EXHIBIT 3.2
RESTATED
BY-LAWS
OF
FMC CORPORATION (as of January 1, 2002)
ARTICLE I
LOCATION OF OFFICES
Section 1. Principal Delaware Office. The principal office of the Corporation in
-------------------------
the State of Delaware shall be in the City of Wilmington, County of New Castle,
and the name and address of the Resident Agent in charge thereof shall be the
Corporation Trust Company, 100 West Tenth Street, Wilmington, Delaware.
Section 2. Principal Pennsylvania Office. The Corporation shall also have and
-----------------------------
maintain an office or principal place of business in the State of Pennsylvania
at 1735 Market Street, Philadelphia, Pennsylvania, the location of such office
to be subject to change by resolution of the Board of Directors.
Section 3. Other Offices. The Corporation may also have offices in such other
-------------
places, both within and without the State of Delaware, as the Board of Directors
from time to time may designate or the business of the Corporation require.
ARTICLE II
CORPORATE SEAL
The corporate seal shall be circular in form and have inscribed thereon the
following: "FMC Corporation, Incorporated Delaware 1928."
ARTICLE III
STOCKHOLDERS
Section 1. Meetings of Stockholders.
-------------------------
(a) Annual Meetings.
The annual meeting of the stockholders of the Corporation shall be held
on such date and at such time as may be fixed by resolution of the
Board of Directors. At the annual meeting stockholders shall elect
Directors and transact such other business as properly may be brought
before the meeting.
(b) Special Meetings.
Special meetings of stockholders of the Corporation may be called only
by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors.
(c) Place of Meetings.
Unless otherwise directed by the Board of Directors, all meetings of
the stockholders shall be held at the office of the Corporation at 1735
Market Street, Philadelphia, Pennsylvania.
(d) Notice of Meetings.
Unless otherwise provided by statute, written notice of any meeting
shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his or her
address as it appears on the records of the Corporation. Any previously
scheduled meeting of the stockholders may be postponed, and any special
meeting of the stockholders may be cancelled, by resolution of the
Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders. Only such
business shall be conducted at a special meeting of stockholders as
shall
have been brought before the meeting pursuant to the Corporation's
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors.
Section 2. Quorum of Stockholders. The holders of a majority of the total number
-----------------------
of shares 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
law, by the certificate of incorporation, or by these By-Laws. The presiding
officer of the meeting or a majority of the shares so represented may adjourn
the meeting from time to time, whether or not there is such a quorum, without
notice other than by announcement at the meeting, until the requisite number of
shares of stock entitled to vote shall be present. At any such adjourned meeting
at which a quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally noticed.
When a quorum is present at any meeting of stockholders, a majority of the
number of shares of the stock entitled to vote which is represented thereat
shall decide any question brought before such meeting, unless the question is
one upon which by express provision of law or the certificate of incorporation
or of these By-Laws a larger or different vote is required, in which case such
express provision shall govern and control the decision of such question.
Section 3. Voting by Stockholders. Each stockholder of record entitled to vote
-----------------------
at any meeting may do so in person or by proxy appointed by instrument in
writing, subscribed by such stockholder or his duly authorized attorney, and
filed with the Secretary.
Section 4
[RESERVED]
Section 5. Business Brought Before a Meeting. At an annual meeting of the
----------------------------------
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before the meeting by a
stockholder. 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 sixty days nor more than ninety days prior to the
meeting; provided, however, that in the event that less than seventy 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 tenth day following the date 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, (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. The
presiding officer 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 this Section; 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.
Section 6. Inspectors of Elections; Opening and Closing the Polls. The Board of
-------------------------------------------------------
Directors by resolution shall appoint one or more inspectors, which inspector or
inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to
act. If no inspector or alternate has been appointed to act or is able to act at
a meeting of stockholders, the presiding officer of the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before discharging
his or her duties, shall take and sign an oath faithfully to execute the duties
of inspector with strict impartiality and according to the best of his or her
ability. The inspector shall have the duties prescribed by law. The presiding
officer of the meeting shall fix and announce at the meeting the date and time
of the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting.
