ELI LILLY AND COMPANY
BY-LAWS
As Amended through
April 15, 1996
INDEX
ARTICLE I
The Shareholders
Page
Section 1.0. Annual Meetings 1
Section 1.1. Special Meetings 1
Section 1.2. Time and Place of Meetings 1
Section 1.3. Notice of Meetings 1
Section 1.4. Quorum 1
Section 1.5. Voting 2
Section 1.6. Voting Lists 2
Section 1.7. Fixing of Record Date 2
Section 1.8. Notice of Shareholder Business 2
Section 1.9. Notice of Shareholder Nominees 3
ARTICLE II
Board of Directors
Section 2.0. General Powers 4
Section 2.1. Number and Qualifications 4
Section 2.2. Classes of Directors and Terms 4
Section 2.3. Election of Directors 4
Section 2.4. Meetings of Directors 5
a. Annual Meetings 5
b. Regular Meetings 5
c. Special Meetings 5
Section 2.6. Resignations 6
Section 2.7. Removal of Directors 6
Section 2.8. Action without a Meeting 6
Section 2.9. Attendance and Failure to Object 6
Section 2.10.Special Standing Committees 6
Section 2.11.Appointment of Auditors 7
Section 2.12.Transactions with Corporation 7
Section 2.13.Compensation of Directors 7
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ARTICLE III
Officers
Page
Section 3.0. Officers, General Authority and Duties 7
Section 3.1. Election, Term of Office, Qualifications 8
Section 3.2. Other Officers, Election or Appointment 8
Section 3.3. Resignation 8
Section 3.4. Removal 8
Section 3.5. Vacancies 9
Section 3.6. Honorary Chairman of the Board of Directors 9
Section 3.7. Chairman of the Board of Directors 9
Section 3.9. Executive Vice Presidents 9
Section 3.10.Group Vice Presidents 9
Section 3.11.Vice Presidents 10
Section 3.12.Secretary 10
Section 3.13.Assistant Secretaries 10
Section 3.14.Chief Financial Officer 10
Section 3.15.Treasurer 11
Section 3.16.Assistant Treasurers 11
Section 3.17.Chief Accounting Officer 11
Section 3.18.General Counsel 12
Section 3.19.Other Officers or Agents 12
Section 3.20.Compensation 12
Section 3.21.Surety Bonds 12
ARTICLE IV
Execution of Instruments and Deposit
of Corporate Funds
Section 4.0. Execution of Instruments Generally 12
Section 4.1. Notes, Checks, Other Instruments 13
Section 4.2. Proxies 13
ARTICLE V
Shares
Section 5.0. Certificates for Shares 13
Section 5.1. Transfer of Shares 14
Section 5.2. Regulations 14
Section 5.3. Transfer Agents and Registrars 14
Section 5.4. Lost or Destroyed Certificates 14
Section 5.5. Redemption of Shares Acquired in
Control Share Acquisitions 15
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ARTICLE VI
Indemnification
Page
Section 6.0. Right to Indemnification 15
Section 6.1. Insurance, Contracts and Funding 16
Section 6.2. Non-Exclusive Rights; Applicability
to Certain Proceedings 16
Section 6.3. Advancement of Expenses 16
Section 6.4. Procedures; Presumptions and Effect
of Certain Proceedings; Remedies 16
Section 6.5. Certain Definitions 18
Section 6.6. Indemnification of Agents 19
Section 6.7. Effect of Amendment or Repeal 19
Section 6.8. Severability 20
ARTICLE VII
Miscellaneous
Section 7.0. Corporate Seal 20
Section 7.1. Fiscal Year 20
Section 7.2. Amendment of By-laws 20
BY-LAWS
of
ELI LILLY AND COMPANY
(An Indiana Corporation)
ARTICLE I
The Shareholders
SECTION 1.0. Annual Meetings. The annual meeting of the
shareholders of the Corporation for the election of directors and
for the transaction of such other business as properly may come
before the meeting shall be held on the third Monday in April in
each year, if not a legal holiday, or, if a legal holiday, then
on the next succeeding day not a legal holiday. Failure to hold
an annual meeting of the shareholders at such designated time
shall not affect otherwise valid corporate acts or work a
forfeiture or dissolution of the Corporation.
SECTION 1.1. Special Meetings. Special meetings of the
shareholders may be called at any time by the Board of Directors,
the Chairman of the Board of Directors, or the President.
SECTION 1.2. Time and Place of Meetings. Each meeting of
the shareholders shall be held at such time of day and place,
either within or without the State of Indiana, as shall be
determined by the Board of Directors. Each adjourned meeting of
the shareholders shall be held at such time and place as may be
provided in the motion for adjournment.
SECTION 1.3. Notice of Meetings. The Secretary shall cause
a written or printed notice of the place, day and hour and the
purpose or purposes of each meeting of the shareholders to be
delivered or mailed at least ten (10) but not more than sixty
(60) days prior to the meeting, to each shareholder of record
entitled to vote at the meeting, at the shareholder's post office
address as the same appears on the records maintained by the
Corporation. Notice of any such shareholders meeting may be
waived by any shareholder by delivering a written waiver to the
Secretary before or after such meeting. Attendance at any
meeting in person or by proxy when the instrument of proxy sets
forth in reasonable detail the purpose or purposes for which the
meeting is called, shall constitute a waiver of notice thereof.
Notice of any adjourned meeting of the shareholders of the
Corporation shall not be required to be given unless otherwise
required by statute.
SECTION 1.4. Quorum. At any meeting of the shareholders a
majority of the outstanding shares entitled to vote on a matter
at such meeting, represented in person or by proxy, shall
constitute a quorum for action on that matter. In the absence of
a quorum, the holders of a majority of the shares entitled to
vote present in person or by proxy, or, if no shareholder
entitled to vote is present in person or by proxy, any officer
entitled to preside at or act as Secretary of such meeting, may
adjourn such meeting from time to time, until a quorum shall be
present. At any such adjourned meeting
at which a quorum may be present any business may be transacted
which might have been transacted at the meeting as originally
called.
