8-K
Benchmark Electronics Inc (BHE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 2, 2020
BENCHMARK ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
Texas
(State or other jurisdiction
of incorporation)
1-10560
(Commission
File Number)
74-2211011
(I.R.S. Employer
Identification No.)
56 South Rockford Drive
,
Tempe
,
Arizona
85281
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number, including area code:
(
623
)
300-7000
Not Applicable
(Former name or former address,
if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation
of the
registrant under any of the following provisions (see General Instruction A.2. below):
☐
Written communications pursuant to Rule
425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a
-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Securities registered
pursuant to Section
12(b) of the Act:
Title of each class
Trading Symbol
Name of each exchange on which registered
Common Stock, par value $0.10 per share
BHE
New York Stock Exchange
, Inc.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities
Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2
of this chapter).
Emerging growth company
☐
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition
period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a)
of the
Exchange Act.
☐
1
Item 5.03.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On December 2, 2020, the Board of Directors of Benchmark
Electronics, Inc. (the “Company”) adopted ministerial
amendments (the “Amendments”) to the Company’s
Amended and Restated Bylaws, effective immediately.
The
Amendments provide a more clear classification and delineation
of elected senior officers of the Company.
Article
4, Sections 1 and 8, and Article 5, Section 1 of the Amended &
Restated Bylaws have been revised to adopt three
classes of Vice Presidents:
(i) Executive Vice
Presidents, who are appointed by the Board of Directors and are
incumbent to serve in the President and Chief Executive
Officer’s (the “CEO”) absence, (ii) Senior Vice
Presidents,
who are appointed by the Board of Directors and serve as senior
executive officers of the Company on the CEO’s
direct staff, and (iii) Vice
Presidents, who are subordinate to the aforementioned categories of
senior officers
described above.
The foregoing summary of the Amendments is qualified
in its entirety by reference to the complete text of the new
Amended & Restated Bylaws, a copy which is attached
to this Current Report on Form 8-K as Exhibit 3.2.
I’Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit No.
Description of Exhibit
3.2
Amended & Restated Bylaws of Benchmark Electronics, Inc. dated December 2, 2020
2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
BENCHMARK ELECTRONICS, INC.
Date: December 7, 2020
By: /s/ Stephen J. Beaver
Stephen J. Beaver, Esq.
Vice President General Counsel
ex32
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
of
BENCHMARK ELECTRONICS, INC.
A Texas
corporation
December 2, 2020
1
AMENDED AND RESTATED
BYLAWS
of
BENCHMARK ELECTRONICS, INC.
ARTICLE 1
Offices and Agent
The Corporation may
have such offices,
either within or
without the State
of Texas,
as the Board
of Directors
(the “
Board
”) may designate
or as the
business of
the Corporation
may require from
time to
time.
The registered office
of the Corporation
required by the
Texas Business
Organizations Code
(the
“
TBOC
”) to be
maintained in the
State of Texas
may, but
need not, be
the same as
the principal office
in
the State of
Texas, as
designated by the
Board.
The address of
the registered
office or
the identity of
the
registered agent may be changed from time to time
by the Board.
ARTICLE 2
Shareholders
Section 1.
Annual Meeting.
The annual meeting of
the shareholders shall be
held on such date
in
each year
and at
such time
and place
as may
be determined
by the
Board, for
the purpose
of electing
directors and for
the transaction of
such other business
as may come
before the meeting.
If the day
fixed
for the
annual meeting
is a
legal holiday
in the
State of
Texas, such
meeting shall
be held
on the
next
succeeding business
day.
If the
election of
directors is
not held
on the
day designated
for the
annual
meeting of the shareholders or at
any adjournment thereof, the Board
shall cause the election to be
held at a
special meeting of the shareholders as soon thereafter as may
be convenient.
Section 2.
Special Meetings.
Special meetings of the
shareholders may be
called by (a) the Chief
Executive Officer
or the
President, (b)
the Board,
(c) the
Chief Executive
Officer, the
President or
the
Secretary at
the request
in writing
of a
majority of
the Board,
or (d)
the Chief
Executive Officer,
the
President or the Secretary at
the request in writing
of the holders of at least
10% of all the shares
entitled to
vote at the
proposed special meeting.
Any such request
to call a
special meeting of
the shareholders shall
state the purpose or purposes of such meeting.
Section 3.
Place of Meeting
.
The Board
may designate
any place within
or without
the State of
Texas as
the place of meeting
for any annual
or special meeting
of shareholders called
by or at the
request
of the Board.
If no designation is made,
or if a special meeting
is called otherwise than by
or at the request
of the Board, the place of meeting shall be the principal
office of the Corporation in the State of Texas.
Section 4.
Notice of
Meeting.
Written or
printed notice
stating the
place, date
and hour
of the
meeting and, in case
of a special meeting,
the purpose or purposes
for which the meeting
is called, shall be
delivered not
less than
10 nor
more than
60 days
before the
date of
the meeting,
either personally
or by
mail, by
or at the
direction of
the Chief
Executive Officer,
President, Secretary,
or the
officer or
persons
calling the
meeting, to
each shareholder
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 or her
address as
it appears
on the
share transfer
records of
the Corporation,
with postage
thereon prepaid.
Attendance by
a shareholder,
whether in
person or by
proxy, at
a shareholder
’s meeting
shall constitute a
waiver of notice of such meeting of which such shareholder
has had no notice.
