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Exhibit 3.12
BY-LAWS
of
VINAFLEX AMERICA, INC.
ARTICLE I
Articles of Agreement
The name of the corporation, the objects for which it is established,
the nature of the business to be transacted by it, and the location of its
principal place and other places of business shall be set forth in the Articles
of Agreement, as from time to time amended, and these By-Laws, the powers of the
corporation and of its Directors and stockholders, and all matters concerning
the conduct and regulation of the business of the corporation shall be subject
to such provisions in regard thereto, if any, as are set forth in such Articles
of Agreement, and such Articles of Agreement are hereby made a part of these
By-Laws.
ARTICLE II
Corporate Seal
The seal of the corporation, subject to alteration thereof by the
Board of Directors, shall consist of a flat-faced circular die with the words
and figures -- "Vinaflex America, Inc. New Hampshire, 1980" -- cut or engraved
thereon.
ARTICLE III
Meetings of Stockholders
Section 1. All meetings of shall be held at the office of the Clerk
of the corporation unless some other place within or without the State of New
Hampshire is definitely stated in the call therefor.
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Section 2. The annual meeting of stockholders shall be held on such
date as from time to time determined by the Board of Directors in each year, if
not a legal holiday, and if a legal holiday, and if a legal holiday, then at the
same hour on the next succeeding day not a legal holiday. In the event that such
annual meeting be omitted by oversight or otherwise on the date provided, a
subsequent meeting may be held in place thereof, and any business transacted,
votes had, or election held at such meeting shall be of the same force and
effect as if transacted, had, or held at such annual meeting. The order of
business to be transacted at annual meetings of the stockholders shall be the
following:
1. Determination of quorum.
2. Determination of due notice of meeting
3. Reading of mi
4. Reports of Treasurer, or any other officers, since
the last annual meeting.
5. Election of Treasurer, clerk, Directors and be
elected by the stockholders.
6. Completion of previous unfinished business.
7. Transaction of new business
8. Adjournment.
Section 3. special meetings of the stockholders shall be held whenever
the Board of Directors or the stockholders holding at least on-third part in the
interest of the capital stock issued and outstanding and entitled to vote
thereat shall make written application therefor to the Clerk stating the time,
places, and purposes of the meeting applied for, and the clerk shall also call a
special meeting of the stockholders whenever he is so directed by the President.
Section 4. Except as otherwise provided by law, written or printed
notice of all meetings of stockholders, whether annual or special, stating the
place, day and hour thereof, together with the purposes for which such meeting
is called, shall be given by the Clerk, by mailing the same, postage prepaid,
and addressed to each stockholder of record entitled to vote thereat his or her
registered address at least seven (7) days prior to the date for the meeting. In
the absence or
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disability of the Clerk, such notice may be given by a person designated either
by the Clerk or by the person or persons calling the meeting.
If, however, all stockholders entitled to vote in respect to the
elections to be had or to the matters to be considered at any such meeting are
present thereat, either in person or by proxy, or sign a written consent upon
the record thereof, such meeting shall be legal notwithstanding the notice shall
not have been given as hereinbefore provided.
Whenever the vote of stockholders at a meeting thereof is required or
permitted to be taken in connection with any corporate action by any provision
of law or the record of organization or these By-Laws, all the stockholders who
have been entitled to vote upon the action may consent in writing on the record
of the meeting to such action, and in that event, such action shall be as
effective as though all the stockholders were present and voted in favor of such
action.
Section 5. Notice of any meeting of stockholders, whether annual or
special, may be waived by any stockholders, provided written waiver of notice of
such meeting is filed with the record thereof.
ARTICLE IV
Officers
Section 1. The officers of the corporation shall be a President,
Treasurer, Clerk, and a board of not less than three nor more than seven
Directors as the Incorporators or the stockholders, from time to time, may fix
determine; provided, however, that where all of the stock of the corporation is
owned by fewer than three record stockholders the number of directors may be
fewer than three, but not less than the number of stockholders. The officers of
the corporation may all include a Vice President, Assistant Treasurer, and/or
Assistant Clerk.
