Last Updated 04/21/2025
AMENDED AND RESTATED BYLAWS OF THE CAPITAL AREA TENNIS ASSOCIATION
ARTICLE I. NAME, LOCATION AND OBJECT OF CORPORATION
Section 1. Name. The name of this corporation (“CATA” or the “Corporation”) is “The Capital
Area Tennis Association.”
Section 2. Location. The location and principal office of the Corporation shall be in the City of
Austin, County of Travis, Texas or at such other place as shall be designated by the Board of
Directors.
Section 3. Object. The objects of the Corporation are set forth in the Certificate of Formation (or
Articles of Incorporation) filed under the Texas Business Organizations Code or any predecessor
act. This Corporation is not organized for business purposes nor pecuniary profit, and no part of
the net earnings shall inure to the benefit of any Member or Officer, but shall inure exclusively to
the benefit of the Corporation for the accomplishment of its purposes, which may include, but
are not limited to, the following:
a) Compiling a roster of active members of the Corporation.
b) Preparing and distributing of regular news communications on the activities of members,
events sponsored by the Corporation and related tennis activities.
c) Conducting educational clinics, demonstration matches, and other educational activities
designed to promote interest in tennis and proficiency in participation.
d) Conducting competitive and recreational tennis events among members, members and
guests, and such other persons as may elect to participate under conditions established by
the Corporation.
e) Conducting exhibitions and other special events designed to raise funds for the purposes
of the Corporation.
f) Promoting publicly sponsored tennis activities and provision of tennis facilities on public
grounds by governmental agencies including the city, county, school districts and
colleges in the community.
g) Providing advisory consultation services to public officials charged with the development
of facilities and conduct of tennis activities.
ARTICLE II. MEMBERSHIP
Section 1. Members. Persons who compete in CATA sponsored events, including leagues,
CAPTA/CATA Gran Prix, tournaments, and Junior Team Tennis, are members of the
Corporation.
Section 2. Honorary Members. Honorary membership may be extended by action of the Board of
Directors to persons as individuals or as representatives of companies, organizations or other
entities whose outstanding contributions to the Corporation, tennis in general or to the purposes
of the Corporation in particular may be recognized by honorary membership status.
Section 3. Membership Privileges. All Members in good standing shall receive the regular
communication from the Corporation, and all such Members (except companies, corporations or
other entities) shall be eligible to participate in all CATA sponsored activities (subject to
limitations on group participation such as age, gender or degree of skill). All Members in good
standing and 19 years of age or over shall be entitled to vote on matters submitted to a vote of the
Members and entitled to receive notice of the Annual Meeting of Members and any special
meetings of the Members duly called as provided herein. All Members in good standing shall be
eligible to be elected to the Board of Directors or to hold office in the Corporation, subject to the
procedures and limitations set forth in these Bylaws.
ARTICLE III. CONDUCT OF BUSINESS
Section 1. Board of Directors. The Corporation shall be governed by a Board of Directors, the
members of which shall be elected by the Members of the Corporation at the Annual Meeting of
Members. The size of the Board, which shall not be less than three (3), shall be set by resolution
of the Board of Directors. The Board of Directors shall be classified such that, at each Annual
Meeting of the Members, approximately one-third (rounded downward as necessary) of the
Directors shall be elected by Members in good standing. Each member of the Board of Directors
shall serve a 3-year term and may serve any number of consecutive terms as a member of the
Board of Directors.
Section 2. Qualifications of Directors. Directors shall be Members (age 19 or older) in good
standing, a resident of the State of Texas and shall have been approved by the Nominating
Committee (or the Board of Directors if no Nominating Committee is formed) from nominations
submitted to the Executive Director of the Corporation pursuant to the procedures described
below. In the event a Director ceases to be a Member in good standing or a resident of the State
of Texas, then such Director shall be deemed to have been disqualified from serving as a
Director and the Board of Directors may take action to fill the vacancy resulting therefrom in the
manner contained herein. A disqualified Director may be re-appointed to the Board of Directors
if the circumstances relating to such disqualification are cured. The participation in any action by
a disqualified Director where the disqualification (or the circumstances relating thereto) is not
known to the Board of Directors at the time of the action shall not affect the validity of the action
taken by the Board of Directors.
