**Exhibit3.3**

 

AMENDED ANDRESTATED

BYLAWS OF

SCHLOTZSKY’S, INC.

 

1.  Offices

 

1.1                                 PrincipalOffice.  The principal office of theCorporation shall be located in Austin, Texas.

 

1.2                                 OtherOffice.  The Corporation may alsohave offices at such other places within or without the State of Texas as theboard of directors may from time to time determine or the business of theCorporation may require.

 

2.  Meetings of Shareholders

 

2.1                                 AnnualMeeting.  The annual meeting ofshareholders for the election of directors and such other business as mayproperly be brought before the meeting shall be held at such place within orwithout the State of Texas and at such date and time as shall be designated bythe board of directors and stated in the notice of the meeting or in a dulyexecuted waiver of notice thereof.

 

2.2                                 SpecialMeetings.  Special meetings of theshareholders may be called (a) by the president or the board of directors, or(b) by the holders of at least 10% of all the shares entitled to vote at theproposed meeting; provided that when a meeting is to be called by theholders of at least one-tenth (1/10th) of all shares entitled to vote at themeeting for a purpose other than the removal of one or more directors inaccordance with these Bylaws, prior notice of such meeting and the purposestherefor must be set forth in writing to, and timely filed with, the secretaryof the Corporation.  To be consideredtimely, such prior notice must be delivered either in person or by UnitedStates Certified Mail, postage prepaid, and received at the principal executiveoffices of the Corporation not less than 120 days nor more than 150 days beforethe proposed date of the special meeting of shareholders.  Business transacted at any special meetingshall be confined to the purposes stated in the prior notice provided to thesecretary of the Corporation and in the notice of the meeting provided toshareholders.  A meeting called by theholders of at least one-tenth (1/10th) of all shares entitled to vote at themeeting for a purpose other than the removal of one or more directors, may becanceled or rescheduled by the board of directors if such a meeting would occurwithin 60 days of the Corporation’s annual meeting.  The record date for determining shareholders entitled to call aspecial meeting shall be determined by the Board of Directors.

 

2.3                                 Noticeand Waivers of Notice.

 

(a)                                  Writtennotice stating the place, date and hour of the meeting and, in the case of aspecial meeting, the purpose or purposes for which the meeting is called, shallbe delivered not less than 10 nor more than 60 days before the date of themeeting, either personally or by mail, by

 

----

 

or at the direction of the president, the secretary, or the officer orpersons calling the meeting, to each shareholder entitled to vote at suchmeeting.  If mailed, such notice shallbe deemed to be delivered when deposited in the United States mail addressed tothe shareholder at his address as it appears on the share transfer records ofthe Corporation.

 

(b)                                 Noticemay be waived in writing signed by the person or persons entitled to suchnotice.  Such waiver may be executed atany time before or after the holding of such meeting.  Attendance at a meeting shall constitute a waiver of notice,except where the person attends for the express purpose of objecting to thetransaction of any business on the ground that the meeting is not lawfullycalled.

 

(c)                                  Anynotice required to be given to any shareholder, under any provision of theTexas Business Corporation Act, as amended (the “Act”), the Articles ofIncorporation or these Bylaws, need not be given to the shareholder if (1)notice of two consecutive annual meetings and all notices of meetings heldduring the period between those annual meetings, if any, or (2) all (but in noevent less than two) payments (if sent by first class mail) of distributions orinterest on securities during a 12-month period have been mailed to thatperson, addressed at his address as shown on the records of the Corporation,and have been returned undeliverable. Any action or meeting taken or held without notice to such a personshall have the same force and effect as if the notice had been duly given and,if the action taken by the Corporation is reflected in any articles or documentfiled with the Secretary of State, those articles or that document may statethat notice was duly given to all persons to whom notice was required to begiven.  If such a person delivers to theCorporation a written notice setting forth his then current address, the requirementthat notice be given to that person shall be reinstated.

 

2.4                                 RecordDate.  For the purpose ofdetermining shareholders entitled to notice of or to vote at any meeting ofshareholders or any adjournment thereof, or entitled to receive payment of anydividend, the board of directors may in advance establish a record date whichmust be at least 10 but not more than 60 days prior to such meeting.  If the board of directors fail to establisha record date, the record date shall be the date on which notice of the meetingis mailed.

 

2.5                                 VotingList.

 

(a)                                  Theofficer or agent having charge of the stock transfer books for shares of theCorporation shall make, at least ten days before each meeting of shareholders,a complete list of the shareholders entitled to vote at such meeting or anyadjournment thereof, arranged in alphabetical order, with the address of andthe number of shares held by each, which list, for a period of ten days priorto such meeting, shall be kept on file at the registered office of theCorporation and shall be subject to inspection by any shareholder at any timeduring usual business hours.  Such listshall also be produced and kept open at the time and place of the meeting andshall be subject to the inspection of any shareholder during the whole time ofthe meeting.  The original stocktransfer book shall be prima facie evidence as to who are the shareholdersentitled to examine such list or transfer books or vote at any meeting ofshareholders.

 

(b)                                 Failureto comply with the requirements of this section shall not affect the validityof any action taken at such meeting.

 

2

----

 

(c)                                  Anofficer or agent having charge of the stock transfer books who shall fail toprepare the list of shareholders or keep the same on file for a period of tendays, or produce and keep it open for inspection as provided in this section,shall be liable to any shareholder suffering damage on account of such failure,to the extent of such damage.  In theevent that such officer or agent does not receive notice of a meeting ofshareholders sufficiently in advance of the date of such meeting reasonably toenable him to comply with the duties prescribed by these Bylaws, theCorporation, but not such officer or agent shall be liable to any shareholdersuffering damage on account of such failure, to the extent of such damage.