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Section 2. The Board of Directors, Treasurer and Clerk of the
corporation shall be elected by the stockholders at the annual meeting thereof,
or at any meeting held in lieu thereof and until their respective successors are
duly elected and qualified. The Clerk shall be a resident of the State of New
Hampshire. The President and any other officers shall be elected by said Board
at the annual meeting thereof and until their respective successors are duly
elected and qualified. No officer or director need be a stockholder. So far as
is permitted by law, any two or more officers may be filled by the same person.
The Incorporators at the first meeting thereof may elect any or all of
such officers and directors to serve until the first annual meeting thereafter
of stockholders and directors, respectively, and until their respective
successors shall be duly elected and qualified.
ARTICLE V
Meeting of Directors
Section 1. The annual meeting of the Board of Directors shall be held
without notice immediately after the annual meeting of stockholders and at the
same place.
Section 2. Stated meetings of the Board of Directors may be held in
such places and at such times as the full Board may by vote from time to time
determine, and if so, no notice thereof need be given.
Section 3. Special meetings of the Board of Directors shall be held at
any time or place whenever called by the President, two or more Directors (or if
less than two Directors are serving, then by such Director), or the Clerk, upon
written notice thereof being given by mail, postage prepaid, and addressed to
each Director at his address on file with the corporation at least five (5) days
prior to the day of such meeting, by the President, the Clerk, or the Director
or Directors calling the meeting; or may be held at any time without notice,
provided all the
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Directors are present or those not present have waived notice thereof. Such
special meetings shall be held at such times and in such places as the notice
thereof or waiver may specify and business transacted thereat shall be confined
to the specified purposes thereof and matters germane thereto.
ARTICLE VI
Quorum
Section 1. At any meeting of stockholders, a majority of the
outstanding shares entitled to vote thereat, as represented by stockholders of
record appearing in person or by proxy, shall be necessary to constitute a
quorum for the transaction of business, but a lesser number may adjourn any
meeting from time to time, and such meeting, as so adjourned, may be held
without further notice.
Section 2. At any meeting of the Board of Directors a majority of the
members thereof, present in person, shall be necessary to constitute a quorum
for the transaction of business, but a lesser number may adjourn any meeting
from time to time, and such meeting, as so adjourned, may be held without
further notice.
Section 3. When a quorum is present at any meeting of stockholder or of
the Board of Directors, a majority of such quorum present thereat as aforesaid
shall be necessary to decide, and except as otherwise provided by law, may
decide any action or matter brought before any such meeting.
ARTICLE VII
Proxy and Voting
Stockholders of record, when entitled to vote, may vote at any meeting,
either in person or by written proxy field before voting with the Clerk of the
Meeting. Proxies to be valid must
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be dated not more than six (6) months before the meeting named therein, and no
such proxy shall be valid after the final adjournment of such meeting. Each such
stockholder shall be entitled to one vote for each share of stock held by him
and entitled to be voted in respect to the elections or to the matters brought
before such meeting.
ARTICLE VIII
Powers of Directors
The Board of directors shall have the entire management of the business
and affairs of the corporation and shall have and exercise all the powers
possessed by the corporation itself, so far as such delegation of authority is
not inconsistent with the laws of the State of New Hampshire, with the Articles
of Agreement, or with these By-Law. The Board of Directors shall have power to
determine what constitutes net earnings, profit, and surplus, respectively, and
what amount shall be reserved for working capital and for any other purposes,
and what amount shall be declared as a final and conclusive.
ARTICLE IX
President
The President shall be the chief executive officers of the corporation
shall, when, preside at all meetings of the stockholders and the Board of
Directors. The President, the Treasurer, or some other person specifically
authorized by vote of the Board of Directors, may signed all deeds, leases,
contracts, notes and/or other instruments to be executed on behalf of the
corporation. The President shall perform all the duties and have such other
powers as the Board of Directors may from time to time designate.
