EXHIBIT 3. (ii)
BY-LAWS
OF
CBI INDUSTRIES, INC.
(As Amended May 12, 1994)
ARTICLE I
Offices
The registered office of the company shall be located at 100
West Tenth Street, Wilmington, Delaware. The company may also
have such other offices within or without the State of Delaware
as may hereafter be established by or with the authority of the
board of directors.
ARTICLE II
Seal
The seal of the company shall be a round disk consisting of
an outer circle having on its circumference the words "CBI
INDUSTRIES, INC., DELAWARE" and an inner circle having within it
the words "CORPORATE SEAL."
ARTICLE III
Capital Stock
SECTION 1: The holder of each fully paid share of the
capital stock of the company shall be entitled to a certificate
or certificates stating the number of shares owned by such
stockholder. All stock certificates shall be in such form
consistent with law, the certificate of incorporation and these
by-laws as shall from time to time be approved by the board of
directors. They shall be numbered consecutively, signed by the
chairman of the board, the president or a vice-president and by
the secretary or an assistant secretary or the treasurer or an
assistant treasurer and sealed with the corporate seal. In any
case in which such certificate is countersigned manually by
either a transfer agent or registrar other than the company or
one of its employees, the corporate seal and signatures of the
officers of the company, or any of them, and the signature of the
registrar or transfer agent not countersigning manually, as the
case may be, may be engraved or printed facsimiles. In any case
in which any officer who has signed or whose facsimile signature
has been placed on such a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued
by the company with the same effect as if such officer had not
ceased to be such at the date of its issue.
SECTION 2: The names and addresses of the persons to whom
certificates for shares of stock are issued and the number of
shares represented by and the date of the issue and transfer of
each certificate shall be entered on books of the company kept
for that purpose. The stock record and transfer books and the
blank stock certificates shall be kept by such transfer agent or
by the secretary or such other officer as shall be designated by
the board of directors for that purpose.
SECTION 3: Except as otherwise provided in these by-laws or
required by law, shares of stock shall be transferable only on
the books of the company upon surrender of the certificate or
certificates therefor to the secretary or an assistant secretary
of the company, or to the transfer agent of the company if such
an agent shall have been appointed, properly endorsed or
accompanied by proper assignments duly executed by the registered
holder thereof in person or by his attorney duly authorized in
writing. Every certificate surrendered to the company for
transfer or exchange shall be canceled and the date of
cancellation shall be shown thereon. The company shall treat the
registered holder of each certificate for a share or shares of
its stock as the owner of such share or shares until the same
shall have been transferred on the books of the company as above
provided.
SECTION 4: The company, whenever the board of directors
shall so determine, shall maintain one or more transfer offices
or agencies, each in charge of a transfer agent designated by the
board of directors, where the shares of the capital stock of the
company may be transferred, and also one or more registry offic-
es, each in charge of a registrar designated by the board of
directors, where the share of such capital stock may be regis-
tered, and no certificate for shares of such stock in respect of
which a transfer agent and registrar shall have been designated
shall be valid unless countersigned by such transfer agent and
registered by such registrar. The board of directors may also
have such additional rules and regulations as it may deem
expedient concerning the issue, transfer and registration of
certificates for shares of the capital stock of the company.
SECTION 5: The holder of any share of capital stock of the
company shall immediately notify the company of any loss, theft,
destruction or mutilation of the certificate therefor and the
board of directors may, in its discretion, cause a new
certificate or certificates to be issued to him, upon the
surrender of the mutilated certificate or in case of loss, theft
or destruction of the certificate, upon satisfactory proof of
such loss, theft or destruction and upon such terms and indemnity
and with such bond as the board of directors may prescribe, but
the board of directors in its discretion may refuse to replace
any lost or destroyed certificate except upon the order of a
court of competent jurisdiction.
SECTION 6: (a) In order that the company may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance,
a record date, which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty
days prior to any other action.
(b) If no record date is fixed:
(1) The record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on
which the meeting is held.
(2) The record date for determining stockholders for any
other purpose shall be at the close of business on the day
on which the board of directors adopts the resolution
relating thereto.