 

2.6                                 Quorumof Shareholders.  With respect toany matter, a quorum shall be present at a meeting of shareholders if theholders of a majority of the shares entitled to vote on that matter arerepresented at the meeting, in person or by proxy, unless otherwise provided inthe Articles of Incorporation in accordance with the Act.  Unless otherwise provided in the Articles ofIncorporation, the shareholders represented in person or by proxy at a meetingof shareholders at which a quorum is not present may adjourn the meeting untilsuch time and to such place as may be determined by a vote of the holders of amajority of the shares represented in person or by proxy at that meeting.

 

2.7                                 Withdrawalof Quorum.  Unless otherwiseprovided in the Articles of Incorporation, once a quorum is present at ameeting of shareholders, the shareholders represented in person or by proxy atthe meeting may conduct such business as may properly be brought before themeeting until it is adjourned, and the subsequent withdrawal from the meetingof any shareholder or the refusal of any shareholder represented in person orby proxy to vote shall not effect the presence of a quorum at the meeting.

 

2.8                                 Votingon Matters Other Than the Election of Directors.  With respect to any matter, other than the election of directorsor a matter for which the affirmative vote of the holders of a specifiedportion of the shares entitled to vote is required by the Act, the affirmativevote of the holders of a majority of the shares entitled to vote on that matterand represented in person or by proxy at a meeting of shareholders at which aquorum is present shall be the act of the shareholders, unless otherwiseprovided in the Articles of Incorporation.

 

2.9                                 Votingin the Election of Directors. Directors shall be elected in the manner provided in the Articles ofIncorporation.

 

2.10                           Methodof Voting.  The holders ofoutstanding shares of capital stock of the Corporation shall be entitled tovote on matters submitted to a vote of shareholders as provided in the Articlesof Incorporation.  Any shareholder mayvote either in person or by proxy executed in writing by the shareholder.  No proxy shall be valid after 11 months fromthe date of its execution, unless otherwise provided in the proxy.

 

3

----

 

2.11                           ActionWithout Meetings.

 

(a)                                  Anyaction that may be taken at any shareholders’ meeting may be taken without ameeting if consents in writing setting forth the action to be taken are signedby the holders of outstanding shares having not less than the number of votesthat would be necessary to authorize such action at a meeting at which allshares entitled to vote thereon were present and voted are delivered to theCorporation.  Any party desiring topresent a matter to the shareholders for written consent shall give notice tothe Secretary of the Corporation not less than 60 days prior to the date theconsent solicitation is to be initiated. The Board may fix the record date for determining the shareholders whoshall be entitled to vote on the matter presented for written consent at anytime prior to the date such consent solicitation is to be initiated.  The Board may also fix the expiration dateof the consent solicitation period.  Inthe event that the Board does not set a record date, the record date will bethe date of the first consent.  Uponreceipt of a written consent from any shareholder, the Corporation shalldetermine the validity of such consent. Any shareholder’s written consent that cannot be validated within 10days of the expiration of the consent solicitation period shall be deemedinvalid, and shall not be counted in determining whether the requisite numberof votes for the matter presented for consent have been obtained.

 

(b)                                 Atelegram, telex, cablegram, or similar transmission by a shareholder, or a  photographic, photostatic, facsimile, orsimilar reproduction of a writing signed by a shareholder, shall be regarded assigned by the shareholder for purposes of this section.

 

(c)                                  Promptnotice of the taking of any action by shareholders without a meeting by lessthan unanimous written consent shall be given to those shareholders who did notconsent in writing to the action.

 

2.12                           Conductof Meeting.  The Chairman of theBoard, if such office has been filled, and, if not or if the Chairman of theBoard is absent or otherwise unable to act, the President shall preside at allmeetings of shareholders.  The Secretaryshall keep the records of each meeting of shareholders.  In the absence or inability to act of anysuch officer, such officer’s duties shall be performed by the officer given theauthority to act for such absent or non-acting officer under these by-laws orby a person appointed by the meeting.

 

2.13                           ShareholderProposals at Annual Meetings.  At anannual meeting of the shareholders, only such business shall be conducted asshall have been properly brought before the meeting.  To be properly brought before an annual meeting, business must bespecified in the notice of meeting (or any supplement thereto) given by or atthe direction of the board of directors, otherwise properly brought before themeeting by or at the direction of the board of directors or otherwise properlybrought before the meeting by a shareholder. In addition to any other applicable requirements, for business to beproperly brought before an annual meeting by a shareholder, the shareholdermust have given timely notice thereof in writing to the Secretary of theCorporation.  To be considered timely, ashareholder’s notice must be delivered either in person or by United Statescertified mail, postage prepaid, and received at the principal executiveoffices of the corporation (a) not less than one hundred twenty (120) days normore than one hundred fifty (150) days before the first anniversary date of thecorporation’s proxy statement in connection with the last annual meeting ofshareholders, or (b) if no annual meeting has been called after the expirationof more than thirty (30) days from the date for such meeting

 

4

----

 

contemplated at the time of the previous year’s proxy statement, notless than a reasonable time, as determined by the board of directors, prior tothe date of the applicable annual meeting. A shareholder’s notice to the Secretary shall set forth as to eachmatter the shareholder proposes to bring before the annual meeting, (i) a briefdescription of the business desired to be brought before the annual meeting andthe reasons for conducting such business at the annual meeting, (ii) the nameand record address of the shareholder proposing such business, (iii) the classand number of shares of the Corporation that are beneficially owned by theshareholder, and (iv) any material interest of the shareholder in suchbusiness.  Notwithstanding anything inthese by-laws to the contrary, no business shall be conducted at the annualmeeting except in accordance with the procedures set forth in this section2.13, provided, however, that nothing in this section 2.13 shall be deemed topreclude discussion by any shareholder of any business properly brought beforethe annual meeting in accordance with said procedure.

