BY-LAWS
OF
STEWART ENTERPRISES, INC.
(as amended and restated as of January 31, 2000)
SECTION 1
OFFICES
1.1 PRINCIPAL OFFICE. The principal office of the Corporation shall
be located at 110 Veterans Memorial Boulevard, Metairie, Louisiana 70005.
1.2 ADDITIONAL OFFICES. The Corporation may have such offices at
such other places as the Board of Directors may from time to time determine
or the business of the Corporation may require.
SECTION 2
SHAREHOLDERS MEETINGS
2.1 PLACE OF MEETINGS. Unless otherwise required by law or these
By-laws, all meetings of the shareholders shall be held at the principal
office of the Corporation or at such other place, within or without the
State of Louisiana, as may be designated by the Board of Directors.
2.2 ANNUAL MEETINGS; NOTICE THEREOF. An annual meeting of the
shareholders shall be held each year on the date and at the time as the
Board of Directors shall designate, for the purpose of electing directors
and for the transaction of such other business as may be properly brought
before the meeting. If no annual shareholders' meeting is held for a
period of eighteen months, any shareholder may call such meeting to be held
at the registered office of the Corporation as shown on the records of the
Secretary of State of the State of Louisiana.
2.3 SPECIAL MEETINGS. Special meetings of the shareholders, for any
purpose or purposes, may be called by the Board of Directors, the Chairman
of the Board, or the President. At any time, upon the written request of
any shareholder or group of shareholders holding in the aggregate at least
25% of the Total Voting Power (as defined in Article III(D) of the Articles
of Incorporation), the Secretary shall call a special meeting of
shareholders to be held at the registered office of the Corporation at such
time as the Secretary may fix, not less than 15 nor more than 60 days after
the receipt of such request, and if the Secretary shall neglect or refuse
to fix such time or to give notice of the meeting, the shareholder or
shareholders making the request may do so. Such request must state the
specific purpose or purposes of the proposed special meeting and the
business to be conducted thereat shall be limited to such purpose or
purposes.
2.4 NOTICE OF MEETINGS. Except as otherwise provided by law, the
authorized person or persons calling a shareholders' meeting shall
cause written notice of the time, place and purpose of the meeting
to be given to all shareholders entitled to vote at such meeting,
at least 10 days and not more than 60 days prior to the day
fixed for the meeting. Notice of the annual meeting need not state
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the purpose or purposes thereof, unless action is to be taken at the
meeting as to which notice is required by law or the By-laws. Notice
of a special meeting shall state the purpose or purposes thereof, and
the business conducted at any special meeting shall be limited to the
purpose or purposes stated in the notice.
2.5 LIST OF SHAREHOLDERS. At every meeting of shareholders, a list
of shareholders entitled to vote, arranged alphabetically and certified by
the Secretary or by the agent of the Corporation having charge of transfers
of shares, showing the number and class of shares held by each such
shareholder on the record date for the meeting and confirming the number of
votes per share as to which each such shareholder is entitled, shall be
produced on the request of any shareholder.
2.6 QUORUM. At all meetings of shareholders, the holders of a
majority of the Total Voting Power (as defined in Article III(D) of the
Articles of Incorporation) shall constitute a quorum, provided, however,
that this subsection shall not have the effect of reducing the vote
required to approve any matter that may be established by law, the Articles
of Incorporation or these By-laws.
2.7 VOTING. When a quorum is present at any shareholders' meeting,
the vote of the holders of a majority of that portion of the Total Voting
Power (as defined in Article III(D) of the Articles of Incorporation) that
is present in person or represented by proxy, voting together as a single
class, shall decide each question brought before such meeting, unless the
resolution of the question requires, by express provision of law, the
Articles of Incorporation or these By-laws, a different vote or one or more
separate votes by the holders of a class or series of capital stock, in
which case such express provision shall apply and control the decision of
such question. Directors shall be elected by plurality vote.
2.8 PROXIES. At any 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 executed by such shareholder and
bearing a date not more than eleven months prior to the meeting, unless the
instrument provides for a longer period, but in no case will an outstanding
proxy be valid for longer than three years from the date of its execution,
provided, however, that in no event may a proxy be voted at a meeting
called pursuant to La. R.S. 12:138 unless it is executed and dated by the
shareholder within 30 days of the date of such meeting. The person
appointed as proxy need not be a shareholder of the Corporation.
2.9 ADJOURNMENTS. Adjournments of any annual or special meeting of
shareholders may be taken without new notice being given unless a new
record date is fixed for the adjourned meeting, but any meeting at which
directors are to be elected shall be adjourned only from day to day until
such directors shall have been elected.
2.10 WITHDRAWAL. If a quorum is present or represented at
a duly organized shareholders' meeting, such meeting may
continue to do business until adjournment, notwithstanding the
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withdrawal of enough shareholders to leave less than a quorum as fixed in
Section 2.6 of these By-laws, or the refusal of any shareholders to vote.
2.11 LACK OF QUORUM. If a meeting cannot be organized because a
quorum has not attended, those present may adjourn the meeting to such time
and place as they may determine, subject, however, to the provisions of
Section 2.9 hereof. In the case of any meeting called for the election of
directors, those who attend the second of such adjourned meetings, although
less than a quorum as fixed in Section 2.6 hereof, shall nevertheless be
deemed to constitute a quorum for the purpose of electing directors.
2.12 PRESIDING OFFICER. The Chairman of the Board or the Chief
Executive Officer, or in their absence a chairman designated by the Board
of Directors, shall preside at all shareholders' meetings.
