Attached files
| file | filename |
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| EX-10.1 - NOTICE OF SPECIAL AWARDS OF RESTRICTED STOCK UNITS - HERSHEY CO | exh101.htm |
| 8-K - FORM 8-K DATED FEBRUARY 25, 2010 - HERSHEY CO | f8k_02252010.htm |
Exhibit
3.1
BY-LAWS
OF
THE
HERSHEY COMPANY
Incorporated
October 24, 1927
Under
the Laws of the
State
of Delaware
|
Corporate
Headquarters
100
Crystal A Drive
Hershey,
Pennsylvania 17033
|
Amended
and Restated by the
Board
of Directors as of February 23,
2010
|
Table of
Contents
| Page | ||
|
Article I - Stockholders
|
1
|
|
|
Section
1.
|
Annual
Meeting
|
1
|
|
Section
2.
|
Special
Meetings
|
1
|
|
Section
3.
|
Quorum
and Required Vote
|
1
|
|
Section
4.
|
Conduct
of Meetings
|
1
|
|
Section
5.
|
Notice
of Stockholder Business
|
2
|
|
Article II – Stock
|
3
|
|
|
Section
1.
|
Stock
Certificates
|
3
|
|
Section
2.
|
Transfer
Agents and Registrars
|
3
|
|
Section
3.
|
Transfer
of Stock
|
3
|
|
Section
4.
|
Lost
Certificates
|
3
|
|
Section
5.
|
Record
Date
|
3
|
|
Section
6.
|
Dividends
|
4
|
|
Article III - Board of
Directors
|
4
|
|
|
Section
1.
|
Number
and Term of Office
|
4
|
|
Section
2.
|
Director
Nominations
|
4
|
|
Section
3.
|
Board
Governance
|
5
|
|
Section
4.
|
Chairman
of the Board of Directors
|
5
|
|
Section
5.
|
Vice
Chairman of the Board of Directors
|
5
|
|
Section
6.
|
Stated
Meetings
|
6
|
|
Section
7.
|
Special
Meetings
|
6
|
|
Section
8.
|
Notice
of Meetings
|
6
|
|
Section
9.
|
Participation
by Conference Telephone
|
6
|
|
Section
10.
|
Quorum
and Manner of Acting
|
6
|
|
Section
11.
|
Directors'
Fees
|
6
|
|
Article IV - Committees of the Board of
Directors
|
6
|
|
|
Section
1.
|
Standing
Committees
|
6
|
|
Section
2.
|
Other
Committees
|
7
|
|
Section
3.
|
Committees,
Meetings, Quorum and Manner of Acting
|
7
|
|
Article V - Officers
|
7
|
|
|
Section
1.
|
Stated
and Other Officers
|
7
|
|
Section
2.
|
Term
of Office
|
7
|
|
Section
3.
|
Removal
of Officers
|
7
|
|
Section
4.
|
Vacancies
|
7
|
|
Section
5.
|
Chief
Executive Officer
|
7
|
|
Section
6.
|
Other
Officers
|
8
|
|
Section
7.
|
Compensation
|
8
|
Table of
Contents
| Page | ||
|
Article VI -
Indemnification
|
8
|
|
|
Section
1.
|
General
|
8
|
|
Section
2.
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Advancement
of Expenses
|
8
|
|
Section
3.
|
Rights
Not Exclusive
|
8
|
|
Section
4.
|
Claims
|
9
|
|
Section
5.
|
Limitation
on Indemnification
|
9
|
|
Section
6.
|
Amendment
or Repeal
|
9
|
|
Article VII - Emergency
Conditions
|
9
|
|
|
Section
1.
|
Board
of Directors
|
9
|
|
Section
2.
|
Chief
Executive Officer
|
10
|
|
Section
3.
|
Notice
of Meetings
|
10
|
|
Section
4.
|
Powers
During an Emergency Condition
|
10
|
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Section
5.
