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BY-LAWS
OF
DANIEL INDUSTRIES, INC.
(as amended through February 25, 1994)
Article I
Meetings of Stockholders
Section 1.1. Place of Meetings. All meetings of stockholders
shall be held at such place, either within or without the State of Delaware, as
shall be determined from time to time by the Board of Directors.
Section 1.2. Annual Meetings. The annual meeting of
stockholders shall be held at such date and time as shall be determined from
time to time by the Board of Directors. The annual meeting shall be held for
the purpose of electing directors in accordance with Article X of the
Certificate of Incorporation and transacting such other business as may be
properly brought before the meeting.
Section 1.3. Special Meetings. Special meetings of
stockholders may be called only by the Board of Directors. The Board of
Directors shall determine the date and time of each special meeting of
stockholders. The business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice of that meeting.
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Section 1.4. Notice of Meetings. Written notice of each
meeting of stockholders, stating the time and place and purpose or purposes
thereof, shall be given to each stockholder entitled to vote at the meeting,
within the time prescribed by statute.
Section 1.5. Quorum. The holders of a majority of the shares
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at any meeting of stockholders except as otherwise provided
by statute. The holders of a majority of the shares entitled to vote thereat,
present in person or represented by proxy, whether or not a quorum is present,
shall have power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present or
represented. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted that might have been
transacted at the meeting as originally notified.
Section 1.6. Voting. When a quorum is present or represented
at any meeting of stockholders, the affirmative vote of the holders of a
majority of the shares present in person or represented by proxy at the meeting
and entitled to vote on the subject matter shall be the act of the stockholders
in all matters, including the election of directors, unless the matter is one
upon which, by express provision of the statutes, of the Certificate of
Incorporation or of these by-laws, a different vote is required, in which case
such express provision shall govern and
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control the decision of that matter. Every stockholder having the right to
vote shall be entitled to vote in person, or by proxy appointed by an
instrument in writing subscribed by such stockholder, bearing a date not more
than three years prior to voting, unless such instrument provides for a longer
period, and filed with the Secretary of the corporation before, or at the time
of, the meeting. If such instrument shall designate two or more persons to act
as proxies, unless such instrument shall provide to the contrary, a majority of
such persons present at any meeting at which their powers thereunder are to be
exercised shall have and may exercise all the powers of voting thereby
conferred.
Section 1.7. Consents of Stockholders. As provided in Article
VI of the Certificate of Incorporation, the right of stockholders of the
corporation to take action by a consent in writing is denied.
Article II
Board of Directors
Section 2.1. Powers. The business and affairs of the
corporation shall be managed under the direction of its Board of Directors,
which may exercise all powers of the corporation and do all lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
by-laws required to be exercised or done by the stockholders.
Section 2.2. Number and Classification. The number of
directors shall be fixed in the manner provided by, and the directors shall be
divided into classes in accordance with, Article X of the Certificate of
Incorporation. The number of directors so fixed shall constitute
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the total number of directors of the corporation. By the affirmative vote of
not less than 80% of the number of directors of the corporation in office at
the time, the directors may appoint advisory directors. Advisory directors
will be entitled to attend and participate at meetings of the Board of
Directors but shall not be entitled to vote on any matter submitted to
directors or to exercise any other power vested in a director. Advisory
directors shall not constitute directors of the corporation and shall have none
of the duties of directors to the corporation. Any advisory director may be
removed without cause by the affirmative vote of not less than 80% of the
number of directors of the corporation in office at the time. Advisory
directors shall be compensated in accordance with Section 2.9 of these by-
laws.
Section 2.3. Removal. A director may not be removed except in
accordance with Article X of the Certificate of Incorporation.
Section 2.4. Annual Meetings. The annual meeting of the Board
of Directors shall be held each year, without other notice than this by-law, at
the place of, and immediately following, the annual meeting of stockholders.
However, if a majority of the whole Board of Directors shall so consent in
writing, such regular meeting may be held at such time and place as shall be
fixed by such consent, and the Secretary shall give notice of such regular
meeting, stating such time and place, in the manner required by these by-laws.
Section 2.5. Other Meetings. Other meetings of the Board of
Directors may be called by the Chairman of the Board of Directors, the
President or any two directors. Except as provided in Section 2.4 of these
by-laws, notice of each meeting of the Board of Directors
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stating the time and place of the meeting shall be given not less than
seventy-two hours before the time of the meeting, by or at the direction of the
person or persons calling the meeting, to each director. If the person or
persons calling the meeting shall instruct the Secretary or any Assistant
Secretary to give such notice, then the Secretary or such Assistant Secretary
shall promptly do so in the manner required by these by-laws.
Section 2.6. Waiver of Notice. The attendance of a director at
any meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any meeting of the Board
of Directors need be specified in the notice or waiver of notice of such
meeting.