2
The notice
of any
meeting of
shareholders may
be accompanied
by a
form of
proxy and
other
proxy solicitation materials approved by the Board.
Section 5.
Fixing Record
Dates for
Matters Other
than Consents
to Action.
For the
purpose of
determining shareholders entitled to
notice of or to vote
at any meeting of shareholders
or any adjournment
thereof, or
entitled to
receive a
distribution by
the Corporation
(other than
a distribution
involving a
purchase or
redemption by
the Corporation
of any
of its
own shares)
or 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
shareholders proposed
to be taken
without a meeting
of shareholders), the
Board
may provide that
the share transfer
records shall be
closed for a
stated period not
to exceed, in
any
case, 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 10 days
immediately preceding
such meeting.
In lieu
of closing
the share
transfer records,
the Board
may fix
in
advance a
date as the
record date for
any such determination
of shareholders,
such date in
any case to
be
not more than 60
days and, in the case
of a meeting of
shareholders, not less than
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
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 5, 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.
Section 6.
Fixing Record Dates
for Consents to
Action.
Unless a record
date shall have
previously been
fixed or
determined pursuant
to Section
5 of
this Article
2, whenever
action by
shareholders is
proposed to
be taken
by consent
in writing
without a
meeting of
shareholders, the
Board
may fix a
record date for
the purpose of
determining shareholders entitled
to consent to
that action, which
record date shall
not precede, and
shall not be
more than 10
days after,
the date upon
which the resolution
fixing the record date is
adopted by the Board.
If no record date has
been fixed by the Board
and the prior
action of the
Board
is not required
by the TBOC,
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 by
delivery to
its
registered office, its principal
place of business, or
an officer or agent
of the Corporation having custody
of
the books in which
proceedings of meetings
of shareholders are
recorded.
Delivery shall be by
hand or by
certified or
registered mail,
return receipt
requested.
Delivery to
the Corporation
’s principal
place of
business shall be addressed to
the President or the Chief
Executive Officer of
the Corporation.
If no record
date shall have
been fixed by
the Board and
prior action of
the Board is
required by the
TBOC, the record
date for determining
shareholders entitled to
consent to action
in writing without
a meeting shall
be at the
close of business on the date on which the Board adopts a
resolution taking such prior action.
Section 7.
Voting
List.
The officer
or agent
having charge
of the
share transfer
records of
the
Corporation shall
make, at
least 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 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
also
shall 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 the shareholders
entitled to examine such list or transfer records
or to vote at any
meeting of shareholders.
The failure to comply
with the requirem
ents of this Section
7 shall not
affect the
validity of any action taken at the meeting.
3
Section 8.
Quorum of Shareholders.
A quorum shall be present at a meeting of shareholders
if the
holders of
a majority
of the
shares entitled
to vote
are represented
at the
meeting in
person or
by proxy.
Once a quorum
is present at a
meeting of shareholders,
the shareholders represented
in person or
by proxy
at the
meeting may
conduct such
business as
may be
properly brought
before the
meeting until
it is
adjourned, and
the subsequent
withdrawal from
the meeting
of any
shareholder 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.
The shareholders
represented in
person or
by proxy
at a
meeting of
shareholders at
which a
quorum is not
present may adjourn
the meeting until such
time and to such
place as may be
determined by
a vote of the holders of a majority of the shares represented
in person or by proxy at that meeting.
Section 9.
Proxies.
Any shareholder may vote either in
person or by proxy executed in writing
by
the shareholder.
A telegram, telex,
cablegram or other
form of electronic
transmission, including
telephonic transmission,
by the
shareholder, or
a photogra
phic, photostatic,
facsimile or
similar
reproduction of
a writing
executed by
the shareholder,
shall be
treated as
an execution
in writing
for
purposes of this
Section 9.
No proxy
shall be valid
after 11
months from
the date of
its execution unless
otherwise provided
in the proxy.
A proxy
shall be revocable
unless the
proxy form
conspicuously states
that the proxy is irrevocable and the proxy is coupled with
an interest.
Section 10.
Voting
Rights.
Except as
otherwise expressly
provided in
any resolution
or
resolutions adopted by
the Board establishing
any series of
Preferred Stock, the
exclusive voting power
of
the Corporation shall be
vested in the Common
Stock.
Except as otherwise expressly
provided in any such
resolution or resolutions, or
as otherwise provided by the
TBOC, each outstanding share
of Common Stock
shall be entitled to one vote on each matter submitted
to a vote at a meeting of shareholders.
Section 11.
Voting
Requirement.
With respect
to any matter,
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
TBOC, 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.
With respect to
the election of directors, a
director shall be elected only
if the director receives the
affirmative vote
of the
holders of a
majority of
the shares entitled
to vote
in the election
of directors
and
represented in
person or
by proxy
at a
meeting of
shareholders at
which a
quorum is
present;
provided,
however
, that if the Company receives
a notice submitted by a shareholder nominating
a person for election
to the Board at a meeting of shareholders in compliance
with the procedures set forth in Section 8 of Article
3 and Section 12
of Article 2 and
such nomination has not
been withdrawn by such
shareholder on or prior
to the tenth
day before the
Company first mails
its notice of
meeting for such
meeting to the
shareholders,
the persons receiving
a plurality of
the votes cast,
up to the
total number of
directors to be
elected at such
meeting, by the holders
of shares entitled to
vote in the election
of directors at a
meeting of shareholders at
which a quorum is present shall be elected.