SECTION 1.5. Voting. Except as otherwise provided by
statute or by the Articles of Incorporation, at each meeting of
the shareholders each holder of shares entitled to vote shall
have the right to one vote for each share standing in the
shareholder's name on the books of the Corporation on the record
date fixed for the meeting under Section 1.7. Each shareholder
entitled to vote shall be entitled to vote in person or by proxy
executed in writing (which shall include telegraphing, cabling,
or facsimile transmission) by the shareholder or a duly
authorized attorney in fact. The vote of shareholders approving
any matter to which the provisions of Article 9(c) or 9(d) or
Article 13 of the Articles of Incorporation or of a statute are
applicable shall require the percentage of affirmative vote
therein specified. All other matters, except the election of
directors, shall require that the votes cast in favor of the
matter exceed the votes cast opposing the matter at a meeting at
which a quorum is present. In the event that more than one group
of shares is entitled to vote as a separate voting group, the
vote of each group shall be considered and decided separately.
SECTION 1.6. Voting Lists. The Secretary shall make or cause
to be made, after a record date for a meeting of shareholders has
been fixed under Section 1.7 and at least five (5) days before
such meeting, a complete list of the shareholders entitled to
vote at such meeting, arranged in alphabetical order, with the
address of each such shareholder and the number of shares so
entitled to vote held by each which list shall be on file at the
principal office of the Corporation and subject to inspection by
any shareholder entitled to vote at the meeting. Such list shall
be produced and kept open at the time and place of the meeting
and subject to the inspection of any such shareholder during the
holding of such meeting or any adjournment. Except as otherwise
required by law, such list shall be the only evidence as to who
are the shareholders entitled to vote at any meeting of the
shareholders. In the event that more than one group of shares is
entitled to vote as a separate voting group at the meeting, there
shall be a separate listing of the shareholders of each group.
SECTION 1.7. Fixing of Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled
to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the
Board of Directors shall fix in advance a date as the record date
for any such determination of shareholders, not more than seventy
(70) days prior to the date on which the particular action
requiring this determination of shareholders is to be taken.
When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this
section, the determination shall, to the extent permitted by law,
apply to any adjournment thereof.
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SECTION 1.8. Notice of Shareholder Business. At an annual
meeting of the shareholders, 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 (c) otherwise properly
brought before the meeting by a shareholder. For business to be
properly brought before an annual meeting by a shareholder, the
shareholder must have the legal right and authority to make the
proposal for consideration at the meeting and the shareholder
must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a shareholder'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 the meeting; provided, however, that in the event that less
than seventy (70) days' notice or prior public disclosure of the
date of the meeting is given or made to shareholders, notice by
the shareholder to be timely must be so received not later than
the close of business on the tenth (10th) day following the day
on which such notice of the date of the annual meeting was mailed
or such public disclosure was made. A shareholder's notice to
the Secretary shall set forth as to each matter the shareholder
proposes to bring before the annual meeting (a) a brief
description of the business described to be brought before the
annual meeting and the reasons for conducting such business at
the annual meeting, (b) the name and record address of the
shareholder(s) proposing such business, (c) the class and number
of the Corporation's shares which are beneficially owned by such
shareholder(s), and (d) any material interest of such
shareholder(s) in such business. Notwithstanding anything in
these 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 1.8. The Chairman of an annual meeting
shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in
accordance with the provisions of this Section 1.8, and if he
should so determine, he shall so declare to the meeting any such
business not properly brought before the meeting shall not be
transacted. At any special meeting of the shareholders, only
such business shall be conducted as shall have been brought
before the meeting by or at the direction of the Board of
Directors.
SECTION 1.9. Notice of Shareholder Nominees. Only persons
who are nominated in accordance with the procedures set forth in
this Section 1.9 shall be eligible for election as Directors.
Nominations of persons for election to the Board of Directors may
be made at a meeting of shareholders by or at the direction of
the Board of Directors, by any nominating committee or person
appointed by the Board of Directors entitled to vote for the
election of Directors at the meeting who complies with the notice
procedures set forth in this Section 1.9. Such nominations,
other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than
sixty (60) days prior to the meeting; provided, however, that in
the event that less than seventy (70) days' notice or prior
public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholders to be timely must be so
received not later than the close of business on the tenth (10th)
day following the date on
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which such notice of the date of the meeting was made. Such
shareholder's notice shall set forth (a) as to each person whom
the shareholder proposes to nominate for election or re-election
as a director, (i) the name, age, business address and residence
address of such person; (ii) the principal occupation or
employment of such person; (iii) the class and number of the
Corporation's shares which are beneficially owned by such person;
and (iv) to the extent reasonably available to the shareholder,
any other information relating to such person that is required to
be disclosed in solicitations of proxies for election of Directors,
or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including
without limitation such person's written consent to being named
in the proxy statement as a nominee and to serving as a Director
if elected); and (b) as to the shareholder giving the notice (i)
the name and record address of such shareholder and (ii) the
class and number of the Corporation's shares which are
beneficially owned by such shareholder. No person shall be
eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth in this
Section 1.9. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination
was not so declared in accordance with the procedures prescribed
by these By-laws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be
disregarded.
ARTICLE II
Board of Directors
SECTION 2.0. General Powers. The property, affairs and
business of the Corporation shall be managed under the direction
of the Board of Directors.
SECTION 2.1. Number and Qualifications. The number of
directors which shall constitute the whole Board of Directors
shall be sixteen (16), which number may be either increased or
diminished by resolution adopted by not less than a majority of
the directors then in office; provided that the number may not be
diminished below nine (9) and no reduction in number shall have
the effect of shortening the term of any incumbent director. In
the event that the holders of shares of preferred stock become
entitled to elect two directors, the number of directors and the
minimum number of directors shall be increased by two. Neither
ownership of stock of the Corporation nor residence in the State
of Indiana shall be required as a qualification for a director.
SECTION 2.2. Classes of Directors and Terms. The
directors shall be divided into three classes as nearly equal in
number as possible. Except as provided in Article 9 of the
Articles of Incorporation fixing one, two, and three year terms
for the initial classified board, each class of directors shall
be elected for a term of three (3) years. In the event of
vacancy, either by death, resignation, or removal of a director,
or by reason of an increase in the number of directors, each
replacement or new director shall serve for the balance of the
term of the class of the director he or she succeeds or, in the
event of an increase in the number of directors, of
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the class which he or she is assigned. All directors elected
for a term shall continue in office until the election and
qualification of their respective successors, their death, their
resignation in accordance with Section 2.6, their removal in
accordance with Section 2.7, or if there has been a reduction in
the number of directors and no successor is to be elected, until
the end of the term.
SECTION 2.3. Election of Directors. At each annual meeting
of shareholders, the class of directors to be elected at the
meeting shall be chosen by a plurality of the votes cast by the
holders of shares entitled to vote in the election at the
meeting, provided a quorum is present. The election of directors
by the shareholders shall be by written ballot if directed by the
chairman of the meeting or if the number of nominees exceeds the
number of directors to be elected.