(c) A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the board
of directors may fix a new record date for the adjourned meeting.
ARTICLE IV
Meetings of Stockholders
SECTION 1: All meetings of stockholders shall be at the
principal office of the company or such other place as may be
designated by the board of directors from time to time.
SECTION 2: The regular annual meeting of the stockholders
shall be held in the month, on the day and at the hour in each
year as designated by resolution of the board of directors, for
the purpose of electing a board of directors and for the
transaction of such other business as may be properly brought
before such meeting.
SECTION 3: Special meetings of the stockholders for any
purpose or purposes may be called at any time by the chairman of
the board of directors, by the president or by the board of
directors, and no other person or group of persons shall be
entitled to call a special meeting of the stockholders.
SECTION 4: Written or printed notice stating the place, day
and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) nor more than sixty (60) days
before the date of the meeting, or in the case of a merger or
consolidation of the company requiring stockholder approval or a
sale, lease or exchange of substantially all of the property and
assets of the company, not less than twenty (20) nor more than
sixty (60) days before the date of the meeting, either personally
or by mail, to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail addressed to
the stockholder at his address as it appears on the records of
the company, with postage thereon prepaid.
SECTION 5: At all meetings of stockholders a majority of
the outstanding shares, excluding such shares as may be owned by
the company, represented in person or by proxy, shall constitute
a quorum for the transaction of any business other than
adjourning from time to time until a quorum shall be obtained, or
adjourning sine die, and for any such adjournment a majority vote
of whatever stock shall be represented shall be sufficient. At
any adjourned meeting at which a quorum is present any business
may be transacted which might have been transacted if the meeting
had been held at the time fixed in the notice thereof.
SECTION 6: Each outstanding share which is entitled to vote
on matters submitted to a vote at any meeting of stockholders may
be voted by proxy. Such proxy must be in writing and filed with
the Secretary not later than the time for ascertainment of a
quorum in connection with the meeting at which such proxy is to
be voted. No proxy shall be valid after eleven (11) months from
the date of its execution unless otherwise provided in the proxy.
SECTION 7: The secretary or an assistant secretary shall
make, at least ten (10) days before each meeting of stockholders,
a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order, with the address of, and
the number of shares registered in the name of, each
stockholder. Such list, for a period of ten (10) days prior to
such meeting, shall be kept on file at a place within the city
where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. Such list shall be
subject to inspection by any stockholder, at any time during
usual business hours, for any purpose germane to the meeting, and
shall also be kept open, at the time and place of the meeting,
subject to the inspection of any stockholder who is present,
during the whole time of the meeting. The stock ledger shall be
the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or
the books of the company, or to vote in person or by proxy at any
meeting of stockholders.
SECTION 8: Unless otherwise modified by resolution of the
board of directors of the company, the order of business at each
regular annual meeting of stockholders shall be as follows:
(a) Ascertainment of quorum
(b) Proof of due notice of meeting
(c) Reports of officers and committees
(d) Unfinished business
(e) New business
(f) Election of directors
(g) Adjournment
SECTION 9: Business may be properly brought before an
annual meeting of stockholders by a stockholder only upon the
stockholder's timely notice thereof in writing to the secretary
of the company. To be timely, a stockholder's notice must be in
writing and delivered or mailed by first class United States
mail, postage prepaid, to the secretary of the company not less
than sixty (60) days prior to the first anniversary of the date
of the last meeting of stockholders called for the election of
directors. A stockholder's notice to the secretary shall set
forth as to each matter the stockholder proposes to bring before
the annual meeting (a) a brief description of the business
desired to be brought before the annual meeting, (b) the name and
record address of the stockholder proposing such business,
(c) the class and number of shares of stock of the company which
are beneficially owned by the stockholder, and (d) any material
interest of the stockholder in such business. Notwithstanding
the foregoing, nothing in this Section 9 shall be interpreted or
construed to require the inclusion of information about any such
proposal in any proxy statement distributed by, at the direction
of, or on behalf of the board of directors. The chairman of an
annual meeting shall determine whether any business was properly
brought before the meeting in accordance with the provisions of
this Section 9. If he should determine that such business was
not properly brought before the meeting, he shall so declare to
the meeting and any such business shall not be transacted.