 

2.14                           Nominationsof Persons for Election to the Board of Directors.  In addition to any other applicablerequirements, only persons who are nominated in accordance with the followingprocedures shall be eligible for election as directors.  Nominations of persons for election to theboard of directors of the Corporation may be made at a meeting of shareholdersby or at the direction of the board of directors, by any nominating committeeor person appointed by the board of directors or by any shareholder of theCorporation entitled to vote for the election of directors at the meeting whocomplies with the notice procedures set forth in this section 2.14.  Such nominations, other than those made byor at the direction of the board of directors, shall be made pursuant to timelynotice in writing to the Secretary of the Corporation. To be considered timely,a shareholder’s notice must be delivered either in person or by United Statescertified mail, postage prepaid, and received at the principal executive officesof the Corporation (a) not less than one hundred twenty (120) days nor morethan one hundred fifty (150) days before the first anniversary date of theCorporation’s proxy statement in connection with the last annual meeting ofshareholders, or (b) if no annual meeting has been called after the expirationof more than thirty (30) days from the date for such meeting contemplated atthe time of the previous year’s proxy statement, not less than a reasonabletime, as determined by the board of directors, prior to the date of theapplicable annual meeting.  Suchshareholder’s notice shall set forth (a) as to each person whom the shareholderproposes to nominate for election or re-election as a director, (i) the name,age, business address and residence address of the person, (ii) the principaloccupation or employment of the person, (iii) the class and number of shares ofthe Corporation beneficially owned by the person, and (iv) any otherinformation relating to the person that is required to be disclosed in solicitationsfor proxies for election of directors pursuant to Regulation 14A under theSecurities Exchange Act of 1934, as amended; and (b) as to the shareholdergiving the notice, (i) the name and record address of the shareholder, and (ii)the class and number of shares of the Corporation beneficially owned by theshareholder.  The Corporation mayrequire any proposed nominee to furnish such other information as mayreasonably be required by the Corporation to determine the eligibility of suchproposed nominee to serve as a director of the Corporation.  No person shall be eligible for election asa director of the Corporation unless nominated in accordance with theprocedures set forth herein.  Theseprovisions shall not apply to nomination of any persons entitled to beseparately elected by holders of preferred stock.

 

2.15                           Inspectors.  The board of directors may, in advance ofany meeting of shareholders, appoint one or more inspectors to act at suchmeeting or any adjournment thereof.

 

5

----

 

If any of the inspectors so appointed shall fail to appear or act, thechairman of the meeting shall, or if inspectors shall not have been appointed,the chairman of the meeting may, appoint one or more inspectors.  Each inspector, before entering upon thedischarge of his duties, shall take and sign an oath faithfully to execute theduties of inspector at such meeting with strict impartiality and according tothe best of his ability.  The inspectorsshall determine the number of shares of capital stock of the Corporationoutstanding and the voting power of each, the number of shares represented atthe meeting, the existence of a quorum, and the validity and effect of proxiesand shall receive votes, ballots, or consents, hear and determine allchallenges and questions arising in connection with the right to vote, countand tabulate all votes, ballots, or consents, determine the results, and dosuch acts as are proper to conduct the election or vote with fairness to all shareholdersafter consultation with counsel to the Corporation as to any issues oflaw.  On request of the chairman of themeeting, the inspectors shall make a report in writing of any challenge,request, or matter determined by them and shall execute a certificate of anyfact found by them.  No director orcandidate for the office of director shall act as an inspector of an electionof directors.  Inspectors need not beshareholders.

 

3.  Directors

 

3.1                                 Powers.  The business andaffairs of the Corporation shall be managed by or under the direction of theBoard of Directors, except as otherwise provided by applicable law or theArticles of Incorporation, which may exercise all powers of the Corporation andperform all such lawful acts and do all such lawful things that are not, byapplicable law or the Articles of Incorporation, directed or required to beexercised, performed, or done by the shareholders of the Corporation.

 

3.2                                 Number.  Except as otherwise providedby or fixed pursuant to the provisions of Article IV, Section 8 (Class CPreferred Stock) of the Articles of Incorporation with respect to theright(s) of holders of any Preferred Stock or series of Preferred Stock toelect any additional director(s), the number of directors which shallconstitute the “whole” (as defined below) Board of Directors shall be not lessthan three (3) and shall be fixed from time to time exclusively by the Board ofDirectors pursuant to a resolution adopted by the Board of Directors.  For purposes of this Section 3.2 (Number),“whole” shall mean the totalnumber of authorized directors, whether or not there exist any vacancies on theBoard of Directors or unfilled previously authorized directorships, at the timesuch resolution is presented to the Board of Directors for adoption.

