EXHIBIT 3.2
As Amended through April 29, 1996
Freeport-McMoRan Copper & Gold Inc.
By-Laws
ARTICLE I
Name
The name of the corporation is Freeport-McMoRan Copper & Gold Inc.
ARTICLE II
Offices
1. The location of the registered office of the corporation
in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle, and the name of its registered agent at
such address is The Corporation Trust Company.
2. The corporation shall in addition to its registered office
in the State of Delaware establish and maintain an office or offices at
such place or places as the Board of Directors may from time to time find
necessary or desirable.
ARTICLE III
Corporate Seal
The corporate seal of the corporation shall have inscribed
thereon the name of the corporation and the year of its creation (1987)
and the words "Corporate Seal Delaware". Such seal may be used by
causing it or a facsimile thereof to be impressed, affixed, printed or
otherwise reproduced.
ARTICLE IV
Meeting of Stockholders
1. Meetings of the stockholders shall be held at the
registered office of the corporation in the State of Delaware, or at such
other place as shall be determined, from time to time, by the Board of
Directors.
2. The annual meeting of stockholders shall be held on the
Monday immediately preceding the third Tuesday of April at one o'clock in
the afternoon, or on such other day or at such other time as may be
determined from time to time by resolution of the Board of Directors. At
each annual meeting of the stockholders they shall elect by plurality
vote, by written ballot, and subject to the voting powers set forth in
the Certificate of Incorporation, the successors of the class of
directors whose term expires at such meeting, to hold office until the
annual meeting of the stockholders held in the third year following the
year of their election and their successors are respectively elected and
qualified or until their earlier resignation or removal. Any other
proper business may be transacted at the annual meeting.
3. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided
by statute, by the Certificate of Incorporation or by these By-Laws. If,
however, such majority shall not be present or represented at any meeting
of the stockholders, the stockholders entitled to vote thereat, present
in person or by proxy, shall have power to adjourn the meeting from time
to time without notice other than announcement at the meeting (except as
otherwise provided by statute), until the requisite amount of voting
stock shall be present. At such adjourned meeting at which the requisite
amount of voting stock shall be represented any business may be
transacted which might have been transacted at the meeting as originally
notified.
4. At all meetings of the stockholders, each 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 and
bearing a date not more than six months prior to said meeting, unless
such instrument provides for a longer period. All proxies shall be filed
with the secretary of the meeting before being voted.
5. At each meeting of the stockholders each stockholder shall
have one vote for each share of stock having voting power, registered in
his name on the books of the corporation at the record date fixed in
accordance with these By-Laws, or otherwise determined, with respect to
such meeting. Except as otherwise expressly provided by statute, by the
Certificate of Incorporation or by these By-Laws, all matters coming
before any meeting of the stockholders shall be decided by the vote of a
majority of the number of shares of stock present in person or
represented by proxy at such meeting and entitled to vote thereat, a
quorum being present.
6. Notice of each meeting of the stockholders shall be given
to each stockholder entitled to vote thereat not less than 10 nor more
than 60 days before the date of the meeting. Such notice shall state the
place, date and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called.
7. Subject to such rights to call special meetings of
stockholders under specified circumstances as may be granted to holders
of any shares of Preferred Stock of the corporation pursuant to the
provisions of Section (c) of Article FOURTH of the Certificate of
Incorporation, special meetings of the stockholders may be called only by
the Chairman of the Board, the Vice Chairman of the Board or the
President of the corporation, or at the request in writing or by a vote
of a majority of the Board of Directors, and not by any other persons.
Any request for a special meeting made by the Board of Directors shall
state the purpose or purposes of the proposed meeting.
8. Business transacted at each special meeting shall be
confined to the purpose or purposes stated in the notice of such meeting.
9. The order of business at each meeting of the stockholders
shall be determined by the chairman of such meeting.
10. At an annual meeting of the stockholders, only business
shall be conducted as shall have been brought before the meeting (a) by
or at the direction of the Board of Directors or (b) by any stockholder
of the corporation who complies with the notice procedures set forth in
this Section 10. For business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the
event that less than 70 days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be received not later than the close of
business on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure was made.