ARTICLE X
Vice President
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be dated not more than six (6) months before the meeting named therein, and no
such proxy shall be valid after the final adjournment of such meeting. Each such
stockholder shall be entitled to one vote for each share of stock held by him
and entitled to be voted in respect to the elections or to the matters brought
before such meeting.
ARTICLE VIII
Powers of Directors
The Board of directors shall have the entire management of the business
and affairs of the corporation and shall have and exercise all the powers
possessed by the corporation itself, so far as such delegation of authority is
not inconsistent with the laws of the State of New Hampshire, with the Articles
of Agreement, or with these By-Law. The Board of Directors shall have power to
determine what constitutes net earnings, profit, and surplus, respectively, and
what amount shall be reserved for working capital and for any other purposes,
and what amount shall be declared as a final and conclusive.
ARTICLE IX
President
The President shall be the chief executive officers of the corporation
shall, when, preside at all meetings of the stockholders and the Board of
Directors. The President, the Treasurer, or some other person specifically
authorized by vote of the Board of Directors, may signed all deeds, leases,
contracts, notes and/or other instruments to be executed on behalf of the
corporation. The President shall perform all the duties and have such other
powers as the Board of Directors may from time to time designate.
ARTICLE X
Vice President
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The Vice Present, if one be elected, shall have such powers and perform
such duties as may be delegated to him by the Board of Directors. In the absence
or disability of the President, the Vice President may perform the duties and
exercise the powers of the Present.
ARTICLE XI
Treasurer
The Treasurer shall have the care and custody of the funds of the
corporation and shall have and exercise under the supervision of the Board of
Directors all the powers and duties commonly incident to his office. He shall,
with the President, have the power to sign all deeds, leases, contracts, notes
and/or other instruments to be executed on behalf of the corporation. He shall
have the custody of the corporate seal and of all the money, funds, valuable
papers and documents of the corporation. He shall deposit all the funds of the
corporation in such bank or banks, trust company or trust companies, or with
such firm or firms doing a banking business as the Board of Directors may from
time to time designate. He may, on behalf of the corporation, endorse for
deposit or collection, all checks, notes and other obligations payable to the
corporation or its order and may accept drafts on behalf thereof. he shall keep
accurate books of account of all corporate transactions, which books shall be
the property of the corporation, and together with all other of its property in
his possession, shall be subject at all times to the inspection and control of
the Board of Directors. All receipts and vouchers for payment made to the
corporation, and checks, drafts, notes and other corporate obligations for the
payment of money by the corporation shall be signed by the Treasurer except as
the Board of Directors may otherwise specifically order. Checks and drafts need
not be countersigned, unless otherwise ordered by the Board of Directors.
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ARTICLE XII
Assistant Treasurer
An Assistant Treasurer, if one be elected, shall perform such duties and
have such powers only as the Board of Directors or the Treasurer may from time
to time designate. He may be required by the Board of Directors to give bond in
such sums and with such sureties as may be satisfactory to it, which bond shall
remain in the custody of the President.
ARTICLE XIII
Clerk
The Clerk of the corporation shall be present at all meetings of
stockholders and Board of Directors, and he shall keep accurate records, in
books provided for that purpose, of the proceedings had at such meetings, which
book shall respectively be open at all reasonable times to the inspection of any
stockholder or director.
He shall perform all the duties commonly incident to his office and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time designate. In the absence of the Clerk from any meeting of
stockholders or of the Board of Directors, as the case may be, a Clerk pro
tempore may be chosen who shall record the proceedings thereof.
ARTICLE XIV
Assistant Clerk
An Assistant Clerk, if one be elected, shall perform the duties and
exercise the powers of the Clerk in his absence and shall perform such other
duties as the Board of Directors shall prescribe.
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ARTICLE XV
Chairman of the Board
The Chairman of the Board, if one be elected, shall be chosen from among
the Directors and shall preside at all meetings of the Directors. he shall, in
general, perform all the duties incident to the office of the chairman of the
Board, subject, however, to the direction and control of the Board of Directors,
and such other duties as from time to time may be assigned to him by the Board
of Directors.