SECTION 10: Nominations of persons for election to the
board of directors of the company shall be made only (a) by or at
the direction of the board of directors or (b) by any stockholder
of the company entitled to vote for the election of directors at
a meeting of stockholders who complies with the procedures set
forth in this Section 10. Such nominations, other than those
made by or at the direction of the board of directors, shall be
made by notice in writing delivered or mailed by first class
United States mail, postage prepaid, to the chairman of the
nominating committee of the board of directors of the company not
less than sixty (60) days prior to the first anniversary of the
date of the last meeting of stockholders called for the election
of directors. Such stockholder's notice shall set forth: (i) as
to each person whom such stockholder proposes to nominate for
election or re-election as a director, (A) the name, age, busi-
ness address and, if known, residence address of each nominee
proposed in such notice, (B) the principal occupation or
employment of each such nominee, (C) the number of shares of
stock of the company which are beneficially owned by each such
nominee, and (D) such other information as would be required by
the federal securities laws and the rules and regulations
promulgated thereunder in respect of an individual nominated as a
director of the company and for whom proxies are solicited by the
board of directors of the company (including such nominee's
written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); and (ii) as to
the stockholder giving the notice, (A) the name and address, as
they appear on the company's books, of such stockholder, and
(B) the class and number of shares of stock of the company which
are beneficially owned by such stockholder. Notwithstanding the
foregoing, nothing in this Section 10 shall be interpreted or
construed to require the inclusion of information about such
nominees in any proxy statement distributed by, at the direction
of, or on behalf of the board of directors. The chairman of any
meeting of stockholders may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Section 10, and
if he should so determine, he shall so declare to the meeting and
the nomination shall be disregarded.
ARTICLE V
Directors
SECTION 1: The business and affairs of the company shall be
managed by a board of directors. Directors shall be elected at
each annual meeting of the stockholders, but if for any reason
the election is not held at an annual meeting, it may be held at
a subsequent special meeting of stockholders. The directors
shall be divided into three classes as nearly equal in number as
possible. Each director, when elected, shall hold office for a
term to expire at the third succeeding annual meeting of
shareholders after his election or until his successor is elected
and qualified. The board of directors may accept resignations of
individual directors at any time. Any vacancy occurring in the
board of directors by reason of resignation, death, incapacity or
any other cause, and any newly created directorships resulting
from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. Any
director so elected to fill a newly created directorship
resulting from any increase in the authorized number of directors
shall be elected to a class designated by the Board and shall
hold office until the next election of that class, and until such
director's successor shall have been elected and qualified. Any
director so elected to fill a vacancy resulting from any other
cause shall serve until the term of that office shall expire, and
until such director's successor shall have been elected and
qualified.
SECTION 2: No person shall be a director who is not a
stockholder of the company.
SECTION 3: Meetings of the board of directors, unless
otherwise designated by the board of directors, shall be held at
the principal office of the company. Regular meetings of the
board of directors shall be held at such times as may be fixed by
resolution of the board. Special meetings of the board of
directors may be called at any time by the chairman of the board
of directors or the president or, in their absence or refusal to
act, by any vice-president. A special meeting may also be called
by the secretary upon the written request of a majority of the
board of directors. A special meeting shall be called by giving
written notice to each director (a) by mail sent to his address
as it appears on the records of the company, or (b) by personal
delivery or (c) by electronic communication prior to the time of
such meeting, stating the time, place and objects of such
meeting. Such notice shall be given by the secretary or an
assistant secretary, but if the secretary or assistant secretary
fails to give the notice, the same may be given by the officer or
directors calling the meeting. No notice need be given of any
regular meeting of the board of directors and special meetings
may be held without notice at any time and place by the unanimous
consent in writing of all the directors.
SECTION 4: A majority of the board of directors shall
constitute a quorum for the transaction of business at any
meeting of the board, but a smaller number may adjourn from time
to time until a quorum is obtained, or may adjourn sine die. At
any adjourned meeting at which a quorum is present any business
may be transacted which might have been transacted if the meeting
had been held at the time fixed in the notice thereof. Common or
interested directors may be counted in determining a quorum at a
meeting of the board of directors which authorizes action
pursuant to Article IX.