Any vacancy on the Board of Directors shall be filled by the
affirmative vote of a majority of the remaining directors.
If the holders of preferred stock are entitled to elect any
directors voting separately as a class, those directors shall be
elected by a plurality of the votes cast by the holders of shares
of preferred stock entitled to vote in the election at the
meeting, provided a quorum of the holders of shares of preferred
stock is present.
SECTION 2.4. Meetings of Directors.
a. Annual Meeting. Unless otherwise provided by resolution
of the Board of Directors, the annual meeting of the Board of
Directors shall be held at the place of and immediately following
the annual meeting of shareholders, for the purpose of
organization, the election of officers and the transaction of
such other business as properly may come before the meeting. No
notice of the meeting need be given, except in the case an
amendment to the By-laws is to be considered.
b. Regular Meetings. The Board of Directors by resolution
may provide for the holding of regular meetings and may fix the
times and places (within or outside the State of Indiana) at
which those meetings shall be held. Notice of regular meetings
need not be given except when an amendment to the By-laws is to
be considered. Whenever the time or place of regular meetings
shall be fixed or changed, notice of this action shall be mailed
promptly to each director not present when the action was taken,
addressed to the director at his or her residence or usual place
of business.
c. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the
President and shall be called by the Secretary at the request of
any three (3) directors. Except as otherwise required by
statute, notice of each special meeting shall be mailed to each
director at his or her residence or usual place of business at
least three (3) days before the day on which the meeting is to be
held, or shall be sent to the director at such place by telegram,
facsimile transmission, or cable, or telephoned or personally
delivered, not later than the day before the day on which the
meeting is to be held. The notice shall state the time and place
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(which may be within or outside the State of Indiana) of the
meeting but, unless otherwise required by statute, the Articles
of Incorporation or the By-laws, need not state the purposes
thereof.
Notice of any meeting need not be given to any director,
however, who shall attend the meeting, or who shall waive notice
thereof, before, at the time of, or after the meeting, in a
writing signed by the director and delivered to the Corporation.
No notice need be given of any meeting at which every member of
the Board of Directors shall be present.
SECTION 2.5. Quorum and Manner of Acting. A majority of the
actual number of directors established pursuant to Section 2.1,
from time to time, shall be necessary to constitute a quorum for
the transaction of any business except the filling of vacancies
on the Board of Directors under Section 2.3 or voting on a
conflict of interest transaction under Section 2.12. The act of
a majority of the directors present at a meeting at which a
quorum is present, shall be the act of the Board of Directors,
unless the act of a greater number is required by statute, by the
Articles of Incorporation, or by the By-laws. Under the
provisions of Article 13 of the Articles of Incorporation,
certain actions by the Board of Directors therein specified
require not only approval by the Board of Directors, but also
approval by a majority of the Continuing Directors, as therein
defined. Any or all directors may participate in a meeting of
the Board of Directors by means of a conference telephone or
similar communications equipment by which all persons
participating in the meeting may simultaneously hear each other,
and participation in this manner shall constitute presence in
person at the meeting. In the absence of a quorum, a majority of
the directors present may adjourn the meeting from time to time
until a quorum shall be present. No notice of any adjourned
meeting need be given.
SECTION 2.6. Resignations. Any director may resign at any
time by giving written notice of resignation to the Board of
Directors, the Chairman of the Board, the President, or the
Secretary. Unless otherwise specified in the written notice, the
resignation shall take effect upon receipt thereof.
SECTION 2.7. Removal of Directors. Any director, other
than a director elected by holders of preferred stock voting as a
class, may be removed from office at any time but only for cause
and only upon the affirmative vote of at least 80% of the votes
entitled to be cast by holders of all of the outstanding shares
of Voting Stock (as defined in Article 13 of the Articles of
Incorporation), voting together as a single class.
SECTION 2.8. Action without a Meeting. Any action required
or permitted to be taken at any meeting of the Board of Directors
or of any committee thereof may be taken without a meeting, if
taken by all members of the Board of Directors or such committee,
as the case may be, evidenced by a written consent signed by all
such members and effective on the date, either prior or
subsequent to the date of the consent, specified in the written
consent, or if no effective date is specified in the written
consent, the date on which the
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consent is filed with the minutes of proceedings of the Board of
Directors or committee.
SECTION 2.9. Attendance and Failure to Object. A director,
who is present at a meeting of the Board of Directors, at which
action on any corporate matter is taken, shall be presumed to
have assented to the action taken, unless (a) the director's
dissent shall be entered in the minutes of the meeting, (b) the
director shall file a written dissent to such action with the
Secretary of the meeting before adjournment thereof, or (c) the
director shall forward such dissent by registered mail to the
Secretary immediately after adjournment of the meeting. The
right of dissent provided for by the preceding sentence shall not
be available, in respect of any matter acted upon at any meeting,
to a director who voted in favor of such action.
SECTION 2.10. Special Standing Committees. The Board of
Directors, by resolution adopted by a majority of the actual
number of directors elected and qualified, may designate from
among its members one or more committees. Such committees shall
have those powers of the Board of Directors which may by law be
delegated to such committees and are specified by resolution of
the Board of Directors.
SECTION 2.11. Appointment of Auditors. The Board of
Directors, prior to each annual meeting of shareholders, shall
appoint a firm of independent public accountants as auditors of
the Corporation. Such appointment shall be submitted to the
shareholders for ratification at the annual meeting next
following such appointment. Should the holders of a majority of
the outstanding shares entitled to vote fail to ratify the
appointment of any firm as auditors of the Corporation, or should
the Board of Directors for any reason determine that any such
appointment be terminated, the Board of Directors shall appoint
another firm of independent public accountants to act as auditors
of the Corporation and such appointment shall be submitted to the
shareholders for ratification at the annual or special
shareholders meeting next following such appointment.
SECTION 2.12. Transactions with Corporation. No
transactions with the Corporation in which one or more of its
directors has a direct or indirect interest shall be either void
or voidable solely because of such interest if any one of the
following is true:
(a) the material facts of the transaction and the
director's interest are disclosed or known to the Board of
Directors or committee which authorizes, approves, or ratifies
the transaction by the affirmative vote or consent of a majority
of the directors (or committee members) who have no direct or
indirect interest in the transaction and, in any event, of at
least two directors (or committee members);
(b) the material facts of the transaction and the
director's interest are disclosed or known to the shareholders
entitled to vote and they authorize, approve or ratify such
transaction by vote; or
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(c) the transaction is fair to the Corporation.