ARTICLE XVI
Additional Officers and Agents
The Board of Directors, in its discretion and at any time, may appoint
such other officers or agents as it may deem advisable and prescribe the duties
therefor.
ARTICLE XVII
Removals
Section 1. The stockholders may, at any meeting thereof called for the
purpose, by vote of a majority of the outstanding shares entitled to vote, as
represented by stockholders appearing in person or by proxy, remove from office
any officer or director elected by them.
Section 2. The Board of Directors may, by vote of a majority thereof
present in person at any meeting thereof called for the purpose, remove from
office any officer or agent elected or appointed by it.
ARTICLE XVIII
Vacancies
If the office of any director of officer or agent, one or more, becomes
vacant by reason of death, resignation, removal, disqualification, or otherwise
(and the vacancy, if in the office of a
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Director, Treasurer or Clerk, shall have been filled by the stockholders), the
remaining Directors, though less than a quorum, may, by majority vote, elect a
successor or successors, who shall hold office for the unexpired term. Vacancies
in the Board of Directors, or in the office of Treasurer or Clerk, may be filled
for the unexpired term by the stockholders at a meeting called for the purposes.
ARTICLE XIX
Capital Stock
The amount of capital stock and the par value, if any, of the shares shall
be as fixed in the Articles of Agreement, as from time to time amended.
ARTICLE XX
Certificate of Stock
Every stockholder shall be entitled to a certificate or certificates of
the capital stock of the corporation, which shall be numbered and registered as
issued. Such certificate or certificates shall exhibit the holder's name and
number of shares, and shall be signed by the President, and be attested by the
Treasurer or Clerk, and bear the corporate seal. In the case of the absence or
disability of either of said officers, the signature of the majority of the
Directors in his stead shall be sufficient.
For the purpose of registering such certificate or certificates, every
stockholder will be required to file with the corporation, in writing, his legal
residence and that address to which all notices and dividends are to be sent,
and thereafter, until written notification of change in address shall have been
received by the corporation, any notice or dividend mailed postage prepaid and
addressed to any stockholder at such registered address shall, for all purposes,
be deemed to have been duly received.
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ARTICLE XXI
Transfer of Stock
Shares of stock may be transferred in the manner provided by law, and the
corporation, by its officers or agents appointed for that purpose, shall record
upon the books of the corporation a transfer of such shares upon surrender of
the certificate therefor accompanied either by a written assignment thereof or
by a written power of attorney to sell, assign, and transfer the same, or the
shares represented thereby, signed by the record holder of such certificate, or
by his legal representative. No transfer shall affect the right of the
corporation to pay any dividend due upon such shares to the record holder
thereof or to treat such holder as the owner thereof until such transfer shall
have been recorded upon the books of the corporation or until a new certificate
shall have been issued to the person to whom such shares have been so
transferred. the corporation may, but shall not be bound to, take notice of or
recognize any trust, expressed, implied, or constructive, or any charge or
equity affecting any of the shares of its capital stock, or to ascertain or
inquire whether any sale or transfer of such shares by any stockholder or his
personal representative is authorized by such trust, charge, or equity, or to
recognize any person as having an interest therein except the person or persons
in whom the legal title to such shares is vested for the time being.
ARTICLE XXII
Transfer Books
The transfer books of the corporation may, in anticipation of meetings of
stockholders or of the declaration of dividends, be closed from time to time for
such period as the Board of Directors shall determine, but no such period shall
be for more than thirty (30) days
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ARTICLE XXIII
Loss of Certificates
In case of the loss, mutilation, or destruction of a certificate of stock,
a duplicate certificate may be issued upon such terms as the Board of Directors
may prescribe.
ARTICLE XXIV
Fiscal Year
The fiscal year of the corporation shall be as determined, from time to
time, by the Board of Directors.
ARTICLE XXV
Inspection of Books and Papers
All books, papers, and documents of every kind belonging to the
corporation, whether located in the office of the President, Treasurer, Clerk or
elsewhere, shall be open to the inspection of the members of the Board of
Directors at all times during business hours but, except as otherwise provided
by law, shall only be open to the inspection of the stockholders at such
reasonable time or times and to such reasonable extent as the Board of Directors
may determine.
