Articles of Incorporation - Smithfield Foods Inc.
SMITHFIELD FOODS, INC.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
ARTICLE I
NAME
The name of the Corporation is Smithfield Foods, Inc.
ARTICLE II
PURPOSE
The Corporation shall have the power to engage in any lawful business not
required by the Virginia Stock Corporation Act to be stated in the Articles of
Incorporation.
ARTICLE III
AUTHORIZED SHARES
3.1 Number and Designation. The number and designation of shares that the
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Corporation shall have authority to issue and the par value per share are as
follows:
Class Number of Shares Par Value
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Preferred 1,000,000 $1.00
Common 100,000,000 $0.50
3.2 Preemptive Rights. No holder of outstanding shares of any class shall have
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any preemptive right with respect to (i) any shares of any class of the
Corporation, whether now or hereafter authorized, (ii) any warrants, rights or
options to purchase any such shares, or (iii) any obligations convertible into
or exchangeable for any such shares or into warrants, rights or options to
purchase any such shares.
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3.3 Shareholder Approval. Except as otherwise provided in Article VI, an
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amendment to the Articles of Incorporation of the Corporation shall be approved
if a majority of the votes entitled to be cast by each voting group entitled to
vote on such action are cast in favor of such action. Any merger or share
exchange to which the Corporation is a party or any direct or indirect sale,
lease, exchange or other disposition of all or substantially all of the
Corporation's property, otherwise than in the usual and regular course of
business, shall be approved if a majority of the votes entitled to be cast by
each voting group entitled to vote on such action are cast in favor of such
action; provided, however, that this sentence shall not affect the power of the
Board of Directors to condition its submission of any plan of merger, share
exchange or direct or indirect sale, lease, exchange or other disposition of all
or substantially all of the Corporation's property, otherwise than in the usual
and regular course of business, on any basis, including the requirement of a
greater vote.
ARTICLE IV
PREFERRED SHARES
4.1 Issuance in Series. The Board of Directors is authorized to issue the
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Preferred Shares from time to time in one or more series and to provide for the
designation, preferences, limitations and relative rights of the shares of each
series by
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the adoption of Articles of Amendment to the Articles of Incorporation
of the Corporation setting forth:
(i) The maximum number of shares in the series and the designation
of the series, which designation shall distinguish the shares thereof from
the shares of any other series or class;
(ii) Whether shares of the series shall have special, conditional or
limited voting rights, or no right to vote, except to the extent prohibited
by law;
(iii) Whether shares of the series are redeemable or convertible (x)
at the option of the Corporation, a shareholder or another person or upon
the occurrence of a designated event, (y) for cash, indebtedness,
securities or other property, and (z) in a designated amount or in an
amount determined in accordance with a designated formula or by reference
to extrinsic data or events;
(iv) Any right of holders of shares of the series to distributions,
calculated in any manner, including the rate or rates of dividends, and
whether dividends shall be cumulative, noncumulative or partially
cumulative;
(v) The amount payable upon the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation;
(vi) Any preference of the shares of the series over the shares of
any other series or class with respect to
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distributions, including dividends, and with respect to distributions upon
the liquidation, dissolution or winding up of the affairs of the
Corporation; and
(vii) Any other preferences, limitations or specified rights
(including a right that no transaction of a specified nature shall be
consummated while any shares of such series remain outstanding except upon
the assent of all or a specified portion of such shares) now or hereafter
permitted by the laws of the Commonwealth of Virginia and not inconsistent
with the provisions of this Section 4.1.
4.2 Articles of Amendment. Before the issuance of any shares of a series,
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Articles of Amendment establishing such series shall be filed with and made
effective by the State Corporation Commission of Virginia, as required by law.
4.3 Series A Junior Participating Preferred Shares.
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(a) Designation and Amount. Pursuant to a resolution adopted by the Board
of Directors of the Corporation on August 28, 1997, 100,000 preferred shares (of
$1.00 par value) are hereby constituted as a series of preferred shares of the
Corporation which shall be designated as "Series A Junior Participating
Preferred Shares" (the "Series A Preferred Shares"), the preferences and
relative, optional and other special rights of which and the qualifications,
limitations or restrictions of which shall be as set forth herein.
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(b) Dividends and Distribution.