If a majority of the directors or committee members who have
no direct or indirect interest in the transaction vote to
authorize, approve, or ratify the transaction, a quorum is
present for purposes of taking action under subsection (a) of
this section. The presence of, or a vote cast by, a director
with a direct or indirect interest in the transaction does not
affect the validity of any actions taken under subsection (a) of
this section.
SECTION 2.13. Compensation of Directors. The Board of
Directors is empowered and authorized to fix and determine the
compensation of directors and additional compensation for such
additional services any of such directors may perform for the
Corporation.
ARTICLE III
Officers
SECTION 3.0. Officers, General Authority and Duties. The
officers of the Corporation shall be a Chairman of the Board, a
President, two (2) or more Vice Presidents, a Secretary, a Chief
Financial Officer, a Treasurer, a Chief Accounting Officer, and
such other officers as may be elected or appointed in accordance
with the provisions of Section 3.2. One or more of the Vice
Presidents may be designated by the Board to serve as Executive
Vice Presidents or Group Vice Presidents. Any two (2) or more
offices may be held by the same person. All officers and agents
of the Corporation, as between themselves and the Corporation,
shall have such authority and perform such duties in the
management of the Corporation as may be provided in the By-laws
or as may be determined by resolution of the Board of Directors
not inconsistent with the By-laws.
SECTION 3.1. Election, Term of Office, Qualifications. Each
officer (except such officers as may be appointed in accordance
with the provisions of Section 3.2. of this Article III) shall be
elected by the Board of Directors at each annual meeting. Each
such officer (whether elected at an annual meeting of the Board
of Directors or to fill a vacancy or otherwise) shall hold office
until the officer's successor is chosen and qualified, or until
death, or until the officer shall resign in the manner provided
in Section 3.3. or be removed in the manner provided in Section
3.4. The Chairman of the Board and the President shall be chosen
from among the directors. Any other officer may but need not be
a director of the Corporation. Election or appointment of an
officer or agent shall not of itself create contract rights.
SECTION 3.2. Other Officers, Election or Appointment. The
Board of Directors from time to time may elect such other
officers or agents (including one or more Assistant Vice
Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, a Controller, and one or more Assistant
Controllers) as it may deem necessary or advisable. The Board of
Directors may delegate to any officer the power to appoint any
such officers or agents and to prescribe their respective terms
of office, powers and duties.
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SECTION 3.3. Resignation. Any officer may resign at any
time by giving written notice of such resignation to the Board of
Directors, the Chairman of the Board, the President or the
Secretary of the Corporation. Unless otherwise specified in such
written notice, such resignation shall take effect upon receipt
thereof and unless otherwise specified in it, the acceptance of
the resignation shall not be necessary to make it effective.
SECTION 3.4. Removal. The officers specifically designated
in Section 3.0. may be removed, either for or without cause, at
any meeting of the Board of Directors called for the purpose, by
the vote of a majority of the actual number of directors elected
and qualified. The officers and agents elected or appointed in
accordance with the provisions of Section 3.2. may be removed,
either for or without cause, at any meeting of the Board of
Directors at which a quorum be present, by the vote of a majority
of the directors present at such meeting, by any superior officer
upon whom such power of removal shall have been conferred by the
Board of Directors, or by any officer to whom the power to
appoint such officer has been delegated by the Board of Directors
pursuant to Section 3.2. Any removal shall be without prejudice
to the contract rights, if any, of the person so removed.
SECTION 3.5. Vacancies. A vacancy in any office by reason
of death, resignation, removal, disqualification or any other
cause, may be filled by the Board of Directors or by an officer
authorized under Section 3.2. to appoint to such office.
SECTION 3.6. Honorary Chairman of the Board of Directors.
The Board of Directors may elect or appoint an Honorary Chairman
of the Board of Directors, who shall be vested with and shall
perform all such powers and duties as may be prescribed by the
Board.
SECTION 3.7. Chairman of the Board of Directors. The
Chairman of the Board shall be the chief executive officer of the
Corporation and, subject to the control of the Board of
Directors, shall have general supervision over the management and
direction of the business of the Corporation. He or she shall
see that all orders and resolutions of the Board of Directors are
carried into effect. The Chairman of the Board shall preside at
all meetings of the shareholders and of the Board of Directors if
present and shall have such powers and perform such duties as are
assigned to him by the By-laws and by the Board of Directors. He
or she shall, in the absence or incapacity of the President,
perform all the duties and the functions and exercise the powers
of the President. The Chairman shall be chosen by the Board of
Directors at each annual meeting from among the directors and
shall serve until a successor is chosen and qualified, or until
resignation or death.
SECTION 3.8. President. The President shall have such
powers and perform such duties as are assigned to him by the By-
laws, the Chairman of the Board, or the Board of Directors. The
President shall, in the absence or
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incapacity of the Chairman of the Board, perform all the duties
and functions and exercise the powers of the Chairman of the Board.
SECTION 3.9. Executive Vice Presidents. Each Executive Vice
President shall have such powers and perform such duties as may
be assigned to him or her by the Chairman of the Board, the
President or the Board of Directors. In the case of the death or
incapacity of the Chairman of the Board and the President, the
Executive Vice Presidents, if one or more be designated, shall,
in the order of their seniority in office as Executive Vice
Presidents, perform the duties and exercise the powers of the
President.
SECTION 3.10. Group Vice Presidents. Each Group Vice
President shall perform such duties and have such powers as may
be assigned to him or her by the Chairman of the Board, the
President or the Board of Directors. In the case of the death or
incapacity of the Chairman of the Board, the President and the
Executive Vice Presidents, the Group Vice Presidents shall, in
the order of their seniority in office as Group Vice Presidents,
perform the duties and exercise the powers of the President
unless otherwise ordered by the Board of Directors.
SECTION 3.11. Vice Presidents. Each Vice President shall
perform such duties and have such powers as may be assigned to
him or her by the Chairman of the Board, the President or the
Board of Directors.
SECTION 3.12. Secretary. The Secretary shall:
(a) record all the proceedings of the meetings of the
shareholders and Board of Directors in books to be kept for such
purposes;
(b) cause all notices to be duly given in accordance with
the provisions of these By-laws and as required by statute;
(c) be custodian of the Seal of the Corporation, and cause
such Seal to be affixed to all certificates representing shares
of the Corporation prior to the issuance thereof (subject,
however, to the provisions of Section 5.0) and to all instruments
the execution of which on behalf of the Corporation under its
Seal shall have been duly authorized in accordance with these By-
laws;
(d) subject to the provisions of Section 5.0, sign
certificates representing shares of the Corporation the issuance
of which shall have been authorized by the Board of Directors;
and
(e) in general, perform all duties incident to the office
of Secretary and such other duties as are given to the Secretary
by these By-laws or as may be assigned to him or her by the
Chairman of the Board, the President or the Board of Directors.