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Liability
|
10
|
|
Section
6.
|
Effectiveness
of Other By-laws
|
10
|
|
Article VIII – Amendments
|
10
|
|
BY-LAWS
OF
THE
HERSHEY COMPANY
ARTICLE
I - STOCKHOLDERS
Section
1. Annual
Meeting. The annual meeting of stockholders shall be held for
the election of directors at such date, time and place, either within or without
the State of Delaware, as may be designated by resolution of the Board of
Directors. Any other proper business may be transacted at the annual
meeting.
Section
2. Special
Meetings. A special meeting of stockholders may be called by
the Board of Directors, the Executive Committee of the Board of Directors, or by
stockholders holding in the aggregate at least twenty-five percent of the
outstanding votes entitled to be cast by holders of the Common Stock and the
Class B Common Stock voting together without regard to class on the date
such meeting is called.
Section
3. Quorum
and Required Vote. At any meeting of stockholders at which any
action is to be taken (including the election of directors) by the vote of the
holders of the Common Stock and the Class B Common Stock voting together without
regard to class in accordance with the provisions of the Restated Certificate of
Incorporation, the presence in person or by proxy of the holders of a majority
of the votes entitled to be cast by both such classes at the meeting shall
constitute a quorum. With respect to the taking of any action
(including, with respect to the Common Stock, the election of directors) as to
which either the Common Stock or the Class B Common Stock is entitled to
vote separately as a class pursuant to the provisions of the Restated
Certificate of Incorporation, the presence in person or by proxy of the holders
of a majority of the votes entitled to be cast by such class voting separately
as a class at the meeting shall constitute a quorum. Except as to the
election of directors, at every such meeting at which a quorum is present for
the taking of any action, a majority of the votes present or represented shall
be necessary to take such action with the Common Stock and the Class B
Common Stock voting together without regard to class or separately as a class or
classes as are prescribed by the provisions of the Restated Certificate of
Incorporation. With respect to the election of directors, the persons
receiving the greatest number of votes, in descending order, shall be elected
for the positions to be filled. The absence of a quorum as provided
for herein for the taking of any one or more action(s) shall not prevent the
taking of any other action for which a quorum is present, but the presence of a
quorum for the taking of any one or more action(s) shall not authorize the
taking of any other action for which a quorum is not present.
Section
4. Conduct
of Meetings. The Board of Directors and/or the chair of any
meeting of stockholders shall have the right and authority to prescribe such
rules, regulations and procedures and, in the case of the chair of the meeting
to do all such acts as are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by
the
-1-
Board of
Directors or prescribed by the chair of the meeting, may include, without
limitation: (a) the setting of the business for the meeting and
the establishment of an agenda or order of business for the meeting; (b) rules
and procedures for maintaining order at the meeting and the safety of those
present; (c) limitations on attendance at or participation in the meeting to the
stockholders of record of the Company, their duly authorized and constituted
proxies or such other persons as the chair shall permit; (d) restrictions on
entry to the meeting after the time fixed for the commencement thereof; (e) not
requiring motions or seconding of motions and deeming directors nominated, or
proposals made, by or under the authority of the Board of Directors to be
properly before the meeting without further action; and (f) limitations and
restrictions as to the content of and the time allotted, if any, to questions or
comments by participants. Meetings of stockholders shall not be
required to be held in accordance with rules of parliamentary
procedure.
Section
5. Notice
of Stockholder Business. At any meeting of the stockholders,
only such business, including proposals to be voted on (but excluding the
nomination and election of directors, which are covered in Section 2 of Article
III of these By-laws) shall be conducted as shall have been properly brought
before the meeting. To be properly brought before the meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) brought
before the meeting by or at the direction of the Board of Directors or by a
stockholder or stockholders holding, in the aggregate, at least twenty-five
percent (25%) of the outstanding votes entitled to be cast by holders of the
Common Stock and Class B Common Stock voting together without regard to class,
or (c) properly requested to be brought before the meeting by a
stockholder. For business to be properly requested to be brought
before a meeting by a stockholder pursuant to (c) above, the stockholder must
have given timely notice thereof in writing to the Secretary of the
Company. To be timely, such written notice must be delivered to or
mailed and received at the principal executive offices of the Company (1) with
respect to business to be conducted at an annual meeting of stockholders, not
later than the close of business on the 90th day or earlier than the close of
business on the 120th day prior to the anniversary of the date of the
immediately preceding annual meeting, and (2) with respect to business to be
conducted at a special meeting of stockholders, not later than the close of
business on the fifteenth (15th) day following the day on which notice of such
meeting was mailed to stockholders. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting: (i) the name and address of such stockholder;
(ii) the class and number of shares of the Company's stock which are
beneficially owned by the stockholder; (iii) a brief description of the business
or proposal desired to be brought before the meeting and the reasons for
conducting such at the meeting; (iv) any material interest of the stockholder in
such business or proposal; and (v) such other information regarding such
business or proposal as would be required to be included in a proxy statement
pursuant to the rules of the Securities and Exchange Commission regardless of
whether such other business or proposal may be included in any such proxy
statement. No business shall be conducted at any meeting of
stockholders except that which has been brought before such meeting in strict
compliance with the terms and procedures of this Section.