(i) Subject to the prior and superior rights of the holders of any
preferred shares of any series ranking prior and superior to the Series A
Preferred Shares with respect to dividends, the holders of Series A
Preferred Shares, in preference to the holders of Common Shares, par value
$.50 per share (the "Common Shares"), of the Corporation shall be entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash on
the fifteenth day of January, April, July and October in each year (each
such date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Shares, in
an amount per share (rounded to the nearest cent) equal to the greater of
(X)$1.00 or (Y) subject to the provision for adjustment hereinafter set
forth, 1,000 times the aggregate per share amount of all cash dividends,
and 1,000 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions other than a dividend payable in
Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares, since the
immediately preceding Quarterly Dividend Payment Date or,
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with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Shares.
In the event the Corporation shall at any time declare or pay any dividend
on Common Shares payable in Common Shares, or effect a subdivision or
combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common Shares, then in each such
case the amount to which holders of Series A Preferred Shares were entitled
immediately prior to such event under clause (Y) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of Common Shares outstanding immediately after such
event and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
The Corporation shall declare a dividend or distribution on the Series
A Preferred Shares as provided in this paragraph (i) immediately after it
declares a dividend or distribution on the Common Shares (other than a
dividend payable in Common Shares); provided that, in the event no dividend
or distribution shall have been declared on the Common Shares during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the
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Series A Preferred Shares shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
Dividends shall begin to accrue and be cumulative on outstanding
Series A Preferred Shares from the Quarterly Dividend Payment Date next
preceding the date of issue of such Series A Preferred Shares, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of Series A Preferred Shares
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued
but unpaid dividends shall not bear interest. Dividends paid on the Series
A Preferred Shares in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of Series A Preferred Shares entitled to receive
payment of a dividend or distribution
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declared thereon, which record date shall be no more than 60 days prior to
the date fixed for the payment thereof.
(c) Voting Rights. The holders of Series A Preferred Shares shall have the
following voting rights:
(i) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Shares shall entitle the holder thereof to
1,000 votes on all matters submitted to a vote of the shareholders of the
Corporation. In the event the Corporation shall at any time declare or pay
any dividend on Common Shares payable in Common Shares, or effect a
subdivision or combination or consolidation of the outstanding Common
Shares (by reclassification or otherwise than by payment of a dividend in
Common Shares) into a greater or lesser number of Common Shares, then in
each such case the number of votes per share to which holders of Series A
Preferred Shares were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is
the number of Common Shares outstanding immediately after such event and
the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(ii) Except as otherwise provided herein or by law, the holders of
Series A Preferred Shares and the holders of Common Shares shall vote
together as one class on all
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matters submitted to a vote of shareholders of the Corporation.
(iii) Except as set forth herein, holders of Series A Preferred
Shares shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Shares as set forth herein) for taking any corporate action.
(d) Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Shares as provided in paragraph (b) are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on Series A Preferred Shares
outstanding shall have been paid in full, the Corporation shall not:
(A) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of the Corporation ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred
Shares;
(B) declare or pay dividends on or make any other distributions
on any shares of the Corporation ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Shares, except dividends paid ratably on
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the Series A Preferred Shares and all such parity shares on which
dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(C) redeem or purchase or otherwise acquire for consideration any
shares of the Corporation ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A
Preferred Shares, provided that the Corporation may at any time
redeem, purchase or otherwise acquire any such parity shares in
exchange for any shares of the Corporation ranking junior (either as
to dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Shares; or
(D) purchase or otherwise acquire for consideration any Series A
Preferred Shares, or any shares of the Corporation ranking on a parity
with the Series A Preferred Shares, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes shall determine in good
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faith will result in fair and equitable treatment among the respective
series or classes.
(ii) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of the Corporation unless the Corporation could, under subparagraph (i) of
this paragraph (d), purchase or otherwise acquire such shares at such time
and in such manner.
(e) Reacquired Shares. Any Series A Preferred Shares purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation, and upon the taking of any action required by applicable
law, become authorized but unissued preferred shares and may be reissued as part
of a new series of preferred shares to be created by resolution or resolutions
of the Board of Directors, subject to the conditions and restrictions on
issuance set forth herein.