With respect
to any matter
for which the
affirmative vote of
the holders of
a specified portion
of
the shares entitled
to vote is
required by the
TBOC, the act
of the shareholders
on that matter
shall be the
affirmative vote
of the
holders of
a majority
of the
shares entitled
to vote
on that
matter, rather
than the
affirmative vote otherwise required by the
TBOC.
Section 12.
Business at Meeting.
To be
properly brought before
any meeting of
shareholders for
consideration, business
must be
(a) specified
in the notice
of meeting
given pursuant
to Section 4
of this
Article 2,
(b) properly
brought before
the meeting
by or
at the
direction of
the Board,
or (c)
properly
brought before the meeting by a shareholder.
If a shareholder desires
to bring business before
a meeting for consideration,
the shareholder must
submit a
written notice
of the
proposed business
to the
Secretary as
provided herein.
In the
case of
the
annual meeting
of shareholders,
the shareholder
’s notice
must be
received at
the principal
office of
the
Corporation not
less than
60 days
in advance
of the
date of
the Corporatio
n’s notice
of annual
meeting
given in
connection with
the previous
year’s annual
meeting of
shareholders.
If no
such annual
meeting
4
was held in
the previous
year or the
date of the
current year’s
annual meeting
has been changed
by more
than thirty
days from the
date contemplated
in the previous
year’s notice
of annual meeting,
the
shareholder’s notice
must be received by the
Corporation a reasonable period
of time before the date
of the
Corporation’s notice
of annual meeting
for the current
year and any
accompanying solicitation
of proxies
are made.
In the case of a special
meeting of shareholders, the
shareholder’s notice must
be received at the
principal office
of the
Corporation a
reasonable period
of time
prior to
the date
of the
meeting to
allow
sufficient time
for the
dissemination of
information to
the shareholders
entitled to
vote at
such meeting;
provided, however,
that if at
least 30
days’
notice of
the meeting
has been
given to
the shareholders,
the
shareholder’s notice
must be
received by
the Corporation
no later
than 10
days prior
to the
date of
the
meeting.
A shareholder
’s notice
of proposed business
shall set forth
as to each
matter that the
shareholder
proposes to bring
before the meeting
of shareholders the
following information:
(a) a brief
description of
the business
proposed to
be brought
before the
meeting and
the reason
or reasons
for conducting
such
business at the meeting;
(b) the name and address
of the shareholder proposing
such business; (c) the class,
series (if applicable),
and number of shares
of the Corporation
that such shareholder
owns beneficially; (d)
any material interest of the shareholder
in the proposed business; and (e) if the business that
the shareholder
proposes to bring
before the meeting
of shareholders is
the election to
the Board
of a person or
persons to
be nominated by or on behalf of the shareholder,
the information set forth in Section 8 of Article 3.
After receipt of the shareholder’s
notice of proposed business but before the
commencement of the
meeting of
shareholders, the
Board, to
the extent
allowed by
law, may
consider the
subject matter of
the
proposed business
and the
reason or
reasons for
conducting such
business at
the meeting
to determine
whether such
business should
be considered.
Proposed business,
notice of
which is
submitted by
a
shareholder in accordance with the foregoing procedures,
shall be considered at the meeting of shareholders
unless the
Board determines
that the
proposed business
should not
be conducted
at the
meeting.
If the
business is not
to be considered
at the meeting,
the Board shall
notify the presiding
officer of
the meeting
of such determination, and such presiding officer
shall declare to the meeting that such proposed business is
not properly
before the
meeting and
will not
be considered.
In addition,
with respect
to any
business
proposed to
be considered,
the presiding officer
of the meeting
may determine
that such business
has not
been brought properly before the
meeting in accordance with the foregoing
procedures and, if such
determination is made, such proposed business will not be
considered at the meeting.
Section 13.
Actions Without
Meeting.
Any action
required by
the TBOC
to be
taken at
any
annual or
special meeting
of shareholders,
or any
action which
may be
taken at
any annual
or special
meeting of
shareholders, may
be taken
without a
meeting, without
prior notice,
and without
a vote,
if a
consent or consents
in writing, setting
forth the action
so taken, shall
be signed by
the holder or
holders of
all the shares entitled to vote with respect to the action
that is the subject of the consent.
Every written consent
shall bear the
date of signature
of each shareholder
who signs the
consent.
No written consent
shall be effective
to take the
action that is
the subject of
the consent unless,
within 60
days after the
date of the earliest
dated consent delivered
to the Corporation
in the manner required
by this
Section 13, a
consent or
consents signed
by the
holder or
holders of
shares having
not less
than the
minimum number of
votes that would
be necessary to
take the action
that is the
subject of the
consent are
delivered to the Corporation
by delivery to its registered
office, its principal place
of business, or an officer
or agent of
the Corporation having
custody of the
books in which
proceedings of meetings
of shareholders
are recorded.
Delivery shall
be by
hand or
by certified
or registered
mail, return
receipt requested.
Delivery to
the Corporation
’s principal
place of
business shall
be addressed
to the
President or
principal
executive officer of the Corporation.