-2-
ARTICLE
II - STOCK
Section
1. Stock
Certificates. The shares of the Company shall be
represented by certificates or shall be uncertificated. Each
registered holder of shares, upon request to the Company, shall be provided a
certificate of stock, representing the number of shares owned by such
holder. Absent a specific request for such a certificate by the
registered owner or transferee thereof, all shares shall be uncertificated upon
the original issuance thereof by the Company or upon the surrender of the
certificate representing such shares to the Company. Certificates for
shares of the capital stock of the Company shall be in such form as shall be
approved by the Board of Directors. They shall be signed by or have
engraved thereon a facsimile signature of the Chief Executive Officer and the
Secretary or an Assistant Secretary, certifying the number and class of the
Company’s shares held by such stockholder.
Section
2. Transfer
Agents and Registrars. The Board of Directors may, in its
discretion, appoint responsible banks or trust companies or other appropriately
qualified institutions to act as Transfer Agents and Registrars of the stock of
the Company; and, upon such appointments being made, no stock certificate shall
be valid until countersigned by one of such Transfer Agents and registered by
one of such Registrars. Where any such certificate is registered with
the manual signature of a Registrar, the countersignature of a Transfer Agent
may be a facsimile or engraved, stamped or printed. The Board of
Directors may also make such additional rules and regulations as it may deem
expedient concerning the issue, transfer and registration of uncertificated
shares or certificates for shares of the capital stock of the
Company.
Section
3. Transfer
of Stock. Shares of stock may be transferred by delivery of
the certificates therefore, accompanied by an assignment in writing on the back
of the certificates or by written power of attorney to sell, assign and transfer
the same, signed by the record holder thereof, upon receipt of proper transfer
instructions from the owner of uncertificated shares, or upon the escheat of
said shares under the laws of any state of the United States. In no
event shall a transfer of shares affect the right of the Company to pay any
dividend upon the stock to the holder of record thereof for all purposes, and no
transfer shall be valid, except between the parties thereto, until such transfer
shall have been made upon the books of the Company.
Section
4. Lost
Certificates. In case any certificate of stock shall be lost,
stolen or destroyed, the Board of Directors, in its discretion, may authorize
the issue of, or provide for the manner of issuing an uncertificated share, or
if requested by such holder, a substitute share certificate in place of the
certificate so lost, stolen or destroyed; provided, that, in each such case, the
applicant for a substitute certificate shall furnish to the Company and to such
of its Transfer Agents and Registrars as may require the same evidence to their
satisfaction, in their discretion, of the loss, theft or destruction of such
certificate and of the ownership thereof, and also such security or indemnity as
may be required by them.
Section
5. Record
Date. The Board of Directors may fix a record date for the
purpose of determining the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof; to receive payment of any
dividend or other distribution or allotment of any rights or to exercise any
rights in respect of any change, conversion or exchange of stock;
or
-3-
for the
purpose of any other lawful action. The record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and the record date shall not be more than sixty (60) days
prior to the date of such meeting or such action, or, with respect to any such
meeting, less than ten (10) days before the date of such
meeting. Only stockholders of record on the record date shall be
entitled to notice of and to vote at such meeting, or to receive such dividends
or rights, or to exercise such rights, as the case may be. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting. The Board of Directors may fix a record date for the purpose
of determining the stockholders entitled to consent to corporate action in
writing without a meeting, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board of
Directors, and shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of
Directors.