SECTION 3.13. Assistant Secretaries. Each Assistant
Secretary shall assist the Secretary in his or her duties, and
shall perform such other duties
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as the Board of Directors may from time to time prescribe or the
Chairman of the Board or the President may from time to time
delegate. At the request of the Secretary, any Assistant
Secretary may temporarily act in the Secretary's place in the
performing of part or all of the duties of the Secretary. In the
case of the death of the Secretary, or in the case of the
Secretary's absence or inability to act without having designated
an Assistant Secretary to act temporarily in his or her place, the
Assistant Secretary who is to perform the duties of the Secretary
shall be designated by the Chairman of the Board, the President or
the Board of Directors.
SECTION 3.14. Chief Financial Officer. The Chief Financial
Officer shall:
(a) have supervision over and be responsible for the funds,
securities, receipts, and disbursements of the Corporation;
(b) cause to be kept at the principal business office of
the Corporation and preserved for review as required by law or
regulation records of financial transactions and correct books of
account using appropriate accounting principles;
(c) be responsible for the establishment of adequate
internal control over the transactions and books of account of
the Corporation;
(d) be responsible for rendering to the proper officers and
the Board of Directors upon request, and to the shareholders and
other parties as required by law or regulation, financial
statements of the Corporation; and
(e) in general perform all duties incident to the office
and such other duties as are given by the By-laws or as may be
assigned by the Chairman of the Board, the President or the Board
of Directors.
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SECTION 3.15. Treasurer. The Treasurer shall:
(a) have charge of the funds, securities, receipts and
disbursements of the Corporation;
(b) cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers
or other depositories as shall be selected in accordance with
resolutions adopted by the Board of Directors;
(c) cause the funds of the Corporation to be disbursed from
the authorized depositories of the Corporation, and cause to be
taken and preserved proper records of all moneys disbursed; and
(d) in general, perform all duties incident to the office
of Treasurer and such other duties as are given to the Treasurer
by the By-laws or as may be assigned to him or her by the
Chairman of the Board, the President, the Chief Financial
Officer, or the Board of Directors.
SECTION 3.16. Assistant Treasurers. Each Assistant Treasurer
shall assist the Treasurer in his or her duties, and shall
perform such other duties as the Board of Directors may from time
to time prescribe or the Chairman of the Board, the President or
the Chief Financial Officer may from time to time delegate. At
the request of the Treasurer, any Assistant Treasurer may
temporarily act in the Treasurer's place in performing part or
all of the duties of the Treasurer. In the case of the death of
the Treasurer, or in the case of the Treasurer's absence or
inability to act without having designated an Assistant Treasurer
to act in his or her place, the Assistant Treasurer who is to
perform the duties of the Treasurer shall be designated by the
Chairman of the Board, the President or the Board of Directors.
SECTION 3.17. Chief Accounting Officer. The Chief
Accounting Officer shall:
(a) keep full and accurate accounts of all assets,
liabilities, commitments, revenues, costs and expenses, and other
financial transactions of the Corporation in books belonging to
the Corporation, and conform them to sound accounting principles
with adequate internal control;
(b) cause regular audits of these books and records to be
made;
(c) see that all expenditures are made in accordance with
procedures duly established, from time to time, by the
Corporation;
(d) render financial statements upon the request of the
Board of Directors, and a full financial report prior to the
annual meeting of shareholders, as well as such other financial
statements as are required by law or regulation; and
(e) in general, perform all the duties ordinarily connected
with the office of Chief Accounting Officer and such other duties
as may be assigned to
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him or her by the Chairman of the Board, the President, the Chief
Financial Officer, or the Board of Directors.
SECTION 3.18. General Counsel. The Board of Directors may
appoint a general counsel who shall have general control of all
matters of legal import concerning the Corporation.
SECTION 3.19. Other Officers or Agents. Any other officers
or agents elected or appointed pursuant to Section 3.2 shall have
such duties and responsibilities as may be fixed from time to
time by the By-laws or as may be assigned to them by the Chairman
of the Board, the President or the Board of Directors.
SECTION 3.20. Compensation. The compensation of executive
officers of the Corporation shall be fixed from time to time by
the Compensation Committee established pursuant to Section 2.10.
Unless the Board of Directors by resolution shall direct
otherwise, the Salary Committee shall have the power to fix the
compensation of employees who are not executive officers of the
Corporation. No employee shall be prevented from receiving such
compensation by reason of being a director of the Corporation.
SECTION 3.21. Surety Bonds. In case the Board of Directors
shall so require, any officer or agent of the Corporation shall
execute to the Corporation a bond in such sum and with such
surety or sureties as the Board of Directors may direct,
conditioned upon the faithful performance of his or her duties to
the Corporation, including responsibility for negligence and for
the accounting of all property, funds or securities of the
Corporation which the officer or agent may handle.
ARTICLE IV
Execution of Instruments and Deposit of Corporate Funds
SECTION 4.0. Execution of Instruments Generally. All deeds,
contracts, and other instruments requiring execution by the
Corporation may be signed by the Chairman of the Board, the
President or any Vice President. Authority to sign any deed,
contract, or other instrument requiring execution by the
Corporation may be conferred by the Board of Directors upon any
person or persons whether or not such person or persons be
officers of the Corporation. Such person or persons may delegate,
from time to time, by instrument in writing, all or any part of
such authority to any other person or persons if authorized so to
do by the Board of Directors.
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SECTION 4.1. Notes, Checks, Other Instruments. All notes,
drafts, acceptances, checks, endorsements, and all evidences of
indebtedness of the Corporation whatsoever, shall be signed by
such officer or officers or such agent or agents of the
Corporation and in such manner as the Board of Directors from
time to time may determine. Endorsements for deposit to the
credit of the Corporation in any of its duly authorized
depositories shall be made in such manner as the Board of
Directors from time to time may determine.
SECTION 4.2. Proxies. Proxies to vote with respect to shares
of other corporations owned by or standing in the name of the
Corporation may be executed and delivered from time to time on
behalf of the Corporation by the Chairman of the Board, the
President or a Vice President or by any other person or persons
thereunto authorized by the Board of Directors.