Section 3. Election of Directors. Directors shall be elected by vote of the Members at the Annual
Meeting of Members in accordance with the procedures and processes set forth herein.
Section 4. Ex-Officio Directors/Presidential Appointees. In addition, the President may
appoint to the Board of Directors, up to two Junior Members to serve a one-year term concurrent
with the term of office of the President, subject to the approval of the Board of Directors. Such
Presidential Appointees must be at least 16 years of age and in good standing. The Presidential
Appointees, shall be considered members of the Board of Directors during their tenure, serving
at the pleasure of the President, provided, however, notice of meetings of the Board of Directors
shall not be required to be given to such Presidential Appointees and the Presidential Appointees
shall have no vote on any matter submitted to the Board of Directors. Presidential Appointees
may receive and attend meetings of the Board of Directors at the discretion of the President. The
President may appoint a member of the Board of Directors to serve as an Ex Officio Director on
the Executive Committee.
Section 5. Regular Meetings. The Board of Directors shall meet at least six (6) times per
calendar year. The meetings may be held either within or without the State of Texas and shall be
held at the Corporation’s principal office in Texas if the resolution does not specify the location
of the meetings. No notice of regular meetings of the Board is required other than a resolution of
the Board of Directors stating the time and place of the meetings. If the Board fails to adopt
resolutions scheduling the regular meeting, the Secretary of the Corporation shall give at least
forty-eight (48) hours prior notice of the meeting date which notice shall specify the date, time
and place of such regular meeting.
Section 6. Special Meetings. Special meetings of the Board of Directors may be called at the
request of the President or any two directors. A person or persons authorized to call special
meetings of the Board of Directors may fix any place within Texas as the place for holding a
special meeting. The person or persons calling a special meeting shall notify the Secretary of the
information required to be included in the notice of the meeting. The secretary shall give notice
to the directors as required in the Bylaws.
Section 7. Meetings by Remote Communications Technology. A meeting of the members of a
corporation, the board of directors of a corporation, or any committee designated by the board of
directors of a corporation may be held by means of a conference telephone or similar
communications equipment, another suitable electronic communications system, including
videoconferencing technology or the Internet, or any combination of those means.
Section 8. Notice. Written or printed notice, which shall include notice sent via electronic mail,
of any special meeting of the Board of Directors shall be delivered to each Director not less than
forty-eight (48) hours before the time of the special meeting. The notice shall state the place,
day, and time of the meeting, who called the meeting, and the purpose or purposes for which the
meeting is called.
Section 9. Quorum. A majority of the directors then constituting the Board of Directors shall
constitute a quorum for the transaction of business at any meeting duly called and held. The
directors present at a duly called or held meeting at which a quorum is present may continue to transact business even if enough directors leave the meeting so that less than a quorum remains.
However, no action may be approved without the vote of at least a majority of the number of
directors required to constitute a quorum. If a quorum is not present at any time during a
meeting, a majority of the directors present may adjourn and reconvene the meeting one time (no
later than twenty-four (24) hours after the adjournment) without further notice.
Section 10. Vacancies. Any vacancy occurring in the Board of Directors due to the resignation,
removal, death, or disability of a director may be filled by action of the remaining directors,
though less than a quorum, or by the sole remaining director. Any director selected to fill such
vacancy shall be elected for the unexpired term of the predecessor in office. A vacancy in the
Board of Directors occurring because of an increase in the number of directors shall be filled by
election at the Annual Meeting of Members or at a special meeting of the Members called for
that purpose.
Section 11. Actions of Board of Directors. The vote of a majority of directors present and
voting at a meeting at which a quorum is present shall be sufficient to constitute the act of the
Board of Directors unless the act of a greater number is required by law or these Bylaws. A
director who is present at a meeting and abstains from a vote is considered to be present and
voting for the purpose of determining the decision of the Board of Directors. A director may not
act by proxy.
