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FRIENDS OF GOETHE SCHOOL
BYLAWS
Adopted September 29, 2010

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ARTICLE I

NAME

 

The name of this organization shall be Friends of Goethe School.

 

ARTICLE II

POWERS AND PURPOSES

 

Section 2.1.  Powers.  Friends of Goethe School (“FOGS”) shall have the powers that are stated in its Articles of Incorporation.  FOGS shall also have the powers that are now or may be granted hereafter by the General Not For Profit Corporation Act of the State of Illinois, or any successor legislation (the “Act”).  These powers may be exercised only in furtherance of the purpose of FOGS as stated in the Articles of Incorporation and consistent with its status as a corporation described in Section 501(c)(3) of the Internal Revenue Code of 1986, both as now in effect or as may hereafter be amended (the “Code”).

 

Section 2.2.  Purposes.  FOGS is organized exclusively for charitable and educational purposes within the meaning of Section 501(c)(3) of the Code and Section 103.05 of the Act both as now in effect or as may hereafter be amended, including, without limitation, (a) making grants to support the instructional mission and faculty of public schools, including, but not limited to, public schools serving economically disadvantaged and/or minority students and (b) performing all other acts incidental to or necessary for the accomplishment of such purposes and that are not inconsistent with or in conflict with the Code or the Act, including, but not limited to, the making of contributions to other nonprofit organizations for purposes consistent with the purposes of FOGS.

 

Section 2.3.  Rules.  The following rules shall conclusively bind FOGS and all persons acting for or on behalf of it:

 

(a)    No part of the net earnings of FOGS shall inure to the benefit of, or be distributable to its Directors, Officers (as defined below), or other private persons, except that FOGS shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth herein.  No substantial part of the activities of FOGS shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and FOGS shall not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of any candidate for public office.  Notwithstanding any other provision of these Bylaws, FOGS shall not carry on any activities not permitted to be carried on (a) by a corporation exempt from federal income tax under Section 501(c)(3) of the Code (or the corresponding provision of any future United States internal revenue law) or (b) by a corporation, contributions to which are deductible under Section 170(c)(2) of the Code (or the corresponding provision of any future United States internal revenue law).

 

(b)    Upon the dissolution of FOGS, the Board of Directors of FOGS (the “Board”) shall, after paying or making provision for the payment of all the liabilities of FOGS, dispose of all the assets of FOGS exclusively for the purposes of FOGS in such manner, or to such organization or organizations organized and operated exclusively for charitable, educational, religious, or scientific purposes as shall at the time qualify as an exempt organization or organizations under Section 501(c)(3) of the Code (or the corresponding provision of any future federal law), as the Board shall determine.  Any assets not so disposed of shall be disposed of by the court of common pleas of the county in which the principal office of FOGS is then located, exclusively for such purposes or to such organization or organizations, as said court shall determine, which are organized and operated exclusively for such purposes.

 

(c)    FOGS shall not adopt any practice, policy or procedure that would result in discrimination on the basis of race, color, religion, sexual preference, national origin, sex, age, status as a handicapped individual or a disabled veteran or other veteran status.

 

    Section 2.4.    Conflicts of Interest.

 

(a)    A conflict of interest will be deemed to exist whenever an individual is in the position to approve or influence policies or actions of FOGS, or reasonably appears to be in a position to approve or influence policies or actions of FOGS, which involve or could ultimately harm or benefit financially: (i) the individual; (ii) any member of his or her immediate family (spouse, parents, children, brothers or sisters, and spouses of these individuals); (iii) any organization in which he or she or an immediate family member is a director, trustee or officer or has more than a 10% equity or investment interest or the right to acquire an equity or investment interest of more than 10%; or (iv) any organization in which he or she or an immediate family member has a compensation arrangement.  For the avoidance of doubt, service on the board of directors of another not-for-profit organization shall not constitute a conflict of interest.