2.13 DEFINITION OF SHAREHOLDER. As used in these By-laws, and unless
the context otherwise requires, the term shareholder shall mean a person
who is (i) the record holder of shares of the Corporation's capital stock
or (ii) a registered holder of any bonds, debentures or similar obligations
granted voting rights by the Corporation pursuant to La. R.S. 12:75H.
2.14 BUSINESS TO BE CONDUCTED AT ANNUAL AND SPECIAL MEETINGS OF
SHAREHOLDERS.
(a) At any annual meeting of shareholders, only such business
shall be conducted as shall have been brought before the meeting (i) by or
at the direction of the Board of Directors, or (ii) by any shareholder of
record entitled to vote at such meeting who complies with the procedures
set forth in this Section 2.14.
(b) At any special meeting of shareholders called at the request
of a shareholder, or group of shareholders, of record in accordance with
the Corporation's Articles of Incorporation and these By-laws, only such
business shall be conducted as shall have been (i) submitted by the
shareholder, or group of shareholders of record requesting the meeting,
(ii) described in the request for the meeting, and (iii) described in the
notice of the meeting.
(c) At any special meeting of shareholders called at the request
of the Board of Directors, the Chairman of the Board or the President of
the Corporation, only such business shall be conducted as shall have been
brought before the meeting (i) by or at the direction of the Board of
Directors, the Chairman of the Board or the President or (ii) by any
shareholder of record entitled to vote at such meeting who complies with
the procedures set forth in this Section 2.14.
(d) No proposal by a shareholder, or group of shareholders,
of record of the Corporation shall be considered at an annual
shareholders' meeting unless Sufficient Notice (as described in
subparagraph (f) hereof) of the proposal is received by the Secretary
of the Corporation not less than 120 calendar days in advance of the
date in the current year that corresponds to the date on which proxy
materials were first mailed by the Corporation in connection with the
previous year's annual meeting. If the date of the annual
meeting is changed to a date that is 30 calendar days earlier
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or later than the date in the current year that corresponds to the
date on which the annual meeting was held in the previous year, or if no
annual meeting was held in the previous year, Sufficient Notice of the
proposal must be received by the Secretary of the Corporation not less than
60 days nor more than 90 days prior to the meeting; provided, however, that
in the event less than 70 days notice or prior public disclosure of the
date of the meeting is given or made to shareholders, Sufficient Notice of
the proposal must be received by the Secretary of the Corporation no later
than the close of business on the tenth day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was
made.
(e) No proposal by a shareholder, or group of shareholders, of
record of the Corporation shall be considered at a special meeting of
shareholders called by the Board of Directors, the Chairman of the Board or
the President unless Sufficient Notice (as described in subparagraph (f)
hereof) of the proposal is received by the Secretary of the Corporation not
less than 60 days nor more than 90 days prior to the meeting; provided,
however, that in the event less than 70 days notice or prior public
disclosure of the date of the meeting is given or made to shareholders,
Sufficient Notice of the proposal must be received by the Secretary of the
Corporation no later than the close of business on the tenth day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made.
(f) Notice of a proposal shall constitute Sufficient Notice only
if it contains (i) a complete and accurate description of the proposal;
(ii) a statement that the shareholder (or the shareholder's legal
representative) intends to attend the meeting and present the proposal and
that the shareholder intends to hold of record securities of the
Corporation entitled to vote at the meeting through the meeting date; (iii)
the shareholder's name and address and the number of shares of the
Corporation's voting securities that the shareholder holds of record and
beneficially as of the notice date; and (iv) a complete and accurate
description of any material interest of such shareholder in such proposal.
(g) Notwithstanding compliance with this Section 2.14, no
shareholder proposal shall be deemed to be properly brought before a
shareholders' meeting if it is not a proper subject for action by
shareholders under Louisiana law or the Articles of Incorporation.
(h) Any shareholder proposal failing to comply with this Section
2.14 shall not be considered at the meeting and, if introduced at the
meeting, shall be ruled out of order.
(i) Nothing in this Section 2.14 is intended to confer any
rights to have any proposal included in the notice of any meeting or in
proxy materials related to such meeting.
(j) Notwithstanding the requirement in this Section 2.14 that a
shareholder be a shareholder of record in order to present a shareholder
proposal at a shareholders' meeting, a beneficial owner of shares entitled
to vote at the meeting shall be entitled to present a proposal at a meeting
if such beneficial owner complies with Rule 14a-8 promulgated under the
Securities Exchange Act of 1934 and the proposal has been included in the
Corporation's proxy statement for the meeting pursuant to Rule 14a-8.
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SECTION 3
DIRECTORS
3.1 NUMBER. All of the corporate powers shall be vested in, and the
business and affairs of the Corporation shall be managed by, a Board of
Directors. Except as otherwise fixed by or pursuant to Article III of the
Articles of Incorporation (as it may be duly amended from time to time)
relating to the rights of the holders of any class or series of stock
having a preference over the Class A and Class B Common Stock as to
dividends or upon liquidation to elect additional directors by class vote,
the Board of Directors shall consist of up to 12 natural persons, the exact
number of which shall be fixed each year by resolution of the Board of
Directors, provided that, if after proxy materials for any meeting of
shareholders at which directors are to be elected are mailed to
shareholders any person or persons named therein to be nominated at the
direction of the Board of Directors become unable or unwilling to serve,
the number of directors fixed by the Board or Directors for such year shall
be automatically reduced by a number equal to the number of such persons
unless the Board of Directors selects an additional nominee or nominees to
replace such persons. No director need be a shareholder. The Secretary
shall have the power to certify at any time as to the number of directors
authorized and as to the class to which each director has been elected or
assigned. No person shall be eligible for nomination, election or
appointment to the Board of Directors unless such person will not have
achieved his or her 70th birthday on or prior to the date on which his or
her election or appointment would otherwise become effective; provided,
however, that (i) the foregoing shall not be applied in a manner that would
shorten the current term of office of any incumbent director on the date of
the adoption of this by-law, (ii) the Board may, by a vote of two-thirds of
its members who are not affected by the decision, exempt any Director from
the foregoing limitation in order that such Director may serve one
additional term of office; and (iii) such limitation shall not apply to
Frank B. Stewart, Jr. so long as he is the record and/or beneficial owner
of not less than 3.5 million shares of the Company's Class B Common Stock
(as such number may be adjusted from time to time to reflect stock
dividends, stock splits, a recapitalization or other similar transactions).