 

3.3                                 Staggered Board and Election.  Exceptas otherwise provided by or fixed pursuant to the provisions of Article IV,Section 8 (Class C Preferred Stock) of the Articles of Incorporationwith respect to the right(s) of holders of any Preferred Stock or series ofPreferred Stock to elect any additional director(s), the directors shall bedivided into three (3) classes, designated as Class A, Class B, and Class C(which at all times shall be as nearly equal in number as possible), with theterm of office of Class A directors to expire at the 2005 Annual Meeting ofShareholders, the term of office of Class B directors to expire at the 2003Annual Meeting of Shareholders, and the term of office of Class C directors toexpire at the 2004 Annual Meeting of Shareholders, upon election andqualification of their successors.  Ateach annual meeting of shareholders after such classification, qualification,and election, directors elected to succeed those directors whose terms shallhave expired shall be elected for a full term of office,

 

6

----

 

as applicable, to expire at the third ensuingannual meeting of shareholders after their election, upon election andqualification of their successors.  Thedirectors of the Corporation, except for any director(s) who may be elected asotherwise provided by or fixed pursuant to the provisions of Article IV,Section 8 (Class C Preferred Stock) of the Articles of Incorporationwith respect to the right(s) of holders of any Preferred Stock or series ofPreferred Stock to elect any additional director(s), shall be elected inaccordance with this Section 3.3 (Staggered Board and Election) by theshareholders of the Corporation entitled to vote thereon at each annual meetingof shareholders.  Each director shall be at least 21 years of age. Directors need not be shareholders of the Corporation.  In any election ofdirectors, the persons receiving a plurality ofthe votes cast, up to the number of directorsto be elected in such election, shall be deemed elected.

 

3.4                                 Removal.  Subject to the right of theholders of any Preferred Stock or series of Preferred Stock then outstanding,any director, or the entire Board of Directors, may be removed from office atany time, but only for “cause” (as defined below) and only by the affirmativevote of the holders of at least sixty-six and two-thirds percent (66 2/3%) ofthe voting power of the Voting Stock (as defined below), voting together as asingle class.  Except as may otherwisebe provided by law, “cause” forremoval shall exist only if any director whose removal has been proposed:

 

(a)                                  has been convicted of a felony by a court ofcompetent jurisdiction and such conviction is no longer subject to directappeal,

 

(b)                                 has been adjudged by a court of competentjurisdiction to be liable for gross negligence or misconduct in the performanceof the duties of such director to the Corporation in connection with a matterof substantial importance to the Corporation, and such adjudication has becomefinal and non-appealable, or

 

(c)                                  has missed three (3) consecutive meetings of theBoard of Directors.

 

For purposes of these Bylaws,the term “Voting Stock” shallmean all issued and outstanding shares of stock of the Corporation entitled tovote generally in the election of directors or that otherwise are entitled tovote with such stock on the specific matter in question.

 

3.5                                 Vacancies.  Subject to the rights of theholders of any Preferred Stock or series of Preferred Stock then outstanding, anyvacancy occurring in the Board of Directors or any directorship to be filled byreason of an increase in the number of directors may be filled by election atan annual or special meeting of shareholders called for that purpose or may befilled by the affirmative vote of a majority of the remaining directors thoughless than a quorum of the board of directors; provided, however,that a directorship to be filled by reason of an increase in the number ofdirectors may be filled by the Board of Directors for a term of officecontinuing only until the next election of one or more directors by theshareholders and the Board of Directors may not fill more than two suchdirectorships during the period between any two successive annual meetings ofshareholders.  A director elected tofill a vacancy, other than a vacancy filled by the Board of Directors by reasonof an increase in the number of directors, shall be elected for the unexpiredterm of his predecessor in office.

 

3.6                                 Nominations, Ballots, and Cumulative Voting.  Advancenotice of nominations for the election of directors of the Corporation shall begiven in accordance with Section 2.14 of these Bylaws. Election of directorsneed not be by written ballot unless these Bylaws shall so

 

7

----

 

provide. No holders of shares of stock of the Corporation shall have any right(s)to cumulate votes in the election of directors of the Corporation.

 

3.7                                 Preferred Stock Directors. Notwithstanding the foregoing, whenever the holders of any PreferredStock or series of Preferred Stock shall be entitled to elect any additionaldirector(s) at an annual or special meeting of shareholders, the election, termof office, filling of vacancies, and other terms and features of suchdirectorship(s) shall be governed by the terms and features of the Articles ofIncorporation, and any resolution(s) adopted pursuant thereto, and thedirector(s) so elected shall not be divided into classes pursuant to thisSection 3 (Board of Directors) unless expressly provided by such termsand features.

 

4.  Meetings of the Board of Directors

 

4.1                                 Place.  Meetings of the board of directors, regularor special, may be held either within or without the State of Texas.

 

4.2                                 RegularMeetings.  Regular meetings of theboard of directors shall be held at such dates and times and at such places asshall from time to time be determined by the board of directors.  Regular meetings may be held with or withoutnotice, as determined by the board of directors.

 

4.3                                 SpecialMeetings.  Special meetings of theboard of directors may be called by the chairman of the board of directors orthe president and shall be called by the secretary on the written request ofany two directors.  Notice of eachspecial meeting of the board of directors shall be given to each director atleast 48 hours before the meeting is scheduled to convene.