ARTICLE XXVI
Powers of Officers to Contract with the Corporation
Any officer or Director of the corporation, notwithstanding his official
relation to it, may enter into negotiation with and consummate and perform any
contract or agreement of any nature between the corporation and himself or any
other Directors, officer or officers, of the corporation or any firm or
corporation in which any such Director or officer may be interested, whether
such individual or individuals, firm or corporation thus contracting with this
corporation shall thereby
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derive personal or corporate profits or benefits or otherwise; the intent hereof
being to relieve each and every person who may be an officer or a Director of
the corporation from any disability that might otherwise exist from contracting
with the corporation for the benefit of himself or any c-partnership or
corporation in which he may be interested.
ARTICLE XXVII
Amendments
Except as otherwise provided by law, a vote of two thirds of the holders
of the outstanding capital stock of the corporation shall be necessary to alter,
amend, add to or repeal the Articles of Agreement or the By-Laws of this
corporation. Notice of any proposed amendment, additional, alteration, or repeal
shall be given in the notice of any meeting at which it is to be considered.
ARTICLE XXVIII
Action by Consent
Notwithstanding any other provision of these By-Laws requiring action to
be taken at a meeting of the Stockholders or Directors, any action that New
Hampshire RSA 294:81-a and 294:81-b permits to be taken by consent of the
Stockholders or Directors may be so undertaken.
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EVODE-TANNER INDUSTRIES, INC.
By-Law Amendment adopted January 3, 1995
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ARTICLE XXVII
Indemnification of Officers and Directors
SECTION 1. Actions, Suits or Proceedings Other Than by or in the Right of
the Corporation. 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 or has agreed to serve at the request of
the Corporation as a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, 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 t hat the person did
not meet the standards of conduct set forth in this Section 1.
SECTION 2. Actions or Suits by or in the Rights of the Corporation. 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 or has agreed to become a Director, officer, employee or
agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with he defense or settlement of
such action or suit and any appeal therefrom, 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 for gross negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that any Illinois Court or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of such liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the Illinois Court or such other court shall
deem proper.
SECTION 3. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Article XXVII, tot he extent
that a Director, officer,
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employee or agent of the Corporation has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in Sections
1 and 2 of this Article XXVII, or in the defense of any claim, issue or matter
therein, he shall be indemnified against all costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection therewith.
SECTION 4. Determination of Right to Indemnification. Any indemnification
under Sections 1 and 2 of this Article XXVII (unless ordered by a court) shall
be promptly paid by the Corporation unless a determination is made (1) by the
Board of Directors by a majority vote of a quorum consisting of Directors who
were not parties of such action, suite or proceeding, or (2) if such a quorum is
not obtainable, or even if obtainable, the Board of Directors so directs, by
independent legal counsel in a written opinion, or (e) by the stockholders, that
indemnification of the Director, officer, employee or agent is not proper in the
circumstances because he has not met the applicable standards of conduct set
forth in Sections 1 and 2 of this Article XXVII.
