BY-LAWS
OF
HERSHEY FOODS CORPORATION
INCORPORATED OCTOBER 24, 1927
UNDER THE LAWS OF THE
STATE OF DELAWARE
CORPORATE HEADQUARTERS Amended and Restated by the
100 CRYSTAL A DRIVE Board of Directors as of
HERSHEY, PENNSYLVANIA 17033 October 3, 1995
Prior Amendments:
January 31, 1985
February 13, 1985
April 29, 1991
December 3, 1991
April 24, 1995
June 6, 1995
Table of Contents
Page
Article I - Stockholders .................................... 1
Section 1. Annual Meeting ........................... 1
Section 2. Special Meetings ......................... 1
Section 3. Place of Meetings ........................ 1
Section 4. Notice of Meetings ....................... 1
Section 5. Waiver of Notice ......................... 1
Section 6. Quorum and Required Vote.................. 2
Section 7. Inspectors of Election.................... 2-3
Section 8. Conduct of Meetings....................... 3
Section 9. Notice of Stockholder Business............ 3-4
Article II - Stock .......................................... 4
Section 1. Stock Certificates ....................... 4
Section 2. Transfer Agents and Registrars ........... 4
Section 3. Transfer of Stock ........................ 4-5
Section 4. Lost Certificates ........................ 5
Section 5. Record Date .............................. 5
Section 6. Dividends ................................ 5
Article III - Board of Directors ............................ 5
Section 1. Number and Term of Office................. 5-6
Section 2. Director Nominations...................... 6
Section 3. Organization Meeting ..................... 6-7
Section 4. Stated Meetings .......................... 7
Section 5. Special Meetings ......................... 7
Section 6. Notice of Meetings ....................... 7
Section 7. Participation by Conference Telephone .... 7
Section 8. Quorum and Manner of Acting .............. 7-8
Section 9. Directors' Fees .......................... 8
Section 10. Signature of Negotiable Instruments ...... 8
Section 11. Fiscal Year .............................. 8
Article IV - Executive Committee and Other Committees ....... 8
Section 1. Executive Committee; Constitution ........ 8
Section 2. Executive Committee; Powers .............. 8
Section 3. Executive Committee; Meetings, Quorum
and Manner of Acting................. 8
Section 4. Executive Committee; Records ............. 8
Section 5. Other Committees ......................... 8-9
Table of Contents
Page
Article V - Officers ........................................ 9
Section 1. Officers; Generally ...................... 9
Section 2. Term of Office ........................... 9
Section 3. Removal of Elected Officers .............. 9
Section 4. Vacancies ................................ 9
Section 5. Chairman of the Board of Directors ....... 9
Section 6. President ................................ 9
Section 7. Chief Executive Officer .................. 9-10
Section 8. Chief Operating Officer .................. 10
Section 9. Division Presidents and Vice Presidents... 10
Section 10. Secretary ................................ 10
Section 11. Treasurer ................................ 10
Section 12. Compensation ............................. 10
Article VI - Indemnification ................................ 11
Section 1. General................................... 11
Section 2. Advancement of Expenses................... 11
Section 3. Rights Not Exclusive...................... 11-12
Section 4. Claims.................................... 12
Section 5. Other Indemnification..................... 12
Section 6. Amendment or Repeal....................... 12
Article VII - Emergency Conditions........................... 12
Section 1. Board of Directors........................ 12-13
Section 2. Chief Executive Officer................... 13
Section 3. Notice of Meetings........................ 13
Section 4. Powers During an Emergency Condition...... 13
Section 5. Liability................................. 13
Section 6. Effectiveness of Other By-laws............ 14
Article VIII - Amendments ................................... 14
BY-LAWS
OF
HERSHEY FOODS CORPORATION
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 from time to time. Any other proper business may be
transacted at the annual meeting.