A telegram,
telex, cablegram
or other
form of
electronic transmission
by a
shareholder, or
a
photographic, photostatic,
facsimile or
similar reproduction
of a writing
signed by a
shareholder, shall
be
regarded as signed by the shareholder for purposes of this
Section 13.
5
Prompt notice of
the taking of any
action by shareholders without
a meeting by less
than
unanimous written
consent shall
be given
to those
shareholders who
did not
consent in
writing to
the
action.
Section 14.
Telephonic Meetings
.
Subject to the
provisions required
or permitted
by the TBOC
for notice of
meetings, shareholders may
participate in and
hold a meeting
of such shareholders
by means
of conference
telephone or
similar communications
equipment whereby
all persons
participating in
the
meeting can hear and speak to each other.
ARTICLE 3
Board of Directors
Section 1.
Power.
The powers 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, the Board
of the
Corporation.
Section 2.
Number, Tenure
and Qualifications.
The Board shall consist of not
less than 5 or more
than 9
members.
The number
of directors
may be
increased above
9 or
decreased below
5 from
time to
time by
amendment to
these Bylaws,
but no
decrease shall
have the
effect of
shortening the
term of
any
incumbent director.
Subject to the
foregoing and to
any limitations specified
by law or
in the Articles
of
Incorporation, the
number of directors
may be increased
or decreased by
resolution adopted by
a majority
of the
Board.
Any directorship
to be
filled by
reason of
an increase
in the
number shall
be filled
by a
majority vote
of the Board
at a meeting
called for that
purpose, though
less than a
quorum, for
a term of
office continuing only until the next
election of one or more directors by the
shareholders; provided that the
remaining directors
may not
fill more
than 2
such directorships
during the
period between
any two
such
successive annual meetings of shareholders.
No decrease in number shall act to reduce the term of office
of
a duly
elected director
unless such
director resigns
or is
removed from
office in
accordance with
these
Amended and Restated
Bylaws.
Unless removed in
accordance with the
provisions of these Amended
and
Restated Bylaws, each director
shall hold office until
the next annual meeting of
shareholders, and until his
or her
successor shall
have been
elected and
qualified.
A director
need not
be a
resident of
the State
of
Texas or a shareholder
of the Corporation.
Section 3.
Regular Meetings.
A regular meeting
of the Board
shall be held
without notice other
than this
Section 3 immediately
after, and
at the same
place as, the
annual meeting
of shareholders.
The
Board may
provide, by
resolution, the time
and place,
either within or
without the State
of Texas,
for the
holding of additional regular meetings without notice
other than such resolution.
Section 4.
Special Meetings.
Special meetings of
the Board may
be called by or
at the request of
the Chairman of
the Board, the Chief
Executive Officer,
the President or any
two directors.
The person or
persons authorized
to call
special meetings
of the
Board may
fix any
place, either
within or
without the
State of Texas, as
the place for holding any special meeting called by such
person or persons.
Section 5.
Notice.
Notice of any special meeting of the Board shall be
given at least one day prior
thereto by written
notice delivered personally
or mailed to
each director at
his or her
business address, or
,
on consent of a
director, by electronic
transmission.
If mailed, such notice
shall be deemed to be
delivered
three days after deposited
in the United States mail
so addressed, with postage
thereon prepaid.
If notice is
given by telegram, telex, telecopy or
similar means of visual data transmission, such notice
shall be deemed
to be
delivered when
transmitted for
delivery to
the recipient.
Any director
may waive
notice of
any
meeting.
The attendance
of a
director at
a meeting
shall constitute
a waiver
of notice
of such
meeting,
except where
a director
attends a
meeting for
the express
purpose of
objecting to
the transaction
of any
business on the
grounds that
such 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
need be specified in the notice
or waiver of notice of such meeting.
6
Section 6.
Quorum.
A majority
of the
number of
directors fixed
pursuant to
Section 2 of
this
Article 3 shall constitute
a quorum for
the transaction of business
at any meeting
of the Board.
If less than
a majority
of such
number of
directors is
present at
a meeting,
a majority
of the
directors present
may
adjourn such meeting from time to time without further notice.
Section 7.
Manner of Acting.
(a) Actions at Meeting
.
Except as provided
in Paragraph (b)
of this Section
7, the
act of the majority
of the directors present
at a meeting at
which a quorum
is present shall be
the act of the
Board.
(b) Actions
Without Meeting.
Any action
required or
permitted to
be taken
at a
meeting of
the Board
or any
committee thereof
may be
taken without
a meeting
if a
consent in
writing,
setting forth the
action so taken,
is signed by
all the members
of the Board
or committee, as
the case may
be.
Such consent shall have the same force
and effect as a unanimous vote at
a meeting.
A telegram, telex,
cablegram or
other form of
electronic transmission
by a director,
or a photographic,
photostatic, facsimile
or similar
reproduction of
a writing
signed by
a director,
shall be
regarded as
signed by
the director
for
purposes of this Paragraph (b).
(c) Telephon
ic Meetings
.
Subject to
the provisions
required or
permitted by
the
TBOC for
notice of
meetings, members
of the
Board or
any committee
designated by
the Board
may
participate in
and hold
a meeting
of the
Board or
such committee
by means
of conference
telephone or
similar communications equipment by means
of which all persons participating in
the meeting can hear and
speak to each other.
Section 8.
Nominations for
Election.