SECTION 5. Advance of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys' fees) incurred by a person referred to in
Sections 1 and 2 of this Article XXVII in defending a civil or criminal action,
suit or proceeding (including investigations by any government agency and all
costs, charges and expenses incurred in preparing for any threatened action,
suit or proceeding) shall be paid by the Corporation in advance of the final
disposition of such action, suite or proceeding; provided, however, that the
payment of such costs, charges and expenses incurred by a Director or officer in
his 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) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the Director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such Director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article XXVII. No security shall be
required for such undertaking and such undertaking shall be accepted without
reference tot he recipients financial ability to make repayment. The repayment
of such charges and expenses incurred by other employees and agents of the
Corporation which are paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as permitted by this Section 5
may be required upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
SECTION 6. Procedure for Indemnification. Any indemnification under
Section 1, 2 or 3 or advance of costs, charges and expenses under Section 5 of
this Article XXVII shall be made promptly, and in any event within 30 days, upon
the written request of the Director, officer, employee or agent directed to the
Secretary of the Corporation. The right to indemnification or advances as
granted by this Article XXVII shall be enforceable by the Director, officer,
employee or agent in any court of competent jurisdiction if the Corporation
denies such request, in whole or in part, or if no disposition thereof is made
within 30 days. Such person's costs and expenses incurred in connection with
successfully establishing his right to indemnification or advances, in whole or
in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section 5 of this
Article XXVII V where the required undertaking, if any, has been received by
the Corporation) that the claimant has not met the standard of conduct set
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forth in Sections 1 or 2 of this Article XXVII, but the burden of proving that
such standard of conduct has not been met shall be on the Corporation. Neither
the failure of the Corporation (including its Board of Directors, its
independent legal counsel, and its 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 has met the applicable standard of
conduct set forth in Sections 1 and 2 of this Article XXVII, or the fact that
there has been an actual determination by the Corporation (including its Board
of Directors, its independent legal counsel, and its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense tot
he action or create a presumption that the claimant has not met the applicable
standard of conduct.
SECTION 7. Other Rights; Continuation of Right to Indemnification. The
Indemnification provided by this Article XXVII shall not be deemed exclusive of
any other rights to which a person seeking indemnification may be entitled under
any law (common or statutory), agreement, vote of stockholders or disinterested
Directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office or while employed by or acting
as agent for the Corporation, and shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
the estate, heirs, executors and administrators of such person. All rights to
indemnification under this Article XXVII shall be deemed to be a contract
between the Corporation and each Director, officer, employee or agent of the
Corporation who serves or served in such capacity at any time while this Article
XXVII is in effect. No amendment or repeal of this Article XXVII or of any
relevant provisions of the Illinois Business Corporation Act or any other
applicable laws shall adversely affect or deny to any Director, officer,
employee or agent any rights to indemnification which such person may have, or
change or release any obligations of the Corporation, under this Article XXVI
with respect to any costs, charges, expenses (including attorneys' fees),
judgments, fines, and amounts paid in a settlement which arise out of an action,
suit or proceeding based in whole or substantial part on any act or failure to
act, actual or alleged, which takes place before or while this Article XXVII is
in effect. The provisions of this Section 7 shall apply to any such action, suit
or proceeding whenever commenced, including any such action, suit or proceeding
commenced after any amendment or repeat of this Article XXVII.
SECTION 8. For Purposes of this Article:
(1) "the Corporation" shall include any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued, would have had
power and authority to indemnify its directors, 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 provision of this
Article XXVII with respect to the resulting or surviving corporation as he
would have with respect to such consultant if its separate existence had
continued;
(2) "other enterprises" shall include employee benefit plans,
including but not limited to any employee benefit plan of the Corporation;
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(3) "serving at the request of t he Corporation" shall include any
service which imposes duties on, or involves services by, a Director,
officer, employee, or agent of the Corporation with respect to an employee
benefit plan, its participants, or beneficiaries, including acting as a
fiduciary thereof;
(4) "fines" shall include any penalties and any excise or similar
taxes assessed on a person with respect to an employee benefit plan;
(5) A person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the "Corporation" as referred to in
Sections 1 and 2 of this Article XXVI;
(6) Service as a partner, trustee or member of a management or
similar committee of a partnership or joint venture, or as a Director,
officer, employee or agent of a corporation which is a partners, trustee
or joint venturer, shall be considered service as a Director, officer,
employee or agent of the partnership, joint venture, trust or other
enterprise.
SECTION 9. Savings Clause. If this Article XXVII or any portion hereof
shall be invalidated on any ground by a court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director, officer, employee
and agent of the Corporation as a costs, charges and expenses (including
attorneys' fees) judgments, fines and amounts paid in settlement with respect to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Article XXVII that shall
not have been invalidated and to the full extent permitted by applicable law.
SECTION 10. Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become 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 their enterprise,
against any liability asserted against him and incurred by him or on his behalf
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of Article XXVII, provided that such insurance is available on
acceptable terms as determined by a vote of a majority of the entire Board of
Directors.
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