Section 2. Special Meetings. A special meeting of the
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. Place of Meetings. All meetings of the
stockholders shall be held at such places, within or without the
State of Delaware, as may from time to time be fixed by the Board
of Directors, or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
Section 4. Notice of Meetings. Notice of each meeting
of the stockholders, whether annual or special, shall be given
not less than ten nor more than sixty days before the date on
which the meeting is to be held to each stockholder of record
entitled to vote, by delivering a written or printed notice
thereof to him, personally, or by mailing such notice in a
postage prepaid envelope addressed to him at his post office
address registered with the Corporation. No publication of any
notice of a meeting of stockholders shall be required. Every
notice of a special meeting of stockholders, besides stating the
time and place of the meeting, shall state briefly the purpose or
purposes for which the meeting is called.
Section 5. Waiver of Notice. Regardless of any other
provision herein, notice of any meeting of stockholders shall not
be required as to any stockholder who shall attend such meeting
in person or by proxy; and, if any stockholder shall, in person
or by proxy duly authorized, waive notice of any meeting, whether
before or after such meeting, notice thereof shall not be
required as to him.
Section 6. Quorum and Required Vote. At any meeting
of stockholders at which any action is to be taken or questions
decided (including the election of directors), the presence in
person or by proxy of the holders of a majority of the votes
entitled to be cast at the meeting with respect to such action or
question shall constitute a quorum, provided, however, that at
such time as shares of the Class B Common Stock become
outstanding, with respect to the taking of any action or the
deciding of any question 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 holders of a majority of the votes entitled to
be cast by such class voting separately as a class at such
meeting shall constitute a quorum. At every such meeting at
which a quorum is present for the taking of any action or the
deciding of any question, a majority of the votes present or
represented shall be necessary to take such action or decide such
question, with the Common Stock and the Class B Common Stock
voting together without regard to class or separately as a class
or classes as may be prescribed by the provisions of the Restated
Certificate of Incorporation, provided, however, that with
respect to the election of directors pursuant to the provisions
of the Restated Certificate of Incorporation and these By-laws,
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 action or the deciding of any one question shall not prevent
the taking of any other action or the deciding of any other
question for which a quorum is present.
Section 7. Inspectors of Election. The Corporation
shall, in advance of any meeting of stockholders, appoint one or
more inspectors of election to act at the meeting and make a
written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector who
fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the
person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her
ability. The inspector or inspectors so appointed or designated
shall (i) ascertain the number of shares of capital stock of the
Corporation outstanding and the voting power of each such share,
(ii) determine the shares of capital stock of the Corporation
represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v)
certify their determination of the number of shares of capital
stock of the Corporation represented at the meeting and such
inspectors' count of all votes and ballots. Such certification
shall specify such other information as may be required by law.
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In determining the validity and counting of proxies and ballots
cast at any meeting of stockholders of the Corporation, the
inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an
election may serve as an inspector at such election.
Section 8. Conduct of Meetings. The date and time of
the opening and closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at
such meeting by the person presiding over the meeting. The Board
of Directors of the Corporation may adopt by resolution such
rules, regulations or procedures for the conduct of meetings of
stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules, regulations or procedures as
adopted by the Board of Directors, the chair of any meeting of
stockholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in
the judgment of such chair, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the
chair of the meeting, may include, without limitation, the
following: (1) the establishment of an agenda or order of
business for the meeting; (2) rules and procedures for
maintaining order at the meeting and the safety of those present;
(3) limitations on attendance at or participation in the meeting
to the stockholders of record of the Corporation, their duly
authorized and constituted proxies or such other persons as the
chair shall permit; (4) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (5)
limitations on the time allotted to questions or comments by
participants. Unless, and to the extent determined by the Board
of Directors or the chair of the meeting, meetings of
stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
Section 9. Notice of Stockholder Business. At an
annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting.