3.2 POWERS. The Board may exercise all such powers of the
Corporation and do all such lawful acts and things which are not by law,
the Articles of Incorporation or these By-laws directed or required to be
done by the shareholders.
3.3 CLASSES. The Board of Directors, other than those directors who
may be elected by the holders of any class or series of stock having
preference over the Class A and Class B Common Stock as to dividends or
upon liquidation, shall be divided, with respect to the time during which
they shall hold office, into three classes as nearly equal in number as
possible, with the initial term of office of Class I directors expiring at
the annual meeting of shareholders to be held in 1993, of Class II
directors expiring at the next succeeding annual meeting of
shareholders and of Class III directors expiring at the second
succeeding annual meeting of shareholders, with all such directors to
hold office until their successors are elected and qualified. Any
increase or decrease in the number of directors shall be
apportioned by the Board of Directors so that all classes of directors
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shall be as nearly equal in number as possible. At each annual meeting of
shareholders, directors chosen to succeed those whose terms then expire
shall be elected to hold office for a term expiring at the annual meeting
of shareholders held in the third year following the year of their election
and until their successors are duly elected and qualified.
3.4 GENERAL ELECTION. At each annual meeting of shareholders,
directors shall be elected to succeed those directors whose terms then
expire. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
3.5 VACANCIES. Except as otherwise provided in the Articles of
Incorporation or these By-laws, (a) the office of a director shall become
vacant if he dies, resigns or is duly removed from office and (b) the Board
of Directors may declare vacant the office of a director if he (i) is
interdicted or adjudicated an incompetent, (ii) is adjudicated a bankrupt,
(iii) in the sole opinion of the Board of Directors becomes incapacitated
by illness or other infirmity so that he is unable to perform his duties
for a period of six months or longer, or (iv) ceases at any time to have
the qualifications required by law, the Articles of Incorporation or these
By-laws.
3.6 FILLING VACANCIES. Except as otherwise provided in Section 3.8
of these By-laws, any vacancy on the Board (including any vacancy resulting
from an increase in the authorized number of directors or from failure of
the shareholders to elect the full number of authorized directors) may,
notwithstanding any resulting absence of a quorum of directors, be filled
by a two-thirds vote of the Board of Directors remaining in office,
provided that the shareholders shall have the right, at any special meeting
called for such purpose prior to any such action by the Board, to fill the
vacancy. A director elected pursuant to this section shall serve until the
next shareholders' meeting held for the election of directors of the class
to which he shall have been appointed and until his successor is elected
and qualified.
3.7 NOTICE OF SHAREHOLDER NOMINEES. Except as otherwise provided in
Section 3.8 of these By-laws, only persons who are nominated in accordance
with the procedures set forth in this section shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of shareholders by or
at the direction of the Board of Directors or by any shareholder of record
of the Corporation entitled to vote for the election of directors at the
meeting who complies with the notice procedures set forth in this section.
Such nominations, other than those made by or at the direction of the Board
of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice must be
delivered or mailed and received at the principal office of the Corporation
not less than 45 days nor more than 90 days prior to the meeting, provided,
however, that in the event that less than 55 days notice or prior public
disclosure of the date of the meeting is given or made to shareholders,
notice by the shareholder to be timely must be received no later than the
close of business on the tenth day following the day on which such notice
of the date of the meeting was mailed or such public disclosure was made.
Such shareholder's notice shall set forth or include the following:
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a. as to each person whom the shareholder proposes to nominate
for election or re-election as a director (i) the name, age, business
address and residential address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of
shares of capital stock of the Corporation of which such person is the
beneficial owner (as defined in Rule 13d-3 promulgated under the
Securities Exchange Act of 1934), (iv) such person's written consent
to being named in the proxy statement as a nominee and to serve as a
director if elected and (v) any other information relating to such
person that would be required to be disclosed in solicitations of
proxies for election of directors, or would be otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act
of 1934; and
b. as to the shareholder of record giving the notice, (i) the
name and address of such shareholder and (b) the class and number of
shares of capital stock of the Corporation of which such shareholder
is the beneficial owner (as defined in Rule 13d-3 promulgated under
the Securities Exchange Act of 1934). If requested in writing by the
Secretary the Corporation at least 15 days in advance of the meeting,
such shareholder shall disclose to the Secretary, within ten days of
such request, whether such person is the sole beneficial owner of the
shares held of record by him, and, if not, the name and address of
each other person known by the shareholder of record to claim or have
a beneficial interest in such shares.