(f) Liquidation, Dissolution or Winding Up. Upon any voluntary
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made:
(A) to the holders of shares of the Corporation ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Shares unless, prior thereto, the holders of Series A
Preferred
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Shares shall have received $37,500 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of Series
A Preferred Shares shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal
to 1,000 times the aggregate amount to be distributed per share to holders
of Common Shares, or
(B) to the holders of shares of the Corporation ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Shares, except distributions made ratably on
the Series A Preferred Shares and all other such parity shares in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up.
In the event the Corporation shall at any time declare or pay any dividend on
Common Shares payable in Common Shares, or effect a subdivision or combination
or consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater or
lesser number of Common Shares, then in each such case the aggregate amount to
which holders of Series A Preferred Shares were entitled immediately prior to
such event under the proviso in clause (A) of the preceding sentence shall be
adjusted by multiplying such
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amount by a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to such event.
(g) Consolidation, Merger, etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the Common
Shares are exchanged for or changed into other shares or securities, cash and/or
any other property, then in any such case the Series A Preferred Shares shall at
the same time be similarly exchanged or changed in an amount per share (subject
to the provision for adjustment hereinafter set forth) equal to 1,000 times the
aggregate amount of shares, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common
Shares is changed or exchanged. In the event the Corporation shall at any time
declare or pay any dividend on Common Shares payable in Common Shares, or effect
a subdivision or combination or consolidation of the outstanding Common Shares
(by reclassification or otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common Shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of Series A Preferred Shares shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of Common Shares outstanding
immediately after such event
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and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(h) No Redemption. The Series A Preferred Shares shall not be redeemable.
(i) Ranking. The Series A Preferred Shares shall be junior to all other
series of the Corporation's preferred shares as to the payment of dividends and
the distribution of assets, except to the extent a series is made pari passu
with the Series A Preferred Shares.
(j) Amendment. The Certificate of Incorporation of the Corporation shall
not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Shares so as to affect
them adversely without the affirmative vote of the holders of two-thirds or more
of the outstanding Series A Preferred Shares voting together as a single class.
4.4 Series B Special Voting Preferred Share
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(a) Designation and Amount. Pursuant to a resolution adopted by the Board
of Directors of the Corporation on May 27, 1998, one (1) preferred share (of
$1.00 par value) is hereby constituted as a series of preferred shares of the
Corporation which shall be designated as the "Series B Special Voting Preferred
Share" (the "Series B Preferred Share"), the preferences and relative, optional
and other special rights of
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which and the qualifications, limitations or restrictions of which shall be as
set forth herein.
(b) Dividends and Distributions. The holder of the Series B Preferred
Share shall not be entitled to receive any portion of any dividend or
distribution at any time.
(c) Voting Rights. The holder of the Series B Preferred Share shall have
the following voting rights:
(i) The Series B Preferred Share shall entitle the holder thereof to
an aggregate number of votes equal to the number of Exchangeable Shares
("Exchangeable Shares"), of Smithfield Canada Limited, an Ontario
corporation ("Smithfield Canada"), outstanding from time to time which are
not owned by the Corporation or any of its direct or indirect subsidiaries.
(ii) Except as otherwise provided herein or by law, the holder of the
Series B Preferred Share and the holders of Common Shares and of Series A
Preferred Shares shall vote together as one class on all matters submitted
to a vote of shareholders of the Corporation.
(iii) Except as set forth herein, the holder of the Series B
Preferred Share shall have no special voting rights, and its consent shall
not be required (except to the extent it is entitled to vote with holders
of Common Shares and of Series A Preferred Shares as set forth herein) for
taking any corporate action.
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(d) Additional Provisions.
(i) The Holder of the Series B Preferred Share is entitled to
exercise the voting rights attendant thereto in such manner as such holder
desires.
(ii) At such time as (A) the Series B Preferred Share entitles its
holder to a number of votes equal to zero because there are no Exchangeable
Shares of Smithfield Canada outstanding which are not owned by the
Corporation or any of its direct or indirect subsidiaries, and (B) there is
no share of stock, debt, option or other agreement, obligation or
commitment of Smithfield Canada which could by its terms require Smithfield
Canada to issue any Exchangeable Shares to any person other than the
Corporation or any of its direct or indirect subsidiaries, then the Series
B Preferred Share shall thereupon be retired and cancelled promptly
thereafter. Such Share shall upon its cancellation, and upon the taking of
any action required by applicable law, become an authorized but unissued
preferred share and may be reissued as part of a new series of preferred
shares to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
(e) Reacquired Share. If the Series B Preferred Share should be purchased
or otherwise acquired by the Corporation in any manner whatsoever, then the
Series B Preferred Share shall be
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retired and cancelled promptly after the acquisition thereof. Such share shall
upon its cancellation, and upon the taking of any action required by applicable
law, become an authorized but unissued preferred share and may be reissued as
part of a new series of preferred shares to be created by resolution or
resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(f) Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, the holder of the Series B
Preferred Share shall not be entitled to any portion of any distribution.