 

4.4                                 Noticeand Waiver of Notice.  Attendance ofa director at any meeting shall constitute a waiver of notice of such meeting,except where a director attends for the express purpose of objecting to thetransaction of any business on the ground that the meeting is not lawfullycalled or convened.  Except as may beotherwise provided by law or by the Articles of Incorporation or by theseBylaws, neither the business to be transacted at, nor the purpose of, anyregular or special meeting of the board of directors need be specified in thenotice or waiver of notice of such meeting.

 

4.5                                 Quorumof Directors; Vote Required.  At allmeetings of the Board of Directors a majority of the Directors shall constitutea quorum for the transaction of business and the act of a majority of theDirectors present at any meeting at which there is a quorum shall be the act ofthe Board of Directors.  If a quorumshall not be present at any meeting of Directors, the Directors present thereatmay adjourn the meeting from time to time, without notice other thanannouncement at the meeting, until a quorum shall be present.

 

4.6                                 ActionWithout Meetings.  Any actionrequired or permitted to be taken at a meeting of the board of directors or anycommittee may be taken without a meeting if a consent in writing, setting forththe action so taken, is signed by all the members of the board of directors orcommittee, as the case may be.

 

8

----

 

4.7                                 Committees.

 

(a)                                  Theboard of directors, by resolution adopted by a majority of the full board ofdirectors, may designate from among its members one or more committees, each ofwhich shall be comprised of one or more of its members, and may designate oneor more of its members as alternate members of any committee, who may, subjectto any limitations imposed by the board of directors, replace absent ordisqualified members at any meeting of that committee.  Any such committee, to the extent providedin such resolution shall have and may exercise all of the authority of theboard of directors, subject to the limitations set forth below and in the Act.

 

(b)                                 Nocommittee of the board of directors shall have the authority of the board ofdirectors in reference to:

 

1.                                       amendingthe Articles of Incorporation, except that a committee may, to the extentprovided in the resolution designating that committee or in the Articles ofIncorporation or the Bylaws, exercise the authority of the board of directorsvested in it in accordance with Article 2.13 of the Act;

 

2.                                       proposinga reduction of the stated capital of the Corporation in the manner permitted byArticle 4.12 of the Act;

 

3.                                       approvinga plan of merger or share exchange of the Corporation;

 

4.                                       recommendingto the shareholders the sale, lease, or exchange of all or substantially all ofthe property and assets of the Corporation otherwise than in the usual andregular course of its business;

 

5.                                       recommendingto the shareholders a voluntary dissolution of the Corporation or a revocationthereof;

 

6.                                       amending,altering, or repealing these Bylaws of the Corporation or adopting new Bylawsof the Corporation;

 

7.                                       fillingvacancies in the board of directors;

 

8.                                       fillingvacancies in or designating alternate members of any such committee;

 

9.                                       fillingany directorship to be filled by reason of an increase in the number ofdirectors;

 

10.                                 electingor removing officers of the Corporation or members or alternate members of anysuch committee;

 

11.                                 fixingthe compensation of any member or alternate members of such committee; or

 

9

----

 

12.                                 alteringor repealing any resolution of the board of directors that by its termsprovides that it shall not be so amendable or repealable.

 

(c)                                  Unlessthe resolution designating a particular committee, the Articles ofIncorporation, or these Bylaws expressly so provide, no committee of the boardof directors shall have the authority to authorize a distribution or toauthorize the issuance of shares of the Corporation.

 

(d)                                 Thedesignation of a committee of the board of directors and the delegation theretoof authority shall not operate to relieve the board of directors, or any memberthereof, of any responsibility imposed by law.

 

4.8                                 Compensation.  The Directors shall receive suchcompensation for their services as directors as may be determined by resolutionof the board of directors.  EachDirector shall be reimbursed for travel and other reasonable out-of-pocketexpenses incurred by such Director in attending regular and special meetings ofthe board of directors or any committee. The receipt of compensation or reimbursement of expenses shall notpreclude any director from serving the Corporation in any other capacity andreceiving compensation therefor.

 

5.  Officers

 

5.1                                 Election,Number, Qualification, Term, Compensation. The officers of the Corporationshall be elected by the board of directors and shall consist of a president, avice-president, a secretary and a treasurer. The board of directors may also elect a chairman of the board,additional vice-presidents, one or more assistant secretaries and assistanttreasurers and such other officers and assistant officers and agents as itshall deem necessary, who shall hold their offices for such terms and shallhave such authority and exercise such powers and perform such duties as shallbe determined from time to time by the board by resolution not inconsistentwith these Bylaws.  Two or more officesmay be held by the same person.  None ofthe officers need be directors except the president.  The board of directors shall have the power to enter intocontracts for the employment and compensation of officers for such terms as theboard deems advisable.  The salaries ofall officers of the Corporation shall be fixed by the board of directors.

 

5.2                                 Removal.  The officers of the Corporation shall holdoffice until their successors are elected or appointed and qualify, or untiltheir death or until their resignation or removal from office.  Any officer elected or appointed by theboard of directors may be removed at any time by the board, with or withoutcause.  Such removal shall be withoutprejudice to the contract rights, if any, of the person so removed.  Election or appointment of an officer shallnot of itself create contract rights.

 

5.3                                 Vacancies.  Any vacancy occurring in any office of theCorporation by death, resignation, removal or otherwise shall be filled by theboard of directors.

 

5.4                                 Authority.  Officers and agents shall have suchauthority and perform such duties in the management of the Corporation as maybe provided in these Bylaws.