ARTICLE IV
DIRECTORS
Section 1. Election. Number and Term of Office. Directors shall be chosen by
------------------------------------
ballot at the annual meeting of the stockholders. The number of Directors of
this Corporation which shall constitute the whole Board shall be fixed by
resolution adopted by affirmative vote of a majority of the whole Board except
that such number shall not be less than three (3) nor more than fifteen (15) the
exact number to be eleven (11) until otherwise determined by resolution adopted
by affirmative vote of a majority of the whole Board. Each director shall hold
office until his respective successor is elected and qualified or until his
earlier resignation or removal.
Section 2. Nomination of Directors. Subject to the rights of holders of any
------------------------
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, nominations for the election of Directors may be
made by the Board of Directors or a committee appointed by the Board of
Directors or by any stockholder entitled to vote in the election of Directors
generally. However, any stockholder entitled to vote in the election of
Directors generally may nominate one or more persons for election as Directors
at a meeting only if written notice of such stockholder's intent to make such
nomination or nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the Corporation not
later than (i) with respect to an election to be held at an annual meeting of
stockholders, ninety days prior to the anniversary date of the immediately
preceding annual meeting, and (ii) with respect to an election to be held at a
special meeting of stockholders for the election
of Directors, the close of business on the tenth day following the date on which
notice of such meeting is first given to stockholders. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the stockholder is a holder of record of stock of the in the notice; (c) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (e)
the consent of each nominee to serve as a Director of the Corporation if so
elected. The presiding officer of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
Section 3. Removal of Directors. Subject to the rights of any class or series of
--------------------
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any director may
be removed from office with or without cause and only by the affirmative vote of
the holders of 80% of the combined voting power of the then outstanding shares
of stock entitled to vote generally in the election of directors, voting
together as a single class.
Section 4. Vacancies on Board. Vacancies on the Board of Directors may be filled
------------------
by a majority of the Directors then in office, although less than a quorum, or
by a sole remaining Director. At any special meeting of stockholders called for
the purpose of removing Directors pursuant to Section 3 of this ARTICLE, the
vacancy or vacancies on the Board caused by such removal may be filled by the
stockholders. Any Director elected to fill a vacancy resulting from an increase
in the number of Directors shall hold office for a term that shall coincide with
the remaining term of the class of Directors to which he is elected. A Director
elected to fill a vacancy not resulting from an increase in the number of
Directors shall have the same remaining term as that of his predecessor.
Section 5. Powers of Directors.
--------------------
(a) General Powers.
The Board of Directors shall have the entire management of the business of
this Corporation. In addition to such powers as are herein and in the
certificate of incorporation expressly conferred upon it, the Board of
Directors shall have and may exercise all the powers of the Corporation,
subject to the provisions of the laws of Delaware, the certificate of
incorporation and these By-Laws.
(b) Appointment of Committees
The Board of Directors may designate two or more of their number to
constitute an Executive Committee, which Committee shall have and may
exercise, when the Board is not in session, all of the powers of the Board
in the management of the business and affairs of the Corporation, including
the power to appoint Assistant Secretaries and Assistant Treasurers, and to
authorize the seal of the Corporation to be affixed to all papers which may
require it. The Executive Committee may make rules for the calling, holding
and conduct of its meetings and the keeping of records thereof.
The Board of Directors may also appoint other committees from their own
number, the number (not less than two) composing such committees, and the
powers conferred upon them, to be determined by such resolution or
resolutions.
In the absence or disqualification of any member of the Executive Committee
or any other committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member.
Meetings of any Committee designated by the Board of Directors may be
called by the Board of Directors or by the Chairman of the Committee at any
time or place upon at
least twenty-four (24) hours notice. One third of the members of a
Committee, but not less than two members, shall constitute a quorum of a
Committee for the transaction of business.
