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Exhibit 3.ii(m)
*Name amended on October 26, 1987 to S & P U.S., Inc.
**Name amended on March 7, 1988 to Kalium Chemicals, Ltd.
***Name amended on September 19, 1996, to IMC Kalium Ltd.
****Name amended on June 26, 2000 to IMC USA Inc.
BY-LAWS OF
*
S&P CANADA, INC.**
***
****
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in the
City of Dover, County of Kent, State of Delaware.
SECTION 2. OTHER OFFICE. The corporation may also have offices at such
other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders shall
be held at such place as may be fixed from time to time by the board of
directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
***SECTION 2. ANNUAL MEETING.
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***Amended by consent of stockholder dated October 1, 1994. (See insert
attached.)
Amendment to By-Laws of IMC Kalium Ltd, by stockholder approval dated
October 17, 1996:
NOW, THEREFORE, BE IT RESOLVED, that Article II, Section 2 of
the By-laws of the Company be amended in its entirety to read
as follows:
"An annual meeting of the shareholders for the purpose of
electing directors and for the transaction of such other
business as may come before the meeting shall be held on a day
to coincide with the annual meeting of stockholders of IMC
Global Inc., unless the board of directors, not less than ten
(10) days prior to such fixed meeting date, designates another
date for such annual meeting, in which event the annual meeting
of the stockholders shall be held on the date so designated."
SECTION 3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more
than sixty (60) days before the date of the meeting.
SECTION 4. LIST OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten
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(10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 5. SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the president,
and shall be called by the president or secretary at the request in writing of a
majority of the board of directors, or at the request in writing of stockholders
owning a majority in amount of the entire capital stock of the corporation
issued and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
SECTION 6. NOTICE OF SPECIAL MEETINGS OF STOCKHOLDERS. Written notice
of a special meeting stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called, shall be given not less
than ten (10) nor more than sixty (60) days before the date of the meeting, to
each stockholder entitled to vote at such meeting.
SECTION 7. BUSINESS AT SPECIAL MEETINGS. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
SECTION 8. QUORUM. 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 or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, 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. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty (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.
SECTION 9. MAJORITY VOTE. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock
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having voting power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of statute or of the certificate of incorporation, a different
vote is required, in which case such express provision shall govern and control
the decision of such question.
SECTION 10. PROXIES AND VOTING OF SHARES. Each stockholder shall, at
every meeting of the stockholders, be entitled to one vote in person or by proxy
for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its date,
unless the proxy provides for a longer period.
SECTION 11. INFORMAL ACTION BY STOCKHOLDERS. Any action required to be
taken at any annual or special meeting of stockholders of the corporation, or
any action which may be taken at any annual or special meeting of such
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 the holders of outstanding stock having not less than the 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 III
DIRECTORS
Amendment to By-Laws of IMC Kalium Ltd, by stockholder approval dated October
17, 1996:
FURTHER RESOLVED, that Article III, Section 1 of the By-laws of the
Company be amended in its entirety to read as follows:
"The number of directors of the corporation shall be one or more
directors, as set by resolution of the board of directors. The directors
shall be elected at the annual meeting of the stockholders, except as
provided in Section 2 of this Article, and each director elected shall
hold office until his successor is elected and qualified. Directors need
not be stockholders."
SECTION 2. FILLING OF VACANCIES. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, or by the sole remaining director, and the directors so chosen shall
hold office until the next annual election and until their successors are duly
elected and shall have qualified, or their earlier resignation or removal. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute.
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SECTION 3. GENERAL POWERS. The business of the corporation shall be
managed by or under the direction of the board of directors which may exercise
all such powers of the corporation and do all such lawful acts as are not by
statute or by the certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4. PLACE OF MEETINGS. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
SECTION 5. FIRST MEETING OF NEW BOARD. The first meeting of each newly
elected board of directors shall be held at such time and place as shall be
fixed by the vote of the stockholders at the annual meeting and no notice of
such meeting shall be necessary to the newly elected directors in order legally
to constitute the meeting, provided a quorum shall be present. In the event of
the failure of the stockholders to fix the time or place of such first meeting
of the newly elected board of directors, or in the event such meeting is not
held at the time and place so fixed by the stockholders, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver of notice signed by all of the directors.