Section 2.7. Quorum. A majority of the total number of
directors, determined in accordance with Section 2.2 of these by-laws, shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, and the vote of a majority of the directors present at a meeting
at which there is a quorum shall be the act of the Board of Directors unless
the Certificate of Incorporation or these by-laws shall require a vote of a
greater number of directors. If a quorum shall not be present at any meeting
of the Board of Directors, a majority of the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
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Section 2.8. Action by Consent of Directors. Any action
required or permitted to be taken at any meeting of the Board of Directors may
be taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all of the directors.
Section 2.9. Compensation of Directors. The Board of
Directors, irrespective of any personal interest of any of its members, shall
have authority to fix the compensation of all directors for services to the
corporation as directors, as members of one or more committees of the Board of
Directors, as officers, or otherwise.
Article III
Committees of Directors
Section 3.1. Designation, Powers and Name. The Board of
Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, including, if they shall so
determine, an Executive Committee, each such committee to consist of one or
more of the directors of the corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of such committee. In the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
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Section 3.2. Meetings of and Action by Committees. Except as
otherwise provided in the resolution pursuant to which a particular committee
of the Board of Directors was designated, (i) meetings of such committee may be
held within or without the State of Delaware and may be called by any member
thereof, (ii) notice of each meeting of such committee stating the time and
place of the meeting shall be given not less than forty-eight hours before the
time of the meeting, by or at the direction of the person or persons calling
the meeting, to each member of such committee, and if the person or persons
calling the meeting shall instruct the Secretary or any Assistant Secretary to
give such notice, then the Secretary or such Assistant Secretary shall promptly
do so in the manner required by these by-laws, (iii) attendance of a director
at any meeting of such committee shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened, (iv) neither the business to be transacted at,
nor the purpose of, any meeting of such committee need be specified in the
notice or waiver of notice of such meeting, (v) at all meetings of such
committee, a majority of the number of directors comprising such committee, as
fixed by such resolution, shall constitute a quorum for the transaction of
business, (vi) the vote of a majority of the members present at a meeting of
such committee at which there is a quorum shall be the act of such committee,
and (vii) if a quorum shall not be present at any meeting of such committee, a
majority of the members present at such meeting may adjourn such meeting from
time to time, without notice other than announcement at such meeting, until
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a quorum shall be present. The Board of Directors, by resolution adopted by a
majority of the whole Board of Directors, may amend or repeal the resolution
pursuant to which any committee of the Board of Directors was designated, may
remove any member of any committee, and may fill any vacancy occurring on any
committee. Each committee of directors shall keep regular minutes of its
proceedings and report the same to the Board of Directors when requested to do
so.
Section 3.3. Action by Consent. Any action required or
permitted to be taken at any meeting of any committee of the Board of Directors
may be taken without a meeting if a consent in writing, setting forth the
action so taken, is signed by all of the members of such committee.
Article IV
Notice
Section 4.1. Methods of Giving Notice. Whenever under the
provisions of the statutes, the Certificate of Incorporation or these by-laws,
notice is required to be given to any director, member of any committee or
stockholder, such notice shall be in writing and delivered personally or mailed
to such director, member or stockholder; provided that in the case of a
director or a member of any committee such notice may be given orally or by
telephone or telegram. If mailed, notice to a director, member of a committee
or stockholder shall be deemed to be given when deposited in the United States
mail first class in a sealed envelope, with postage thereon prepaid, addressed,
in the case of a stockholder, to the stockholder at the
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stockholder's address as it appears on the records of the corporation or, in
the case of a director or a member of a committee, to such person at his
business or home address. If sent by telegraph, notice to a director or member
of a committee shall be deemed to be given when the telegram, so addressed, is
delivered to the telegraph company.
Section 4.2. Written Waiver. Whenever any notice is required
to be given under the provisions of the statutes, the Certificate of
Incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
Article V
Officers
Section 5.1. Officers. The officers of the corporation shall
be a Chairman of the Board of Directors, a President, one or more Vice
Presidents, a Secretary and a Treasurer, each of whom shall be elected by the
Board of Directors. The Board of Directors may elect or appoint other officers
and agents, including Assistant Secretaries and Assistant Treasurers, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined by the Board of Directors. Any two or more
offices, other than the offices of President and Secretary, may be held by the
same person.
Section 5.2. Term of Office. Each officer shall hold office
until his successor is elected by the Board of Directors or until his earlier
death, resignation or removal from office.
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Section 5.3. Removal and Resignation. Any officer or agent
elected or appointed by the Board of Directors may be removed without cause by
the Board of Directors whenever, in its sole judgment, the best interests of
the corporation shall be served thereby, but such removal shall be without
prejudice to the contractual rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights. Any officer may resign at any time by giving written notice
to the corporation. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein, and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 5.4. Vacancies. Any vacancy occurring in any office of
the corporation by death, resignation or removal from office may be filled only
by the Board of Directors.