 

(b)    An Officer or Director who becomes aware of an actual or potential conflict of interest shall promptly disclose to the Secretary the material facts surrounding such conflict of interest, including, for the sake of clarity, any specific information concerning the terms of any contract or transaction or contemplated contract or transaction with FOGS and the person or entity with whom such Officer or Director has the conflict of interest; provided that, in the event the Secretary becomes aware of an actual or potential conflict of interest relating to himself or herself or a member of his or her immediate family, the Secretary shall disclose the material facts surrounding such matter to the President.  An Officer or Director shall disclose a conflict of interest as soon as possible after the Officer or Director learns of the conflict of interest and in every event prior to voting on or otherwise discharging his duties with respect to any matter involving the conflict which comes before the Board or any committee thereof.

 

(c)    Prior to entering into any contract, transaction or arrangement involving an actual or potential conflict of interest, each Officer or Director who participates in the control over such contract, transaction or arrangement shall first obtain the approval of the Board, or an authorized committee thereof, with respect to the contemplated contract, transaction or arrangement.  Prior to approving a contract, transaction or arrangement involving a conflict of interest, the Board or its authorized committee shall consider the material facts concerning the proposed contract, transaction or arrangement, including the process by which the decision was made to recommend entering into the contract, transaction or arrangement on the terms proposed.  The interested individual(s) may make a presentation to the Board or committee with respect to any proposed contract, transaction or arrangement, but after the presentation, such individual(s) shall leave the meeting during the discussion of, and vote on, the contract, transaction or arrangement involving the actual or potential conflict of interest.  The Board shall approve only those contracts, transactions and arrangements with terms that are fair and reasonable to FOGS and consistent with the best interests of FOGS.  Fairness includes, but is not limited to, the concepts that (i) FOGS should pay no more than fair market value for any goods or services that FOGS purchases or receives and (ii) FOGS should receive fair market value consideration for any goods or services that it sells or furnishes to others.  The Board or its authorized committee shall set forth the basis for its decision with respect to approval of contracts, transactions or arrangements involving actual or potential conflicts of interest in the minutes of the meeting at which the decision is made, including, if applicable, the basis for determining that the consideration to be paid is fair to FOGS and any alternative contracts, transactions or arrangements considered by the Board.

 

(d)    No contract, transaction or arrangement between FOGS and one or more of its Directors, or any of the persons related to such Director or Directors as described in Section 2.4(a) above, shall be either void or voidable solely by reason of (i) the existence of an actual or potential conflict of interest; (ii) the presence of such Director(s) at the meeting of the Board, or of the committee thereof, which authorized such contract, transaction or arrangement; or (iii) the counting of such Director(s)’s votes for purposes of authorizing the contract, transaction or arrangement, provided that the material facts as to such Director(s)’s interest in such contract, transaction or arrangement and as to any such conflict of interest are disclosed in good faith or known to the Board or the committee thereof which authorized the contract, transaction or arrangement, and the Board or the committee thereof authorizes such contract, transaction or arrangement by a vote sufficient for such purpose without counting the vote or votes of such interested Director(s).  Common or interested Director(s) may be counted in determining the presence of a quorum at a meeting of the Board or committee which authorizes such contract, transaction or arrangement, although such interested Director(s)’s vote will not be counted in determining whether such contract, transaction or arrangement is authorized by the Board or respective committee.

 

ARTICLE III

OFFICES AND AGENCY

 

Section 3.1.  Offices.  FOGS shall have and continuously maintain a registered office in the State of Illinois. In addition, FOGS may maintain other offices within or without the State of Illinois as the Board may designate or as the business of FOGS may require from time to time.

 

The address of the registered office shall be identical with the office of the Registered Agent of FOGS. The Board may from time to time change the address of its registered office by a duly adopted resolution and the submission of the appropriate statement to the Secretary of State’s office.

 

Section 3.2.  Registered Agent.  The registered agent of FOGS (the “Registered Agent”) may be either an individual resident of the State of Illinois or a domestic or foreign corporation, authorized to act as such agent.  FOGS shall maintain continuously an agent in the State of Illinois.  A new registered agent may be appointed if the office of the Registered Agent becomes vacant for any reason or if the Registered Agent becomes disqualified or incapacitated to act, or if FOGS through the Board revokes the appointment of the Registered Agent by a duly adopted resolution of the Board and the submission of the appropriate statement to the Illinois Secretary of State’s office. Such Registered Agent will be recognized as an agent of FOGS on whom any process, notice, or demand required or permitted by law to be served on a corporation may be served.