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 and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's
books, of the stockholder proposing such business, (c) the class and
number of shares of the corporation which are beneficially owned by the
stockholder and (d) any material interest of the stockholder in such
business. Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at an annual meeting except in accordance
with the procedures set forth in this Section 10. The chairman of an
annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of the By-Laws, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 10, a
stockholder seeking to have a proposal included in the corporation's
proxy statement shall comply with the requirements of Regulation 14A
under the Securities Exchange Act of 1934, as amended (including, but not
limited to, Rule 14a-8 or its successor provision).
11. Only persons who are nominated in accordance with the
procedures set forth in the By-Laws shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors
of the corporation may be made at a meeting of stockholders (a) by or at
the direction of the Board of Directors or (b) by any stockholder of the
corporation entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in this Section 11.
Such nominations, other than those made by or at the direction of the
Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the corporation. To be timely, a stockholder's notice
shall be delivered to or mailed and received at the principal executive
offices of the corporation not less than 60 days nor more than 90 days
prior to the meeting; provided, however that in the event that less than
70 days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting or such
public disclosure was made. Such stockholder's notice shall set forth
(a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such
person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); and (b)
as to the stockholder giving the notice (i) the name and address, as they
appear on the corporation's books, of such stockholder and (ii) the class
and number of shares of the corporation which are beneficially owned by
such stockholder. At the request of the Board of Directors any person
nominated by the Board of Directors for election as a director shall
furnish to the Secretary of the corporation that information required to
be set forth in a stockholder's notice of nomination which pertains to
the nominee. No person shall be eligible for election as a director of
the corporation unless nominated in accordance with the procedures set
forth in the By-Laws. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by the By-Laws, and if
he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
12. Any action required or permitted to be taken at any annual
or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by stockholders having not
less than a minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE V
Directors
1. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors which may
exercise all such powers and authority for and on behalf of the
corporation as shall be permitted by law, the Certificate of
Incorporation or these By-Laws.
2. The directors may hold their meeting and have one or more
offices, and, subject to the laws of the State of Delaware, keep the
stock ledger and other books and records of the corporation outside of
said State, at such place or places as they may from time to time
determine.
3. Any director may resign at any time by giving written
notice of his resignation to the Board of Directors, to the Chairman of
the Board, the Vice Chairman of the Board or the President. Any such
resignation shall take effect upon receipt thereof by the Board, the
Chairman of the Board, the Vice Chairman of the Board or the President,
as the case may be, or at such later date as may be specified therein.
Any such notice to the Board shall be addressed to it in care of the
Secretary.
ARTICLE VI
Committees of Directors
1. By resolutions adopted by a majority of the whole Board of
Directors, the Board may designate an Executive Committee, an Audit
Committee, a Corporate Personnel Committee, a Nominating Committee and a
Public Policy Committee, and may designate one or more other committees,
each such committee to consist of one or more directors of the
corporation. The Executive Committee shall have and may exercise all the
powers of the Board in the management of the business and affairs of the
corporation (except as otherwise expressly limited by statute), including
the power and authority to declare dividends and to authorize the
issuance of stock, and may authorize the seal of the corporation to be
affixed to all papers which may require it. The Audit Committee, the
Corporate Personnel Committee, the Nominating Committee, the Public
Policy Committee and each such other committee shall have such of the
powers and authority of the Board as may be provided from time to time in
resolutions adopted by a majority of the whole Board. Each committee
shall report its proceedings to the Board when required.
2. The requirements with respect to the manner in which the
Executive Committee and each such other committee shall hold meetings and
take actions shall be set forth in the resolutions of the Board of
Directors designating the Executive Committee or such other committee.
ARTICLE VII
Compensation of Directors
The directors shall receive such compensation for their
services as may be authorized by resolution of the Board of Directors,
which compensation may include an annual fee and a fixed sum and expenses
for attendance at regular or special meetings of the Board or any
committee thereof. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity
and receiving compensation therefor.
ARTICLE VIII
Meetings of Directors; Action Without a Meeting
1. Regular meetings of the Board of Directors may be held
without notice at such time and place, either within or without the State
of Delaware, as may be determined from time to time by resolution of the
Board.