Section
6. Dividends. The
Board of Directors may declare and pay such dividends upon the shares of the
Company’s capital stock out of the surplus of the Company as it may deem
expedient and as the condition of the Company shall warrant.
ARTICLE
III - BOARD OF DIRECTORS
Section
1. Number
and Term of Office. The number of directors may be changed at
any time and from time to time by vote at a meeting or by written consent of the
holders of stock entitled to vote on the election of directors, or by a
resolution of the Board of Directors, except that no decrease in the number of
directors shall shorten the term of any director in office at the time of such
decrease unless such director is specifically removed pursuant to Article
Fourth, Section B.2.d. of the Company's Restated Certificate of Incorporation.
Each director shall continue in office until his or her successor shall have
been elected and qualified, or until his or her earlier resignation or
removal.
Section
2. Director
Nominations. Nominations for the election of directors,
whether by vote of the Common Stock and the Class B Common Stock voting together
without regard to class or of the Common Stock voting as a separate class, may
be made by (a) the Board of Directors, (b) the Governance Committee or other
committee appointed by the Board of Directors, (c) a stockholder or stockholders
holding at least twenty-five percent (25%) of the outstanding votes entitled to
be cast by holders of the Common Stock and Class B Common Stock voting together
without regard to class, or (d) any stockholder entitled to vote for the
election of directors at a meeting of stockholders. Any stockholder
entitled to vote for the election of directors at a meeting of stockholders may
nominate one or more persons for election as director(s) as provided for in (d)
above only if written notice of such stockholder's intent to make such
nomination or nominations has been timely given to the Secretary of the
Company. To be timely, such written notice must be delivered to or
mailed and received at the principal executive offices of the Company (1) with
respect to an election to be held at an annual meeting of stockholders, not
later than the close of business on the 90th day or earlier than the close of
business on the 120th day prior to the anniversary of the date of the
immediately preceding
-4-
annual
meeting, and (2) with respect to an election to be held at a special meeting of
stockholders for the election of directors, not later than the close of business
on the fifteenth (15th) day following the date on which notice of such meeting
was mailed to stockholders. Each such notice shall set forth: (i) the
name and address of the stockholder who intends to make the nomination and of
the person or persons to be nominated; (ii) a representation the stockholder is
a holder of record of stock of the Company entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (iii) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder and the reason or reasons for such
nomination or nominations; (iv) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement pursuant to the rules of the Securities and Exchange Commission
regardless of whether such nomination or nominations may be included in any such
proxy statement; and (v) the written consent of each nominee to serve as a
director of the Company if so elected. No nominations for director
shall be considered at a meeting of stockholders except those made in strict
compliance with terms and procedures of this Section.
Section
3. Board
Governance. The Board of Directors and the Governance
Committee of the Board shall each have the authority and power to adopt rules,
and determine the standards for, governance of the Board and its standing and
special committees and to set standards for the performance of directors'
duties.
Section
4. Chairman
of the Board of Directors. The Board of Directors shall
annually elect one of its members to be Chairman of the Board of Directors and
shall fill any vacancy in the position of Chairman of the Board of Directors at
such time and in such manner as the Board of Directors shall
determine. The Chairman of the Board of Directors may, but need not,
be an officer of, or employed in an executive or any other capacity by, the
Company.
The
Chairman of the Board of Directors shall preside, when present, at all meetings
of the stockholders and of the Board of Directors and shall have such other
powers and perform such other duties as may from time to time be assigned or
required by the Board of Directors.
Section
5. Vice
Chairman of the Board of Directors. The Board of Directors may
elect one or more of its members to be a Vice Chairman of the Board of Directors
and may fill any vacancy in the position of Vice Chairman of the Board of
Directors at such time and in such manner as the Board of Directors shall
determine. A Vice Chairman of the Board of Directors may, but need
not, be an officer of, or employed in an executive or any other capacity by, the
Company.
In the
absence of the Chairman of the Board of Directors, a Vice Chairman of the Board
of Directors (if any) shall preside, when present, at all meetings of the
stockholders and of the Board of Directors and shall have such other powers and
perform such other duties as may from time to time be assigned or required by
the Board of Directors.