 

ARTICLE IV

MEMBERSHIP

 

 FOGS shall have no members.

ARTICLE V

DIRECTORS

 

Section 5.1.  General Powers.  The Board shall manage the affairs of FOGS and shall be responsible for establishing the policies of FOGS.  The Board, in addition to the powers, authority and duties that may be granted or imposed by the Articles of Incorporation or elsewhere in these Bylaws, shall have all of the powers, authority and duties prescribed or provided to boards of directors under the Act.

 

Section 5.2.  Number of Directors.  The number of Directors of FOGS shall not be fewer than three (3) at any time.  Any vacancy occurring in the Board by reason of the resignation or removal of any Director which reduces the number of Directors to less than three (3) shall be filled by the vote of a majority of the Directors then in office, even if less than a quorum, or by the sole remaining Director.  Each Director so chosen shall hold office for the unexpired term in respect of which such vacancy occurred and until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.  Directors shall be elected annually by a majority of the Directors of FOGS then in office, even if less than a quorum, or by the sole remaining Director, which number of directors elected shall not be not more than nine (9).  The number of Directors may be changed from time to time by the Board, within the minimum and maximum, without further amendment of these Bylaws.

 

Section 5.3.  Structure of the Board.  Each Director on the initial Board shall hold office for an initial term of twelve (12) months and until a successor has been elected and qualified, or until his or her earlier death, resignation or removal as hereinafter provided.  After the initial term, the Directors shall serve twelve (12) month terms.  Board members shall be elected at the regular annual meeting of the Board or as soon thereafter as reasonably practicable.  Each Director will hold office for the term for which he or she has been elected and until his or her successor has been elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

 

Section 5.4.  Resignation of a Director.  A Director may resign at any time by written notice delivered to the Board, the President or the Secretary of FOGS.  A resignation is effective when the notice is delivered unless the notice specifies a certain date, in which case the resignation will be effective upon such date.  Where such a notice specifies the date of resignation, the pending vacancy may be filled before the effective date, but the successor shall not take office prior to such effective date.

 

Section 5.5.  Qualifications of Directors.  The Board may, at any time and from time to time, fix any obligations for continuing membership on the Board.  Directors must be natural persons, but are not required to be Illinois residents.

 

Section 5.6.  Place of Directors’ Meetings.  Meetings of the Board, regular or special, will be held at such place within or without the State of Illinois as the President designates by written notice (including electronic mail or e-mail) to the Board or, where the President has not given such notice, as the Board designates by resolution duly adopted.  Directors may participate in any meeting through the use of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.  Such participation in a meeting shall constitute presence in person at the meeting.

 

Section 5.7.  Regular Directors’ Meeting.  A regular annual meeting of the Board may be held at such time and place as may be fixed by resolution of the Board.  The Board may provide by resolution the time and place for the holding of additional regular meetings without other notice.  Written notice stating the place, day and hour of any meeting of the Board will be delivered to each Director not less than five (5) nor more than sixty (60) days before the date of the meeting, either personally, by mail or by e-mail, by or at the direction of the President or the Directors calling the meeting.  If mailed, such notice will be deemed delivered when deposited in the United States mail, postage prepaid, addressed to the Directors at the addresses as they appear on the records of FOGS.  If such meeting concerns the removal of a Director, then written notice of the proposed removal must be delivered to all Directors at least twenty (20) days prior to such meeting.  Notwithstanding the above, notice need not state the business to be transacted at, nor the purpose of, such meeting unless specifically required by law.

 

Section 5.8.  Special Directors’ Meetings.  A special meeting of the Board may be called either by the President or any two (2) members of the Board.  Written notice stating the place, day and hour of any special meeting of the Board will be delivered to each Director not less than five (5) nor more than sixty (60) days before the date of the meeting, either personally or by mail, by or at the direction of the President or the Directors calling the meeting.  If mailed, such notice will be deemed delivered when deposited in the United States mail, postage prepaid, addressed to the Directors at the addresses as they appear on the records of FOGS.  If such meeting concerns the removal of a Director, then written notice of the proposed removal must be delivered to all Directors at least twenty (20) days prior to such meeting.  Notwithstanding the above, notice need not state the business to be transacted at, nor the purpose of, such meeting unless specifically required by law.

