessary to make it effective. Such resignation
shall be without prejudice to the contract rights, if any, of the corporation.
Section 6. Vacancies: Any vacancy in any office because of death,
resignation, removal or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these bylaws for election or
appointment to such office.
Section 7. The Chief Executive Officer: The chief executive officer,
who need not be chosen from among the directors, shall have active, executive
management of the operations of the corporation, subject, however, to the
control of the board of directors. The chief executive officer shall have the
authority to manage and direct the duties and responsibilities of any other
officer or employee of the corporation. The chief executive officer shall also
preside at all meetings of the stockholders of the corporation and the board of
directors, unless the board of directors has appointed a chairman of the board,
who would preside at all such meetings of the stockholders and the board of
directors. He or she shall, in general, perform all duties incident to the
office of the chief executive officer and such other duties as from time to time
may be assigned to him by the board of directors.
Section 8. The President: The president, who need not be chosen from
among the directors, shall have general supervision of the operations of the
corporation, subject, however, to the control of the board of directors and the
chief executive officer. He shall, in general, perform all duties incident to
the office of president and such other duties as from time to time may be
assigned to him by the board of directors or the chief executive officer. At the
request of
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the chief executive officer, the president may temporarily act in his place. In
the case of the death of the chief executive officer, or in the case of his
absence or inability to act without having designated the president to act
temporarily in his place, the president shall perform the duties of the chief
executive officer as designated by the board of directors.
Section 9. The Vice President: Each vice president shall have such
powers and perform such duties as the board of directors may from time to time
prescribe or as the chief executive officer or the president may from time to
time delegate to him. At the request of the president, any vice president may
temporarily act in his place. In the case of the death of the president, or in
the case of his absence or inability to act without having designated a vice
president to act temporarily in his place, the vice president or vice presidents
to perform the duties of the president shall be designated by the board of
directors.
Section 10. The Secretary: The secretary shall keep or cause to be kept
in books provided for that purpose, minutes of the meetings of the shareholders
and of the board of directors; shall see that all notices are duly given in
accordance with the provisions of these bylaws and as required by law; shall be
custodian of the records and of the seal of the corporation and see that the
seal is affixed to all the documents, the execution of which on behalf of the
corporation under its seal is required; and, in general, shall perform all
duties incident to the office of the secretary and such other duties as may from
time to time be assigned to him by the board of directors or by the chief
executive officer or by the president.
Section 11. The Chief Financial Officer: The chief financial officer
shall be the principal financial officer of the corporation; shall have charge
and custody of and be responsible for all funds of the corporation and deposit
all such funds in the name of the corporation in such depositories as may be
designated by the board of directors; shall receive and give receipts for moneys
due and payable to the corporation from any source; and, in general, shall
perform all the duties incident to the office of the chief financial officer and
such other duties as from time to time may be assigned to him or her by the
board of directors or by the chief executive officer.
Section 12. The Treasurer: The treasurer shall have custody of the
funds of the corporation and shall keep full and accurate account of receipts
and disbursements in books belonging to the corporation and shall deposit all
such funds in the name of the corporation in such depositories as may be
designated by the board of directors; shall receive and give receipts for moneys
due and payable to the corporation from any source; and, in general, shall
perform all the duties incident to the office of the treasurer and such other
duties as from time to time may be assigned to him by the board of directors or
by the chief executive officer. The treasurer shall render to the chief
financial officer, the chief executive officer and the board of directors,
whenever the same shall be required, an account of all his transactions as
treasurer and of the financial condition of the corporation. He shall, if
required to do so by the board of directors, give the corporation a bond in such
amount and with such surety or sureties as may be ordered by the board of
directors, for the faithful performance of the duties of his office and for the
restoration to the corporation, in the case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation.
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Section 13. Salaries: The salaries of the officers shall be fixed by,
or in accordance with the directions of, the board of directors, and it shall be
no objection that the officer in question is a member of the board of directors
or that he votes on the resolution fixing his salary; provided, however, that
all salaries voted must be no more than reasonable compensation for services
rendered or to be rendered to the corporation.
Section 14. Disallowed Payments: Any payments made to an officer of the
corporation such as a salary, commission, bonus, interest, or rent, or
entertainment expenses incurred by him, which shall be disallowed in whole or in
part as a deductible expense by the Internal Revenue Service, shall be
reimbursed by such officer to the corporation to the full extent of such
disallowance. It shall be the duty of the directors, as a board, to enforce
payment of each such amount disallowed.