(c) Delegation of Duties of Directors
The Board of Directors may delegate for the time being the powers or duties
of any officer of the Corporation, in case of his absence, disability,
death or removal, or "for any other reason, to any other officer or to any
Director.
Section 6. Meeting of Directors.
---------------------
(a) Regular Meetings
Regular meetings of the Board of Directors shall be held at such place
within or without the State of Delaware, and at such times, as the Board by
vote may determine from time to time, and if so determined no notice
thereof need be given.
After each election of Directors the newly constituted Board shall meet
without notice for the purpose of electing officers and transacting such
other business as lawfully may come before it.
(b) Special Meetings
Special meetings of the Board of Directors may be held at any time or
place, within or without the State of Delaware, whenever called by the
Chairman of the Board, the President, the Chief Financial Officer, the
Secretary or a majority of the whole Board of Directors.
(c) Notice of Meetings.
Notice of any special meeting of directors shall be given to each director
at his or her business or residence in writing by hand delivery, first-
class or overnight mail or courier service, telegram or facsimile
transmission, or orally by telephone. If mailed by first-class mail, such
notice shall be deemed adequately delivered when deposited in the United
States mails so addressed, with postage
thereon prepaid, at least five (5) days before such meeting. If by
telegram, overnight mail or courier service, such notice shall be deemed
adequately delivered when the telegram is delivered to the telegraph
company or the notice. is delivered to the overnight mail or courier
service company at least twenty-four (24) hours before such meeting. If by
facsimile transmission, such notice shall be deemed adequately delivered
when the notice is transmitted at least twelve (12) hours before such
meeting. If by telephone or by hand delivery, the notice shall be given at
least twelve (12) hours prior to the time set for the meeting. Such notice
need not state the purposes of such meeting.
Section 7. Quorum of Directors. Subject to Section 4 of this Article, a whole
--------------------
number of directors equal to a majority of the whole Board of Directors shall
constitute a quorum of the Board for the transaction of business, but a majority
of directors present may adjourn the meeting from time to time until a quorum is
present.
When a quorum is present at any meeting of Directors, a majority of the members
present thereat shall decide any question brought before such meeting, except as
otherwise provided by law, the certificate of incorporation or these By-Laws.
Section 8. Compensation of Directors. Directors other than those who are
--------------------------
full-time salaried officers or other employees of the Corporation may be paid
compensation for their services as Directors and may also be paid additional
compensation for their services as members of any committee appointed by the
Board of Directors, in such amounts as the Board of Directors by resolution
shall from time to time determine to be appropriate. Directors may be paid their
expenses, if any, incurred for attendance at each meeting of the Board of
Directors or of any committee of which they may be members. No Director shall be
precluded from serving the Corporation in any other capacity and receiving
compensation therefore.
ARTICLE V
BOOKS AND RECORDS
Unless otherwise required by the laws of Delaware, the books and records of the
Corporation may be kept at the office of the Corporation in the City of Chicago,
State of Illinois, or at any other place or places outside the State of
Delaware, as the Board of Directors from time to time may designate.
ARTICLE VI
OFFICERS
Section 1. Number and Titles. The officers of the Corporation shall be a
-----------------
Chairman of the Board, a Chief Executive Officer, a President, one or more Vice
Presidents, a Secretary, a Treasurer, and a Controller, all of whom shall be
elected by the Board of Directors. The Board of Directors or the Chief Executive
Officer may appoint such other officers, including one or more Assistant
Secretaries, Assistant Treasurers and Assistant Controllers as either of them
shall deem necessary, who shall have such authority and perform such duties as
may be prescribed in such appointment. The Chairman of the Board, the Vice
Chairman of the Board and the President shall be members of the Board of
Directors, but the other officers need not be members of such Board.
Any two or more offices, other than the offices of President and Secretary, may
be held by the same person.