 

10

----

 

5.5                                 Chairmanof the Board.  The chairman of theboard, if one is elected, shall preside at all meetings of the board ofdirectors and of the shareholders and shall have such other powers and dutiesas may from time to time be prescribed by the board of directors upon writtendirections given to him pursuant to resolutions duly adopted by the board ofdirectors.

 

5.6                                 President.  The president shall be the chief executiveofficer of the Corporation, shall have general and active management of thebusiness and affairs of the Corporation and shall see that all orders andresolutions of the board of directors are carried into effect.  He shall preside at all meetings of theshareholders and of the board of directors, unless a chairman of the board hasbeen elected, in which event the president shall preside at meetings of theshareholders and of the board of directors in the absence or disability of thechairman of the board.

 

5.7                                 Vice-President.  Vice-presidents, including executivevice-presidents and senior vice-presidents, in the order of their seniority,unless otherwise determined by the board of directors, shall, in the absence ordisability of the president, perform the duties and have the authority andexercise the powers of the president. They shall perform such other duties and have such other authority and powersas the board of directors may from time to time prescribe or as the presidentmay from time to time delegate.

 

5.8                                 Secretary.  The secretary shall attend all meetings ofthe board of directors and all meetings of shareholders and record all of theproceedings of the meetings of the board of directors and of the shareholdersin a minute book to be kept for that purpose and shall perform like duties forthe standing committees when required. He shall give, or cause to be given, notice of all meetings of theshareholders and special meetings of the board of directors, and shall performsuch other duties as may be prescribed by the board of directors or president,under whose supervision he shall be.  Heshall keep in safe custody the seal of the Corporation and, when authorized bythe board of directors, shall affix the same to any instrument requiring itand, when so affixed, it shall be attested by his signature or by the signatureof an assistant secretary or of the treasurer.

 

5.9                                 Treasurer.

 

(a)                                  Thetreasurer shall have custody of the corporate funds and securities and shallkeep full and accurate accounts and records of receipts, disbursements andother transactions in books belonging to the Corporation, and shall deposit allmoneys and other valuable effects in the name and to the credit of theCorporation in such depositories as may be designated by the board ofdirectors.

 

(b)                                 Thetreasurer shall disburse the funds of the Corporation as may be ordered by theboard of directors, taking proper vouchers for such disbursements, and shallrender to the president and the board of directors, at its regular meetings, orwhen the president or board of directors so requires, an account of all histransactions as treasurer and of the financial condition of the Corporation.

 

(c)                                  Ifrequired by the board of directors, the treasurer shall give the Corporation abond of such type, character and amount as the board of directors may require.

 

11

----

 

5.10                           AssistantSecretary and Assistant Treasurer. In the absence of the secretary or treasurer, an assistant secretary orassistant treasurer, respectively shall perform the duties of the secretary ortreasurer.  Assistant treasurers may berequired to give bond as provided in section 5.9(c).  The assistant secretaries and assistanttreasurers, in general shall have such powers and perform such duties as thetreasurer or secretary, respectively, or the board of directors or presidentmay prescribe.

 

6.  Certificates Representing Shares

 

6.1                                 Certificates.  The shares of the Corporation shall berepresented by certificates signed by the president or a vice-president and thesecretary or an assistant secretary of the Corporation, and may be sealed withthe seal of the Corporation or a facsimile thereof.  The signatures of the president or vice-president and thesecretary or assistant secretary upon a certificate may be facsimiles if thecertificate is countersigned by a transfer agent, or registered by a registrar,other than the Corporation itself or an employee of the Corporation.  The certificates shall be consecutivelynumbered and shall be entered in the books of the Corporation as they areissued.  Each certificate shall state onthe face thereof the holder’s name, the number and class of shares, and the parvalue of such shares or a statement that such shares are without par value.

 

6.2                                 Payment,Issuance.  Shares may be issued forsuch consideration, not less than the par value thereof, as may be fixed fromtime to time by the board of directors. The consideration for the payment of shares shall consist of money paid,labor done or property actually received. Shares may not be issued until the full amount of the considerationfixed therefor has been paid.

 

6.3                                 Lost,Stolen or Destroyed Certificates. The board of directors may direct a new certificate to be issued inplace of any certificate theretofore issued by the Corporation alleged to havebeen lost, stolen or destroyed upon the making of an affidavit of that fact bythe person claiming the certificate to be lost, stolen or destroyed.  When authorizing such issue of a newcertificate, the board of directors may, in its discretion and as a conditionprecedent to the issuance thereof, prescribe such terms and conditions as itdeems expedient and may require such indemnities as it deems adequate toprotect the Corporation from any claim that may be made against it with respectto any such certificate alleged to have been lost or destroyed.

 

6.4                                 Registrationof Transfer.  Shares of stock shallbe transferable only on the books of the Corporation by the holder thereof inperson or by his duly authorized attorney. Upon surrender to the Corporation or the transfer agent of theCorporation of a certificate for shares duly endorsed or accompanied by properevidence of succession, assignment or authority to transfer, a new certificateshall be issued to the person entitled thereto and the old certificate canceledand the transaction recorded upon the books of the Corporation.