Section 5.5. Salaries. The salaries of all officers of the
corporation shall be fixed by the Board of Directors or pursuant to its
direction. No officer shall be prevented from receiving a salary by reason of
his also being a director.
Section 5.5. Chief Executive Officer. The Board of Directors
shall designate either the Chairman of the Board of Directors or the President
as the Chief Executive Officer of the corporation, and the person last so
designated shall be the Chief Executive Officer of the corporation until a
successor Chief Executive Officer is designated by the Board of Directors or
until such person ceases to hold the office held by him at the time of such
designation. The Chief Executive Officer shall be the principal executive
officer of the corporation for purposes
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of all filings by the corporation with the United States Securities and
Exchange Commission, shall preside at all meetings of stockholders, shall have
general and active management of the business of the corporation, and shall see
that all resolutions of the Board of Directors are carried into effect. The
Board of Directors may change the designation of Chief Executive Officer at any
time, but no such change shall constitute removal of any person from the office
of Chairman of the Board of Directors or President, as the case may be. If the
Chairman of the Board of Directors shall have been last designated as Chief
Executive Officer, then in the absence or disability of the Chairman of the
Board of Directors, the President shall perform the duties and have the
authority of the Chief Executive Officer. If the President shall have been
last designated as Chief Executive Officer, then in the absence or disability
of the President, the Chairman of the Board of Directors shall perform the
duties and have the authority of the Chief Executive Officer.
Section 5.6. Chairman of the Board of Directors. The Chairman
of the Board of Directors shall preside at all meetings of the Board of
Directors, and he shall have such other authority and perform such other duties
as may be determined from time to time by resolution of the Board of Directors
not inconsistent with these by-laws. If the Chairman of the Board of Directors
shall have been last designated as Chief Executive Officer, then he also shall
have the authority and perform the duties appertaining to that designation, as
specified in Section 5.5 of these by-laws.
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Section 5.7. President. The President shall be the Chief
Operating Officer of the corporation, and he shall have general supervision of
the day-to-day operations of the corporation's several industry segments.
Unless the Board of Directors shall have designated a particular officer of the
corporation as Chief Financial Officer, then the President shall be the
Principal Financial Officer of the corporation for purposes of all filings by
the corporation with the United States Securities and Exchange Commission. The
President shall have such other authority and perform such other duties as may
be determined from time to time by resolution of the Board of Directors not
inconsistent with these by-laws. If the President shall have been last
designated as Chief Executive Officer, then he also shall have the authority
and perform the duties appertaining to that designation, as specified in
Section 5.5 of these by-laws.
Section 5.8. Vice Presidents. The Vice Presidents shall have
such authority and perform such duties as may be determined from time to time
by resolution of the Board of Directors not inconsistent with these by-laws or
as the Chairman of the Board of Directors or the President may from time to
time delegate. The Board of Directors may, at the time of the election of any
Vice President of the corporation, designate such Vice President a "Senior Vice
President" or "Executive Vice President" of the corporation or designate such
Vice President by reference to a principal business function, such as "Finance"
or "Administration".
Section 5.9. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
shall record all of the proceedings of such meetings in minute books to be kept
for that purpose. If any member of any committee of the
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Board of Directors shall so request, the Secretary shall perform like duties in
respect of the proceedings of meetings of such committee. If requested by any
person or persons having authority to call such a meeting, the Secretary shall
give, or cause to be given, notice of each meeting of the Board of Directors
and notice of each meeting of stockholders, such notice to be given promptly in
the manner required by these by-laws. The Secretary shall keep in safe custody
the seal of the corporation and, when authorized by the Board of Directors,
shall affix the same to any instrument requiring it. The Secretary shall have
such other authority and perform such other duties as may be determined from
time to time by resolution of the Board of Directors not inconsistent with
these by-laws or as the Chief Executive Officer may from time to time delegate.
Section 5.10. Assistant Secretary. The Assistant Secretary
shall, in the absence or disability of the Secretary, have the authority and
perform the duties of the Secretary. He shall have such other authority and
perform such other duties as may be determined from time to time by resolution
of the Board of Directors not inconsistent with these by-laws or as the
Secretary may from time to time delegate.
Section 5.11. Treasurer. The Treasurer shall have custody of
the corporate funds and securities and shall keep full and accurate accounts
and records of receipts, disbursements and other transactions in books
belonging to the corporation. He shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such depositories
as may be designated by the Board of Directors. He shall disburse the funds of
the corporation
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as and when ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer and to the Board
of Directors, when the Chief Executive Officer or the Board of Directors so
requires, an account of all his transactions as Treasurer and of the financial
condition of the corporation. The Treasurer shall have such other authority
and perform such other duties as may be determined from time to time by
resolution of the Board of Directors not inconsistent with these by-laws or as
the Chief Executive Officer may from time to time delegate.