Section 12. Duties of Directors. Directors shall discharge their duties, including any duties as
members of a committee of the Board of Directors, in good faith, with ordinary care, and in a
manner they reasonably believe to be in the best interest of the Corporation. Ordinary care is care
that an ordinarily prudent person in similar positions would exercise under similar
circumstances. In the discharge of any duty imposed or power conferred on directors, they may
in good faith rely on information, opinions, reports, or statements, including financial statements
and other financial data, concerning the Corporation or another person that were prepared or
presented by a variety of persons, including Officers or employees of the Corporation,
professional advisors or experts such as accountants or legal counsel. A director is not acting in
good faith if the director has knowledge concerning a matter in question that renders reliance
unwarranted.
Section 13. Interested Transactions. Contracts or transactions between directors, Officers, or
Members who have a financial interest in the matter are not void or voidable solely for that
reason. Nor are they void or voidable solely because the director, Officer, or Member is present
at or participates in the meeting that authorizes the contract or transaction, or solely because the
interested parties’ votes are counted for the purpose; however, the material facts must be
disclosed to or known by the Board of Directors or committee thereof authorizing the
transaction, and adequate approval from disinterested parties must be obtained.
Section 14. Compensation of Directors. Directors shall not receive salaries for their services as
such; however, a director may serve the Corporation in any other capacity and receive
compensation for those services in accordance with the customary operating practices of the
Corporation.
Section 15. Action of Board of Directors Without A Meeting. Any action required or
permitted to be taken by the Board of Directors may be taken without a meeting and without
notice if all the Directors consent to the action in writing or by electronic transmission. Such
consent shall have the same force and effect as a unanimous vote of the Board of Directors at a
meeting duly called and held.
Section 16. Removal of Directors. A director may be removed at any time with or without
cause for any reason by vote of the Members, at either an Annual Meeting of Members or a
special meeting called for that purpose. A meeting to consider the removal of a director may be
called provided that the notice of such meeting states that the issue of possible removal of the
director will be on the agenda. The director shall have the right to present evidence at the
meeting as to why he or she should not be removed. At the meeting, the Corporation shall
consider possible arrangements for resolving the problems that are in the mutual interest of the
Corporation and the director.
Section 17. Executive Board. The Executive Board should include the President, Vice-
President, Treasurer, Secretary, Immediate Past President and one Ex-Officio Director
(appointed by the President).
ARTICLE IV. OFFICERS
Section 1. Election of Officers. No later than the next regularly scheduled meeting of the Board
of Directors following the date of the Annual Meeting of Members, the Board of Directors shall
elect, from the members of the Board of Directors, the President, Vice President, Treasurer and
Secretary of the Corporation. Such Officers shall hold such offices for a term of one year
(effective with the start of the calendar year immediately following the most recent Annual
Meeting of Members) and/or until the election of their respective successors. Should any Officer
fail to attend three (3) consecutive regular or special meetings of the Board of Directors, or is
otherwise unable or unwilling to perform the duties of his/her office, the Board of Directors may
declare such office vacant and the Board of Directors may elect another person (from among the
members of the Board of Directors) to serve the unexpired term of such Officer. Such action
shall be deemed to constitute a removal of the Officer affected. Any officer elected or appointed
by the Board of Directors may be removed by the Board of Directors at any time with or without
cause. Any person may be appointed and hold more than one office; provided, however, no
person shall simultaneously hold the offices of President and Secretary, either on a full-time or
interim basis.
Section 2. Officers. The general duties and responsibilities of such Officers shall be as follows:
a. PRESIDENT. The President shall be the principal officer of the Corporation. The President
shall supervise the business and affairs of the Corporation. The President shall set the Agenda
and preside at all meetings of the Board of Directors and the Members and shall present at the
Annual Meeting of Members a report of the activities of the Corporation since the last Annual
Meeting of Members. The President shall designate standing committees of the Corporation,
shall appoint chairpersons of such committees and act as an ex-officio, non-voting member of
each such committee. The President shall assign duties to the various officers of the Corporation, as appropriate. The President may execute any deeds, mortgages, bonds, contracts, or other
instruments that the Board of Directors has authorized to be executed. However, unless
specifically authorized by the Board of Directors, the President may not execute instruments on
behalf of the Corporation if this power is expressly delegated to another officer or agent of the
Corporation by the Board of Directors, the Bylaws, or statute. The President shall perform other
duties prescribed by the Board of Directors and all duties incident to the office of President.