Nominations of
persons for
election to
the Board
at the
annual meeting
of shareholders
or any
special meeting
of shareholders
called for
the specific
purpose of
electing directors may
be made at any
such meeting (a) by
or at the direction
of the Board, any
nominating
committee thereof, or
any person appointed
by the Board or
such committee to
make such nominations,
or
(b) by
any shareholder
entitled to vote
for the election
of directors
who complies
with the procedures
set
forth in this Section 8 as well as Section 12 of Article 2.
The shareholder’s
notice with respect
to the nomination
of persons for
election to the
Board shall
set forth,
as to
each person
whom the
shareholder proposes
to nominate,
(a) the
nominee’s name,
age,
business and residence
address; (b) the
principal occupation
or employment of
the nominee; (c)
the class,
series (if applicable),
and number of shares
of the Corporation
that the nominee
owns beneficially; and
(d)
any other information
relating to the
nominee that is
required to be
disclosed in solicitations
of proxies for
the election of directors pursuant to
Regulation 14A or any successor rule
or regulation under the Securities
Exchange Act of 1934, as amended,
including, without limitation, the nominee
’s consent to being
named in
the proxy statement
as a nominee and
to serving as a
director if elected.
The Corporation may
require any
proposed nominee
to furnish such
other information
as may reasonably
be required by
the Corporation to
determine the eligibility of such proposed nominee
to serve as a director of the Corporation.
No person
shall be
eligible for
nomination as
a director
of the
Corporation at
any meeting
of
shareholders unless
such person
is nominated
in accordance
with the
procedures set
forth herein.
The
presiding officer
of the
meeting may
determine that
a proposed
nomination was
not made
in accordance
with such procedures
and, if such determination
is made, such proposed
nomination will not be
considered
at the meeting.
Section 9.
Removal.
At any meeting of
shareholders called expressly for
the purpose of removal,
any director
or the
entire Board
may be
removed, with
or without
cause, by
a vote
of the
holders of
a
majority of
the shares then
entitled to vote
at an election
of directors.
In the event
that any director
is so
removed, a
new director
may be
elected at
the same
meeting for
the unexpired
term of
the director
so
removed.
The failure
to elect
a director
to fill
the unexpired
term of
any director
so removed
shall be
deemed to create a vacancy in the Board.
7
Section 10.
Vacancies.
A vacancy in the Board
shall be deemed to exist by
reason of the death or
resignation of a director,
upon the failure of shareholders to elect
a director to fill the unexpired term
of any
director removed in
accordance with the
provisions of Section
9 of this
Article 3, or
upon the existence
of
an unfilled
directorship position
pursuant to
resolution of
the Board
in accordance
with Section
2 of
this
Article 3.
Any vacancy occurring in the Board
may be filled (a) by election at
an annual or special meeting
of shareholders
called for
that purpose,
or (b) by
a majority of
the remaining
directors though
less than a
quorum of the
Board.
A director elected
to fill a
vacancy shall be
elected for the
unexpired term of
his or
her predecessor in office.
Section 11.
Committees of Board of Directors.
The Board, by resolution adopted by a majority
of
the full
Board, may
designate from
among its
members one
or more
committees, each
of which
shall be
comprised of
one or
more of
its members,
and may
designate one
or more
of its
members as
alternative
members of
any committee,
who may,
subject to any
limitations imposed by
the Board, replace
absent or
disqualified members
at any
meeting of
that committee.
Any such
committee, to
the extent
provided in
such resolution, shall
have and may
exercise all of
the authority of the
Board, subject to the
limitations set
forth in
the TBOC.
The designation
of a committee
of the Board
and the delegation
thereto of
authority
shall not operate to relieve the Board,
or any member thereof, of any responsibility imposed by law.
Section 12.
Compensation.
By resolution of
the Board, the directors
may be paid
their expenses,
if any,
of attendance
at each
meeting of
the Board
or any
committee, and
may be
paid a
fixed sum
for
attendance at
each meeting
of the
Board or
any committee
or a
stated salary
as directors
or committee
members.
No such payment shall preclude
any director from serving
the Corporation in any other
capacity
and receiving compensation therefor.
Section 13.
Presumption of Assent.
A director of the
Corporation who is present
at a meeting of
the Board
or any
committee at
which action
on any
corporate matter
is taken
shall be
presumed to
have
assented to the action taken unless his or
her dissent shall be entered in the minutes
of the meeting or unless
the director
shall file
the written
dissent to
such action
with the
person acting
as the
secretary of
the
meeting before the adjournment
thereof or shall forward
such dissent by registered
mail to the Secretary
of
the Corporation immediately
after the adjournment
of the meeting.
Such right to dissent
shall not apply
to
a director who voted in favor of such action.
ARTICLE 4
Offices
Section 1.
Officers.
The officers of
the Corporation
shall consist of
a Chairman of
the Board, a
Chief Executive Officer,
a President, one or more
Vice Presidents
(the number and specific
titles thereof to
be determined as provided in Section 8, below
), a Secretary, a Chief Financial
Officer and a Treasurer,
each
of whom shall be
elected by the Board.
Such other officers, including
assistant officers, and agents
as may
be deemed necessary
may be elected or
appointed by the
Board.
Any two or more
offices may be
held by
the same person.
Section 2.
Election and Term
of Office.
The officers of
the Corporation shall be
elected annually
by the Board at
the regular meeting of
the Board held after
each annual meeting of
the shareholders.