-5-
Section
6. Stated
Meetings. The Board of Directors may by resolution appoint in
advance the time and place for holding stated meetings of the Board, and such
stated meetings may be held at the time and place so appointed without the
giving of any notice. In case the day appointed for a stated meeting
shall fall on a legal holiday, such meeting shall be held on the next following
business day, not a legal holiday, at the same hour.
Section
7. Special
Meetings. Special meetings of the Board of Directors shall be
held whenever called by the Chairman or a Vice Chairman of the Board of
Directors or by the Chief Executive Officer or by one-sixth (calculated to the
nearest whole number) of the total number of directors constituting the Board of
Directors. Notice of any such meeting, setting forth the time and
place of the meeting, shall be mailed to each director, addressed to him or her
at his or her residence or usual place of business, not later than the second
day before the day on which the meeting is to be held, or shall be sent to him
or her at such place by telefacsimile or electronic mail, or be delivered
personally, or by telephone or other oral means, not later than the day before
the day on which the meeting is to be held. Except as may be
indicated in the notice thereof, any and all business may be transacted at any
special meeting.
Section
8. Notice
of Meetings. Notice of any meeting of the Board of Directors
or of any committee need not be given to any director if waived by him or her
whether before or after such meeting, or if he or she shall be present at the
meeting, and any meeting of the Board of Directors or of any committee shall be
a legal meeting without any notice thereof having been given, if all the members
shall be present.
Section
9. Participation by Conference
Telephone. Members of the Board of Directors or of any
committee may participate in a meeting of the Board or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
Section
10. Quorum
and Manner of Acting. A majority of the total number of
directors constituting the Board of Directors at the time of any meeting shall
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors.
Section
11. Directors'
Fees. The Board of Directors shall have authority to determine
the amount and form of compensation which shall be paid to its
members.
ARTICLE
IV - COMMITTEES OF THE BOARD OF DIRECTORS
Section
1. Standing
Committees. The standing committees of the Board of Directors
shall be the Audit Committee, the Compensation and Executive Organization
Committee, the Finance and Risk Management Committee, the Governance Committee,
and the Executive Committee (or any successor to any of the foregoing committees
having duties and responsibilities similar to such committee). The
charter setting out the powers and duties of each standing committee shall be
set by resolution of the Board.
-6-
Section
2. Other
Committees. The Board of Directors may appoint other
committees for such general or special purposes and for such terms as may be
established by the Board, and the Board may delegate to any such committees such
powers and duties of the Board as the Board may in its discretion
determine.
Section
3. Committees, Meetings, Quorum
and Manner of Acting. Stated and special meetings of the
standing and other committees of the Board of Directors shall be held and notice
thereof given in the same manner provided for meetings of the
Board. The provisions of these By-laws relating to the determination
of a quorum, the manner of acting, and participation by conference telephone at
meetings of the Board shall apply to the standing and other committees of the
Board.
ARTICLE
V - OFFICERS
Section
1. Stated
and Other Officers. The stated officers of the Company shall
be the following, one or more of which positions may be filled or left vacant at
the discretion of the Board of Directors (provided the requirements of the
Delaware General Corporation Law relating to officers are complied
with): the Chief Executive Officer; the President; the Chief
Operating Officer; Senior Vice President(s); Executive Vice President(s); Vice
President(s); Division President(s); the Chief Financial Officer; the General
Counsel; the Controller; the Chief Accounting Officer; the Secretary; and the
Treasurer. The Board of Directors may by resolution designate the
Chairman of the Board of Directors or any Vice Chairman or Vice Chairmen of the
Board of Directors to be officers of the Company. More than one
office may be held by the same person. The Board of Directors or the
Executive Committee of the Board of Directors may also appoint such other
officers and agents as may be necessary or advisable in the conduct of the
business and affairs of the Company.
Section
2. Term of
Office. The stated officers shall hold office for such terms
as the Board of Directors may designate, and if not so designated, until their
respective successors are elected and qualified or their earlier resignation or
removal. Other officers shall hold office for such terms as the Board
of Directors or Executive Committee may determine.