SECTION 6. REGULAR MEETINGS. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board.
SECTION 7. SPECIAL MEETINGS. Special meetings of the board may be
called by the president on two (2) days' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
president in like manner and on like notice on the written request of two or
more directors.
SECTION 8. QUORUM. At all meetings of the board a majority of the
total number of directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the board of
directors 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 9. INFORMAL ACTION. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
COMPENSATION OF DIRECTORS
SECTION 10. IN GENERAL. The directors may be paid their expenses, if
any, of attendance at each meeting of the board of directors and may be paid a
fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
NOTICES
SECTION 1. IN GENERAL. Whenever, under the provisions of the statutes
or of the certificate of incorporation or of these by-laws, notice is required
to be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the statutes or of the certificate of
incorporation or of 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 1. NUMBER AND TITLE. The officers of the corporation shall be
chosen by the board of directors and shall be a chairman of the board, vice
chairman of the board, president, a vice-president, a secretary and a treasurer.
The board of
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directors may also choose additional vice-presidents and one or more assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
SECTION 2. ELECTION AND QUALIFICATION. The board of directors at its
first meeting after each annual meeting of stockholders shall choose a chairman
of the board, a president, one or more vice-presidents, a secretary and a
treasurer.
SECTION 3. APPOINTMENT OF ADDITIONAL OFFICERS. The board of directors
may appoint such other officers and agents 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 determined from time to time by the board.
SECTION 4. COMPENSATION. The salaries of all officers and agents of
the corporation shall be fixed by the board of directors.
SECTION 5. TERM OF OFFICE, REMOVAL AND VACANCIES. The officers of the
corporation shall hold office until their successors are chosen and qualify. Any
officer elected or appointed by the board of directors may be removed at any
time by the affirmative vote of a majority of the board of directors. Any
vacancy occurring in any office of the corporation may be filled by the board of
directors.
SECTION 6. THE CHAIRMAN OF THE BOARD. The chairman of the board shall
be the chief executive officer of the corporation and shall have the general
direction of the affairs of the corporation, except as otherwise prescribed by
the board of directors. He shall preside at all meetings of the stockholders, of
the board of directors and of the executive committee, if any, and shall
designate the acting secretary for such meeting to take the minutes thereof for
delivery to the secretary. He may execute contracts in the name of the
corporation and appoint and discharge agents and employees of the corporation.
The chairman of the board shall be ex-officio a member of all committees.
SECTION 7. THE VICE CHAIRMAN OF THE BOARD. In the absence of the
chairman of the board, or in the event of his inability or refusal to act, the
vice chairman shall perform the duties of the chairman, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
chairman. The vice chairman shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
SECTION 8. THE PRESIDENT. The president shall be the chief operating
officer of the corporation, and as such shall
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direct the operations of the corporation. He shall assume such other duties as
the board of directors may assign to him from time to time. In the absence or
incapacity of the chairman of the board and vice chairman of the board, he shall
perform all duties and functions of the chairman of the board. He may sign, with
the secretary, assistant secretary, treasurer or assistant treasurer,
certificates for shares of the corporation, and may sign any policies, deeds,
mortgages, bonds, contracts, or other instruments which the board of directors
have authorized to be executed except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
by-laws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed; appoint and discharge agents and
employees of the corporation, and in general, shall perform all duties incident
to the office of president. The president shall be ex-officio a member of all
committees.
SECTION 9. THE VICE-PRESIDENT. In the absence of the president or in
the event of his inability or refusal to act, and in the absence of the chairman
of the board and vice chairman of the board or in the event of their inability
or refusal to perform the duties of the president, the vice-president (or in the
event there be more than one vice-president, the vice-presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
SECTION 10. THE SECRETARY. The secretary shall attend all meetings of
the board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
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SECTION 11. ASSISTANT SECRETARIES. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
SECTION 12. THE TREASURER. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and 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 as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and shall
render to the president and the board of directors, at its regular meetings, or
when the board of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the corporation.