SECTION 5: At all meetings of the board of directors the
vote of a majority of the whole board shall be decisive on all
questions before the meeting, and shall be requisite to any
action of the board, except as otherwise provided by law or by
these by-laws. Any contract or transaction made pursuant to
Article IX may be approved by the affirmative vote of the
majority of the disinterested directors even though the
disinterested directors may constitute less than a quorum.
SECTION 6: The order of business at all meetings of the
board of directors shall be as follows:
(a) Submission of and action on minutes of any previous
meeting or meetings which have not been signed by all
the directors.
(b) Consideration of communications
(c) Reports of officers or employees
(d) Reports of committees
(e) Unfinished business
(f) New business
(g) Adjournment
SECTION 7: Any action required or permitted to be taken at
any meeting of the board of directors, or of any committee
thereof, may be taken without a meeting if all members of the
board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes
of proceedings of the board or committee. Such consent shall
have the same effect as a unanimous vote of all directors.
SECTION 8: (a) The board of directors may, in its
discretion, by resolution adopted by a majority of the whole
board, constitute a general executive committee for the board,
appoint the members thereof, and specify its authority and
responsibility. Such committee shall be composed of not less
than five members of the board of directors who shall serve at
the pleasure of the board. The executive committee shall have
such powers, subject to the limitations of paragraph (b) of this
Section 8, and shall perform such duties as the board may
delegate to it in writing from time to time, including the
immediate oversight and direction of the business affairs of the
company.
(b) The executive committee shall be organized and shall
perform its functions as directed by the board. Any action taken
by the executive committee shall be promptly reported to the
board of directors as a whole for ratification. The committee
shall act by a majority of the members thereof, and any action
duly taken by the executive committee within the course and scope
of its authority and after proper ratification shall be binding
on the company.
(c) The executive committee may be abolished at any time by
the vote of a majority of the whole board of directors, and
during the course of the committee's existence, the membership
thereof may be increased or decreased, and the authority and
duties of the committee changed by the board of directors as it
may deem appropriate. The chairman of the board shall be a member
ex officio and act as the chairman of the executive committee.
SECTION 9: (a) The board of directors, at its discretion,
may constitute and appoint special committees, in addition to the
executive committee, to assist in the supervision, management,
and control of the affairs of the company, with responsibilities
and powers appropriate to the nature of the several committees
and as provided by the board of directors in the resolution of
appointment or in subsequent resolutions and directives. Such
committees may include but are not limited to an audit committee,
a nominating committee, and a compensation committee. Each
committee so constituted and appointed by the board shall serve
at the pleasure of the board and the members thereof shall
include not less than three members of the board of directors,
and such further persons as the board may designate.
(b) In addition to such obligations and functions as may be
expressly provided for by the board of directors, each committee
so constituted and appointed by the board shall from time to time
report to and advise the board on company affairs within its
particular area of responsibility and interest.
(c) The board of directors may provide by general
resolution applicable to such special committees for the
organization and conduct of the business of the committees.
ARTICLE VI
Officers and Assistant Officers
SECTION 1: The officers of the company shall be a chairman
of the board of directors, hereinafter called the "chairman of
the board," a president, one or more vice-presidents, a secretary
and a treasurer. Such officers shall be elected at the first
meeting of the board of directors after the annual meeting of the
stockholders in each year but if not elected at such meeting may
be elected at any other meeting of the board of directors. All
officers shall hold their respective offices from the date of
election thereto until the first meeting of the board of
directors after the next annual meeting of the stockholders, or
until their successors shall have been elected, but all or any of
the officers of the company may be removed from their respective
offices at the pleasure of the board of directors. The board of
directors may also at any time elect such other officers and
assistant officers as it may deem proper and may prescribe their
duties and authority. The chairman of the board, the president,
and at least one vice-president shall be directors. Whenever
there is more than one vice-president the board of directors may
designate one or more executive vice-presidents or senior
vice-presidents or both and assign to them such responsibilities
as may be appropriate. Any two or more offices may be held by
the same person except that neither the chairman of the board nor
the president shall hold the office of secretary.