(g) No Redemption or Conversion. The Series B Preferred Share shall not be
redeemable or convertible.
ARTICLE V
COMMON SHARES
5.1 Voting Rights. The holders of outstanding Common Shares shall, to the
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exclusion of the holders of any other class of shares of the Corporation, have
the sole power to vote for the election of directors and for all other purposes
without limitation, except (i) as otherwise provided in the Articles of
Amendment establishing any series of Preferred Shares or (ii) as may be required
by law.
5.2 Distributions. Subject to the rights of the holders of shares, if any,
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ranking senior to the Common Shares as to
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dividends or rights in the liquidation, dissolution or winding up of the affairs
of the Corporation, the holders of the Common Shares shall be entitled to
distributions, including dividends, when declared by the Board of Directors and
to the net assets of the Corporation upon the liquidation, dissolution or
winding up of the affairs of the Corporation.
ARTICLE VI
BOARD OF DIRECTORS
6.1 Election and Term. Commencing with the 2000 annual meeting of
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shareholders, the Board of Directors shall be divided into three classes as
nearly equal in number as possible. At the 2000 annual meeting of shareholders,
directors of the first class (Class I) shall be elected to hold office for a
term expiring at the 2001 annual meeting of shareholders; directors of the
second class (Class II) shall be elected to hold office for a term expiring at
the 2002 annual meeting of shareholders; and directors of the third class (Class
III) shall be elected to hold office for a term expiring at the 2003 annual
meeting of shareholders. At each annual meeting of shareholders after 2000, the
successors to the class of directors whose terms shall then expire shall be
identified as being of the same class as the directors they succeed and elected
to hold office until the third succeeding annual meeting of shareholders. If
the number of directors is changed, any newly created directorships or any
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decrease in directorships shall be so apportioned among the classes by the Board
of Directors as to make all classes as nearly equal in number as possible.
6.2 Removal of Directors. Subject to the rights of the holders of any series
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of Preferred Shares then outstanding, a director may be removed only with cause
by the affirmative vote of the holders of shares representing at least 66 2/3%
of the votes entitled to be cast on such action.
6.3 Newly-Created Directorships; Vacancies. Subject to the rights of the
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holders of any series of Preferred Shares then outstanding, any vacancy
occurring in the Board of Directors, including a vacancy resulting from an
increase in the number of directors or the removal of a director, may be filled
only by the affirmative vote of a majority of the directors remaining in office
even if the directors in office constitute less than a quorum of the Board of
Directors.
6.4 Amendment or Repeal. The provisions of this Article shall not be amended
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or repealed, nor shall any provision of these Articles of Incorporation be
adopted that is inconsistent with this Article, unless such action shall have
been approved by the affirmative vote of the holders of shares representing at
least 66 2/3% of the votes entitled to be cast by each voting group entitled to
vote on such action.
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ARTICLE VII
LIMIT ON LIABILITY AND INDEMNIFICATION
7.1 Definitions. For purposes of this Article the following definitions shall
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apply:
(i) "Corporation" means this Corporation only and no predecessor
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entity or other legal entity;
(ii) "expenses" include counsel fees, expert witness fees, and costs
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of investigation, litigation and appeal, as well as any amounts expended in
asserting a claim for indemnification;
(iii) "liability" means the obligation to pay a judgment, settlement,
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penalty, fine, or other such obligation, including, without limitation, any
excise tax assessed with respect to an employee benefit plan;
(iv) "legal entity" means a corporation, partnership, joint venture,
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trust, employee benefit plan or other enterprise;
(v) "predecessor entity" means a legal entity the existence of which
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ceased upon its acquisition by the Corporation in a merger or otherwise;
and
(vi) "proceeding" means any threatened, pending, or completed action,
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suit, proceeding or appeal whether civil, criminal, administrative or
investigative and whether formal or informal.