SECTION 13. BOND. If required by the board of directors, he shall give
the corporation a bond (which shall be renewed every six (6) years) in such sum
and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
SECTION 14. ASSISTANT TREASURERS. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE VI
STOCK AND STOCKHOLDERS
SECTION 1. CERTIFICATE OF STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the
name of the corporation by the chairman, vice chairman, president or a vice
president and the treasurer or
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an assistant treasurer, or the secretary or an assistant secretary of the
corporation, certifying the number of shares owned by him in the corporation.
SECTION 2. CLASSES AND SERIES. If the corporation shall be authorized
to issue more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
SECTION 3. SIGNATURES. Where a certificate is countersigned (i) by a
transfer agent other than the corporation or its employee, or (ii) by a
registrar other than the corporation or its employee, any of or all the
signatures of the officers of the corporation may be a facsimile. In case any
officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be an officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of issue.
SECTION 4. 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 the 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 and/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 alleged to have been lost, stolen or destroyed.
SECTION 5. TRANSFERS OF STOCK. Upon surrender to the corporation or
the transfer agent of the corporation of a
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certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
SECTION 6. 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, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other action. 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.
SECTION 7. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and 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 Delaware.
ARTICLE VII
INDEMNIFICATION
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*ARTICLE VIII
AMENDMENTS
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*Amended by consent of stockholder dated October 1, 1994. (See insert attached).
Amendment to By-Laws of Kalium Chemicals, Ltd.
by stockholder approval dated October 1, 1994
FURTHER RESOLVED: That Article VIII of the By-Laws of the Company be
amended in its entirety to read as follows:
"These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders of the Company at
any annual or special meeting of the stockholders."
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EXHIBIT B
ARTICLE VII.
INDEMNIFICATION
Section 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of
this Article VII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that he 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, 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 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, 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 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR
IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article VII,
the corporation shall indemnify any 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, 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 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; 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
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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 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 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under this Article VII (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Section 1 or Section 2, of this Article VII, as the case may be. Such
determination shall be made (i) 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 (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders. To the
extent, however, that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
Section 4. GOOD FAITH DEFINED. For purposes of any determination
under Section 3 of this Article VII, a person shall be deemed to have acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe his conduct
was unlawful, if his action is based on the records or books of account of
the corporation or another enterprise, or on information supplied to him by
the officers of the corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the corporation or another
enterprise or on information or records given or reports made to the
corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care
by the corporation or another enterprise. The term "another enterprise" as
used in this Section 4 shall mean any other corporation or any partnership,
joint venture, trust or other enterprise of which such person is or was
serving at the request of the corporation as a director, officer, employee or
agent. The provisions of this Section 4 shall not be deemed to be exclusive
or to limit in any way the circumstances in which a person may be deemed to
have met the applicable standard of conduct set forth in Sections 1 or 2 of
this Article VII, as the case may be.
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Section 5. INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction
in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VII. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set
forth in Sections 1 and 2 of this Article VII, as the case may be. Notice of
any application for indemnification pursuant to this Section 5 shall be given
to the corporation promptly upon the filing of such application.
Section 6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred in
defending or investigating a threatened or pending action, suit or proceeding
may 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, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this Article VII. No security shall be required
for such undertaking.
Section 7. NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article
VII shall be made to the fullest extent permitted by law. The provisions of
this Article VII shall not be deemed to preclude the indemnification of any
person who is not specified in Section 1 or 2 of this Article VII but whom
the corporation has the power of obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation
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would have the power or the obligation to indemnify him against such
liability under the provisions of this Article VII.
Section 9. MEANING OF "CORPORATION" FOR PURPOSES OF ARTICLE VII.
For purposes of this Article VII, 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 the power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article VII with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
Section 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of their heirs, executors
and administrators of such a person.