 

Section 5.9.  Waiver of Notice.  Attendance of Directors at any meeting of the Board will constitute a waiver of notice of such meeting except where such Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.

 

Section 5.10.  Quorum of Directors.  A majority of the Board will constitute a quorum for the transaction of business at any meeting of the Board (provided that if less than such a majority is present at said meeting, a majority of the Directors present may adjourn the meeting to another time without further notice), and provided further, that even when a quorum is not present, those present may take any action authorized by Section 5.11 of these Bylaws in accordance with the provisions of that section.  The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board, unless the act of a greater number is required by the Act, the Articles of Incorporation or these Bylaws, or unless the matter to be acted on is covered by Section 5.2 of these Bylaws in which event the provisions of said Section 5.2 shall govern.

 

Section 5.11.  Manner of Acting.  The act of a majority of the Directors or committee members present in person and voting on a resolution at a meeting at which a quorum is present will be the act of the Board or the applicable committee thereof, respectively, except where otherwise provided by law or as otherwise provided in these Bylaws.  Any action required by the Act to be taken at a meeting of the Board or a committee thereof or any other action which may be taken at a meeting of the Board or a committee thereof, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the individuals entitled to vote with respect to the subject matter thereof.

 

Section 5.12.  Compensation.

 

(a)    No Director shall receive directly or indirectly any income, profit, compensation or pecuniary benefit from FOGS except reimbursement from FOGS’s funds for expenses reasonably incurred on behalf of FOGS, upon submission of proper documentation (the form and sufficiency of which shall be determined by the Board, in its sole discretion) to the Board.  In addition, no Director shall realize any individual or personal financial gain while, or as a result of, representing FOGS or as a result of performing tasks or providing services for FOGS in such capacity.  Notwithstanding the foregoing, FOGS may pay compensation in a reasonable amount to Officers and Directors for services rendered other than as an Officer or Director.

 

(b)    Any compensation to be paid to any Officer or Director shall be determined in advance in a manner consistent with Section 2.4(c) of these Bylaws, and will take into account factors such as: (i) compensation paid at similarly situated organizations, both taxable and tax-exempt, for functionally comparable positions; (ii) the geographic scope of FOGS; (iii) current compensation surveys; and (iv) actual written offers from similar institutions competing for the services of such Officer or Director.  In addition, the independent committee shall document the basis for determining the amount of compensation to be paid to each such Officer or Director concurrently with making such determination.

 

Section 5.13.  Removal of Directors.  A majority of the Board present at a meeting may remove one or more Directors if notice has been given that a purpose of the meeting is to vote upon the removal of one or more Directors named in the notice, provided that no special meeting may remove a Director unless written notice is delivered to all Directors at least twenty (20) days prior to such meeting.  Only the named Director or Directors may be removed at such meeting.  The removal may be with or without cause.

 

Section 5.14.  Advisory Board.  The Board may, from time to time in its sole discretion, appoint an advisory board to serve at the discretion of the Board and render non-binding advice to the Board.

 

ARTICLE VI

COMMITTEES OF THE BOARD

 

Section 6.1.  General.  The Board may from time to time designate certain committees (each, a “Committee”), with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board.  The creation of any such Committee shall not operate to relieve the Board, or any individual Director, of any responsibility imposed on such Directors or otherwise by the Act.  The Board shall elect a Director or Directors to serve as the member or members of any such committee, designating, if it desires, other Directors as alternate members who may replace any absent or disqualified member at any meeting of the Committee.  Notwithstanding the foregoing, no such Committee may:

  • Adopt a plan for the distribution or transfer of the assets of FOGS, or for its dissolution;

 

  • Fill vacancies on the Board or any of its Committees;

 

  • Elect, appoint or remove any Officer or Director or member of any Committee;

 

  • Fix the compensation of any Officer or Director, except in a manner consistent with the procedures set forth in Section 5.12(b);

 

  • Adopt, amend or repeal these Bylaws or the Articles of Incorporation;

 

  • Adopt a plan of merger or adopt a plan of consolidation with another corporation, or authorize the sale, lease, exchange or mortgage of all or substantially all of the property or assets of FOGS; or

 

  • Amend, alter, repeal or take action inconsistent with any resolution or action of the Board when the resolution or action of the Board provides by its terms that it shall not be amended, altered or repealed by action of a Committee.