Section 2. Tenure of Office. Officers of the Corporation shall hold their
----------------
respective offices at the pleasure of the Board of Directors and, in the case of
officers who were appointed by the Executive Committee or by the Chief Executive
Officer, also at the pleasure of such appointing authority.
Section 3. Duties of Officers.
--------------------
(a) Chairman of the Board.
The Chairman of the Board shall preside at all meetings of the Board of
Directors, of the Executive Committee and of the stockholders of the
Corporation. He shall perform such other duties as may from
time-to-time be assigned to him by the Board of Directors.
(b) Chief Executive Officer.
The Chief Executive Officer of the Corporation shall be in general
charge and supervision of the affairs of the Corporation.
(c) President.
The President shall perform such duties as from time-to-time may be
assigned to him by the Board of Directors or the Chief Executive
Officer of the Corporation.
(d) Vice Presidents.
Each Vice President shall have such powers and shall perform such
duties as may be assigned to him by the senior officers of the
Corporation or by the Board of Directors. The Board of Directors may
designate one or more Vice Presidents as Executive Vice Presidents or
Senior Vice Presidents, or make such other designations of Vice
Presidents as it may deem appropriate.
(e) Secretary
The Secretary shall attend and record all proceedings of the meetings
of the Board of Directors, the stockholders, and the Executive
Committee; shall be custodian of the corporate seal and affix such seal
to all documents requiring the same; shall cause to be maintained a
stock transfer book, and a stock ledger, and such other books as the
Board of" Directors may direct; shall serve all notices required by
law, or by these By-Laws, or by resolution of the Board of Directors;
and shall perform such other duties as pertain to the office of
Secretary, subject to the control of the Board of Directors.
(f) Assistant Secretaries.
The Assistant Secretaries shall assist the Secretary in the performance
of his duties, and shall perform such other duties as the Board of
Directors or the Chief Executive Officer from time to time may
prescribe. If at any time the Secretary shall be unable to act, an
Assistant Secretary may perform his duties.
(g) Treasurer.
The Treasurer shall perform all duties commonly incident to that office
(including, but without limitation, the care and custody of the funds
and securities of the Corporation which from time to time may come into
his hands and the deposit of the funds of the Corporation in such banks
or trust companies as the Board of Directors may authorize or direct)
and, in addition, such other duties as the Board of Directors from time
to time may prescribe.
(h) Assistant Treasurers.
Assistant Treasurers shall assist the Treasurer in the performance of
his duties, and shall discharge such other duties as the Board of
Directors or the Chief Executive Officer from time to time may
prescribe.
(i) Controller.
The Controller shall be the principal accounting officer of the
Corporation, and shall maintain adequate records of all assets,
liabilities and transactions of the Corporation; and shall cause
adequate audits of the Corporation's accounting records to be currently
and regularly made; and shall perform such other duties as the Board of
Directors from time to time may prescribe.
(j) Assistant Controllers.
Assistant Controllers shall assist the Controller in performance of his
duties, and shall discharge such other duties as the Board of Directors
or the Chief Executive Officer from time to time may prescribe.
ARTICLE VII
STOCK CERTIFICATES
Section 1. Stock Certificates. Every holder of stock shall be entitled to have a
------------------
certificate or certificates duly numbered, certifying the number and class of
shares in the Corporation owned by him, in such form as may be prescribed by the
Board of Directors. Each such certificate shall be signed in the name of the
Corporation by the Chairman of the Board, the President or a Vice President, and
by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer. If any such certificate is countersigned (1) by a transfer agent
other than the Corporation or its employee, or (2) by a registrar other than the
Corporation or its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue. All certificates
shall be countersigned and registered in such manner as the Board of Directors
may from time to time prescribe and there shall be impressed thereon the seal of
the Corporation or imprinted thereon a facsimile of such seal. Any transfer
agent may countersign by facsimile signature.
No registrar of any stock of the Corporation appointed pursuant to this Section
I shall be the Corporation or its employee.