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7.2 Limit on Liability. In every instance in which the Virginia Stock
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Corporation Act, as it exists on the date hereof or may hereafter be amended,
permits the limitation or elimination of liability of directors or officers of a
corporation to the corporation or its shareholders, the directors and officers
of this Corporation shall not be liable to the Corporation or its shareholders.
7.3 Indemnification of Directors and Officers. The Corporation shall indemnify
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any individual who is, was or is threatened to be made a party to a proceeding
(including a proceeding by or in the right of the Corporation) because such
individual is or was a director or officer of the Corporation or because such
individual is or was serving the Corporation, or any other legal entity in any
capacity at the request of the Corporation while a director or officer of the
Corporation, against all liabilities and reasonable expenses incurred in the
proceeding except such liabilities and expenses as are incurred because of such
individual's willful misconduct or knowing violation of the criminal law.
Service as a director or officer of a legal entity controlled by the Corporation
shall be deemed service at the request of the Corporation. The determination
that indemnification under this Section 7.3 is permissible and the evaluation as
to the reasonableness of expenses in a specific case shall be made, in the case
of a director, as provided by law, and in the case of an officer, as provided in
Section 7.4 of
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this Article; provided, however, that if a majority of the directors of the
Corporation has changed after the date of the alleged conduct giving rise to a
claim for indemnification, such determination and evaluation shall, at the
option of the person claiming indemnification, be made by special legal counsel
agreed upon by the Board of Directors and such person. Unless a determination
has been made that indemnification is not permissible, the Corporation shall
make advances and reimbursements for expenses incurred by a director or officer
in a proceeding upon receipt of an undertaking from such director or officer to
repay the same if it is ultimately determined that such director or officer is
not entitled to indemnification. Such undertaking shall be an unlimited,
unsecured general obligation of the director or officer and shall be accepted
without reference to such director's or officer's ability to make repayment. The
termination of a proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent shall not of itself create a
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presumption that a director or officer acted in such a manner as to make such
director or officer ineligible for indemnification. The Corporation is
authorized to contract in advance to indemnify and make advances and
reimbursements for expenses to any of its directors or officers to the same
extent provided in this Section 7.3.
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7.4 Indemnification of Others. The Corporation may, to a lesser extent or to
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the same extent that it is required to provide indemnification and make advances
and reimbursements for expenses to its directors and officers pursuant to
Section 7.3, provide indemnification and make advances and reimbursements for
expenses to its employees and agents, the directors, officers, employees and
agents of its subsidiaries and predecessor entities, and any person serving any
other legal entity in any capacity at the request of the Corporation, and may
contract in advance to do so. The determination that indemnification under this
Section 7.4 is permissible, the authorization of such indemnification and the
evaluation as to the reasonableness of expenses in a specific case shall be made
as authorized from time to time by general or specific action of the Board of
Directors, which action may be taken before or after a claim for indemnification
is made, or as otherwise provided by law. No person's rights under Section 7.3
of this Article shall be limited by the provisions of this Section 7.4.
7.5 Miscellaneous. The rights of each person entitled to indemnification under
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this Article shall inure to the benefit of such person's heirs, executors and
administrators. Special legal counsel selected to make determinations under
this Article may be counsel for the Corporation. Indemnification pursuant to
this Article shall not be exclusive of any other right of indemnification to
which any person may be entitled, including
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indemnification pursuant to a valid contract, indemnification by legal entities
other than the Corporation and indemnification under policies of insurance
purchased and maintained by the Corporation or others. However, no person shall
be entitled to indemnification by the Corporation to the extent such person is
indemnified by another, including an insurer. The Corporation is authorized to
purchase and maintain insurance against any liability it may have under this
Article or to protect any of the persons named above against any liability
arising from their service to the Corporation or any other legal entity at the
request of the Corporation regardless of the Corporation's power to indemnify
against such liability. The provisions of this Article shall not be deemed to
preclude the Corporation from entering into contracts otherwise permitted by law
with any individuals or legal entities, including those named above. If any
provision of this Article or its application to any person or circumstance is
held invalid by a court of competent jurisdiction, the invalidity shall not
affect other provisions or applications of this Article, and to this end the
provisions of this Article are severable.
7.6 Amendments. No amendment, modification or repeal of this Article shall
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diminish the rights provided hereunder to any person arising from conduct or
events occurring before the adoption of such amendment, modification or repeal.
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