 

Section 6.2.  Executive Committee.  The Board, by resolution duly adopted by a majority of the Directors in office, may designate an Executive Committee, which shall act for the Board in the day-to-day absence of action by the Board where legally permissible.

Section 6.3.  Action by Committees.  A majority of any Committee shall constitute a quorum, and a majority of the members of a Committee present and voting at a meeting at which a quorum is present is necessary for action by such Committee.  A Committee may act by unanimous consent in writing without a meeting and, subject to action by the Board, the Committee by majority vote of its members shall determine the time and place of meetings and the notice required therefore.  Members of a Committee may participate in any meeting through the use of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.  Such participation in a meeting shall constitute presence in person at the meeting.

ARTICLE VII

OFFICERS

 

Section 7.1.  Officers.  The officers of FOGS (the “Officers”) will consist of the following personnel:

(a)    a President;

(b)    a First Vice President;

(c)    a Second Vice President;

(d)    a Secretary; 

(e)    a Treasurer; and

(f)    such other officers as the Board shall determine.

 

Section 7.2.  Election of Officers.  Each of the Officers of FOGS shall be elected annually by the Board.  Such election will take place at the annual meeting of the Board or at any special meeting called for such purpose.  Officers shall hold twelve (12) month terms.  Officers shall not hold the same position for more than two (2) consecutive twelve (12) month terms.

 

Section 7.3.  Multiple Officeholders.  In any election of Officers, the Board may elect a single person to any two (2) or more offices simultaneously, except that the offices of President and Secretary shall be held by separate individuals.  A member of the Board may simultaneously serve as an Officer of FOGS.

Section 7.4.  President.  The President, or his or her designee, shall preside at meetings of the Board and the Executive Committee.  The President shall have the power to sign all contracts authorized either generally or specifically by the Board, unless the Board specifically requires an additional signature. The President of FOGS will supervise and control the day-to-day affairs and management of FOGS and carry out the purposes of FOGS.  The President may, but is not required to, be a full-time employee of FOGS.  The President will further perform all other duties incident to the office of President and such other duties or as may be prescribed from time to time by the Board.

Section 7.5.  First Vice President and Second Vice Presidents.  The First Vice President and Second Vice President, subject to the supervisory power of the President, will perform all the duties incident to the office of First Vice President or Second Vice President and such other duties as may be prescribed from time to time by the Board.  The First Vice President may assume and perform the duties of the President in the absence or disability of the President or whenever the office of the President is vacant.  The Second Vice President may assume and perform the duties of the First Vice President in the absence or disability of the First Vice President or whenever the office of the First Vice President is vacant.

Section 7.6.  Secretary.  The Secretary will keep minutes of all meetings of the Board, will be the custodian of the corporate records, and generally will perform all other duties incident to such office and such other duties as may be prescribed from time to time by the Board.

Section 7.7.  Treasurer.  The Treasurer will have charge and custody of all funds of FOGS, will deposit the funds as required by the Board, will keep and maintain adequate and correct accounts of FOGS’s properties and business transactions, will render reports and accountings to the Directors as required by the Board and, generally, will perform all duties as may be provided in these Bylaws or as may be prescribed from time to time by the Board.

Section 7.8.  Removal of Officers.  Any Officer elected or appointed to office may be removed by an affirmative vote of a majority of the Board, exclusive of such Officer, at any time, for any reason or no reason, with or without cause, provided that such removal shall be without prejudice to the contractual rights of such Officer, including, but not limited to, any rights to indemnification set forth in Article XI of these Bylaws.

ARTICLE VIII

WAIVER OF NOTICE

 

Section 8.1.  Waiver of Notice.  Whenever any notice whatsoever is required to be given under the provisions of the Act or under the provisions of the Articles of Incorporation or these Bylaws, a waiver of such notice in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, will be deemed equivalent to the giving of such notice.