At the request of the Board of Directors, any person nominated by or at the
direction of the Board of Directors for election as a director shall
furnish to the Secretary of the Corporation that information required to be
set forth in a shareholder's notice of nomination which pertains to the
nominee. If a shareholder seeks to nominate one or more persons as
directors, the Secretary shall appoint two inspectors, who shall not be
affiliated with the Corporation, to determine whether the shareholder has
complied with this section. If the inspectors shall determine that the
shareholder has not complied with this section, the defective nomination
shall be disregarded and the inspectors shall direct the Chairman of the
meeting to declare at the meeting that such nomination was not made in
accordance with the procedures prescribed by the Articles of Incorporation
and these By-laws.
3.8 DIRECTORS ELECTED BY PREFERRED SHAREHOLDERS. Notwithstanding
anything in these By-laws to the contrary, whenever the holders of any one
or more classes or series of stock having a preference over the Class A and
Class B Common Stock as to dividends or upon liquidation shall have the
right, voting separately as a class, to elect one or more directors of the
Corporation, the provisions of the Articles of Incorporation (as they may
be duly amended from time to time) fixing the rights and preferences of
such preferred stock shall govern with respect to the nomination, election,
term, removal, vacancies or other related matters with respect to such
directors.
3.9 COMPENSATION OF DIRECTORS. Directors shall receive such
compensation for their services, in their capacity as directors, as may be
fixed by resolution of the Board of Directors, provided, however, that
nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
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3.10 VICE CHAIRMAN OF THE BOARD. The Board of Directors may appoint a
Vice Chairman of the Board, who shall perform such duties as the Chairman
of the Board or the Board of Directors shall prescribe.
SECTION 4
MEETINGS OF THE BOARD
4.1 PLACE OF MEETINGS. The meetings of the Board of Directors may be
held at such place within or without the State of Louisiana as a majority
of the directors may from time to time appoint.
4.2 INITIAL MEETINGS. The first meeting of each newly-elected Board
shall be held immediately following the shareholders' meeting at which the
Board, or any class thereof, is elected and at the same place as such
meeting, and no notice of such first meeting shall be necessary for the
newly-elected directors in order legally to constitute the meeting.
4.3 REGULAR MEETINGS; NOTICE. Regular meetings of the Board may be
held at such times as the Board may from time to time determine. Notice of
regular meetings of the Board of Directors shall be required, but no
special form of notice or time of notice shall be necessary.
4.4 SPECIAL MEETINGS; NOTICE. Special meetings of the Board may be
called by the Chairman of the Board or the President on reasonable notice
given to each director, either personally or by telephone, mail, telex,
telecopy or any other comparable form of facsimile communication. Special
meetings shall be called by the Secretary in like manner and on like notice
on the written request of a majority of the directors and if such officer
fails or refuses, or is unable within 24 hours to call a meeting when
requested, then the directors making the request may call the meeting on
two days' written notice given to each director. The notice of a special
meeting of directors need not state its purpose or purposes, but if the
notice states a purpose or purposes and does not state a further purpose to
consider such other business as may properly come before the meeting, the
business to be conducted at the special meeting shall be limited to the
purpose or purposes stated in the notice.
4.5 WAIVER OF NOTICE. Directors present at any regular or special
meeting shall be deemed to have received due, or to have waived, notice
thereof, provided that a director who participates in a meeting by
telephone (as permitted by Section 4.9 hereof) shall not be deemed to have
received or waived due notice if, at the beginning of the meeting, he
objects to the transaction of any business because the meeting is not
lawfully called.
4.6 QUORUM. A majority of the Board shall be necessary to constitute
a quorum for the transaction of business, and except as otherwise provided
by law, the Articles of Incorporation or these By-laws, the acts of a
majority of the directors present at a duly-called meeting at which a
quorum is present shall be the acts of the Board. If a quorum is not
present at any meeting of the Board of Directors, the directors present may
adjourn the meeting from time to time without notice other than
announcement at the meeting, until a quorum is present.
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4.7 WITHDRAWAL. If a quorum is present when the meeting convened,
the directors present may continue to do business, taking action by vote of
a majority of a quorum as fixed in Section 4.6 hereof, until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a
quorum as fixed in Section 4.6 hereof or the refusal of any director
present to vote.
4.8 ACTION BY CONSENT. Any action that may be taken at a meeting of
the Board, or any committee thereof, may be taken by a consent in writing
signed by all of the directors or by all members of the committee, as the
case may be, and filed with the records of proceedings of the Board or
committee.
4.9 MEETINGS BY TELEPHONE OR SIMILAR COMMUNICATION. Members of the
Board may participate at and be present at any meeting of the Board or any
committee thereof by means of conference telephone or similar
communications equipment if all persons participating in such meeting can
hear and communicate with each other.
SECTION 5
COMMITTEES OF THE BOARD
5.1 GENERAL. The Board may designate one or more committees, each
committee to consist of two or more of the directors of the Corporation
(and one or more directors may be named as alternate members to replace any
absent or disqualified regular members), which, to the extent provided by
resolution of the Board or these By-laws, shall have and may exercise the
powers of the Board in the management of the business and affairs of the
Corporation, and may have power to authorize the seal of the Corporation to
be affixed to documents, but no such committee shall have power or
authority to amend the Articles of Incorporation, adopt an agreement of
merger, consolidation or share exchange, recommend to the shareholders the
sale, lease or exchange of all or substantially all of the Corporation's
assets, recommend to the shareholders a dissolution of the Corporation or a
revocation of dissolution, remove or indemnify directors, or amend these
By-laws; and unless the resolution expressly so provides, no such committee
shall have the power or authority to declare a dividend or authorize the
issuance of stock. Such committee or committees shall have such name or
names as may be stated in these By-laws, or as may be determined, from time
to time, by the Board. Any vacancy occurring in any such committee shall
be filled by the Board, but the President may designate another director to
serve on the committee pending action by the Board. Each such member of a
committee shall hold office during the term designated by the Board.