b. VICE PRESIDENT. When the President is absent, is unable to act, or refuses to act, the Vice
President shall perform the duties of the President. When the Vice President acts in place of the
President, the Vice President shall have all the powers of and be subject to all the restrictions
upon the President. The Vice President shall perform other duties as assigned by the President or
Board of Directors.
c. TREASURER. The Treasurer shall provide oversight with regard to:
i. the charge and custody of, and responsibility for, all funds and securities of the Corporation.
ii. the receipt or giving receipts for moneys due and payable to the Corporation from any source.
iii. the deposit of all moneys in the name of the Corporation in banks, trust companies, or other
depositories as provided in these Bylaws or as directed by the Board of Directors or President.
iv. the writing of checks and disbursement of funds to discharge obligations of the Corporation,
provided that, except as otherwise set forth in these bylaws, funds may not be drawn from the
Corporation or its accounts without the signature of the President or the Vice President in
addition to the signature of the Treasurer. In addition, the Board of Directors may from time to
time designate that expenditures exceeding a specific amount must also be authorized by a vote
of the Board of Directors.
v. the maintenance of the financial books and records of the Corporation.
vi. the preparation of monthly reports of the status of Corporation funds and prepare budgets as
required by the Board of Directors.
vii. the performance of other duties as assigned by the President or by the Board of Directors.
viii. if required by the Board of Directors, give a bond for the faithful discharge of his or her
duties in a sum and with a surety as determined by the Board of Directors; and
ix. perform all of the duties incident to the office of treasurer.
d. SECRETARY. The Secretary shall:
i. give all notices as provided in these Bylaws or as required by law.
ii. take minutes of the meetings of the Members and of the Board of Directors, distribute them in
a timely manner and ensure the minutes are part of the corporate records.
iii. perform duties as assigned by the President or by the Board of Directors; and
iv. perform all duties incident to the office of Secretary.
ARTICLE V. MEETING OF MEMBERS
Section 1. The Annual Meeting of the Members. The Annual Meeting of the Members
(“Annual Meeting of Members”) shall be held during the fourth quarter of each calendar year on
a date and at a place selected by the President, with the advice of the Board of Directors. Notice
of the meeting, together with a proposed statement of business matters to be conducted, shall be
mailed or electronically transmitted at least three (3) weeks in advance to each Member in good standing. Members in good standing who decline or are unable to attend the Annual Meeting of Members may vote at such Annual Meeting of Members by proxy in accordance with the provisions of these Bylaws.
Section 2. Agenda for Annual Meeting of Members. At each Annual Meeting of the Members,
the agenda shall include (but shall not be limited to) the following:
a. Election of Directors. One-third of the Directors shall be chosen from a slate of candidates
proposed by the Board of Directors and/or from among other candidates whose nomination
forms have been filed with the Secretary of the Corporation in accordance with the provisions of
these Bylaws.
i. No later than eight weeks prior to the scheduled date of the Annual Meeting of Members, the
Corporation will provide (by paper or electronically including provided access to such forms by
posting a link on the Corporation’s website–as determined by the Board of Directors) to each
Member of the Corporation in good standing blank nomination forms to nominate candidates to
elect Directors to fill any vacancies on the Board of Directors at such Annual Meeting of
Members. Completed nomination forms must be submitted (including electronically, if
applicable) to the Board of Directors, or its designee, at least five (5) weeks prior to the Annual
Meeting of Members. The Board of Directors, or the Nominating Committee if one has been
formed, will review the nominations and, after taking such action as it deems necessary,
including, without limitation, interviewing proposed candidates, approve a slate of candidates
and communicate this approved slate to the general membership at least three (3) weeks prior to
the date of the Annual Meeting of Members, in connection with the distribution of the Notice of
Annual Meeting required to be distributed by these Bylaws. Such packet of materials may also
include an approved for of proxy for use in connection with such meeting. A copy of completed
nomination forms for each candidate on the approved list of candidates, describing the
qualifications of each candidate, will be available for review, upon request, by the Members in
attendance at the Annual Meeting of Members.