 

6.5                                 RegisteredOwner.  The Corporation shall beentitled to recognize the exclusive right of a person registered on its booksas of the record date as the owner of shares to receive dividends or otherdistributions, and to vote as such owner, and shall not be bound to recognizeany equitable or other claim to or interest in such share or shares on the partof any other person, whether or not it shall have express or other noticethereof, except as otherwise provided by the laws of the State of Texas.  The person in whose name the shares are orwere registered in the

 

12

----

 

stock transfer books of the Corporation as of the record date shall bedeemed to be the owner of the shares registered in his name at that time.  Neither the Corporation nor any of itsofficers, directors, or agents shall be under any liability for making such adistribution to a person in whose name shares were registered in the stocktransfer books as of the record date or to the heirs, successors, or assigns ofthe person, even though the person, or his heirs, successors, or assigns, maynot possess a certificate for shares.

 

7.  Dividends

 

7.1                                 Declarationand Payment.  Subject to the Act andthe Articles of Incorporation, dividends may be declared by the board ofdirectors, in its discretion, at any regular or special meeting, pursuant tolaw and may be paid in cash, in property or in the Corporation’s own shares.

 

7.2                                 Reserves.  Before payment of any dividend, the board ofdirectors, by resolution, may create a reserve or reserves out of theCorporation’s surplus or designate or allocate any part or all of such surplusin any manner for any proper purpose or purposes, and may increase, create, orabolish any such reserve, designation, or allocation in the same manner.

 

8.  Protection of Officers, Directors andEmployees

 

8.1                                 Indemnification.  The Corporation shall indemnify any personwho was, is, or is threatened to be made a named defendant or respondent in aproceeding (which term shall mean any threatened or pending, or completedaction, suit, or proceeding, whether civil, criminal, administrative,arbitrative, or investigative, any appeal in such an action, suit, orproceeding, and any inquiry or investigation that could lead to such an action,suit, or proceeding) because the person is or was a director of theCorporation, or who, while a director of the Corporation, is or was serving atthe request of the Corporation as a director, officer, employee or agent ofanother foreign or domestic corporation, partnership, joint venture, soleproprietorship, trust, employee benefit plan or other enterprise (such personbeing referred to in this part 8 as an indemnified person) as follows:

 

(a)                                  Anindemnified person shall be indemnified against judgments, penalties (includingexcise and similar taxes), fines, settlements and reasonable expenses(including, without limitation, court costs and attorneys fees) actuallyincurred by the indemnified person in connection with the proceeding; but if anindemnified person (i) is found liable to the Corporation or (ii) is foundliable on the basis that personal benefit was improperly received by him,whether or not the benefit resulted from an action taken in his officialcapacity (as such term is defined in Art. 2.02-1.A of the Act), theindemnification (x) shall be limited to reasonable expenses actually incurredby the director in connection with the proceeding and (y) shall not be made inrespect of any proceeding in which the indemnified person shall have been foundliable for willful or intentional misconduct in the performance of his duty tothe Corporation.

 

(b)                                 Anindemnified person shall be indemnified against obligations resulting from theproceedings referred to in paragraph (a) above only if it is determined inaccordance with paragraph (c) below that he conducted himself in good faith andreasonably believed, in the case of conduct in his official capacity, that hisconduct was in the Corporation’s best interest, and in

 

13

----

 

all other cases that his conduct was at least not opposed to theCorporation’s best interests.  In thecase of any criminal proceeding, an additional determination must be made thatsuch indemnified person had no reasonable cause to believe his conduct wasunlawful.

 

(c)                                  Adetermination of indemnification under paragraph (b) above must be made:

 

(i)                                     bya majority vote of a quorum consisting of directors who at the time of the voteare not named defendants or respondents in the proceeding;

 

(ii)                                  ifsuch a quorum cannot be obtained, by a majority vote of a committee of theBoard of Directors, designated to act in the matter by a majority vote of alldirectors, consisting solely of two or more directors who at the time of thevote are not named defendants or respondents in the proceeding;

 

(iii)                               byspecial legal counsel selected by the Board of Directors or a committee of theBoard by vote as set forth in (i) or (ii) above, or, if such quorum cannot beobtained and such a committee cannot be established, by a majority vote of alldirectors, or

 

(iv)                              bythe shareholders in a vote that excludes the shares held by directors who arenamed defendants or respondents in the proceeding.

 

(d)                                 Authorizationof indemnification and determination as to reasonableness of expenses must bemade in the same manner as is the determination that indemnification ispermissible, as set forth in paragraph (c) above, except that if thedetermination that indemnification is permissible is made by special legalcounsel, authorization of indemnification and determination as to thereasonableness of expenses must be made in the manner specified in clause (iii)of paragraph (c) above for the selection of special counsel.

 

(e)                                  Theindemnification permitted under this section 8.1 shall be mandatory and thisparagraph (e) shall be deemed, in accordance with Article 2.02-1.G. of the Act,to constitute authorization of indemnification in the manner required by thissection 8.01 and by Article 2.02-1.G. of the Act.

 

8.2                                 Indemnificationfor Reasonable Expenses.  TheCorporation shall indemnify an indemnified person against reasonable expenses(including, without limitation, court costs and attorneys fees) incurred by himin connection with a proceeding in which he is named defendant or respondentbecause he is or was an indemnified person if he has been wholly successful, onthe merits or otherwise, in the defense of the proceeding.