2. Special meetings of the Board of Directors may be called
by the Chairman of the Board, by the Vice Chairman of the Board or by the
President on at least 24 hours' notice to each director, and shall be
called by the President or the Secretary on like notice on the request in
writing of any director. Except as may be otherwise specifically
provided by statute, by the Certificate of Incorporation or by these By-
Laws, the purpose or purposes of any such special meeting need not be
stated in such notice.
3. At all meetings of the Board of Directors the presence in
person of a majority of the total number of directors shall be necessary
and sufficient to constitute a quorum for the transaction of business
and, except as may be otherwise specifically provided by statute, by the
Certificate of Incorporation or by these By-Laws, if a quorum shall be
present the act of a majority of the directors present at any meeting
shall be the act of the Board.
4. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all the members of the Board or such 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. Any
director may participate in a meeting of the Board, or of any committee
designated by the Board, by means of a conference telephone or similar
communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant
to this sentence shall constitute presence in person at such meeting.
ARTICLE IX
Officers
1. The officers of the corporation shall be chosen by the
Board of Directors and shall be a Chairman of the Board, a President, one
or more Vice Presidents, a Secretary, and a Treasurer. The Board of
Directors may also choose a Vice Chairman of the Board, one or more
Executive Vice Presidents, one or more Senior Vice Presidents, a General
Counsel, one or more Assistant Vice Presidents, a Controller and one or
more Assistant Secretaries, Assistant Treasurers or Assistant
Controllers, and such other officers as it shall deem necessary who shall
hold their offices for such terms and shall exercise such powers and
perform such duties as shall be prescribed from time to time by the Board
or by the Chairman of the Board. Any number of offices may be held by
the same person.
2. Annually, the Board of Directors shall choose a Chairman
of the Board from among the directors, and shall choose the remaining
officers who need not be members of the Board except in the event they
choose a Vice Chairman of the Board.
3. The salaries of all officers of the corporation shall be
fixed by the Board of Directors, or in such manner as the Board may
prescribe.
4. The officers of the corporation shall hold office until
their successors are respectively chosen and qualified, except that any
officer may at any time resign or be removed by the Board of Directors.
If the office of any officer becomes vacant for any reason, the vacancy
may be filled by the Board.
5. Any officer may resign at any time by giving written
notice of his resignation to the Board of Directors, the Chairman of the
Board, the Vice Chairman of the Board or the President. Any such
resignation shall take effect upon receipt thereof by the Board, the
Chairman of the Board, the Vice Chairman of the Board or the President,
as the case may be, or at such later date as may be specified therein.
Any such notice to the Board shall be addressed to it in care of the
Secretary.
ARTICLE X
Chairman of the Board
The Chairman of the Board shall be the Chief Executive Officer
of the corporation and shall preside at meetings of the stockholders and
of the Board of Directors. Subject to the supervision and direction of
the Board of Directors, he shall be responsible for managing the affairs
of the corporation. He shall have general supervision and direction of
all of the other officers of the corporation and shall have powers and
duties usually and customarily associated with the office of Chairman of
the Board and the position of Chief Executive Officer.
ARTICLE XI
President
The President shall be the Chief Operating Officer of the
corporation, and he shall have the powers and duties usually and
customarily associated with the Office of the President and the position
of Chief Operating Officer. He shall have such other powers and duties
as may be delegated to him by the Chairman of the Board.
ARTICLE XII
Vice Chairman of the Board,
Executive Vice Presidents,
Senior Vice Presidents,
Vice Presidents and
Assistant Vice Presidents
The Vice Chairman of the Board, Executive Vice Presidents,
Senior Vice Presidents, Vice Presidents and Assistant Vice Presidents
shall have such powers and duties as may be delegated to them by the
Board of Directors or the Chairman of the Board. The Vice Chairman of
the Board shall, in the absence of the Chairman of the Board, preside at
meetings of the stockholders and of the Board of Directors.
ARTICLE XIII
General Counsel, Secretary and Assistant Secretaries
1. The General Counsel shall have the powers and duties
usually and customarily associated with the position of General Counsel.
He shall have such other powers and duties as may be delegated to him by
the Board of Directors or the Chairman of the Board.
2. The Secretary shall attend all meetings of the Board of
Directors and of the stockholders, and shall record the minutes of all
proceedings in a book to be kept for that purpose. He shall perform like
duties for the committees of the Board when required.