ii. Members in good standing and 19 years of age or over who are present at the annual meeting
may each cast a vote, and those who are unable to attend the annual meeting may forward a
written proxy designation authorizing the President to cast votes for the recommended slate of
Directors on their behalf. Completed proxies must be returned to CATA at least 1 week prior to
the annual meeting.
b. Presentation of financial reports and a program of activities and events.
c. Such other business as may be presented to the meeting by the Officers or Members in good
standing, provided that the President, at his/her discretion, may require the filing of notice to put
a subject on the meeting agenda at least one week in advance of the scheduled meeting.
Section 3. Special Meetings. Special meetings of the Members may be called by the President, a
majority of the Board of Directors, or by petition of at least ten percent (10%) of the Members in
good standing. Written notice of special meetings must be communicated to the Members in
good standing at least twenty (20) days prior to the date of the special meeting. The notice must
specify the subject matter or purpose of the special meeting, and actions of the special meeting
are limited to those subjects so specified.
Section 4. Quorum. Attendance at any meeting (whether annual or special) of Members by the
lesser of (a) 10% of the total number of Members, or (b) seventy-five (75) Members, in good standing shall constitute a quorum for the purpose of conducting business at the Annual Meeting of Members. Solely for purposes of determining whether a quorum is present, proxies shall not
be counted.
Section 5. Voting by Proxy – At any Annual Meeting of Members or a special meeting of
Members, each duly called and noticed, a Member who is unable or declines to attend may vote
(but shall not be counted towards establishment of a quorum) at such Member meeting by
delivering a written proxy, on forms acceptable to the Board of Directors, to the Secretary of the
Corporation no later than one (1) week before the date of the Members’ meeting authorizing
such Member’s designee to cast such Member’s vote for directors or any other business brought
up for approval at such Members’ meeting. Each proxy must be signed and dated by the Member
granting such proxy and shall be revocable by such Member at any time and will be deemed to
have been revoked if such Member attends the Members’ meeting. No proxy shall be valid for
more than eleven (11) months after the date of signature. The Secretary will not accept proxies
that fail to comply with the Bylaws and such proxies shall not be counted as votes.
ARTICLE VI. OPERATIONS
Section 1. Standing Committees. Activities of the Corporation shall be conducted through
standing committees. The President will oversee formation of appropriate committees and the
appointment of committee chairs and members. The Committee activities shall include but are
not limited to the following:
a. Bylaws.
b. Junior Development.
c. Junior Team Tennis Advisory
d. Leagues
e. Scholarship
f. Events & Fundraising
g. Tournament
h. FUZE (Facility Utilization and Expansion)
i. Awards
Section 2. Employees. The Corporation may employ an Executive Director and such other
employees as shall be determined by the Board of Directors. The duties and compensation of the
Corporation’s employees will be prescribed by the Board of Directors.
Section 3. Corporation Funds. All funds of this Corporation, except for petty cash and cash
change funds, shall be deposited in such qualified depository or depositories from among those
authorized by applicable law and regulations. All disbursements of funds of this Corporation
shall be made by checks or other written instruments, signed by the Treasurer, President, or Vice
President, except that the Board of Directors may authorize the Executive Director to sign checks
not exceeding an amount set by the Board. The funds of this Corporation shall be invested only
as authorized by applicable law and regulations. The assets of the Corporation may be pledged as
collateral to secure credit for the Corporation upon resolution by the Board of Directors. All
credit agreements of the Corporation must be signed by the President, or in his/her absence or
inability to serve, by the Vice President, and countersigned by the Treasurer.
ARTICLE VII. MERGER WITH OTHER CORPORATIONS
Section 1. Merger process. By appropriate vote of the membership of the Corporation in either
an Annual Meeting of Members or special meeting called for such purpose, an agreement may be
entered into providing for merger of the Corporation with other non-profit corporations or
associations interested in promotion and participating in tennis activities. The other non-profit
corporation(s) or association(s) concerned in such a merger may affect the action by vote of its
membership or by dissolution and the independent action of its separate members to join the
Corporation as Members.