SECTION 2: The chairman of the board shall preside at all
meetings of the stockholders and of the board of directors at
which he is present. If designated the chief executive officer
of the company by the board of directors, the chairman of the
board shall exercise general supervision and direction over the
conduct of the business and affairs of the corporation, shall
have the power to appoint counsel for the corporation and to
appoint such subordinate officers (other than those officers
required by Article VI of these by-laws to be elected by the
board of directors), agents, clerks and employees as may be found
necessary to transact the business of the corporation and,
without the consent of the board of directors, to remove any such
appointive officer, agent, clerk or employee of the corporation.
The chairman of the board shall have such other powers and
perform such other duties as may from time to time be prescribed
by the board of directors.
SECTION 3: The president shall, in the absence of the
chairman of the board, preside at all meetings of the
stockholders and of the board of directors at which he is
present. If designated the chief executive officer of the
company by the board of directors, the president shall exercise
the powers granted to the chief executive officer as described in
Section 2 and shall have such other powers and perform such other
duties as may from time to time be prescribed by the board of
directors or as may be determined by agreement between the
chairman of the board and the president. In case of the absence
or disability of the chairman of the board, or his refusal to
act, the president shall have the powers and perform the duties
of the chairman of the board.
SECTION 4: The vice-presidents shall have such powers and
duties as may from time to time be prescribed by the board of
directors or by the chief executive officer in accordance with
these by-laws. The board of directors may designate one or more
executive vice-presidents or senior vice-presidents or both such
executive and senior vice-presidents and may prescribe the powers
and duties of each. In case of absence, disability or refusal to
act on the part of both the chairman of the board and the
president, one of the executive vice-presidents or senior
vice-presidents designated by the board of directors shall have
the powers and perform the duties of the chief executive officer
during such period of absence, disability or refusal to act.
SECTION 5: The secretary shall keep minutes of all meetings
of the stockholders, the board of directors and the committees of
the board, if any, shall give the required notices of all such
meetings, shall notify all officers and directors of their
election and shall keep the seal of the company and affix the
same, attested by his signature, to such instruments as may
require it. The secretary shall keep or cause to be kept the
stock certificate book and the other usual corporate records. He
shall make such reports to the board of directors as they may
request.
SECTION 6: The board of directors may designate a
vice-president as the chief financial officer of the company in
which event that officer shall have all the powers and duties of
the treasurer except those prescribed by the board or delegated
by the chief financial officer to be performed by the treasurer.
In the absence of such a designation, the treasurer shall be the
chief financial officer of the company. The chief financial
officer shall have custody of and be responsible for all moneys,
deposits and securities of the company, for keeping full and
accurate records of transactions, accounts, liabilities and
financial condition, for authorizing signatures on bank and other
accounts, authorizing endorsers on checks, bills, notes and other
negotiable and non-negotiable instruments, for arranging for
borrowing and lending, procuring insurance, managing cash flow
and investments, and shall generally, together with the chief
executive officer, have supervision of the finances of the
company. His books and accounts shall be open at all times to
inspection by any director and, at appropriate times, by the
company's auditors. The chief financial officer shall make a
report of the financial condition of the company for the annual
meeting of stockholders in each year and shall make such other
reports and statements as may from time to time be required by
the board of directors or by the laws of the State of Delaware.
SECTION 7: Contracts and other written instruments shall be
signed by the chairman of the board or the president or a
vice-president unless some other officer or employee of the
company is authorized or required to sign them. The chairman of
the board or the president or any vice-president or any other
officer, assistant officer or employee designated in writing by
the chief financial officer, may sign or endorse checks, drafts
and other instruments used in the ordinary course of the
business.
SECTION 8: The duties of assistant officers, such as
assistant secretaries or assistant treasurers, shall be
determined from time to time by the board of directors or,
subject to such action as the board of directors may take in
respect thereto, by the chief executive officer.
ARTICLE VII
Fiscal Year
The fiscal year of the company shall be the calendar year.