5.2 COMPENSATION COMMITTEE. The Board shall establish and maintain a
Compensation Committee consisting of two or more directors, each of whom
shall (i) meet the requirements specified in Rule 16b-3 promulgated under
the Securities Exchange Act of 1934, as amended, to qualify as a member of
a committee of the board of directors able to approve the transactions
described therein, (ii) meet the requirements specified in Internal
Revenue Code section 162(m) and the regulations promulgated
thereunder relating to members of compensation committees, and (iii) meet
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any further requirements designated by the Board. The Compensation
Committee shall perform such services as may be designated by the Board.
5.3 AUDIT COMMITTEE. The Board shall establish an Audit Committee
consisting of at least three directors, a majority of whom are not officers
or employees of the Corporation or any of its affiliates. The Audit
Committee shall (i) serve as a focal point for communication between the
Corporation's directors, management, independent accountants and internal
auditing personnel, as their duties relate to financial accounting,
reporting and controls, (ii) assist the Board of Directors in fulfilling
its fiduciary responsibilities as to accounting policies and reporting
practices of the Corporation and all subsidiaries and the sufficiency of
auditing practices with respect thereto, in part, by reviewing the scope of
audit coverage, including consideration of the Corporation's accounting
practices and procedures and system of internal accounting controls and
reporting to the Board with respect thereto, (iii) operate as the Board's
principal agent in ensuring the independence of the Corporation's
independent accountants, the integrity of management and the adequacy of
disclosure to shareholders, and (iv) recommend to the Board the appointment
of the Corporation's independent auditors, and (v) perform such other
services as may be designated by the Board.
SECTION 6
REMOVAL OF BOARD MEMBERS
Except as may be otherwise provided in Section 3.8 of these By-laws,
(i) any director may be removed, with or without cause, by a two-thirds
vote of the Board of Directors and (ii) any director or the entire Board of
Directors may be removed at any time, with or without cause, by the
affirmative vote of the holders of not less than two-thirds of that portion
of the Total Voting Power (as defined in Article III(D) of the Articles of
Incorporation) that is present or represented at a special shareholders'
meeting called for that purpose, voting together as a single class. At the
same meeting in which the Board of Directors or the shareholders remove one
or more directors, a successor or successors may be elected for the
unexpired term of the director or directors removed. Except as provided in
the Articles of Incorporation and in this Section 6, directors shall not be
subject to removal.
SECTION 7
NOTICES
7.1 FORM OF DELIVERY. Whenever under the provisions of law, the
Articles of Incorporation or these By-laws notice is required to be given
to any shareholder or director, it shall not be construed to mean personal
notice unless otherwise specifically provided in the Articles of
Incorporation or these By-laws, but such notice may be given by mail,
addressed to such shareholder or director at his address as it appears on
the records of the Corporation, with postage thereon prepaid, or in such
other manner as may be specified in these By-laws. Notices given by mail
shall be deemed to have been given at the time they are deposited in the
United States mail, and all other notices shall be deemed to have been
given upon receipt.
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7.2 WAIVER. Whenever any notice is required to be given by law, 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 stated therein, shall be deemed equivalent thereto. In
addition, notice shall be deemed to have been given to, or waived by, any
shareholder or director who attends a meeting of shareholders or directors
in person, or is represented at such meeting by proxy, without protesting
at the commencement of the meeting the transaction of any business because
the meeting is not lawfully called or convened.
SECTION 8
OFFICERS
8.1 DESIGNATIONS. The officers of the corporation shall be elected
by the directors and shall be the Chairman of the Board, President,
Secretary and Treasurer. The Board of Directors may appoint a Chief
Executive Officer, one or more Vice Presidents and such other officers as
it shall deem necessary, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. More than one office may be held by one
person, provided that no person holding more than one office may sign, in
more than one capacity, any certificate or other instrument required by law
to be signed by two officers.
8.2 TERM OF OFFICE. The officers of the Corporation shall hold
office at the pleasure of the Board of Directors. Except as otherwise
provided in the resolution of the Board of Directors electing any officer,
each officer shall hold office until the first meeting of the Board of
Directors after the annual meeting of shareholders next succeeding his or
her election, and until his or her successor is elected and qualified or
until his or her earlier resignation or removal. Any officer may resign at
any time upon written notice to the Board, Chairman of the Board, President
or Secretary of the Corporation. Such resignation shall take effect at the
time specified therein and acceptance of such resignation shall not be
necessary to make it effective. The Board may remove any officer with or
without cause at any time. Any such removal shall be without prejudice to
the contractual rights of such officers, if any, with the Corporation, but
the election of an officer shall not in and of itself create contractual
rights. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled for the unexpired portion
of the term by the Board at any regular or special meeting.
8.3 THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at meetings of the Board of Directors and the shareholders and
perform such other duties as may be designated by the Board of Directors or
these By-laws. He shall be an EX-OFFICIO member of all committees of the
Board of Directors, except that he shall be a full member entitled to all
the rights and privileges appertaining thereto with respect to committees
on which he is named a full member.
8.4 THE PRESIDENT. The President shall, subject to the powers of the
Chairman of the Board, have general and active responsibility for the
management of the business of the Corporation, shall, unless otherwise
provided by the Board, be the chief executive and chief operating officer of
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the Corporation, shall supervise the daily operations of the business of
the Corporation and shall ensure that all orders, policies and resolutions
of the Board are carried out.
8.5 THE VICE PRESIDENTS. The Vice Presidents (if any) shall perform
such duties as the President or the Board of Directors shall prescribe.