Section 5.12. Assistant Treasurer. The Assistant Treasurer
shall, in the absence or disability of the Treasurer, have the authority and
perform the duties of the Treasurer. He shall have such other authority and
perform such other duties as may be determined from time to time by resolution
of the Board of Directors not inconsistent with these by-laws or as the
Treasurer may from time to time delegate.
Article VI
Checks and Deposits
Section 6.1. Checks, etc. All checks, demands, drafts or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation shall be signed by such officer or
officers or such agent or agents of the corporation, and in such manner, as
shall be determined by the Board of Directors.
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Section 6.2. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as the Board
of Directors may select.
Article VII
Certificates of Stock
Section 7.1. Issuance. Each stockholder of the corporation
shall be entitled to a certificate or certificates showing the number of shares
of stock registered in his name on the books of the corporation. The
certificates shall be in such form as may be determined by the Board of
Directors, shall be issued in numerical order and shall be entered in the books
of the corporation as they are issued. They shall exhibit the holder's name
and number of shares and shall be signed by the President or a Vice President
and by the Secretary or an Assistant Secretary, provided that such signatures
may be facsimile. All certificates surrendered to the corporation's transfer
agent for transfer shall be cancelled, and no new certificate shall be issued
until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in the case of a lost, stolen, destroyed
or mutilated certificate a new one may be issued therefor upon such terms and
with such indemnity, if any, to the corporation as the Board of Directors may
prescribe. Unless otherwise provided in the resolution or resolutions of the
Board of Directors providing for the issuance of shares of Preferred Stock of
the corporation of a particular series, certificates shall not be issued
representing fractional shares of stock.
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Section 7.2. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against
the corporation with respect to the certificate or certificates alleged to have
been lost, stolen or destroyed, or both.
Section 7.3. Registered Stockholders. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Delaware.
Article VIII
Dividends
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Section 8.1. Declaration. Dividends upon the stock of the
corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of stock.
Section 8.2. Reserve. Before payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interest of the corporation.
Article IX
Indemnification
Section 9.1. Third Party Actions. The corporation shall
indemnify any natural 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 (other than an action
by or in the right of the corporation), by reason of the fact that he is or was
a director or officer of the corporation, or is or was serving at the request
of the corporation as a director or officer or agent of another corporation,
partnership, joint venture, trust or other enterprise, against 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 if he acted in good faith and in a manner he reasonably believed to
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be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 9.2. Actions by or in the Right of the Corporation.
The corporation shall indemnify any natural person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view
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of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 9.3. Determination of Conduct. The determination
whether an officer, director or agent has met the applicable standard of
conduct set forth in Sections 9.1 and 9.2 (unless indemnification is ordered by
a court) shall be made (1) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such quorum is not obtainable, or even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
Section 9.4. Payment of Expenses in Advance. Expenses incurred
by an officer, director or agent in defending a civil or criminal action, suit
or proceeding for which such person may be entitled to indemnity under this
Article IX shall be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director, officer or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified under this
Article IX.
Section 9.5. Definitions. For purposes of this Article IX,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors and officers, so that any person who is or who was a director or
officer of such constituent
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corporation, or is or was serving at the request of such constituent
corporation as a director, officer or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article IX with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this
Article IX, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a director or
officer of the corporation that imposes duties on, or involves services by,
such director or officer with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the best interest of the participants
and beneficiaries in the employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the corporation" as referred to
in this Article IX.
Section 9.6. Indemnity Not Exclusive. The indemnification and
advancement of expenses provided by this Article IX shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any agreement, vote of
stockholders, vote of disinterested directors, insurance arrangement or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
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Section 9.7. Continuation. The indemnification and advancement
of expenses provided by this Article IX shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 9.8. No Further Authorization Required. This Article
IX is intended to make mandatory the indemnification permitted by Section 145
of the Delaware General Corporation Law. This Article IX shall be deemed to
constitute the authorization required by subsection (d) of said Section 145,
and no further authorization by the Board of Directors or the stockholders of
the corporation shall be necessary in any specific case if the indemnification
or advancement of expenses referred to in this Article IX is, by the terms of
this Article IX, required to be afforded in that case.
Article X
By-Law Amendments; Application of Section 203
of the Delaware General Corporation Law
Section 10.1. Certificate of Incorporation to Govern. These
by-laws may not be adopted, amended or repealed otherwise than in accordance
with Article VI of the Certificate of Incorporation, provided that Section 10.2
of these by-laws may not be further amended by the Board of Directors.
Section 10.2. No Application of Section 203. The corporation
hereby expressly elects not to be governed by Section 203 of the Delaware
General Corporation Law entitled "Business Combinations with Interested
Stockholders".
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