If the
election of
officers is
not held
at such
meeting, such
election shall
be held
as soon
thereafter as
may be
convenient.
Each officer
shall hold
office until
his or
her successor
shall have
been duly
elected and
qualified, or
until his
or her
earlier death,
resignation or
removal in
accordance with
the provisions
of
Section 3 of this Article 4.
Section 3.
Removal.
Any officer or agent may
be removed by the Board whenever
in its
judgment the
best interests
of the
Corporation will
be served
thereby, but
such removal
shall be
without
prejudice to the contract rights, if any,
of the person so removed.
8
Section 4.
Vacancies.
A vacancy
in any
office occurring
for any
reason may
be filled
by the
Board.
An officer elected to
fill a vacancy shall be
elected for the unexpired
term of his or her
predecessor
in office.
Section 5.
Powers and Duties
of the Chairman
of the Board.
The Chairman of
the Board, if
any,
shall preside
at all
meetings of
shareholders and
of the
Board,
and shall
have such
other authority
and
perform such
other duties
as are prescribed
by law,
the Articles of
Incorporation, these
Bylaws or by
the
Board.
Section 6. Powers and Duties of
the Chief Executive Officer.
The Chief Executive Officer
shall be
the chief executive of the Corporation.
Subject to the control of the Board and
the Executive Committee (if
any), the
Chief Executive
Officer shall
have general
executive charge,
management and
control of
the
properties, business and
operations of the
Corporation with all
such powers as
may be reasonably
incident
to such
responsibilities; may
agree upon
and execute
all leases,
contracts, evidences
of indebtedness
and
other obligations in
the name of the
Corporation; may sign
all certificates for
shares of capital
stock of the
Corporation;
and shall have
such other powers
and duties as
designated in accordance
with these Bylaws
and as from
time to time
may be assigned
to the Chief
Executive Officer
by the Board.
In the absence
of
the Chairman
of the
Board (or
if there
is no
Chairman of
the Board),
the Chief
Executive Off
icer shall
preside at all meetings
of the shareholders
and, if the Chief
Executive Officer shall
also be a director,
at all
meetings of the Board.
Section 7. Powers
and Duties of
the President.
The President shall
report to the
Chief Executive
Officer and
shall serve
as the
chief operating
officer of
the Corporation.
Subject to
the control
of the
Board, the Executive
Committee (if any)
and the Chief
Executive Officer,
the President shall
have general
executive charge,
management and
control of
the properties,
business and
operations of
the Corporation
with all such powers as may be reasonably
incident to such responsibilities; may agree upon
and execute all
leases, contracts, evidences of
indebtedness and other obligations
in the name of
the Corporation; may sign
all certificates for
shares of capital
stock of the
Corporation;
and shall have
such other powers
and duties
as designated in
accordance with these
Bylaws and as
from time to
time may be
assigned to the
President
by the Chief Executive Officer
or by the Board.
In the absence of the Chairman
of the Board and the Chief
Executive Officer, the
President shall preside at all meetings of the shareholders.
Section 8.
Vice Presidents
.
The Board of
Directors may designate
one or more
classes, ranks or
other designations
of Vice
Presidents, including
without limitation Executive
Vice President
,
Senior Vice
President and Vice President
.
(a)
Executive Vice
President.
The Board
may designate
one or
more Executive
Vice Presidents, each of
whom shall be elected by the Board.
In the absence of the Chief Executive Officer
and President, or in the event of their deaths
or inability or refusal to act, the Executive Vice
President (or if
there is more
than one Executive
Vice President,
the Executive Vice
Presidents in the
order designated by
the Board,
or in the absence
of any such designation,
in the order of
their election) shall perform
the duties
of the
Chief Executive
Officer, and
when so
acting, shall have
all the powers
of and be
subject to
all the
restrictions upon
the Chief
Executive Officer.
Each Executive
Vice President
shall perform
such other
duties as the Chief Executive Officer,
President or the Board may assign to him or her from time to
time.
(b)
Senior Vice
President.
The Board
of Directors
may designate
one or
more
Senior Vice
Presidents, each
of whom
shall be
elected by
the Board
.
Senior Vice
Presidents shall
be
members of
the senior leadership
team and/or
reporting to
the Chief Executive
Officer. Each
Senior Vice
President shall perform such
other duties as the Chief Executive
Officer, President
or the Board may assign
to him or her from time to time.
(c)
Vice President
.
The Board or
the Chief Executive
Officer may
appoint one or
more subordinate Vice
Presidents
as the business of
the Corporation may
require, each of whom
shall hold
office for
such period,
have such
authority,
and perform
such duties
as the
Chief Executive
Officer,
President or the Board may assign to him or her from time
to time.
9
Section 9.
Secretary.
The Secretary shall (a) keep the
minutes of the meetings of the
shareholders
and of the
Board in one
or more books
provided for that
purpose; (b) see
that all notices
are duly given
in
accordance with
the provisions
of these
Bylaws or
as required
by law;
(c) have
custody of,
and be
responsible for, the
corporate records and the
seal of the Corporation, and
see that the seal of
the
Corporation is affixed
to all documents
as may be
necessary or appropriate;
(d) keep a
register of the
post
office address of
each shareholder furnished
to the Secretary
by such shareholder;
(e) have general
charge
of the share
transfer records of
the Corporation; and
(f) in general,
perform all duties
incident to the
office
of the
Secretary and
such other
duties the
President or
the Board
may assign
to him
or her
from time
to
time.
