SIXTH. (1) In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is
expressly authorized to make, alter or repeal the by-laws
of the Corporation.
(2) The number of Directors of the Corporation shall be
fixed by, or in the manner provided in, the by-laws;
provided that such number of Directors shall not be less
than three.
(3) Elections of Directors need not be by written ballot
unless the by-laws of the Corporation shall so provide.
(4) A director of this Corporation shall under no
circumstances have any personal liability to the
Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for those
specific breaches and acts or omissions with respect to
which the Delaware General Corporation Law expressly
provides that this
provision shall not eliminate or limit such personal
liability of directors.
The Corporation shall indemnify, to the fullest extent
permitted by applicable law, any person made or threatened
to be made a party to any action, suit or proceeding by
reason of the fact that he (or she) is or was a Director or
officer of the Corporation. The Board of Directors shall
have full authority as contemplated by paragraph (1) of
this Article SIXTH, to implement the mandatory
indemnification hereby provided by means of appropriate
provisions in the Corporation's By-Laws.
NOTE: Paragraph (4) is set forth as amended by the
stockholders on May 12, 1987.
(5) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a Director, officer,
employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer,
employee or agent of, or participant in, another
corporation, partnership, joint venture, trust and 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 Corporation would have
the power to
-2-
indemnify him against such liability under the provisions
of paragraph (4) above or otherwise.
(6) (a) Except as set forth in subparagraph (d) of this
paragraph (6), the affirmative vote or consent of the
holders of four-fifths of all classes of stock of the
Corporation entitled to vote in elections of directors
considered for the purposes of this paragraph (6) as
one class, shall be required (i) for the adoption of
any agreement for the merger or consolidation of the
Corporation with or into any other corporation, or
(ii) to authorize any sale or lease of all or any
substantial part of the assets of the Corporation to,
or any sale or lease to the Corporation or any
subsidiary thereof in exchange for securities of the
Corporation of any assets (except assets having an
aggregate fair market value of less than $10,000,000)
of, any other corporation, person or other entity, if,
in either case, as of the record date for the
determination of the stockholders of the Corporation
entitled to notice thereof and to vote thereon or
consent thereto such other corporation, person or
entity is the beneficial owner, directly or
indirectly, of more than 10% of the outstanding shares
of stock of the Corporation entitled to vote in
elections of directors, considered for the purposes of
-3-
this paragraph (6) as one class. Such affirmative
vote or consent shall be in addition to the vote or
consent of the holders of the stock of the Corporation
otherwise required by law or any agreement between the
Corporation and any national securities exchange.
(b) For the purposes of this paragraph (6), (i) any
corporation, person or other entity shall be deemed to
be the beneficial owner of any shares of stock of the
Corporation (A) which it has the right to acquire
pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise,
or (B) which are beneficially owned, directly or
indirectly (including shares deemed owned through
application of clause (A) above), by any other
corporation, person or entity with which it or its
"affiliate", or "associate" (as defined below) has any
agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of
stock of the Corporation, or which is its "affiliate"
or "associate" as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934 as in effect on
January 1, 1969, and (ii) the outstanding shares of
any class of stock of the Corporation shall include
shares deemed owned through application of
-4-
clauses (A) and (B) above but shall not include any
other shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights,
warrants or options, or otherwise.
(c) The Board of Directors shall have the power and
duty to determine for the purposes of this paragraph
(6), on the basis of information known to the
Corporation, whether (i) such other corporation,
person or other entity beneficially owns more than 10%
of the outstanding shares of stock of the Corporation
entitled to vote in elections of directors, (ii) a
corporation, person, or entity is an "affiliate" or
"associate" (as defined above) of another, (iii) the
assets being acquired by the Corporation, or any
subsidiary thereof, have an aggregate fair market
value of less than $10,000,000, and (iv) a memorandum
of understanding or a letter of intent referred to
below is substantially consistent with the transaction
covered thereby. Any such determination shall be
conclusive and binding for all purposes of this
paragraph (6).
(d) The provisions of this paragraph (6) shall not be
applicable to (i) any merger or consolidation of the
Corporation with or into any other corporation, or any
-5-
sale or lease of all or any substantial part of the
assets of the Corporation to, or any sale or lease to
the Corporation or any subsidiary thereof in exchange
for securities of the Corporation of any assets of,
any corporation if the Board of Directors of the
Corporation shall by resolution have approved a memorandum
of understanding or a letter of intent with such other
corporation with respect to and substantially
consistent with such transaction prior to the time
that such other corporation shall have been a holder
of more than 10% of the outstanding shares of stock of
the Corporation entitled to vote in elections of
directors; or (ii) any merger or consolidation of the
Corporation with, or any sale or lease to the
Corporation or any subsidiary thereof of any of the
assets of, any corporation of which a majority of the
outstanding shares of all classes of stock entitled to
vote in elections of directors is owned of record or
beneficially by the Corporation and its subsidiaries.
(e) No amendment to the Certificate of Incorporation
of the Corporation shall amend, alter, change or
repeal any of the provisions of this paragraph (6),
unless the amendment affecting such amendment,
alteration, change or repeal shall receive the
affirmative vote or consent
-6-
of the holders of four-fifths of all classes of stock
of the Corporation entitled to vote in elections of
directors, considered for the purposes of this
paragraph (6) as one class.
-7-