3. The Secretary shall give, or cause to be given, notice of
meetings of the stockholders and of the Board of Directors and of
committees of the Board. He shall keep in safe custody the seal of the
corporation, and when authorized by the Chairman of the Board, the Vice
Chairman of the Board, the President, an Executive Vice President, a
Senior Vice President, a Vice President or the General Counsel, shall
affix the same to any instrument requiring it, and when so affixed it
shall be attested by his signature or by the signature of an Assistant
Secretary. He shall have such other powers and duties as may be
delegated to him by the Board of Directors or the Chairman of the Board.
4. The Assistant Secretaries shall, in case of the absence or
disability of the Secretary, perform the duties and exercise the powers
of the Secretary, and shall have such other powers and duties as may be
delegated to them by the Board of Directors or the Chairman of the Board.
ARTICLE XIV
Treasurer and Assistant Treasurers
1. The Treasurer shall have the custody of the corporate
funds and securities, and shall deposit or cause to be deposited under
his direction 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 or pursuant to authority granted by it. He
shall render to the Chairman of the Board and the Board of Directors,
whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the corporation. He shall
have such other powers and duties as may be delegated to him by the Board
of Directors or the Chairman of the Board.
2. The Assistant Treasurers shall, in case of the absence or
disability of the Treasurer, perform the duties and exercise the powers
of the Treasurer, and shall have such other powers and duties as may be
delegated to them by the Board of Directors or the Chairman of the Board.
ARTICLE XV
Controller and Assistant Controllers
1. The Controller shall maintain adequate records of all
assets, liabilities and transactions of the corporation, and shall see
that adequate audits thereof are currently and regularly made. He shall
disburse the funds of the corporation in payment of the just obligations
of the corporation, or as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements. He shall have such other
powers and duties as may be delegated to him by the Board of Directors or
the Chairman of the Board.
2. The Assistant Controllers shall, in case of the absence of
the Controller, perform the duties and exercise the powers of the
Controller, and shall have such other powers and duties as may be
delegated to them by the Board of Directors or the Chairman of the Board.
ARTICLE XVI
Agents and Representatives
The Chairman of the Board, the Vice Chairman of the Board, the
President, any Executive Vice President, any Senior Vice President or any
Vice President, the General Counsel, together with the Secretary or any
Assistant Secretary, are authorized and empowered in the name of and as
the act and deed of the corporation, to name and appoint general and
special agents, representatives, and attorneys to represent the
corporation in the United States or in any foreign country, and to
prescribe, limit and define the powers and duties of such agents,
representatives and attorneys, and to grant, substitute, revoke, or
cancel, in whole or in part, any power of attorney or other authority
conferred on any such agent, representative, or attorney. All powers of
attorney or other instruments which may be executed pursuant to this
provision shall be signed by the Chairman of the Board, the Vice Chairman
of the Board, the President, any Executive Vice President, any Senior
Vice President, or any Vice President, the General Counsel, and by the
Secretary or an Assistant Secretary and the seal of the corporation shall
be affixed thereto. No further authorization by the Board of Directors
shall be necessary in connection with the foregoing, it being intended
that this By-Law shall constitute full and complete authority by which
the officers above mentioned may act for the purposes aforesaid.
ARTICLE XVII
Certificates of Stock
The certificates for shares of stock of the corporation shall
be numbered and shall be entered on 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 Chairman of the Board, the Vice Chairman of
the Board, the President, an Executive Vice President, a Senior Vice
President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary. The signature of any
such officers may be facsimile if such certificate is countersigned by a
transfer agent other than the corporation or its employee or by a
registrar other than the corporation or its employee. In case any
officer who has signed or whose facsimile signature has been placed on
any such certificate shall have ceased to be such officer before such
certificate is issued, then, unless the Board of Directors shall
otherwise determine and cause notification thereof to be given to such
transfer agent and registrar, such certificate may be issued by the
corporation (and by its transfer agent) and registered by its registrar
with the same effect as if he were such officer at the date of issue.
ARTICLE XVIII
Transfers of Stock
1. All transfers of shares of the stock of the corporation
shall be made on the books of the corporation by the registered holders
of such shares in person or by their attorneys lawfully constituted in
writing, or by their legal representatives.