Section
3. Removal
of Officers. Any stated officer may be removed at any time,
either with or without cause, by the Board of Directors, and any other officer
may be removed at any time, either with or without cause, by the Board of
Directors or the Executive Committee.
Section
4. Vacancies. A
vacancy in any stated officer position may be filled by the Board of Directors
and a vacancy in any other officer position may be filled by the Board of
Directors or the Executive Committee.
Section
5. Chief
Executive Officer. The Chief Executive Officer shall have
active and general supervision and management over the business and affairs of
the Company and shall have full power and authority to act for all purposes for
and in the name of the Company in all matters except where action of the Board
is required by law, these By-laws, or resolutions of the Board. In
the case of the Chief Executive Officer being unavailable to perform the duties
of
-7-
office
for periods of short duration, the Chief Executive Officer shall have the
authority to designate who shall act as Chief Executive Officer for such period;
failing such designation, the Chief Operating Officer, if any, shall act as
Chief Executive Officer for such period.
Section
6. Other
Officers. The other officers of the Company shall have such
powers and perform such duties as may from time to time be assigned or required
by the Board of Directors, the Executive Committee, the Chief Executive Officer,
or their superior or as is customary and usual for the position.
Section
7. Compensation. The
compensation of the stated officers of the Company shall be fixed, or the method
for doing so shall be provided for, by the Board of Directors.
ARTICLE
VI - INDEMNIFICATION
Section
1. General. The
Company shall indemnify and hold harmless, to the fullest extent permitted by
the Delaware General Corporation Law as it presently exists or may be hereafter
amended from time to time, any person who was or is made or is threatened to be
made a party or is otherwise involved in any threatened, pending or completed
action, suit, arbitration, alternative dispute resolution mechanism or
proceeding, whether civil, criminal, administrative or investigative
("Proceeding") by reason of the fact that such person, or a person for whom such
person is the legal representative, is or was
|
|
(a)
|
a
director or officer of the Company or its subsidiaries,
or
|
|
|
(b)
|
a
director, officer or employee of the Company and is or was serving at the
request of the Company through designation by the Chief Executive Officer
as a director, officer, employee, agent or fiduciary of another
corporation or of a partnership, joint venture, trust, nonprofit entity or
other enterprise, including service with respect to employee benefit
plans,
|
against
all liability and loss suffered and expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by such person or on such person's behalf in connection with
any such Proceeding. However, except as provided for in Section 4 of
this Article, the Company shall be required to indemnify a person in connection
with a Proceeding (or part thereof) initiated by such person only if the
Proceeding (or part thereof) was or is authorized by the Board of Directors of
the Company.
Section
2. Advancement of
Expenses. The Company shall pay the reasonable expenses
(including attorneys' fees) as and when incurred by a director or officer of the
Company in connection with any Proceeding described in Section 1 of this
Article in advance of its final disposition, provided, however, that such
payment shall be made only upon a receipt of an undertaking by the director or
officer to repay all expenses (including attorneys' fees) advanced if it should
be ultimately determined that the director or officer is not entitled to be
indemnified under this Article or otherwise. Payment of such expenses
(including attorneys' fees) incurred by employees of the Company designated by
the Chief Executive Officer in accordance with
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Section 1
of this Article may be made by the Board of Directors in its discretion upon
such terms and conditions, if any, as it deems appropriate.
Section
3. Rights
Not Exclusive. The rights conferred on any person by this
Article shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Restated Certificate of
Incorporation, these By-laws, agreement, vote of stockholders or disinterested
directors, or otherwise. The indemnification and advancement of
expenses provided for by this Article shall continue as to a person who has
ceased to be a director, officer or employee described in Section 1 and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section
4. Claims. If
a claim by a director, officer or employee described in Section 1 for
indemnification or advancement of expenses under this Article is not paid in
full within thirty days after a written claim therefor has been received by the
Company, the claimant may file suit to recover the unpaid amount of such claim
and, if successful in whole or in part, shall be entitled to be paid in full all
costs and expenses (including attorneys' fees) of prosecuting such
claim. In any such action, the Company shall have the burden of
proving that the claimant was not entitled to the requested indemnification or
advancement of expenses under applicable law and this Article.