To be properly brought before an annual meeting, business must be
(a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors,
(b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or 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) otherwise properly
requested to be brought before the meeting by a stockholder. For
business to be properly requested to be brought before an annual
meeting by a stockholder pursuant to (c) above, the stockholder
must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive
offices of the Corporation not less than sixty (60) days prior to
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the meeting; provided, however, that in the event that the date
of the meeting is not publicly announced by the Corporation by
mail, press release or otherwise more than sixty (60) days prior
to the meeting, notice by the stockholder to be timely must be
delivered to the Secretary of the Corporation not later than the
close of business on the fifteenth (15th) day following the day
on which such announcement of the date of the 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 annual meeting: (a) a brief description of the
business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business, (c) the class and
number of shares of the Corporation which are beneficially owned
by the stockholder, and (d) any material interest of the
stockholder in such business. Notwithstanding anything in the
By-laws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth
in this Section 9, Article I of these By-laws. The chair of an
annual meeting, shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this
Section 9 of these By-laws, and if he or she should so determine,
he or she shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
ARTICLE II - STOCK
Section 1. Stock Certificates. Every stockholder
shall be entitled to a certificate signed by or having engraved
thereon a facsimile signature of the Chief Executive Officer and
the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, certifying the number and class of the
Corporation'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 to act as Transfer Agents and Registrars of the
stock of the Corporation; 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.
Section 3. Transfer of Stock. Shares of stock may be
transferred by delivery of the certificates therefor, accompanied
either 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; but no
transfer shall affect the right of the Corporation to pay any
dividend upon the stock to the holder of record thereof, or to
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treat the holder of record as the holder in fact 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 Corporation.
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, a substitute 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 Corporation 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 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
Corporation's capital stock out of the surplus or the net profits
of the Corporation as it may deem expedient and as the condition
of the Corporation shall warrant.
ARTICLE III - BOARD OF DIRECTORS
Section 1. Number and Term of Office. Consistent with
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the provisions of the Restated Certificate of Incorporation, the
Board of Directors shall have the power by resolution to fix the
number of directors and from time to time increase or decrease
the number thereof. The directors shall be elected annually, and
each director shall continue in office until his successor shall
have been elected and qualified, or until his death or until he
shall resign or shall have been removed.
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 as a single class or
the Common Stock voting as a separate class, may be made by (a)
the Board of Directors, (b) a 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 in the election of directors generally.
However, any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election
as directors at a meeting as provided for in (d) above only if
written notice of such stockholder's intent to make such
nomination or nominations has been given, either by personal
delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation not later than (i) with respect to
an election to be held at an annual meeting of stockholders,
sixty (60) days prior to the anniversary date of the immediately
preceding annual meeting, and (ii) with respect to an election to
be held at a special meeting of stockholders for the election of
directors, the close of business on the fifteenth (15th) day
following the date on which notice of such meeting is first given
to stockholders. Each such notice shall set forth: (a) the name
and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of
stock of the Corporation 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; (c) a
description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination
or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder
as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange
Commission; and (e) the consent of each nominee to serve as a
director of the Corporation if so elected. The chair of the
meeting may refuse to acknowledge the nomination of a person not
made in compliance with the foregoing procedure.
Section 3. Organization Meeting. The Board of
Directors shall meet as soon as practicable after the annual
election of directors for the purpose of organization and the
transaction of other business. No notice of such meeting shall
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be required. Such organization meeting may be held at any other
time or place which shall be specified in a notice given as
hereinafter provided for special meetings of the Board or in a
consent and waiver of notice thereof, signed by all the
directors.
Section 4. Stated Meetings. The Board of Directors
may by resolution appoint the time and place for holding stated
meetings of the Board, if deemed advisable; and such stated
meetings shall be held at the time and place so appointed,
without the giving of any special notice. In case the day
appointed for the 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 5. Special Meetings. Special meetings of the
Board of Directors shall be held whenever called by the Chairman
or Vice Chairman of the Board of Directors or by the President 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
telegraph, 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 otherwise provided in these
By-laws or as may be indicated in the notice thereof, any and all
business may be transacted at any special meeting.
Section 6. 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 in writing, whether
before or after such meeting, or if he or she shall be present at
the meeting without objection; 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 thereat.
Section 7. 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 communication 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 8. 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, except as otherwise required by
these By-laws, the act of a majority of the directors present at
any such meeting at which a quorum is present shall be the act of
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the Board of Directors.
Section 9. Directors' Fees. The Board of Directors
shall have authority to determine the amount of compensation
which shall be paid to its members.
Section 10. Signature of Negotiable Instruments. All
bills, notes, checks or other instruments for the payment of
money shall be signed or countersigned in such manner as may be
prescribed by resolution (whether general or special) of the
Board of Directors or the Executive Committee.