2. Certificates for shares of stock shall be surrendered and
cancelled at the time of transfer.
ARTICLE XIX
Fixing Record Date
In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, 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 a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board of
Directors and which record date: (1) in the case of determination of
stockholders entitled to vote on any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more
than 60 nor less than 10 days before the date of such meeting; (2) in the
case of determination of stockholders entitled to express consent to
corporate action in writing without a meeting, shall not be more than 10
days from the date upon which the resolution fixing the record date is
adopted by the Board of Directors; and (3) in the case of any other
action, shall not be more than 60 days prior to such other action. 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 preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day
preceding the day on which the meeting is held; (2) the record date for
determining stockholders entitled to express consent to corporate action
in writing without a meeting when no prior action of the Board of
Directors is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the corporation in accordance with applicable law, or, if
prior action by the Board of Directors is required by law, shall be at
the close of business on the day on which the Board of Directors adopts
the resolution taking such prior action; and (3) 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. 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 XX
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 on the part of any other person, whether or
not it shall have express or other notice thereof, save as expressly
provided by the laws of the State of Delaware.
ARTICLE XXI
Checks
All checks, drafts and other orders for the payment of money,
and all promissory notes and other evidences of the corporation shall be
signed by such officer or officers or such other person or persons as may
be designated by the Board of Directors or pursuant to authority granted
by it.
ARTICLE XXII
Fiscal Year
The fiscal year shall begin the first day of January in each
year.
ARTICLE XXIII
Notices and Waivers
1. Whenever by statute or by the Certificate of Incorporation
or by these By-Laws it is provided that notice shall be given to any
director or stockholder, such provision shall not be construed to require
personal notice, but such notice may also be given in writing, by mail,
by depositing the same in the United States mail, postage prepaid,
directed to such stockholder or director at his address as it appears on
the records of the corporation, or in default of such address, to such
director or stockholder at the General Post Office in the City of
Wilmington, Delaware, and such notice shall be deemed to be given at the
time when the same shall be thus deposited. Notice of special meetings
of the Board of Directors may also be given to any director by (i)
telephone, (ii) telecopier, (iii) telex or (iv) telegraph or cable, and
in the latter event the notice shall be deemed to be given at the time
such notice, addressed to such director at the address hereinbefore
provided, shall be transmitted or delivered to and accepted by an
authorized telegraph or cable office.
2. Whenever by statute or by the Certificate of Incorporation
or by these By-Laws a notice is required to be given, a written waiver
thereof, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice.
Attendance of any stockholder or director at any meeting thereof shall
constitute a waiver of notice of such meeting by such stockholder or
director, as the case may be, except as otherwise provided by statute.
ARTICLE XXIV
Alteration of By-Laws
These By-Laws may be altered, amended, changed or repealed by
vote of the stockholders or at any meeting of the Board of Directors by
the vote of a majority of the directors present or as otherwise provided
by statute.
ARTICLE XXV
Indemnification of Corporate Personnel
The corporation shall indemnify 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 another corporation, partnership, joint venture,
trust or other enterprise as provided in the Certificate of
Incorporation. Expenses incurred by such a director, officer, employee
or agent in defending a civil or criminal action, suit or proceeding
shall be paid by the corporation as provided in the Certificate of
Incorporation. The corporation shall have power to purchase and maintain
insurance on behalf of any such persons against any liability asserted
against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation
would have the power to indemnify him or her against such liability under
the provisions of the Certificate of Incorporation. The indemnification
provisions of this Article XXV and the Certificate of Incorporation shall
not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any applicable law, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
The provisions of this Article XXV and Article EIGHTH of the
Certificate of Incorporation shall be deemed to be a contract between the
corporation and each person who serves as such director, officer,
employee or agent of the corporation in any such capacity at any time
while this Article XXV and Article EIGHTH of the Certificate of
Incorporation are in effect. No repeal or modification of the provisions
of this Article XXV and Article EIGHTH of the Certificate of
Incorporation nor, to the fullest extent permitted by law, any
modification of law shall adversely affect any right or protection of a
director, officer, employee or agent of the corporation then existing at
the time of such repeal or modification.