 

ARTICLE IX

OPERATIONS

 

Section 9.1.  Fiscal Year.  For accounting, tax and related purposes, FOGS shall operate and its records shall end on June 30 of each year.

 

Section 9.2.  Books and Records.  FOGS shall keep complete and correct books and records of account and shall also keep minutes of the proceedings of the meetings of the Board, FOGS and minutes of any committee of the Board. The books, records of account, and minutes shall be kept at FOGS’s principal office or at such other place as the Board shall from time to time determine.

 

Section 9.3.  Loans to Management.  Except as otherwise provided in these Bylaws or as permitted pursuant to Section 108.80 of the Act, FOGS will not make any loans to any of its Directors or Officers.

Section 9.4.  Gifts.  The Directors and Officers may accept on behalf of FOGS any contributions, gifts, bequests or devises for the general purpose or for any specific purpose of FOGS.

ARTICLE X

AMENDMENT

 

These Bylaws may be amended by a majority vote of the Board at any regular annual meeting or special meeting of the Board, provided prior notice is given of the proposed amendment in the notice of the meeting at which such action is proposed to be taken, or provided all members of the Board waive such notice, or by unanimous written consent in writing as contemplated in Section 5.11.

ARTICLE XI

LIABILITY, INDEMNIFICATION AND INSURANCE

 

Section 11.1.  Claim Brought by Third Party.  FOGS shall indemnify each person who was or is made a party, or is threatened to be made a party to any Proceeding (as defined below) by reason of the fact that he or she is or was an Indemnified Person (as defined below) against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding (or part thereof), if such person acted in good faith and in a manner he or she 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 or her conduct was unlawful.  The termination of any Proceeding (or part thereof) by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person did not act in good faith and in a manner in which he or she reasonably believed to be in or not opposed to the best interests of FOGS or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his or her conduct was unlawful.

Section 11.2.  Claim By or in the Right of FOGS.  FOGS shall indemnify any Indemnified Person who is a party, or is threatened to be made a party to any Proceeding by or in the right of FOGS to procure a judgment in its favor by reason of the fact that such person is or was an Indemnified Person, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such Proceeding (or part thereof), if such Indemnified Person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of FOGS, provided that, no indemnification shall be made in respect of any claim, issue or matter as to which such Indemnified Person shall be adjudged to be liable for negligence or misconduct in the performance of his or her duty to FOGS, unless, and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such Indemnified Person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper.

Section 11.3.  Limitation on Indemnification.  Notwithstanding anything set forth in Sections 11.1 and 11.2 above, except with respect to the indemnification specified in Section 11.6, FOGS shall indemnify an Indemnified Person in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof) was authorized by the Board of FOGS, and any other indemnification under Sections 11.1 and 11.2 above, unless ordered by a court, shall be made by FOGS only as authorized in the specific case, upon a determination that indemnification of the Indemnified Party is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Sections 11.1 and 11.2 above.  Such determination shall be made with respect to an Indemnified Party by (a) the majority vote of the Directors who are not a party to the Proceeding, even though less than a quorum, (b) by a committee of the Directors designated by a majority vote of the Directors, even though less than a quorum, (c) if there are no such Directors, or if the Directors so direct, by independent legal counsel in a written opinion or (d) by the members entitled to vote, if any.

Section 11.4.  Definitions.  For purposes of this Article XI:

(a)    a “Delegate” is a person serving at the request of FOGS or a subsidiary of FOGS as a director, trustee, fiduciary or officer of such subsidiary or of another corporation, partnership, joint venture, trust or other enterprise;

(b)    an “Indemnified Person” is a person who is, was, a Director, Officer, employee, agent or Delegate of FOGS, or the legal representative of any of the foregoing; and

(c)    a “Proceeding” is 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 FOGS), and any appeal therefrom.