8.6 THE SECRETARY. The Secretary shall attend all meetings 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. He shall give, or cause to be given, notice of all meetings of
the shareholders and regular and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or President.
He shall keep in safe custody the seal of the Corporation, if any, and
affix such seal to any instrument requiring it.
8.7 THE TREASURER. The Treasurer shall have the custody of the
corporate funds and shall keep or cause to be kept full and accurate
accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all monies 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 shall keep a proper accounting of
all receipts and disbursements and shall disburse the funds of the
Corporation only for proper corporate purposes or as may be ordered by the
Board and shall render to the President and the Board at the regular
meetings of the Board, or whenever they may require it, an account of all
his transactions as Treasurer and of the financial condition and results of
operations of the Corporation.
SECTION 9
STOCK
9.1 CERTIFICATES. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by the President or a Vice President
and the Secretary or an Assistant Secretary evidencing the number and class
(and series, if any) of shares owned by him, containing such information as
required by law and bearing the seal of the Corporation. If any stock
certificate is manually signed by a transfer agent or registrar other than
the Corporation itself or an employee of the Corporation, the signature of
any such officer may be a facsimile. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be an officer, transfer agent or
registrar of the Corporation before such certificate is issued, it may be
issued by the Corporation with the same effect as if such person or entity
were an officer, transfer agent or registrar of the Corporation on the date
of issue.
9.2 MISSING CERTIFICATES. The President or any Vice President may
direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed,
upon the Corporation's receipt of an affidavit of that fact from the
person claiming the certificate of stock to be lost, stolen or
destroyed. As a condition precedent to the issuance of a new certificate
or certificates, the officers of the Corporation shall, unless
dispensed with by the President, require the owner of such lost, stolen
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or destroyed certificate or certificates, or his legal representative,
to (i) give the Corporation a bond or (ii) enter into a written indemnity
agreement, in each case in an amount appropriate to indemnify the
Corporation against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or
destroyed.
9.3 TRANSFERS. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
SECTION 10
DETERMINATION OF SHAREHOLDERS
10.1 RECORD DATE. For the purpose of determining shareholders
entitled to notice of and to vote at a meeting, or to receive a dividend,
or to receive or exercise subscription or other rights, or to participate
in a reclassification of stock, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may fix
in advance a record date for determination of shareholders for such
purpose, such date to be not more than 60 days and, if fixed for the
purpose of determining shareholders entitled to notice of and to vote at a
meeting, not less than 10 days, prior to the date on which the action
requiring the determination of shareholder is to be taken.
10.2 REGISTERED SHAREHOLDERS. Except as otherwise provided by law,
the Corporation and its directors, officers and agents may recognize and
treat a person registered on its records as the owner of shares as the
owner in fact thereof for all purposes, and as the person exclusively
entitled to have and to exercise all rights and privileges incident to the
ownership of such shares, and the Corporation's rights under this section
shall not be affected by any actual or constructive notice that the
Corporation, or any of its directors, officers or agents, may have to the
contrary.
SECTION 11
INDEMNIFICATION
11.1 DEFINITIONS. As used in this section the following terms shall
have the meanings set forth below:
(a) "Board" - the Board of Directors of the Corporation.
(b) "Claim" - any threatened, pending or completed claim,
action, suit, or proceeding, whether civil, criminal, administrative or
investigative and whether made judicially or extra-judicially, or any
separate issue or matter therein, as the context requires.
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(c) "Determining Body" - (i) those members of the Board who are
not named as parties to the Claim for which indemnification is being sought
("Impartial Directors"), if there are at least three Impartial Directors,
(ii) a committee of at least three Impartial Directors appointed by the
Board (regardless whether the members of the Board of Directors voting on
such appointment are Impartial Directors) or (iii) if there are fewer than
three Impartial Directors or if the Board of Directors or the committee
appointed pursuant to clause (ii) of this paragraph so directs (regardless
whether the members thereof are Impartial Directors), independent legal
counsel, which may be the regular outside counsel of the Corporation.
(d) "Disbursing Officer" - the President of the Corporation or,
if the President is a party to the Claim for which indemnification is being
sought, any officer not a party to such Claim who is designated by the
President to be the Disbursing Officer with respect to indemnification
requests related to the Claim, which designation shall be made promptly
after receipt of the initial request for indemnification with respect to
such Claim.
(e) "Expenses" - any expenses or costs (including, without
limitation, attorney's fees, judgments, punitive or exemplary damages,
fines and amounts paid in settlement).
(f) "Indemnitee" - each person who is or was a director or
officer of the Corporation.
11.2 INDEMNITY.
(a) To the extent such Expenses exceed the amounts reimbursed or
paid pursuant to policies of liability insurance maintained by the
Corporation, the Corporation shall indemnify each Indemnitee against any
Expenses actually and reasonably incurred by him (as they are incurred) in
connection with any Claim either against him or as to which he is involved
solely as a witness or person required to give evidence, by reason of his
position (i) as a director or officer of the Corporation, (ii) as a
director or officer of any subsidiary of the Corporation or as a fiduciary
with respect to any employee benefit plan of the Corporation, or (iii) as a
director, officer, partner, employee or agent of another Corporation,
partnership, joint venture, trust or other for-profit or not-for-profit
entity or enterprise, if such position is or was held at the request of the
Corporation, whether relating to service in such position before or after
the effective date of this Section, if he (i) is successful in his defense
of the Claim on the merits or otherwise or (ii) has been found by the
Determining Body (acting in good faith) to have met the Standard of Conduct
(defined below); provided that (A) the amount otherwise payable by the
Corporation may be reduced by the Determining Body to such amount as it
deems proper if it determines that the Claim involved the receipt of a
personal benefit by Indemnitee, and (B) no indemnification shall be made in
respect of any Claim as to which Indemnitee shall have been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable for willful or intentional misconduct in the performance of
his duty to the Corporation or to have obtained an improper personal
benefit, unless, and only to the extent that, a court shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled
to indemnity for such Expenses as the court deems proper.
