Exhibit 3.2
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 stock-
holders, 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 stock-
holders 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 the Secretary at the principal executive offices
of the corporation not later than the close of business on the 120th day nor
earlier than the close of business on the 210th day prior to the first
anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 90 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close
of business on the 120th day prior to such annual meeting and not later
than the close of business on the later of the 90th day prior to such
annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. In no event shall
the public announcement of an adjournment of an annual meeting commence a
new time period for the giving of a stockholder's notice as described above.
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
must be delivered to the Secretary at the principal executive offices
of the corporation not later than the close of business on the 120th day
nor earlier than the close of business on the 210th day prior to the first
anniversary of the preceding year's annual meeting; provided, however, that
in the event that the date of the annual meeting is more than 30 days before
or more than 90 days after such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than the close of business on
the 120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or the
10th day following the day on which public announcement of the date of
such meeting is first made. In no event shall the public announcement of
an adjournment of an annual meeting commence a new time period for the
giving of a stockholder's notice as described above. 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. The President shall,
in the absence of the Chairman of the Board, preside at meetings of the
stockholders.
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.