Section 11.5.  Expenses.  Expenses (including attorneys’ fees) incurred by an Indemnified Person in defending or otherwise being involved in a Proceeding may be paid by FOGS in advance of the final disposition of such Proceeding, including any appeal therefrom, as authorized by the Board in the specific case, upon receipt of an undertaking (the “Undertaking”) by or on behalf of such Indemnified Person, to repay such amount unless it shall ultimately be determined that he or she is entitled to be indemnified by FOGS; provided, that in connection with a Proceeding (or part thereof) initiated by such Indemnified Person, except a Proceeding authorized by Section 11.6, FOGS shall pay such expenses in advance of final disposition only if such Proceeding (or part thereof) was authorized by the Board.  A person to whom expenses are advanced pursuant to this Section 11.5 shall not be obligated to repay such expenses pursuant to the Undertaking until the final determination of any pending Proceeding in a court of competent jurisdiction concerning the right of such person to be indemnified or the obligation of such person to repay such expenses pursuant to the Undertaking.

Section 11.6.  Protection of Rights.  If a claim under Section 11.1 or 11.2 is not promptly paid in full by FOGS after a written claim has been received by FOGS, or if expenses pursuant to Section 11.5 have not been promptly advanced after the authorization of the Board and a written request for such advance accompanied by the Undertaking has been received by FOGS, the applicable Indemnified Person may at any time thereafter bring a suit against FOGS to recover the unpaid amount of the claim or the advancement of expenses.  If successful, in whole or in part, in such suit, such Indemnified Person shall also be entitled to be paid the reasonable expenses thereof (including, without limitation, attorneys’ fees).  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 where the required Undertaking has been tendered to FOGS) that indemnification of the Indemnified Person is prohibited by law, but the burden of proving such defense shall be on FOGS.  Neither the failure of FOGS (including the Board or independent legal counsel) to have made a determination, if required, prior to the commencement of such action that indemnification of the Indemnified Person is proper in the circumstances, nor an actual determination by FOGS (including the Board or independent legal counsel) that indemnification of the Indemnified Person is prohibited, shall be a defense to the action or create a presumption that indemnification of the Indemnified Person is prohibited.

Section 11.7.  Article Not Exclusive.  The indemnification provided by this Article shall not be deemed exclusive of any other rights to which Indemnified Persons may be entitled under any statute, any provision of the Articles of Incorporation or these Bylaws, any agreement, any vote of Directors or otherwise, and shall inure to the benefit of the heirs, executors and administrators of such a Indemnified Person.  Except as otherwise expressly restricted by applicable laws, the Board shall have the authority, by resolution, to provide for such other indemnification of Indemnified Persons as it shall deem appropriate.

Section 11.8.  Insurance.  FOGS may purchase and maintain insurance on behalf of any Indemnified Person against any liability asserted against such Indemnified Person or incurred by such Indemnified Person in any such capacity, or arising out of his or her status as such, whether or not FOGS would have the power to indemnify such person against liability under the provisions of Article XI.  FOGS may enter into contracts with any Indemnified Person in furtherance of the provisions of this Article XI and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect the advancing of expenses and indemnification as provided in this Article XI.

Section 11.9.  Contractual Nature.  The provisions of this Article XI shall be applicable to all Proceedings commenced or continuing after its adoption, whether such arise out of events, acts or omissions which occurred prior or subsequent to such adoption, and shall continue as to a person who has ceased to be an Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such Indemnified Person.  This Article XI shall be deemed to be a contract between FOGS and each person who, at any time that this Article XI is in effect, serves in any capacity which entitles such person to indemnification hereunder and any repeal or other modification of this Article XI or any repeal or modification of the Act or any other applicable law shall not limit any Indemnified Person’s entitlement to the advancement of expenses or indemnification under this Article XI for Proceedings then existing or later arising out of events, acts or omissions occurring prior to such repeal or modification, including, without limitation, the right to indemnification for Proceedings commenced after such repeal or modification to enforce this Article XI with regard to Proceedings arising out of acts, omissions or events occurring prior to such repeal or modification.

Section 11.10.  Severability.  If this Article XI or any portion hereof shall be invalidated or held to be unenforceable on any ground by any court of competent jurisdiction, the decision of which shall not have been reversed on appeal, such invalidity or unenforceability shall not affect the other provisions hereof, and this Article XI shall be construed in all respects as if such invalid or unenforceable provisions had been omitted therefrom.

Section 11.11.  Exculpation.  No Director or Officer shall be liable for damages resulting from the exercise of judgment or discretion in connection with the duties or responsibilities of such director or officer except to the extent dictated by law.

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