 

8.3                                 ExpensesAdvanced.  The Corporation may payor reimburse in advance of the final disposition of a proceeding any reasonableexpenses (including, without limitation, court costs and attorneys fees)incurred by an indemnified person who was, is, or is threatened to be made anamed defendant or respondent in a proceeding, and without the necessity ofmaking any of the determinations specified in section 8.1(c) and 8.1(d) hereof,after the Corporation receives a written affirmation by the indemnified personof his good faith belief that he has met the standard of conduct necessary forindemnification as set forth herein and a written undertaking by or on behalfof the indemnified person containing the unlimited general obligation of the

 

14

----

 

indemnified person to repay the amount paid or reimbursed if it isultimately determined that he has not met those requirements.  Notwithstanding any other provision of thispart 8, the Corporation may pay or reimburse expenses incurred by anindemnified person in connection with his appearance as a witness or otherparticipation in a proceeding at a time when he is not a named defendant orrespondent in the proceeding.

 

8.4                                 Insurance.  The Corporation may purchase and maintaininsurance or another arrangement on behalf of any person who is or was adirector or an officer, employee, agent of the Corporation or who is or wasserving at the request of the Corporation as a director, officer, employee,agent or similar functionary of another foreign or domestic corporation,partnership, joint venture, sole proprietorship, trust, employee benefit plan,or other enterprise, against any liability asserted against him and incurred byhim in such a capacity or arising out of his status as such a person, whetheror not the Corporation would have the power to indemnify such person against thatliability under these Bylaws or the Act.

 

8.5                                 Officers,Employees and Agents.  An officer ofthe Corporation shall be indemnified to the same extent as a director, and isentitled to seek indemnification under this part 8 to the same extent as adirector.  The Corporation may indemnifyand advance expenses to an employee or agent of the Corporation, and personswho are not or were not officers, employees, or agents of the Corporation butwho are or were serving at the request of the Corporation as a director,officer, partner, venturer, proprietor, trustee, employee, agent or similarfunctionary of another foreign or domestic corporation, partnership, jointventure, sole proprietorship, trust, employee benefit plan, or otherenterprise, to the same extent that it may indemnify and advance expenses todirectors under this part 8 or to such further extent as may be permitted orrequired by law.

 

8.6                                 OtherProtection and Indemnification.  Theprotection and indemnification provided hereunder shall not be deemed exclusiveof any other rights to which such person may be entitled under any agreement,insurance policy, vote of shareholders, law, or otherwise.

 

8.7                                 Noticeof Indemnification of or Advance of Expenses. Any indemnification of oradvance of expenses to a person in accordance with this part 8 shall bereported in writing to the shareholders with or before the notice or waiver ofnotice of the next shareholders’ meeting or with or before the next submissionto shareholders of a consent to action without a meeting pursuant to Article9.10.A, of the Act, and, in any case, within the 12-month period immediatelyfollowing the date of the indemnification or advance.

 

9.  General Provisions

 

9.1                                 FiscalYear.  The fiscal year of theCorporation shall be fixed by resolution of the board of directors.

 

9.2                                 Seal.  The corporate seal shall be in such form asmay be prescribed by the board of directors. The seal may be used by causing it or a facsimile thereof to beimpressed or affixed or in any manner reproduced.

 

15

----

 

9.3                                 Minutes.  The Corporation shall keep correct andcomplete books and records of account and shall keep minutes of the proceedingsof its shareholders and board of directors, and shall keep at its registeredoffice or principal place of business, or at the office of its transfer agentor registrar, a record of its shareholders, giving names and addresses of allshareholders and the number and class of the shares held by each.

 

9.4                                 Amendment.  Unless otherwise provided by the Articles ofIncorporation or unless the shareholders in amending, adopting or repealing aparticular Bylaw provision expressly provide that the directors may not amendor repeal such provision, these Bylaws may be altered, amended or repealed andnew Bylaws may be adopted, at any meeting of the Board of Directors at which aquorum is present, by the affirmative vote of at least two-thirds (2/3) of theentire Board of Directors, provided notice of the proposed alteration,amendment, or repeal is contained in the notice of the meeting.  Unless otherwise provided in the Articles ofIncorporation or by a Bylaw adopted by the shareholders as to all or someportion of these Bylaws, the shareholders may amend, repeal, or adopt Bylaws ofthe Corporation by the affirmative vote of the holders of a majority of theshares outstanding and entitled to vote thereon at any meeting of theshareholders, provided that notice of the proposed Bylaw action is contained inthe provided notice of the meeting, even though the Bylaws may also be amended,repealed, or adopted by the Board of Directors.  Any action not permitted under these Bylaws as in effect on thedate of the giving of notice of a meeting of shareholders regarding a proposalto alter, amend, repeal or adopt new bylaws in a manner to permit such action,may not be submitted for a vote by the shareholders at, nor may it be thesubject of a prior notice of a special meeting to the Secretary of theCorporation pursuant to these Bylaws prior to, the meeting at which the Bylawsare altered, amended or repealed or new bylaws are adopted.

 

9.5                                 Notice.  Any notice to directors or shareholdersshall be in writing and shall be delivered personally or mailed to thedirectors or shareholders at their respective addresses appearing on the booksof the Corporation.  Notice by mailshall be deemed to be given at the time when the same shall be deposited in theUnited States mail, postage prepaid. Notice to directors may also be given by facsimile transmittal.  Whenever any notice is required to be givenunder the provisions of applicable statutes or of the Articles of Incorporationor of these Bylaws, a waiver thereof in writing signed by the person or personsentitled to such notice, whether before or after the time stated therein, shallbe deemed equivalent to the giving of such notice.

 
| Dated: April 7, 2003 |   |  /s/ Jeffrey J. Wooley         |   |
|----------------------|--------|-------------------------------------|--------|
|                 |   |   Jeffrey J. Wooley, Secretary |

 

16

----