ARTICLE V
Shares
SECTION 5.0. Certificates for Shares. Every holder of
shares in the Corporation shall be entitled to have a certificate
evidencing the shares owned by the shareholder, signed in the
name of the Corporation by the Chairman of the Board, the
President or a Vice President and the Secretary or an Assistant
Secretary, certifying the number of shares owned by the
shareholder in the Corporation. The signatures of the Chairman
of the Board, the President, Vice President, Secretary, and
Assistant Secretary, the signature of the transfer agent and
registrar, and the Seal of the Corporation may be facsimiles. In
case any officer or employee who shall have signed, or whose
facsimile signature or signatures shall have been used on, any
certificate shall cease to be an officer or employee of the
Corporation before the certificate shall have been issued and
delivered by the Corporation, the certificate may nevertheless be
adopted by the Corporation and be issued and delivered as though
the person or persons who signed the certificate or whose
facsimile signature or signatures shall have been used thereon
had not ceased to be such officer or employee of the Corporation;
and the issuance and delivery by the Corporation of any such
certificate shall constitute an adoption thereof. Every
certificate shall state on its face the name of the Corporation
and that it is organized under the laws of the State of Indiana,
the name of the person to whom it is issued, and the number and
class of shares and the designation of the series, if any, the
certificate represents, and shall state conspicuously on its
front or back that the Corporation will furnish the shareholder,
upon written request and without charge, a summary of the
designations, relative rights, preferences and limitations
applicable to each class and the variations in rights,
preferences and limitations determined for each series (and the
authority of the Board of Directors to determine variations for
future series). Every certificate shall state whether such
shares have been fully paid and are non-assessable. If any such
shares are not fully paid, the certificate shall be legibly
stamped to indicate the percentum which has been paid up, and as
further payments are made thereon, the certificate shall be
stamped accordingly. Subject to the foregoing provisions,
certificates representing shares in the Corporation shall be in
such form as shall be approved by the Board of Directors. There
shall be entered upon the stock books of the Corporation at the
time of the
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issuance or transfer of each share the number of the
certificates representing such share, the name of the person
owning the shares represented thereby, the class of such share
and the date of the issuance or transfer thereof.
SECTION 5.1. Transfer of Shares. Transfer of shares of the
Corporation shall be made on the books of the Corporation by the
holder of record thereof, or by the shareholder's attorney
thereunto duly authorized in writing and filed with the Secretary
of the Corporation or any of its transfer agents, and on
surrender of the certificate or certificates representing such
shares. The Corporation and its transfer agents and registrars,
shall be entitled to treat the holder of record of any share or
shares the absolute owner thereof for all purposes, and
accordingly shall not be bound to recognize any legal, equitable
or other claim to or interest in such share or shares on the part
of any other person whether or not it or they shall have express
or other notice thereof, except as otherwise expressly provided
by the statutes of the State of Indiana. Shareholders shall
notify the Corporation in writing of any changes in their
addresses from time to time.
SECTION 5.2. Regulations. Subject to the provisions of this
Article V the Board of Directors may make such rules and
regulations as it may deem expedient concerning the issuance,
transfer and regulation of certificates for shares of the
Corporation.
SECTION 5.3. Transfer Agents and Registrars. The Board of
Directors may appoint one or more transfer agents, one or more
registrars, and one or more agents to act in the dual capacity of
transfer agent and registrar with respect to the certificates
representing shares of the Corporation.
SECTION 5.4. Lost or Destroyed Certificates. The holders of
any shares of the Corporation shall immediately notify the
Corporation or one of its transfer agents and registrars of any
loss or destruction of the certificate representing the same.
The Corporation may issue a new certificate in the place of any
certificate theretofore issued by it alleged to have been lost or
destroyed upon such terms and under such regulations as may be
adopted by the Board of Directors, and the Board of Directors may
require the owner of the lost or destroyed certificate or the
owner's legal representatives to give the Corporation a bond in
such form and for such amount as the Board of Directors may
direct, and with such surety or sureties as may be satisfactory
to the Board of Directors to indemnify the Corporation and its
transfer agents and registrars against any claim that may be made
against it or any such transfer agent or registrar on account of
the alleged loss or destruction of any such certificate or the
issuance of such new certificate. A new certificate may be issued
without requiring any bond when, in the judgment of the Board of
Directors, it is proper so to do.
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SECTION 5.5. Redemption of Shares Acquired in Control
Acquisitions. Any or all control shares acquired in a control
share acquisition shall be subject to redemption by the
Corporation, if either:
(a) No acquiring person statement has been filed with the
Corporation with respect to the control share acquisition; or
(b) The control shares are not accorded full voting rights
by the Corporation's shareholders as provided in IC 23-1-42-9.
A redemption pursuant to Section 5.5(a) may be made at any
time during the period ending sixty (60) days after the date of
the last acquisition of control shares by the acquiring person.
A redemption pursuant to Section 5.5(b) may be made at any time
during the period ending two (2) years after the date of the
shareholder vote with respect to the voting rights of the control
shares in question. Any redemption pursuant to this Section 5.5
shall be made at the fair value of the control shares and
pursuant to such procedures for the redemption as may be set
forth in these By-laws or adopted by resolution of the Board of
Directors.
As used in this Section 5.5, the terms "control shares,"
"control share acquisition," "acquiring person statement" and
"acquiring person" shall have the meanings ascribed to them in IC
23-1-42.
ARTICLE VI
Indemnification
SECTION 6.0. Right to Indemnification. The Corporation
shall, to the fullest extent permitted by applicable law now or
hereafter in effect, indemnify any person who is or was a
director, officer or employee of the Corporation ("Eligible
Person") and who is or was involved in any manner (including,
without limitation, as a party or a witness) or is threatened to
be made so involved in any threatened, pending or completed
investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without
limitation, any action, suit or proceeding by or in the right of
the Corporation to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that such Eligible Person
is or was a director, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a
director, officer, partner, member, manager, trustee, employee,
fiduciary or agent of another corporation, partnership, joint
venture, limited liability company, trust or other enterprise
(including, without limitation, any employee benefit plan) (a
"Covered Entity"), against all expenses (including attorneys'
fees), judgments, fines or penalties against (including excise
taxes assessed with respect to an employee benefit plan) and
amounts paid in settlement actually and reasonably incurred by
such Eligible Person in connection with such Proceeding;
provided, however, that the foregoing shall not apply to a
Proceeding commenced by a current or former director, officer or
employee of the Corporation except for such a Proceeding
commenced following a Change in Control (as hereafter defined)
with respect to actions or failure to act prior to such Change in
Control. Any right of an Eligible Person to indemnification
shall be a contract right and shall include the right to receive,
prior to the conclusion
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of any Proceeding, advancement of any expenses incurred by the
Eligible Person in connection with such Proceeding in accordance
with Section 6.3.