Section 10.
Chief Financial
Officer.
The Chief
Financial Officer
shall report
to the
President.
The Chief
Financial Officer
shall keep
and maintain,
or cause
to be
kept and
maintained, adequate
and
correct books
and records
of account
in written
form or
any other
form capable
of being
converted into
written form.
The Chief
Financial Officer
shall deposit,
or cause
to be
deposited, all
monies and
other
valuables in the
name and to
the credit of
the Corporation with
such depositories as
may be designated
by
the Board.
The Chief Financial Officer shall disburse all funds
of the Corporation as may be ordered by
the
Board, shall render
to the Chief
Executive Officer,
the President and
the members of
the Board, whenever
they request it, an account
of the financial condition of
the Corporation, shall perform
other duties
commonly incident
to such office
and shall have
such other powers
and perform such
other duties as
may
be prescribed
by the
Board, the
Chief Executive
Officer or
the President
.
Unless the
Board determines
otherwise,
the Chief
Financial Officer
shall have
such authority
to agree
upon and
execute all
leases,
contracts, evidences
of indebtedness
and other
obligations in
the name
of the
Corporation and
shall have
such other powers
and duties as designated
in accordance with these
Bylaws and as from
time to time may
be assigned by the President,
Chief Executive Officer
and/or by the Board.
The Chief Executive Officer
or
President may
direct the Treasurer
to assume and
perform the duties
of the Chief
Financial Officer
in the
absence or disability of the
Chief Financial Officer,
and the Treasurer
shall perform other duties commonly
incident to such
office and
shall also perform
such other duties
and have such
other powers as
the Board,
the Chief Executive Officer,
the President or the Chief Financial Officer shall designate
from time to time.
Section 11
.
Treasurer.
The Treasurer
shall report
to the
Chief Financial
Officer.
Subject to
control of the
Chief Financial Officer,
the Treasurer shall
(a) have charge
and custody of,
and be
responsible for,
all funds
and securities
of the
Corporation from
any source
whatsoever, and
deposit all
such funds in
the name of
the Corporation in
such banks, trust
companies or other
depositories as shall
be
selected by the Board; and
(b) in general, perform all
duties incident to the office
of the Treasurer and
such
other duties as
the Chief Executive
Officer,
the President or the
Board may assign
to him or
her from time
to time.
If required
by the Board,
the Treasurer
shall give
a bond
for the faith
ful discharge
of his or
her
duties in such sum, and with such surety or sureties, as the Board
shall determine.
Section 12.
Assistant Secretaries and Assistant Treasurers.
The Assistant Secretaries, when
authorized by the Board,
may sign with the
President or an Executive
Vice President
certificates for shares
of the Corporation, the issuance of
which shall have been authorized by
the Board.
The Assistant
Treasurers, if required
by the Board, shall give bonds
for the faithful discharge of
their duties in such sums,
and with such
sureties, as the
Board shall determine.
The Assistant Secretaries
and the Assistant
Treasurers, in general,
shall perform such duties as the
Secretary or the Treasurer,
respectively, the
President or the Board may assign to them from time
to time.
Section 13.
Delegation of
Authority.
The Chief
Executive Officer
,
President, and/or
the Chief
Financial Officer may
delegate some or all
of the powers or
duties of such officer
in accordance with these
Bylaws to any
other officer or
to any director,
employee, shareholder or
agent for whatever
period of time
seems desirable.
Section 14.
Salaries.
The salaries, if any,
of the officers
shall be fixed
by the Board from
time to
time, and no officer shall be prevented
from receiving such salary by reason of
the fact that he or she is also
a director of the Corporation.
10
ARTICLE 5
Certificates Representing Shares, Transfer
and Replacement
Section 1.
Certificates Representing
Shares.
Certificates represent
ing shares
of the
Corporation
shall be
in such
form as
shall be determined
by the
Board.
The certificates
shall be
signed by
the Chief
Executive Officer,
or the
President, or
an Executive
Vice President
and by
the Secretary
or an
Assistant
Secretary, and
the signatures of
such officers on
such certificates may
be facsimiles.
The certificates may
be sealed
with the
seal of
the Corporation
or a
facsimile thereof.
In case
any officer
who has
signed or
whose facsimile signature
has been placed
upon any 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 or she were such
officer at the
date of its
issuance.
All certificates for
shares shall be
consecutively numbered
or otherwise
identified.
The name and address of the person to
whom the shares represented thereby are issued,
together
with the number
of shares and date
of issue, shall
be entered in
the share transfer records
of the
Corporation.
All certificates
surrendered to
the Corporation
for transfer
shall be
cancelled, and
no new
certificate shall be
issued until the
former certificate for
a like number
of shares shall
have been
surrendered and
cancelled, except
that in
case of
a lost,
stolen or
destroyed certificate,
a new
certificate
may be issued therefor as provided in Section 3 of
this Article 5.
Section 2.
Transfer of
Shares.
A transfer of
shares of the
Corporation shall
be made only
in the
share transfer
records of the
Corporation by
the holder of
record thereof,
or by his
or her
legal
representative who shall furnish
proper evidence of authority
to transfer, or by
his or her attorney thereunto
authorized by
power of
attorney, duly
executed and
filed with
the Secretary
of the
Corporation, and
on
surrender for
cancellation of
the certificate
for such
shares.