Section 2. Conditions of Merger. If an agreement to merge is affected on a date, which does not
correspond with the fiscal year of either party to the merger, any funds remaining in the account
of the corporation merging with this corporation, after the satisfaction of any and all outstanding
indebtedness owed by the corporation seeking merger shall be transferred to the account of this
corporation or in such manner as to comply with such merging corporation formation documents
or applicable, laws, rules or regulations. Any funds so transferred, above the amount required for
fulfillment of prorated dues of members from the former corporation, may be applied to the
operating budget of the Corporation, or may be set aside for specific purposes under the terms of
the merger agreement between the two organizations.
ARTICLE VIII. AMENDMENTS
The power to amend, modify or repeal these Bylaws shall be vested exclusively in the Board of
Directors. Any such amendment, modification or repeal of these Bylaws, or any provision
hereof, must be approved by a two-thirds vote of the Board of Directors at any regular or
special meeting called for such purpose. The notice of any meeting at which the Bylaws are to
be altered, amended, or repealed, or at which new Bylaws are to be adopted shall include the text
of the proposed Bylaw provisions as well as the text of any existing provisions proposed to be
altered, amended, or repealed. Alternatively, such notice may include a fair summary of those
provisions.
ARTICLE IX. NOMINATING COMMITTEES
The President may appoint one or more Nominating Committees and Chairpersons for such
committees to recommend individuals to serve as Directors or recipients of CATA Awards. If
established, a Nominating Committee shall prepare blank nomination forms with respect to the
nomination of directors to be elected at the Annual Meeting of Members. If no Nominating
Committee is established, then the Board of Directors shall act as the Nominating Committee.
ARTICLE X. OTHER
Section 1. Sanction, Suspension or Expulsion of Members. The Board of Directors may
impose reasonable sanctions on a Member, or suspend or expel a Member from the Corporation,
for good cause after a hearing before the Board of Directors, or any committee established by the
Board of Directors to hear such matters. Good cause includes the default of an obligation to the
Corporation to pay fees, dues or other sums, including fines or special assessments to which all Members are generally subject, owed to the Corporation for a period of thirty (30) days
following delivery of request for payment thereof, or a material and serious violation of the
Corporation’s certificate of formation, bylaws, rules, policies and procedures, or any provision of
applicable law. The Board of Directors or a committee thereof, as applicable, may not take any
action against a Member without giving the Member, or, in the case of a Junior Member, such
Member’s legal guardians, adequate notice and an opportunity to be heard. To be deemed
adequate, notice shall be in writing and delivered at least fourteen (14) calendar days prior to the
hearing. However, shorter notice may be deemed adequate if the Board of Directors determines
that the need for a timely hearing outweighs the prejudice caused to the Member and if a
statement of the need for a timely hearing is included in the notice. If mailed, the notice shall be
sent by registered or certified mail, return receipt requested. The Board of Directors or a
committee thereof, as applicable, may impose sanctions, suspend a Member, or expel a Member
by vote of a majority of directors, or committee members, who are present and voting at such
meeting called to hear the matter.
Section 2. Conflict Resolution. In any dispute between Members relating to the activities or
events of the Corporation, all parties involved shall cooperate in good faith to resolve the dispute
in accordance with policies and procedures adopted and implemented, from time to time, by the
Board of Directors. If the parties cannot resolve the dispute between themselves, each party to
such dispute shall cooperate to select one or more neutral mediators to help resolve the dispute
and shall attempt to mediate their conflict pursuant to The Texas Alternative Dispute Resolution
Procedures Act. Such mediation shall occur and be held in the City of Austin, Texas or such
other location as shall be agreed upon by each of the disputing parties. If no timely resolution of
the dispute occurs through such mediation, either party thereto may demand binding arbitration
as described in the Texas General Arbitration Act, but only if the parties have previously failed
to resolve the conflict through the mediation process. This paragraph shall apply to a dispute
involving the Corporation as a party relating to the sanctioning, suspension, or expulsion of a
member from the Corporation. The Board of Directors shall have the discretion to authorize the
use of the Corporation’s funds for mediation or arbitration of a dispute described in this
paragraph. Subject to the methods and processes reflected above in this section, any dispute or
conflict between the Corporation, its members and/or the United States Tennis Association or
any of its member associations (collectively, the “USTA”) (or any of such parties) shall be
further subject to the USTA’s conflict resolution procedures, as amended from time to time, and
each member, by accepting a membership in the Corporation agrees to be bound by such policies
and procedures.