Section
5. Limitation on
Indemnification. The Company's obligation to indemnify or
advance expenses under this Article to a person who is or was serving at the
request of the Company (as provided for in Section 1) as a director,
officer, employee, agent or fiduciary of any other corporation, partnership,
joint venture, trust, nonprofit entity, employee benefit plan or other
enterprise shall be secondary and supplemental to any indemnification obligation
of such corporation, partnership, joint venture, trust, nonprofit entity,
employee benefit plan or other enterprise, and any amounts otherwise payable
under this Article shall be reduced by the amount such person is entitled to
pursuant to such other indemnification.
Section
6. Amendment or
Repeal. Any repeal or modification of the foregoing provisions
of this Article shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to or at the time
of such repeal or modification.
ARTICLE
VII - EMERGENCY CONDITIONS
Section
1. Board of
Directors. During any emergency resulting from an attack on
the United States or on a locality in which the Company conducts its business or
customarily holds meetings of its Board of Directors or its stockholders or
during a nuclear or atomic disaster or during the existence of any catastrophe,
or other similar emergency condition (any of the foregoing is hereinafter
referred to as an "Emergency Condition"), as a result of which a quorum of the
Board of Directors cannot readily be convened for action (including by
telephone), then in addition to any director or directors who are able and
available, the elected officers of the Company, as and in the order designated
in advance by the Chief Executive Officer of the Company and approved by the
Board of Directors, who are able and available, shall be deemed
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for all
purposes to be directors to the extent required to constitute a quorum for any
meeting of the Board of Directors during such Emergency Condition,
notwithstanding any limitations or other provisions contained in the Restated
Certificate of Incorporation, these By-laws or resolutions of the Board of
Directors in effect at the time of the Emergency Condition.
Section
2. Chief
Executive Officer. If as a result of any Emergency Condition
or due to his incapacitation, the Chief Executive Officer is unable or
unavailable to act, then until the Chief Executive Officer becomes able and
available to act or a new Chief Executive Officer is elected by the Board of
Directors, the officer of the Company, as and in the order designated in advance
by the Chief Executive Officer of the Company and approved by the Board of
Directors, who is able and available to act shall act as Chief Executive Officer
of the Company.
Section
3. Notice
of Meetings. During an Emergency Condition or during any time
in which the Chief Executive Officer becomes unable or unavailable to act, a
meeting of the Board of Directors may be called by the Chairman of the Board or
the Chair of the Governance Committee. If neither is able and
available, then a meeting of the Board of Directors may be called by any
director, and if none are able and available to do so, by any elected officer of
the Company. Such meeting shall be called by notice of the time and
place given to such of the directors, or officers serving as directors in
accordance with this Article, as it may be feasible to reach at the time and by
such means (including electronic) as may be feasible at the time.
Section
4. Powers
During an Emergency Condition. During an Emergency Condition,
the Board of Directors (including those serving as directors pursuant to
Section 1 above) may take any acts in good faith deemed necessary and in
the best interests of the Company, including, but not limited to, changing the
head office or designating several alternative head offices or regional offices
of the Company, or providing for and from time to time modifying lines of
succession in the event that during any such Emergency Condition any or all
officers or agents of the Company shall for any reason be rendered incapable of
discharging their duties.
Section
5. Liability. No
officer or director shall be liable for any act taken in accordance with this
Article during an Emergency Condition, except for willful
misconduct.
Section
6. Effectiveness of Other
By-laws. To the extent not inconsistent with the provisions of
this Article, the other By-laws of the Company shall remain in effect during any
Emergency Condition.
ARTICLE
VIII - AMENDMENTS
These
By-laws may be amended or repealed, in whole or in part, and new By-laws may be
adopted, either by the affirmative vote of a majority of the votes entitled to
be cast by the holders of the Common Stock and the Class B Common Stock
voting together without regard to class, given at any meeting of stockholders or
by a consent, or by the affirmative vote of two-thirds (calculated to the
nearest whole number) of the total number of directors constituting the Board of
Directors, given at any meeting of directors or by a consent.
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