SECTION 6.1. Insurance, Contracts and Funding. The
Corporation may purchase and maintain insurance to protect itself
and any Eligible Person against any expense, judgments, fines and
amounts paid in settlement as specified in Section 6.0 of this
Article or incurred by any Eligible Person in connection with any
Proceeding referred to in such section, to the fullest extent
permitted by applicable law now or hereafter in effect. The
Corporation may enter into agreements with any director, officer,
employee or agent of the Corporation or any director, officer,
employee, fiduciary or agent of any Covered Entity supplemental
to or in furtherance of the provisions of this Article and may
create a trust fund or use other means (including, without
limitation, a letter of credit) to ensure the payment of such
amounts as may be necessary to effect indemnification and
advancement of expenses as provided in this Article.
SECTION 6.2. Non-Exclusive Rights; Applicability to Certain
Proceedings. The rights provided in this Article shall not be
exclusive of any other rights to which any Eligible Person may
otherwise be entitled, and the provisions of this Article shall
inure to the benefit of the heirs and legal representatives of
any Eligible Person and shall be applicable to Proceedings
commenced or continuing after the adoption of this Article,
whether arising from acts or omissions occurring before or after
such adoption.
SECTION 6.3. Advancement of Expenses. All reasonable
expenses incurred by or on behalf of an Eligible Person in
connection with any Proceeding shall be advanced to the Eligible
Person by the Corporation within sixty (60) days after the
receipt by the Corporation of a statement or statements from the
Eligible Person requesting such advance or advances from time to
time, whether prior to or after final disposition of such
Proceeding unless a determination has been made pursuant to
Section 6.4 that such Eligible Person is not entitled to
indemnification. Any such statement or statements shall
reasonably evidence the expenses incurred by the Eligible Person
and shall include any written affirmation or undertaking to repay
advances if it is ultimately determined that the Eligible Person
is not entitled to indemnification under this Article.
SECTION 6.4. Procedures; Presumptions and Effect of Certain
Proceedings; Remedies. In furtherance, but not in limitation, of
the foregoing provisions, the following procedures, presumptions
and remedies shall apply with respect to and the right to
indemnification and advancement of expenses under this Article.
(a) To obtain indemnification under this Article, an
Eligible Person shall submit to the Secretary of the Corporation
a written request, including such documentation and information
as is reasonably available to the Eligible Person and reasonably
necessary to determine whether and to what extent the Eligible
Person is entitled to indemnification (the ``upporting
Documentation'). The determination of the Eligible Person's
entitlement to
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indemnification shall be made not later than sixty
(60) days after receipt by the Corporation of the written request
together with the Supporting Documentation. The Secretary of the
Corporation shall, promptly upon receipt of such request, advise
the Board in writing of the Eligible Person's request.
(b) An Eligible Person's entitlement to indemnification
under this Article shall be determined in one of the following
methods, such method to be selected by the Board of Directors,
regardless of whether there are any Disinterested Directors (as
hereinafter defined): (i) by a majority vote of the Disinterested
Directors, if they constitute a quorum of the Board; (ii) by a
written opinion of Special Counsel (as hereinafter defined) if
(A) a Change in Control shall have occurred and the Eligible
Person so requests or (B) a quorum of the Board consisting of
Disinterested Directors is not obtainable or, even if obtainable,
a majority of such Disinterested Directors so directs; (iii) by
the shareholders of the Corporation (but only if a majority of
the Disinterested Directors, if they constitute a quorum of the
Board, presents the issue of entitlement to the shareholders for
their determination); or (iv) as provided in subsection (d).
(c) In the event of the determination of entitlement is to
be made by Special Counsel, a majority of the Disinterested
Directors shall select the Special Counsel, but only Special
Counsel to which the Eligible Person does not reasonably object;
provided, however, that if a Change in Control shall have
occurred, the Eligible Person shall select such Special Counsel,
but only Special Counsel to which a majority of the Disinterested
Directors does not reasonably object.
(d) Except as otherwise expressly provided in this Article,
if a Change in Control shall have occurred, the Eligible Person
shall be presumed to be entitled to indemnification (with respect
to actions or failures to act occurring prior to such Change in
Control) upon submission of a request for indemnification
together with the Supporting Documentation in accordance with
subsection (a), and thereafter the Corporation shall have the
burden of proof to overcome that presumption in reaching a
contrary determination. In any event, if the person or persons
empowered under subsection (c) to determine entitlement shall not
have been appointed or shall not have made a determination within
sixty (60) days after receipt by the Corporation of the request
therefor together with the Supporting Documentation, the Eligible
Person shall be deemed to be, and shall be, entitled to
indemnification and advancement of expenses unless (i) the
Eligible Person misrepresented or failed to disclose a material
fact in making the request for indemnification or in the
Supporting Documentation or (ii) such indemnification is
prohibited by law. The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, adversely affect the right of an Eligible
Person to indemnification or create a presumption that the
Eligible Person did not act in good faith and in a manner which
the Eligible Person reasonably believed to be in or not opposed
to the best interests of the Corporation and, with respect to any
criminal proceeding, that the Eligible Person had reasonable
cause to believe that his or her conduct was unlawful.
(e) In the event that a determination is made that the
Eligible Person is not entitled to indemnification (i) the
Eligible Person shall be entitled to
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seek an adjudication of his or her entitlement to such
indemnification either, at the Eligible Person's sole option,
in (A) an appropriate court of the state of Indiana or any other
court of competent jurisdiction or (B) an arbitration to be
conducted in Indianapolis, Indiana, by a single arbitrator
pursuant to the rules of the American Arbitration Association;
(ii) in any such judicial proceeding or arbitration the Eligible
Person shall not be prejudiced by reason of the prior determination
pursuant to this Section 6.4; and (iii) if a Change in Control
shall have occurred, in any such judicial proceeding or arbitration
the Corporation shall have the burden of proving that the Eligible
Person is not entitled to indemnification but only with respect to
actions or failures to act occurring prior to such Change in
Control.