Section 3. Improper Distribution of Funds. No Corporation funds may be given, loaned, or
used for the benefit of any person, firm, or entity without the prior approval of the Board of
Directors. No loans of the Corporation’s funds may be made to a member of the Board of
Directors.
Section 4. Access to Financial Information. Members in good standing shall have access to the
Corporation’s financial statements and records, subject to the Board of Directors’ ability to adopt
policies to comply with state or federal privacy laws, rules, and regulations, following a written
request stating a proper purpose and approval of the Board of Directors in favor of the request. Any such access to the financial statements and records requested will be granted within ten (10)
business days of the Board of Directors’ approval thereof.
ARTICLE XI. Indemnification
Section 1. Definitions. In this Article XI:
a. “Indemnitee” means
i. any present or former Director, advisory director, or officer of the Corporation. ii. any person
who while serving in any of the capacities referred to in clause (i) hereof served, or is then
serving, at the Corporation’s request as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise; and
iii. any person nominated or designated by (or pursuant to authority granted by) the Board or any
committee thereof to serve in any of the capacities referred to in clauses (i) or (ii) hereof.
b. “Official Capacity” means
i. when used with respect to a Director, the office of Director of the Corporation,
and;
ii. when used with respect to an officer, the elective or appointive office of the Corporation held
by such person on behalf of the Corporation, but in each case does not include service for any
other foreign or domestic corporation or any partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise.
c. “Proceeding” means any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit or
proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding.
Section 2. Indemnification. The Corporation shall indemnify every Indemnitee against all
judgments, penalties (including excise and similar taxes), fines, amounts paid in settlement and
reasonable expenses actually incurred by the Indemnitee in connection with any Proceeding to
which he was, is or is threatened to be named defendant or respondent, or in which he was or is a
witness without being named a defendant or respondent, by reason of his serving or having
served, or having been nominated or designated to serve, in any of the capacities referred to in
Subsection (a) of Section 1 of this Article XI, unless it is ultimately determined that the
Indemnitee (a) failed to conduct himself or herself in good faith, (b) did not reasonably believe,
in the case of conduct in his or her Official Capacity, that his or her conduct was in the
Corporation’s best interests and, in all other cases, that his or her conduct was at least not
opposed to the Corporation’s best interests, and (c) in the case of any criminal proceeding, had
no reasonable cause to believe that his or her conduct was unlawful; provided, however, that in
the event that an Indemnitee is found liable to the Corporation or is found liable on the basis that
personal benefit was improperly received by the Indemnitee, the indemnification (i) is limited to
reasonable expenses actually incurred by the Indemnitee in connection with the Proceeding and
(ii) shall not be made in respect of any Proceeding in which the Indemnitee shall have been
found liable for willful or intentional misconduct in the performance of his duty to the
Corporation. Except as provided in the immediately preceding proviso to the first sentence of
this Section 2, no indemnification shall be made under this Section 2 in respect of any
Proceeding in which such Indemnitee shall have been (x) found liable on the basis that personal
benefit was improperly received by him or her, whether or not the benefit resulted from an action taken in the Indemnitee’s Official Capacity, or (y) found liable to the Corporation. The
termination of any Proceeding by judgment, order, settlement, or conviction, or on a plea of nolo
contendere or its equivalent, is not of itself evidence of conduct by the Indemnitee meeting the
requirements set forth in clauses (a), (b) or (c) in the first sentence of this Section 2. An
Indemnitee shall be deemed to have been found liable in respect of any claim, issue, or matter
only after the Indemnitee shall have been so adjudged by a court of competent jurisdiction after
exhaustion of all appeals therefrom. Reasonable expenses shall include, without limitation, all
court costs and all fees and disbursements of attorneys for the Indemnitee. The indemnification
provided herein shall be applicable whether or not negligence or gross negligence of the
Indemnitee is alleged or proven.
