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Page
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| Section 5.0.
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Certificates for Shares |
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12
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Section 5.1.
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Transfer of Shares
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13
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| Section
5.2. |
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Regulations |
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13
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| Section 5.3.
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Transfer Agents and
Registrars |
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13
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| Section
5.4. |
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Lost or
Destroyed Certificates |
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13
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| Section 5.5.
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Redemption of Shares
Acquired in |
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Control Share
Acquisitions |
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14
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ARTICLE VI
Indemnification
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| Section 6.0.
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Right to
Indemnification |
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14
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| Section 6.1.
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Insurance, Contracts
and Funding |
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15
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| Section 6.2.
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Non-Exclusive Rights;
Applicability to Certain
Proceedings |
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15
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| Section 6.3.
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Advancement of
Expenses |
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15
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| Section 6.4.
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Procedures;
Presumptions and Effect of
Certain Proceedings; Remedies |
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15
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| Section 6.5.
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Certain Definitions
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17
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| Section 6.6.
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Indemnification of
Agents |
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18
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| Section 6.7.
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Effect of Amendment
or Repeal |
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18
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| Section 6.8.
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Severability
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18
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ARTICLE VII
Miscellaneous
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| Section 7.0.
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Corporate Seal
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18
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| Section 7.1.
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Fiscal Year
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19
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| Section 7.2.
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Amendment of By-laws
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19
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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, Place, and
Conduct 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. The
chairman of each meeting shall have sole authority to decide
questions relating to the conduct of that meeting.
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, facsimile, or electronic 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.
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 ninety (90) days prior to the meeting;
provided, however, that in the event that less than one hundred
(100) 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
the Chairman should so determine, he or she 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 or prior to a
meeting of shareholders by or at the direction of the Board of
Directors or by any nominating committee or person appointed by or
at the direction of the Board of Directors, and at a meeting of
shareholders by any shareholder 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 ninety (90) days prior to the meeting;
provided, however, that in the event that less than one hundred
(100) 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 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 the Chairman should so determine, he or she
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 the class to
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 (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 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
(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, Senior 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.
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 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 or her by the By-laws and by the Board of Directors.
The
Chairman shall perform the duties
and exercise the powers of the President at any time that the
President is unable do so. 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 be the chief executive officer 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 President shall
have such other powers and perform such other duties as are assigned
to him or her by the By-laws or the Board of Directors. The
President shall perform the duties and exercise the powers of the
Chairman of the Board at any time that the Chairman of the Board is
unable to do so.
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
President or the Board of Directors. The Executive Vice Presidents,
in order of their seniority in office as Executive Vice Presidents
(and, between two or more of equal seniority in office as Executive
Vice Presidents, in order of their seniority in office as Vice
Presidents), shall perform the duties and exercise the powers of the
President and the Chairman of the Board at any time that both the
President and the Chairman of the Board are unable to do so.
SECTION 3.10. Senior Vice
Presidents and Group Vice Presidents. Each Senior Vice President
and each Group Vice President shall perform such duties and have
such powers as may be assigned to him or her by the President or the
Board of Directors. The Senior Vice Presidents, in order of their
seniority in office as Senior Vice Presidents (and between two or
more of equal seniority in office as Senior Vice Presidents, in
order of their seniority in office as Vice Presidents), shall
perform the duties and exercise the powers of the President and the
Chairman of the Board at any time that the President, the Chairman
of the Board, and all the Executive Vice Presidents are unable to do
so.
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 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 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 as the
Board of Directors may from time to time prescribe or the President
or the Secretary 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 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 President or the Board of
Directors.
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 or invested in
the name and to the credit of the Corporation in such banks or trust
companies or with such bankers or other depositories or investments
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 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 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 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 him or her by
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 President or the Board of Directors.
SECTION 3.20. Chairman Emeritus.
In recognition of distinguished service to the Corporation, the
Board of Directors may designate a person who has served as Chairman
of the Board and who is no longer an employee, officer, or director
as Chairman Emeritus. The Chairman Emeritus may serve to represent
the Corporation at the request of the Chairman of the Board.
SECTION 3.21. Compensation.