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(b) The Standard of Conduct is met when the conduct by an
Indemnitee with respect to which a Claim is asserted was conduct that was
in good faith and that he reasonably believed to be in, or not opposed to,
the best interest of the Corporation, and, in the case of a criminal action
or proceeding, that he had no reasonable cause to believe was unlawful.
The termination of any Claim by judgment, order, settlement, conviction, or
upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself,
create a presumption that Indemnitee did not meet the Standard of Conduct.
(c) Promptly upon becoming aware of the existence of any Claim
as to which he may be indemnified hereunder, Indemnitee shall notify the
President of the Corporation of the Claim and whether he intends to seek
indemnification hereunder. If such notice indicates that Indemnitee does
so intend, the President shall promptly advise the Board thereof and notify
the Board that the establishment of the Determining Body with respect to
the Claim will be a matter presented at the next regularly scheduled
meeting of the Board. After the Determining Body has been established the
President shall inform the Indemnitee thereof and Indemnitee shall
immediately provide the Determining Body with all facts relevant to the
Claim known to him. Within 60 days of the receipt of such information,
together with such additional information as the Determining Body may
request of Indemnitee, the Determining Body shall determine, and shall
advise Indemnitee of its determination, whether Indemnitee has met the
Standard of Conduct.
(d) During such 60-day period, Indemnitee shall promptly inform
the Determining Body upon his becoming aware of any relevant facts not
therefore provided by him to the Determining Body, unless the Determining
Body has obtained such facts by other means.
(e) In the case of any Claim not involving a proposed,
threatened or pending criminal proceeding,
(i) if Indemnitee has, in the good faith judgment of the
Determining Body, met the Standard of Conduct, the Corporation may, in its
sole discretion after notice to Indemnitee, assume all responsibility for
the defense of the Claim, and, in any event, the Corporation and the
Indemnitee each shall keep the other informed as to the progress of the
defense, including prompt disclosure of any proposals for settlement;
provided that if the Corporation is a party to the Claim and Indemnitee
reasonably determines that there is a conflict between the positions of the
Corporation and Indemnitee with respect to the Claim, then Indemnitee shall
be entitled to conduct his defense, with counsel of his choice; and
provided further that Indemnitee shall in any event be entitled at his
expense to employ counsel chosen by him to participate in the defense of
the Claim; and
(ii) the Corporation shall fairly consider any proposals by
Indemnitee for settlement of the Claim. If the Corporation (A) proposes a
settlement acceptable to the person asserting the Claim, or (B) believes a
settlement proposed by the person asserting the Claim should be accepted,
it shall inform Indemnitee of the terms thereof and shall fix a reasonable
date by which Indemnitee shall respond. If Indemnitee agrees to such
terms, he shall execute such documents as shall be necessary to effect the
settlement. If he does not agree he may proceed with the defense of
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the Claim in any manner he chooses, but if he is not successful on the
merits or otherwise, the Corporation's obligation to indemnify him for any
Expenses incurred following his disagreement shall be limited to the lesser
of (A) the total Expenses incurred by him following his decision not to
agree to such proposed settlement or (B) the amount the Corporation would
have paid pursuant to the terms of the proposed settlement. If, however,
the proposed settlement would impose upon Indemnitee any requirement to act
or refrain from acting that would materially interfere with the conduct of
his affairs, Indemnitee may refuse such settlement and proceed with the
defense of the Claim, if he so desires, at the Corporation's expense
without regard to the limitations imposed by the preceding sentence. In no
event, however, shall the Corporation be obligated to indemnify Indemnitee
for any amount paid in a settlement that the Corporation has not approved.
(f) In the case of a Claim involving a proposed, threatened or
pending criminal proceeding, Indemnitee shall be entitled to conduct the
defense of the Claim, and to make all decisions with respect thereto, with
counsel of his choice, provided, however, that the Corporation shall not be
obligated to indemnify Indemnitee for an amount paid in settlement that the
Corporation has not approved.
(g) After notifying the Corporation of the existence of a Claim,
Indemnitee may from time to time request the Corporation to pay the
Expenses (other than judgments, fines, penalties or amounts paid in
settlement) that he incurs in pursuing a defense of the Claim prior to the
time that the Determining Body determines whether the Standard of Conduct
has been met. If the Disbursing Officer believes the amount requested to
be reasonable, he shall pay to Indemnitee the amount requested (regardless
of Indemnitee's apparent ability to repay such amount) upon receipt of an
undertaking by or on behalf of Indemnitee to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation under the circumstances. If the Disbursing Officer does not
believe such amount to be reasonable, the Corporation shall pay the amount
deemed by him to be reasonable and Indemnitee may apply directly to the
Determining Body for the remainder of the amount requested.
(h) After the Determining Body has determined that the Standard
of Conduct was met, for so long as and to the extent that the Corporation
is required to indemnify Indemnitee under this Agreement, the provisions of
Paragraph (g) shall continue to apply with respect to Expenses incurred
after such time except that (i) no undertaking shall be required of
Indemnitee and (ii) the Disbursing Officer shall pay to Indemnitee such
amount of any fines, penalties or judgments against him which have become
final as the Corporation is obligated to indemnify him.