ARTICLE IV
Indemnification
The corporation shall indemnify and advance expenses to all directors
and officers of the corporation to the maximum extent allowed by the Texas
Business Corporation Act and other applicable law. If the Texas Business
Corporation Act, the Texas Miscellaneous Corporation Laws Act, or other
applicable law is amended after adoption of this provision of the bylaws by the
shareholders or the board of directors to authorize corporate action further
expanding the corporation's power to indemnify, then the corporation shall be
and hereby is authorized to indemnify the persons named above to the fullest
extent permitted by the Texas Business Corporation Act, the Texas Miscellaneous
Corporation Laws Act, or other applicable law, as so amended.
ARTICLE V
Capital Stock
Section 1. Certificates for Shares: The certificates for shares of the
corporation shall be numbered and shall be entered in the books of the
corporation as they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by any one or more officers of the corporation and
may be sealed with the seal of the corporation or a facsimile thereof. The
signatures of the officer or officers upon a certificate may be facsimiles. In
case any officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer at the date of its issuance.
Section 2. Restrictions: Restrictions on the transfer, or registration
of the transfer, of shares shall conspicuously be set forth on the face of the
certificate, or shall set be set forth on the back of the certificate and shall
conspicuously refer to the same on the face of the certificate, or shall
conspicuously state on the face or back of the certificate that such a
restriction exists pursuant to a specified document and that the corporation
will furnish to the record holder of the certificate without charge upon written
request to the corporation at its principal place of business or registered
office a copy of the specified document, or if such document is one
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required or permitted to be and has been filed under the applicable laws, that
such specified document is on file in the office of the Secretary of State and
contains a full statement of such restriction.
Section 3. Transfer of Certificates of Shares: Transfers of shares
shall be made on the books of the corporation only by the person named in the
certificate or by attorney, lawfully constituted in writing, and upon surrender
of the certificate for the shares. The board of directors shall have power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue and registration of certificates of shares, and may appoint
transfer agents and/or registrars for the certificates of shares.
Section 4. Lost or Destroyed Certificates: The board of directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates previously 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 of shares to be lost, and the board of
directors, when authorizing such issue of a new certificate or certificates, may
require the owner of such lost or destroyed certificate or certificates, or his
legal representatives, to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation.
ARTICLE VI
General Provisions
Section 1. Seal: The seal of the corporation shall be circular in form
with the name of the corporation around the margin, with a five pointed star in
the center with letters Texas appearing between the points of the star, or in
such other form as shall be approved by the board of directors.
Section 2. Fiscal Year: The fiscal year of the corporation shall be
fixed by resolution of the board of directors, or in the absence of such a
resolution by the chief executive officer.
Section 3. Distributions and Share Dividends: Distributions and share
dividends, subject to the provisions of the articles of incorporation and
applicable law, may be authorized and made by the board of directors at any
regular or special meeting. Distributions may be paid in cash or property. The
board of directors may by resolution create a reserve or reserves out of its
surplus or allocate any part or all of surplus in any manner for any proper
purpose or purposes, and may increase, decrease or abolish any such reserve,
designation or allocation in the same manner.
Section 4. Notices: Whenever under the provisions of these bylaws
notice is required to be given to any director or shareholder, it shall not be
construed to mean only personal notice, but such notice may also be given in
writing, by mail, by depositing the same in the post office or letter box, in a
post-paid sealed wrapper, addressed to such director or shareholder at such
address as appears on the books of the corporation, and such notice shall be
deemed to be given at the time when it shall be thus mailed. Any notice required
to be given
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under these bylaws may be waived in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated in the notice.
Section 5. Actions Without a Meeting and Telephone Meetings:
Notwithstanding any provision contained in these bylaws, all actions of the
directors or any committee of the board provided for herein may be taken by
unanimous consent without a meeting, or any meeting thereof may be held by means
of a conference telephone or the like, to the full extent permitted by Article
9.10 of the Texas Business Corporation Act.
ARTICLE VII
Amendments
Section 1. Amendments by Board of Directors: The board of directors may
amend or repeal these bylaws, or adopt new bylaws, unless:
(i) the articles of incorporation or the Texas Business Corporation Act
reserves such power exclusively to the shareholders in whole or in part; or
(ii) the shareholders in amending, repealing, or adopting a particular
bylaw expressly provide that the board of directors may not amend or repeal that
bylaw.
Section 2. Amendments by Shareholders: Unless the articles of
incorporation or a bylaw adopted by the shareholders provides otherwise as to
all or some portion of these bylaws, the corporation's shareholders may amend,
repeal, or adopt the corporation's bylaws even though the bylaws may also be
amended, repealed, or adopted by the board of directors.
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