Section 2. Lost Certificates. In the case of the loss, mutilation or
-----------------
destruction of a stock certificate, a duplicate certificate may be issued upon
such terms and conditions as the Board of Directors from time to time may
prescribe.
Section 3. Transfers of Stock. Transfer of shares of stock of the Corporation
------------------
shall be made on the books of the Corporation only by the person named in the
certificate evidencing such stock or by any attorney lawfully constituted in
writing, and upon surrender and cancellation of such certificate, with duly
executed assignment and power of transfer endorsed thereon or attached thereto,
and with such proof of authenticity of the
signatures and authority of the signatories as the Corporation or its agents may
reasonably require, except that a new certificate may be issued in the name of
an-appropriate state officer or office, without the surrender of the former
certificate for shares presumed abandoned under the provisions of applicable
state escheat or abandoned property laws. 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 is not bound to recognize any equitable or other claim
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, save as expressly otherwise
provided by the laws of the state of Delaware.
ARTICLE VIII
DEPOSITARIES AND CHECKS
Depositaries of the funds of the Corporation shall be designated by the Board of
Directors; and all checks on such funds shall be signed by such officers or
other employees of the Corporation as the Board from time to time may designate.
ARTICLE IX
WAIVER OF NOTICE
Any notice required to be given by law, by the certificate of incorporation, or
by these By-Laws, may be waived by the person entitled thereto, either before or
after the time stated in such notice.
ARTICLE X
AMENDMENT OF BY-LAWS
Subject to Section (c) of ARTICLE EIGHTH and Section (a) of ARTICLE TENTH of the
Certificate of Incorporation of the Corporation these By-Laws may be amended,
repealed or added to at any regular or special meeting of the Board of Directors
or of the stockholders, by the affirmative vote of a majority of the whole Board
of Directors, or by the affirmative vote of a majority of the stock issued and
outstanding and entitled to vote, as the case may be.
ARTICLE XI
INDEMNIFICATION OF OFFICERS, DIRECTORS AND EMPLOYEES
(a) Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit, or proceedings, whether civil,
criminal, administrative or investigative(hereinafter a "Proceeding"), by reason
of the fact that he or she or a person of whom he or she is the legal
representative is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another Corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans maintained
or sponsored by the Corporation, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of. the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that except as provided in paragraph (c) of this Article XI, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the whole Board of
Directors. The right to indemnification conferred in this Article XI shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition, such advances to be paid by the Corporation within 20 days after
the receipt by the Corporation of a statement or statements from the claimant
requesting such advance or advances from time to time; provided, however, that
if the General Corporation Law of the State of Delaware requires, the payment of
such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article XI or otherwise.
(b) To obtain indemnification under this Article XI, a claimant shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Paragraph (b), a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the claimant,
by Independent Counsel (as hereinafter defined), or (2) if no request is made by
the claimant for a determination by Independent Counsel, (i) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the
stockholders of the Corporation. In the event the determination of entitlement
to indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors
unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceeding for which indemnification is
claimed a "Change of Control" as defined in the Executive Severance Plan of FMC
Corporation (as amended as of April 18, 1997), in which case the Independent
Counsel shall be selected by the claimant unless the claimant shall request that
such selection be made by the Board of Directors. If it is so determined that
the claimant is
entitled to indemnification, payment to the claimant shall be made within 10
days after such determination.
(c) If a claim under Paragraph (a) of this Article XI is not paid in full
by the Corporation within thirty days after a written claim pursuant to
Paragraph (b) of this Article XI has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition whether the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
Independent Counselor stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he -or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counselor stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(d) If a determination shall have been made pursuant to Paragraph (b) of
this Article XI that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to Paragraph (c) of this Article XI.
(e) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to Paragraph (c) of this Article XI that the
procedures and presumptions of this Article XI are not valid, binding and
enforceable and shall
stipulate in such proceeding that the Corporation is bound by all the provisions
of this Article XI.