(i) Any determination by the Corporation with respect to
settlements of a Claim shall be made by the Determining Body.
(j) The Corporation and Indemnitee shall keep confidential, to
the extent permitted by law and their fiduciary obligations, all facts and
determinations provided or made pursuant to or arising out of the operation
of this Section, and the Corporation and Indemnitee shall instruct its or
his agents and employees to do likewise.
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11.3 ENFORCEMENT.
(a) The rights provided by this Section shall be enforceable by
Indemnitee in any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights
under this Section Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and
all Expenses actually and reasonably incurred by him in connection with
such proceeding but only if he prevails therein. If it shall be determined
that Indemnitee is entitled to receive part but not all of the relief
sought, then the Indemnitee shall be entitled to be reimbursed for all
Expenses incurred by him in connection with such judicial adjudication if
the amount to which he is determined to be entitled exceeds 50% of the
amount of his claim. Otherwise, the Expenses incurred by Indemnitee in
connection with such judicial adjudication shall be appropriately prorated.
(c) In any judicial proceeding described in this subsection, the
Corporation shall bear the burden of proving that Indemnitee is not
entitled to any Expenses sought with respect to any Claim.
11.4 SAVING CLAUSE. If any provision of this Section is determined by
a court having jurisdiction over the matter to require the Corporation to
do or refrain from doing any act that is in violation of applicable law,
the court shall be empowered to modify or reform such provision so that, as
modified or reformed, such provision provides the maximum indemnification
permitted by law, and such provision, as so modified or reformed, and the
balance of this Section, shall be applied in accordance with their terms.
Without limiting the generality of the foregoing, if any portion of this
Section shall be invalidated on any ground, the Corporation shall
nevertheless indemnify an Indemnitee to the full extent permitted by any
applicable portion of this Section that shall not have been invalidated and
to the full extent permitted by law with respect to that portion that has
been invalidated.
11.5 NON-EXCLUSIVITY.
(a) The indemnification and advancement of Expenses provided by
or granted pursuant to this Section shall not be deemed exclusive of any
other rights to which Indemnitee is or may become entitled under any
statute, article of incorporation, by-law, authorization of shareholders or
directors, agreement, or otherwise.
(b) It is the intent of the Corporation by this Section to
indemnify and hold harmless Indemnitee to the fullest extent permitted by
law, so that if applicable law would permit the Corporation to provide
broader indemnification rights than are currently permitted, the
Corporation shall indemnify and hold harmless Indemnitee to the fullest
extent permitted by applicable law notwithstanding that the other terms of
this Section would provide for lesser indemnification.
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11.6 SUCCESSORS AND ASSIGNS. This Section shall be binding upon the
Corporation, its successors and assigns, and shall inure to the benefit of
the Indemnitee's heirs, personal representatives, and assigns and to the
benefit of the Corporation, its successors and assigns.
11.7 INDEMNIFICATION OF OTHER PERSONS. The Corporation may indemnify
any person not covered by Sections 11.1 through 11.6 to the extent provided
in a resolution of the Board or a separate section of these By-laws.
SECTION 12
AMENDMENTS
12.1 ADOPTION OF BY-LAWS; AMENDMENTS THEREOF. By-laws of the
Corporation may be adopted only by a majority vote of the Board of
Directors. By-laws may be amended or repealed only by (i) a majority vote
of the Board of Directors, except that any amendment to or repeal of
Section 6 of these By-laws shall require an affirmative vote of at least
three-quarters of the Board, or (ii) the affirmative vote of the holders of
at least two-thirds of that portion of the Total Voting Power (as defined
in Article III(D) of the Articles of Incorporation), voting together as a
single class, that is present in person or by proxy at any regular or
special meeting of shareholders, the notice of which expressly states that
the proposed amendment or repeal is to be considered at the meeting.
12.2 NEW BY-LAWS; AMENDMENTS. Any purported amendment to these
By-laws which would add hereto a matter not covered herein prior to such
purported amendment shall be deemed to constitute the adoption of a By-law
provision and not an amendment to the By-laws.
SECTION 13
MISCELLANEOUS
13.1 DIVIDENDS. Except as otherwise provided by law or the Articles
of Incorporation, dividends upon the stock of the Corporation may be
declared by the Board of Directors at any regular or special meeting.
Dividends may be paid in cash, property, or shares of stock, subject to the
limitations specified in the Articles of Incorporation.
13.2 VOTING OF SHARES OWNED BY CORPORATION. Unless otherwise directed
by the Board, any shares of capital stock issued by a wholly-owned
subsidiary of the Corporation may be voted by the President of the
Corporation at any shareholders' meeting of the subsidiary (or in
connection with any written consent in lieu thereof).
13.3 CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time
designate. Signatures of the authorized signatories may be by facsimile.
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13.4 FISCAL YEAR. The Board of Directors may adopt for and on behalf
of the Corporation a fiscal or a calendar year.
13.5 SEAL. The Board of Directors may adopt a corporate seal, which
shall have inscribed thereon the name of the Corporation. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Failure to affix the seal shall not, however,
affect the validity of any instrument.
13.6 GENDER. All pronouns and variations thereof used in these
By-laws shall be deemed to refer to the masculine, feminine or neuter
gender, singular or plural, as the identity of the person, persons, entity
or entities referred to may require.
13.7 LOUISIANA'S FAIR PRICE STATUTE. The Company expressly opts into,
and accepts the benefits of, La. R.S. 12:132-134, as they may be amended
from time to time.
13.8 CONTROL SHARE ACQUISITION STATUTE. The Company expressly
waives the benefits of La. R.S. 12:135-140.2, as they may be amended from
time to time.
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