The Corporation
shall regard
the person
in
whose name
any shares
issued by
the Corporation
are registered
in the
share transfer
records of
the
Corporation at
any particular
time (including,
without limitation,
as of
a record
date fixed
pursuant to
Section 5 or
6 of
Article 2) as
the owner
of those
shares at
that time
for the
purposes specified
by the
TBOC.
Section 3.
Lost, Stolen or Destroyed Certificates.
The Corporation shall issue a
new certificate in
place of
any certificate
representing shares
previously issued
if the
registered owner
of the
certificate (a)
makes proof in affidavit
form that it has been
lost, destroyed or wrongfully
taken; (b) requests the
issuance
of a new
certificate before the
Corporation has notice
that the certificate
has been acquired
by a purchaser
for value in good faith and without
notice of an adverse claim; (c) gives
a bond in such form, and with
such
surety or sureties, with fixed or open
penalty, as the Corporation
may direct, or indemnifies the Corporation
(and its transfer
agent and registrar,
if any) against
any claim that
may be made
on account of
the alleged
loss, destruction
or theft of
the certificate; and
(d) satisfies any
other reasonable requirements
imposed by
the Corporation.
If a certificate has been
lost, apparently destroyed
or wrongfully taken, and
the registered
holder of the
shares represented thereby
fails to notify
the Corporation within
a reasonable time after
he or
she has
notice of
it, and
the Corporation
registers a
transfer of
such shares
before receiving
such notifi-
cation, the
registered holder
shall be
precluded from
making any
claim against
the Corporation
for the
transfer or for a new certificate.
ARTICLE 6
Fiscal Year
Unless otherwise determined by the Board, the fiscal year
of the Corporation shall conclude on
December 31.
11
ARTICLE 7
Distributions
The Board may
authorize, and the
Corporation may make,
distributions subject to
any restrictions
in its Articles of Incorporation and to the limitations set forth
in the TBOC.
ARTICLE 8
Indemnification
Section 1.
Indemnification.
The Corporation shall
indemnify persons who
are or were
a director
or officer
of the
Corporation against
any and
all liability,
judgments, penalties,
fines, settlements
and
reasonable expenses
that may
be incurred
by them
in connection
with or
resulting from
any threatened,
pending or
completed action,
suit or
proceeding, whether
civil, criminal,
administrative, arbitrative
or
investigative in nature, an
appeal of any such action,
suit or proceeding, or any
inquiry or investigation that
could lead to
any such action,
suit or proceeding
(each, a “
Proceeding
”), in each
case, to the
fullest extent
permitted under the TBOC,
as currently in effect
or as may hereafter
be amended or succeeded
but, in such
case, only to
the extent that
such amendment or
successor law permits
the Corporation to
provide broader
indemnification rights.
The right
to indemnification
conferred in
the preceding
sentence shall
include the
right to be paid or reimbursed
by the Corporation for the
reasonable expenses incurred by the indemnitee
in
connection with
any Proceedi
ng in
advance of
the final
disposition of
the Proceeding
subject to
the
requirements of the
TBOC. The Corporation
may also indemnify
and advance expenses
to an employee
or
agent of
the Corporation
to the
same extent
and subject
to the
same conditions
under which
it may
indemnify and advance expenses to directors and officers.
Section 2.
Non-Exclusivity.
The provisions of Section
1 of this Article
8 shall (a) not
be deemed
exclusive of any
other rights to
which any director
or officer of
the Corporation may
be entitled under any
agreement, pursuant to a vote
of the Board, any committee thereof or
the shareholders, as a matter of law or
otherwise, either as to
action in his or her
official capacity or as
to action in another
capacity while holding
such off
ice, (b) continue
as to a
person who has
ceased to be
a director,
and (c) inure
to the benefit
of the
heirs, executors and administrators of such person.
Section 3.
Limitation.
No person shall be
entitled to indemnification
pursuant to this Article
8 in
relation to any matter as to which indemnification shall not
be permitted by law.
Section 4.
Defined Terms.
Terms used herein
that are defined in the Indemnification
Article shall
have the respective meanings set forth therein.
ARTICLE 9
Seal
The Board
may provide
for a
corporate seal,
which shall
be circular
in form
and shall
have
inscribed thereon the name of the Corporation, the state of
incorporation, and the five-pointed Texas
star.
ARTICLE 10
Waiver of Notice
Whenever any
notice is
required to
be given
to any
shareholder or
director of
the Corporation
under the
provisions of
the Articles
of Incorporation,
these Bylaws
or the
TBOC, 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 to the giving of such
notice.
12
ARTICLE 11
Procedure
Meetings of the
shareholders and of
the Board shall
be conducted in
accordance with the
procedures established by the presiding officer
of the meeting.
ARTICLE 12
Participation of Directors and
Officers in Related Businesses
Unless otherwise provided
by contract, directors
and officers of
the Corporation may
hold
positions as directors
and officers
of other
corporations in related
businesses, and
their efforts
to advance
the interests
of those
corporations will
not create
a breach
of fiduciary
duty to
this Corporation
in the
absence of bad faith.
ARTICLE 13
Amendment
These Bylaws may be amended or repealed, as to
all or some portion thereof, and new bylaws may
be adopted, by (a) the Board or (b) the shareholders.