Section 3. Successful Defense. Without limiting of Section 2 of this Article XI and in addition to
the indemnification provided for therein, the Corporation shall indemnify every Indemnitee
against reasonable expenses incurred by such person in connection with any Proceeding in which
he is a witness or a named defendant or respondent because he served in any of the capacities
referred to in Section 1(a) of this Article XI, if such person has been wholly successful, on the
merits or otherwise, in defense of the Proceeding.
Section 4. Advancement of Expenses. Reasonable expenses (including court costs and
attorneys’ fees) incurred by an Indemnitee who was or is a witness or was, is or is threatened to
be made a named defendant or respondent in a Proceeding shall be paid by the Corporation at
reasonable intervals in advance of the final disposition of such Proceeding, after receipt by the
Corporation of a written undertaking by or on behalf of such Indemnitee to repay the amount
paid or reimbursed by the Corporation if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation as authorized in this Article XI. Such written
undertaking shall be an unlimited obligation of the Indemnitee but need not be secured and it
may be accepted without reference to financial ability to make repayment. The provisions of this
Article XI shall not be construed to apply to, or restrict in any way, the payment or
reimbursement by the Corporation of expenses incurred by an Indemnitee in connection with his
or her appearance as a witness or other participation in a Proceeding at a time when he or she is
not named a defendant or respondent in the Proceeding.
Section 5. Other Indemnification and Insurance. The indemnification provided by this Article
XI shall (a) not be deemed exclusive of, or to preclude, any other rights to which those seeking
indemnification may at any time be entitled under the Corporation’s Certificate of Formation (or
other organizational document), any law, agreement or vote of the Directors, or otherwise, or
under any policy or policies of insurance purchased and maintained by the Corporation on behalf
of any Indemnitee, both as to action in his Official Capacity and as to action in any other
capacity, (b) continue as to a person who has ceased to be in the capacity by reason of which he
or she was an Indemnitee with respect to matters arising during the period he or she was in such
capacity, and (c) inure to the benefit of the heirs, executors, and administrators of such a person.
Section 6. Construction. The indemnification provided by this Article XI shall be subject to all
valid and applicable laws, including, without limitation, Chapter 8 of the Texas Business
Organizations Code, and, in the event this Article XI or any of the provisions hereof or the
indemnification contemplated hereby are found to be inconsistent with or contrary to any such valid laws, the latter shall be deemed to control, and this Article XI shall be regarded as modified
accordingly, and, as so modified, to continue in full force and effect.
Section 7. Continuing Offer, Reliance, etc. The provisions of this Article XI (a) are for the
benefit of, and may be enforced by, each Indemnitee of the Corporation, the same as if set forth
in their entirety in a written instrument duly executed and delivered by the Corporation and such
Indemnitee and (b) constitute a continuing offer to all present and future Indemnitees. The
Corporation, by its adoption of these Bylaws, (x) acknowledges and agrees that each Indemnitee
of the Corporation has relied upon and will continue to rely upon the provisions of this Article
XI in becoming, and serving in, any of the capacities referred to in Section 1(a) of this Article
XI, (y) waives reliance upon, and all notices of acceptance of, such provisions by such
Indemnitees, and (z) acknowledges and agrees that no present or future Indemnitee shall be
prejudiced in his right to enforce the provisions of this Article XI in accordance with their terms
by any act or failure to act on the part of the Corporation.
Section 8. Effect of Amendment. No amendment, modification, or repeal of this Article or any
provision hereof shall in any manner terminate, reduce, or impair the right of any past, present or
future Indemnitees to be indemnified by the Corporation, nor the obligation of the Corporation to
indemnify any such Indemnitees, under and in accordance with the provisions of the Article XI
as in effect immediately prior to such amendment, modification, or repeal with respect to claims
arising from or relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may arise or be asserted.
Section 9. Indemnification for Additional Persons. The Corporation may, in the sole and
absolute discretion of the Board, also indemnify any employee or agent of the Corporation to the
fullest extent permitted by law.