The compensation of executive officers of the Corporation shall be
fixed from time to time by the Compensation and Management
Development Committee (or successor committee) established pursuant
to Section 2.10. Unless the Board of Directors by resolution shall
direct otherwise, the compensation of employees who are not
executive officers of the Corporation shall be fixed by the
management of the Company. No employee shall be prevented from
receiving such compensation by reason of being a director of the
Corporation.
SECTION 3.22. 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.
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, powers of attorney, or consents to vote with respect to
shares or units of other corporations or other entities 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, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or by any other
person or persons thereunto authorized by the Board of Directors.
Persons with authority to execute proxies, powers of attorney, or
consents under this Section 4.2 may delegate that authority unless
prohibited by the Board of Directors.
ARTICLE V
Shares
SECTION 5.0. Certificates for
Shares. Shares in the corporation may be issued in book-entry
form or evidenced by certificates. However, every holder of shares
in the Corporation shall be entitled upon request 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 (or in the case of book-entry shares, the statements evidencing
ownership of such shares shall state) 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 (or
book-entry statement) shall state whether such shares have been
fully paid and are non-assessable. If any such shares are not fully
paid, the certificate (or book-entry statement) 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
(or book-entry statement updated) 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 issuance or transfer of each share
the number of the certificates representing such share (if any), 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 (if any)
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 or book-entry 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 and the book-entry
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 or the
Secretary, and the Board of Directors or Secretary 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 or Secretary may direct, and
with such surety or sureties as may be satisfactory to the Board of
Directors or the Secretary 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
or the Secretary, it is proper so to do.
SECTION 5.5. Redemption of
Shares Acquired in Control Share 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 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 "Supporting
Documentation"). The determination of the Eligible Person's
entitlement to 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 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:
(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 15% 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.
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 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.
* * *
OPINION OF JAMES B. LOOTENS
Exhibit 5
November 4, 1999
Eli Lilly and Company
Lilly Corporate Center
Indianapolis, Indiana 46285
Gentlemen:
On or about November 4, 1999, Eli
Lilly and Company (the "Company") will file with the
Securities and Exchange Commission on Form S-8 its Registration
Statement ("Registration Statement") relating to 3,100,000
shares of Common Stock that may be issued or transferred by the
Company upon the exercise of stock options or pursuant to stock
grants, that may be granted to employees of the Company and its
subsidiaries under the Lilly GlobalShares Stock Plan (the "Plan
").
With respect to the Company and
shares of its Common Stock, I am of the opinion that:
A. The Company is a corporation
duly organized and validly existing under the laws of the State of
Indiana.
B. The 3,100,000 shares of Common
Stock referred to above:
(i) are duly authorized;
(ii) upon selection, in accordance
with the terms of the Plan, of grantees from among those employees
of the Company and its subsidiaries eligible for receipt of stock
options and stock grants ("Eligible Employees"), may be
validly included in grants of stock options and stock grants to such
Eligible Employees; and
(iii) will be validly issued and
outstanding, fully paid and nonassessable upon issuance or transfer:
(a) pursuant to the due exercise of
stock options in accordance with the terms and subject to the
conditions of the Plan and the payment of the option price stated in
such options; and
Eli Lilly and Company
Lilly Corporate Center
November 4, 1999
Page 2
(b) pursuant to fulfillment of all
conditions, if any, required by the Plan for the issuance or
transfer of such shares of Common Stock pursuant to stock grants;
and
In arriving at the foregoing
opinion, I have examined corporate records, plans, agreements and
other documents of the Company.
I consent to the use of this
opinion as an exhibit to the Registration Statement. In giving such
consent, I do not admit that I come within the category of persons
whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
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Very truly yours,
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James B. Lootens
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Assistant
Secretary and
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Associate General Counsel
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JBL:mlc
CONSENT OF ERNST & YOUNG LLP
Exhibit 23
CONSENT OF
INDEPENDENT AUDITORS
We consent to the incorporation by
reference in the Registration Statement (Form S-8) pertaining to the
Lilly GlobalShares Stock Plan of Eli Lilly and Company of our report
dated January 30, 1999, with respect to the consolidated financial
statements of the Company incorporated by reference in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with
the Securities and Exchange Commission.
November 4, 1999
Ernst & Young LLP