Section 11. Fiscal Year. The fiscal year of the
Corporation shall be the calendar year or as the Board of
Directors may prescribe by resolution.
ARTICLE IV - EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 1. Executive Committee; Constitution. The
Board of Directors may, by resolution passed by a majority of the
whole Board, constitute or reconstitute an Executive Committee,
which shall be composed of the Chairman of the Board, the
President and such other members of the Board as the Board may
determine. Any vacancy in the Executive Committee shall be
filled by vote of a majority of the whole Board. The members of
the Executive Committee shall act only as a committee, and the
individual members shall have no power as such.
Section 2. Executive Committee; Powers. The Executive
Committee, to the extent permitted by the Delaware General
Corporation Law and to the extent provided by resolution passed
by a majority of the whole Board of Directors, shall have and may
exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation.
Section 3. Executive Committee; Meetings, Quorum and
Manner of Acting. Stated and special meetings of the Executive
Committee shall be held and notice thereof given in the same
manner provided for meetings of the Board of Directors. The
provisions of these By-laws relating to the determination of a
quorum and the manner of acting at meetings of the Board shall
also apply to the Executive Committee.
Section 4. Executive Committee; Records. The
Executive Committee shall keep a record of its acts and
proceedings and shall report the same from time to time to the
Board of Directors. The Secretary of the Corporation or, in his
absence, an Assistant Secretary, shall act as secretary to the
Executive Committee; or the Committee may, in its discretion,
appoint its own secretary.
Section 5. Other Committees. The Board of Directors
may appoint other committees for any purposes and may delegate to
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any such committee, or to any officer or officers, such powers as
the Board may deem expedient.
ARTICLE V - OFFICERS
Section 1. Officers; Generally. The elected officers
of the Corporation shall be a Chairman of the Board of Directors
and a President (each of whom shall be a director), one or more
Senior Vice Presidents or Executive Vice Presidents or Vice
Presidents, a Secretary, and a Treasurer. The Board of Directors
or the Executive Committee may also appoint such other officers
and agents as may appear to be necessary or advisable in the
conduct of the affairs of the Corporation.
Section 2. Term of Office. So far as practicable, all
elected officers shall be elected at the organization meeting of
the Board of Directors, in each year, and shall hold office until
the organization meeting of the Board in the next subsequent year
and until their respective successors are elected and qualified.
All other officers shall hold office during the pleasure of the
Board, and in the case of officers appointed by the Executive
Committee, such officers shall hold office during its pleasure as
well as that of the Board.
Section 3. Removal of Elected Officers. Any elected
officer may be removed at any time, either with or without cause,
by vote of a majority of the whole Board of Directors, at any
meeting, or by unanimous written consent of the Board as provided
for in Section 11 of Article III of these By-laws.
Section 4. Vacancies. If any vacancy occurs in any
office, the Board of Directors may elect or appoint, or, in the
case of an appointive office, the Executive Committee may
appoint, a successor to fill such vacancy for the remainder of
the term of such office.
Section 5. Chairman of the Board of Directors. The
Chairman of the Board of Directors shall also be the Chairman of
the Executive Committee and shall preside, when present, at all
meetings of the stockholders, of the Board of Directors, and of
the Executive Committee. He 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 or the Executive Committee.
Section 6. President. The President shall have such
powers and perform such duties as may from time to time be
assigned or required by the Board of Directors or the Executive
Committee.
Section 7. Chief Executive Officer. The Chairman or
the President shall be designated by the Board of Directors as
Chief Executive Officer of the Corporation. The Chief Executive
Officer shall have active and general supervision over the
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business and affairs of the Corporation, and in the case of his
temporary absence, he shall have the authority to designate who
shall act as Chief Executive Officer in his place. In the case
of his inability to discharge his powers and duties, the
President shall act as Chief Executive Officer.
Section 8. Chief Operating Officer. The Chief
Operating Officer of the Corporation shall be the President or,
as may be designated by the Board of Directors, the Executive
Committee, or the Chief Executive Officer.