(f) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article XI shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Article XI shall in
any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any occurrence or
matter arising prior to any such repeal or modification.
(g) The Corporation may, but shall not be obligated to, purchase and
maintain insurance, at its expense, to protect itself and any director, officer,
employee or agent of the Corporation against any liability, cost or expense.
(h) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be paid by
the Corporation the expenses incurred in defending any proceeding in advance of
its final disposition, to any employee or agent or class of employees or agents
of the Corporation (including the heirs, executors, administrators or estate of
each such person) to the fullest extent of the provisions of this Article XI
with respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
(i) If any provisions or provision of this Article XI shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of this Article XI
(including, without limitation, each provision of any paragraph of this Article
XI containing any such provision held to be invalid, illegal or unenforceable,
that is not itself held to be invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby; and (2) to the fullest extent possible,
the provisions of this Article XI including, without limitation, each such
portion of any paragraph of this Article XI containing any such provision held
to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
(j) For purposes of this Article XI:
(1) "Disinterested Director" means a director of the Corporation who
is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(2) "Independent Counsel" means a law firm, a member of a law firm,
or an independent practitioner, that is experienced in matters of
Corporation law and shall include any person who, under the
applicable standards of professional conduct then prevailing,
would not have a conflict of interest in representing either the
Corporation or the claimant in an action to determine the
claimant's rights under this Article XI.
(k) Any notice, request or other communication required or permitted to be
given to the Corporation under this Article XI shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the Corporation and shall be effective
only upon receipt by the Secretary.
ARTICLE XII
EMERGENCY BY-LAWS
The Emergency By-Laws provided in this Article XII shall be operative during any
emergency in the conduct of the business of the Corporation resulting from an
attack on the Unit-ed States or on a locality in which the Corporation does
business or customarily holds meetings of its board of directors or stockholders
or during any nuclear or atomic disaster or during the existence of any
catastrophe or other similar emergency condition as a result of which a quorum
of the board of directors or a standing committee thereof cannot readily be
convened for action notwithstanding any different provision in the preceding
Articles of these By-Laws or in the Certificate of Incorporation of the
Corporation or in the General Corporation
Law of the State of Delaware. To the extent not inconsistent with the provisions
of this Article, the By-Laws provided in the preceding Articles shall remain in
effect during such emergency and upon its termination the Emergency By-Laws
shall cease to be operative.
During any such emergency:
(a) A meeting of the Board of Directors or a committee thereof may be
called by any officer or director of the Corporation. Notice of the time and
place of the meeting shall be given by the person calling the meeting to such of
the directors as it may be feasible to reach by any available means of
communication. Such notice shall be given at such time in advance of the meeting
as circumstances permit in the judgment of the person calling the meeting.
(b) At any such meeting of the Board of Directors, a quorum shall consist
of the director or directors in attendance at the meeting.
(c) The Board of Directors, either before or during any such emergency, may
provide, and from time to time modify, lines of succession in the event that
during such an emergency any or all officers or agents of the Corporation shall
for any reason be rendered incapable of discharging their duties.
(d} To the extent required to constitute a quorum at any meeting of the
Board of Directors during such an emergency, the officers of the Corporation who
are present shall, unless otherwise provided in Emergency By-Laws, be deemed, in
order of rank and within the same rank in order of seniority, directors for such
meeting.
(e) The Board of Directors, either before or during any such emergency,
may, effective in the emergency, change the head office or designate several
alternative head offices or regional offices or authorize the officers so to do.
No officer, director or employee acting in accordance with these Emergency
By-Laws shall be liable except for willful misconduct.
These Emergency By-Laws shall be subject to repeal or change by further action
of the Board of Directors or by action of the stockholders, but no such repeal
or change shall modify the provisions of the next preceding paragraph with
regard to action taken prior to the time of such repeal or change. Any amendment
of these Emergency By-Laws may make any further or different provision that may
be practical and necessary for the circumstances of the emergency.