(f) If a determination shall have been made or deemed to
have been made that the Eligible Person is entitled to
indemnification, the Corporation shall be obligated to pay the
amounts incurred by the Eligible Person within ten (10) days
after such determination has been made or deemed to have been
made and shall be conclusively bound by such determination unless
(i) the Eligible Person misrepresented or failed to disclose a
material fact in making the request for indemnification or in the
Supporting Documentation or (ii) such indemnification is
prohibited by law. In the event that (A) any advancement of
expenses is not timely made pursuant to Section 6.3 or (B)
payment of indemnification is not made within ten (10) days after
a determination of entitlement to indemnification has been made,
the Eligible Person shall be entitled to seek judicial
enforcement of the Corporation's obligation, to pay to the
Eligible Person such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Corporation may bring an
action, in an appropriate court in the State of Indiana or any
other court of competent jurisdiction, contesting the right of
the Eligible Person to receive indemnification hereunder due to
the occurrence of an event described in clause (i) or (ii) of
this subsection (f) (a "Disqualifying Event"); provided,
however, that in any such action the Corporation shall have the
burden of proving the occurrence of such Disqualifying Event.
(g) The Corporation shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this
Section 6.4 that the procedures and presumptions of this Article
are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Corporation is
bound by the provisions of this Article.
(h) In the event that the Eligible Person seeks a judicial
adjudication of or an award in arbitration to enforce his or her
rights under, or to recover damages for breach of this Article,
the Eligible Person shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation,
against, any expenses actually and reasonably incurred by the
Eligible Person if the Eligible Person prevails in such judicial
adjudication or arbitration. If it shall be determined in such
judicial adjudication or arbitration that the Eligible Person is
entitled to receive part but not all of the indemnification or
advancement of expenses sought, the expenses incurred by the
Eligible Person in connection with such judicial adjudication or
arbitration shall be prorated accordingly.
SECTION 6.5. Certain Definitions. For purposes of this
Article:
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(a) "Change in Control" means any of the following
events: (i) the acquisition by any "Person," as that term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), other than (A) the
Corporation, (B) any subsidiary of the Corporation, (C) any
employee benefit plan or employee stock plan of the Corporation
or a subsidiary of the Corporation or any trustee or fiduciary
with respect to any such plan when acting in that capacity, or
(D) Lilly Endowment, Inc., of "Beneficial ownership" as defined
in Rule 13d-3 under the 1934 Act, directly or indirectly, of 20%
or more of the shares of the Corporation's capital stock the
holders of which have general voting power under ordinary
circumstances to elect at least a majority of the Board (or which
would have such voting power but for the application of IC 23-1-
42-1 through IC 23-1-42-11) ("Voting Stock"); (ii) the first
day on which less than two-thirds of the total membership of the
Board shall be Continuing Directors (as such term is defined in
Article 13.(f) of the Articles of Incorporation); (iii) the
approval by the shareholders of the Corporation of a merger,
share exchange, or consolidation of the Corporation (a
"Transaction"), other than a Transaction which would result in
the Voting Stock of the Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving
entity) more than 50% of the Voting Stock of the Corporation or
such surviving entity immediately after such Transaction; or (iv)
approval by the shareholders of the Corporation of a complete
liquidation of the Corporation or a sale of disposition of all or
substantially all the assets of the Corporation.
(b) "Disinterested Director" means a Director who is not
or was not a party to the Proceeding in respect of which
indemnification is sought by the Eligible Person.
(c) "Special Counsel" means a law firm or a member of a
law firm that neither presently is, nor in the past five years
has been, retained to represent any other party to the Proceeding
giving rise to a claim for indemnification under this Article.
In addition, any person who, under applicable standards of
professional conduct, would have a conflict of interest in
representing either the Corporation or the Eligible Person in an
action to determine the Eligible Person's rights under this
Article may not act as Special Counsel.
SECTION 6.6. Indemnification of Agents. Notwithstanding any
other provisions of this Article, the Corporation may, consistent
with the provisions of applicable law, indemnify any person other
than a director, officer or employee of the Corporation who is or
was an agent of the Corporation and who is or was involved in any
manner (including, without limitation, as party or a witness) or
is threatened to be made so involved in any threatened, pending
or completed Proceeding by reasons of the fact that such person
is or was an agent of the Corporation or, at the request of the
Corporation, a director, officer, partner, member, manager,
employee, fiduciary or agent of a Covered Entity against all
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such person in connection with such Proceeding. The Corporation
may also advance expenses incurred by such person in connection
with any such Proceeding, consistent with the provisions of
applicable law.
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SECTION 6.7. Effect of Amendment or Repeal. Neither the
amendment or repeal of, nor the adoption of a provision
inconsistent with, any provision of this Article shall adversely
affect the rights of any Eligible Person under this Article (i)
with respect to any Proceeding commenced or threatened prior to
such amendment, repeal or adoption of an inconsistent provision
or (ii) after the occurrence of a Change in Control, with respect
to any Proceeding arising out of any action or omission occurring
prior to such amendment, repeal or adoption of an inconsistent
provision, in either case without the written consent of such
Eligible Person.
SECTION 6.8. Severability. If any of this Article shall be
held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Article (including, without
limitation, all portions of any Section of this Article
containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions
of this Article (including, without limitation, all portions of
any Section of this Article containing any such provision held to
be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
ARTICLE VII
Miscellaneous
SECTION 7.0. Corporate Seal. The Seal of the Corporation
shall consist of a circular disk around the circumference of
which shall appear the words:
"ELI LILLY AND COMPANY, INDIANAPOLIS, INDIANA"
and across the center thereof the words:
"Established 1876 Incorporated 1901".
SECTION 7.1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January in each year and shall
end on the thirty-first day of the following December.
SECTION 7.2. Amendment of By-laws. These By-laws may be
amended or repealed and new By-laws may be adopted by the
affirmative vote of at least a majority of the actual number of
directors elected and qualified at any regular or special meeting
of the Board of Directors, provided that: (a) the notice or
waiver of notice of such meeting states in effect that
consideration is to be given at such meeting to the amendment or
repeal of the By-laws or the adoption of new By-laws; (b) no
provision of these By-laws incorporating a provision of Articles
9, 13 or 14 of the Articles of Incorporation may be amended
except in a manner consistent with those Articles as they may be
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amended in compliance with the requirements stated therein; and
(c) any amendment to Articles I and VI of these By-laws shall
require the affirmative vote of a majority of (i) the actual
number of directors elected and qualified, and (ii) the
Continuing Directors, as defined in Article 13.(f) of the
Articles of Incorporation.
* * *