Section 9. Division Presidents, Senior Vice
Presidents, Executive Vice Presidents and Vice Presidents. The
several Division Presidents, Senior Vice Presidents, Executive
Vice Presidents or Vice Presidents 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 immediate superior.
Section 10. Secretary. The Secretary shall attend to
the giving of notice of all meetings of stockholders and of the
Board of Directors and shall keep and attest true records of all
proceedings at such meetings. He shall have charge of the
corporate seal and have authority to attest any and all
instruments or writings to which the same may be affixed. He
shall keep and account for all basic documents, papers and
records of the Corporation. He shall have authority to sign
stock certificates, and shall generally perform all the duties
usually appertaining to the office of the secretary of a
corporation. In the absence of the Secretary, an Assistant
Secretary or Secretary pro tempore shall perform his duties.
Section 11. Treasurer. The Treasurer shall have the
care and custody of all moneys, funds and instruments denominated
with a monetary value, and shall deposit or cause to be deposited
all funds of the Corporation in and with such depositaries as the
Board of Directors or the Executive Committee shall by resolution
(whether general or special) direct. He shall have power to sign
stock certificates; to endorse for deposit or collection, or
otherwise, all checks, drafts, notes, stock certificates, bills
of exchange or other commercial paper payable to or in the name
of the Corporation, and to give proper receipts or discharges
therefor; and shall generally perform all duties usually
appertaining to the office of the treasurer of a corporation. In
the absence of the Treasurer, the Board of Directors or the
Executive Committee shall appoint an Assistant Treasurer to
perform his duties.
Section 12. Compensation. The compensation of all
elected officers of the Corporation shall be fixed by the Board
of Directors; and the compensation of all appointed officers
shall be fixed, or the method of so doing shall be provided for,
by either the Board of Directors or the Executive Committee.
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ARTICLE VI - INDEMNIFICATION
Section 1. General. The Corporation 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 Corporation or its
subsidiaries, or
(b) a director, officer or employee of the Corporation and
is or was serving at the request of the Corporation
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, the Corporation 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 Corporation.
Section 2. Advancement of Expenses. The Corporation
shall pay the reasonable expenses (including attorneys' fees) as
and when incurred by a director or officer of the Corporation in
connection with any Proceeding described in Section 1 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 Corporation 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 VI shall not be exclusive of any
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other rights which such person may have or hereafter acquire
under any statute, provision of the Corporation's 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 VI 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. Notwithstanding any other
provision of this Article VI, if a claim by a director, officer
or employee described in Section 1 for indemnification or
advancement of expenses under this Article VI is not paid in full
within thirty days after a written claim therefor has been
received by the Corporation, 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 Corporation 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 VI.
Section 5. Other Indemnification. The Corporation's
obligation to indemnify or advance expenses hereunder to a person
who is or was serving at the request of the Corporation (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 reduced by any amount such person is entitled
to and actually receives as indemnification or advancement of
expenses from such other corporation, partnership, joint venture,
trust, nonprofit entity, employee benefit plan or other
enterprise.
Section 6. Amendment or Repeal. Any repeal or
modification of the foregoing provisions of this Article VI 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 Corporation 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
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are able and available, the elected officers of the Corporation,
as and in the order designated in advance by the Chief Executive
Officer of the Corporation and approved by the Board of
Directors, who are able and available shall be deemed 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 Corporation, as and in the order designated in
advance by the Chief Executive Officer of the Corporation and
approved by the Board of Directors, who is able and available to
act shall act as Chief Executive Officer of the Corporation.
Section 3. Notice of Meetings. During an Emergency
Condition or during anytime 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 Committee on Directors and Corporate Governance. 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 Corporation.
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 the Board pursuant to Section 1 above) may take
any acts in good faith deemed necessary and in the best interests
of the Corporation, including, but not limited to, changing the
head office or designating several alternative head offices or
regional offices of the Corporation, 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 Corporation 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.
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Section 6. Effectiveness of Other By-laws. To the
extent not inconsistent with the provisions of this Article, the
other By-laws of the Corporation shall remain in effect during
any Emergency Condition and upon its termination, the provisions
of this Article shall cease to be operative.
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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