ARTICLE VIII
Indemnification
SECTION 1: Indemnification of Directors and Officers. The
company shall, to the fullest extent to which it is empowered to
do so by the General Corporation Law of Delaware or any other
applicable laws, as may from time to time be in effect, indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was or has
agreed to become a director or officer of the company, or is or
was serving or has agreed to serve at the request of the company
as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding. Expenses incurred in
defending any action, suit or proceeding, whether civil,
criminal, administrative or investigative, shall be paid by the
company in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of
the director or officer to repay if it shall ultimately be
determined that he is not entitled to be indemnified by the
company. Any indemnification of or advance of expenses to a
director or officer under this Section 1 of this Article shall be
made promptly upon the written request of the director or
officer. If a determination by the company that the director or
officer is entitled to indemnification pursuant to this Article
is required by law and the company fails to respond within 60
days to a written request for indemnity, the company shall be
deemed to have approved such request. If the company denies a
written request for indemnity or advancement of expenses, in
whole or in part, or if payment in full pursuant to such request
is not made within 60 days, the right to indemnification or
advances as granted by this Article shall be enforceable by the
director or officer in any court of competent jurisdiction. The
costs and expenses of such person incurred in connection with
successfully establishing his right to indemnification or
advancement, in whole or in part, in any such action shall also
be indemnified by the company. If the company raises as a
defense to any such action for indemnification that the claimant
has not met any applicable standard of conduct, the burden of
proving such defense shall be on the company, whether or not
there has been an actual determination by the company (including
a determination by its board of directors, its independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct.
SECTION 2: Contract with the Company. The provisions of
Section 1 of this Article VIII shall be deemed to be a contract
between the company and each director or officer who serves in
any such capacity at any time while said Section 1 is in effect,
and any repeal or modification of said Section 1 shall not affect
any rights or obligations then existing with respect to any state
of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts. The contract
right provided hereunder to each director and officer may not be
modified retroactively without the consent of such person.
SECTION 3: Indemnification of Employees and Agents.
Persons who are not covered by the foregoing provisions of this
Article VIII and who are or were employees or agents of the
company, or are or were serving at the request of the company as
employees or agents of another corporation, partnership, joint
venture, trust or other enterprise, may be indemnified to the
extent the company is empowered to do so by the General
Corporation Law of Delaware or any other applicable laws, when
and as authorized at any time or from time to time by the board
of directors in its sole discretion.
SECTION 4: Other Rights of Indemnification. The
indemnification provided or permitted by this Article VIII shall
not be deemed exclusive of any other rights to which those
indemnified may be entitled by law or otherwise, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION 5: Liability Insurance. The company shall have the
power to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the
company or is or was serving at the request of the company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such
capacity or arising out of his status as such whether or not the
company would have the power to indemnify him against such
liability under the provisions of this Article VIII.
ARTICLE IX
SECTION 1: The Company may, to the fullest extent to which
it is empowered to do so by the General Corporation Law of
Delaware or any other applicable laws as may from time to time be
in effect, contract or transact business between itself and any
other organization in which one or more of its officers or
directors are officers or directors or have a financial interest
if the officer's or director's interest or relationship to the
contract or transaction is disclosed or is known to the board of
directors.
SECTION 2: The board of directors shall fix the
compensation of the directors.
ARTICLE X
Amendments
These by-laws may be altered, amended or repealed and new
by-laws may be adopted by action of the board of directors.
ARTICLE XI
Acquisition, Merger or Consolidation
In any instance in which the board of directors is
considering the terms of any offer that would involve the
acquisition by the offeror of a controlling interest in the
company or a merger or consolidation of the company with or the
sale of its assets to another company, the board shall consider,
in addition to the economic interests of the stockholders, all
relevant factors, including:
1. The social and economic impact upon the employees of
the company;
2. The economic and environmental impact upon the
communities in which the company's major facilities are
located;
3. The continuing ability of the company to meet the needs
of its customers and clients and to fulfill its existing
contractual commitments; and
4. The preservation of engineering integrity required to
provide adequate safeguards to society with respect to the
structural adequacy of the structures that the company
designs, fabricates and builds.