UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended December 31, 1995 Commission File Number 1-11605
The Walt Disney Company*
Incorporated in Delaware I.R.S. Employer Identification
No. 95-4545390
500 South Buena Vista Street, Burbank, California 91521
(818) 560-1000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days.
YES NO X **
There were 525,379,279 shares of common stock outstanding as of
February 9, 1996.
* The Walt Disney Company ("New Disney") was formerly known as DC
Holdco, Inc. New Disney is the parent corporation of Disney
Enterprises, Inc. ("Old Disney")(Commission File No. 1-4083;
I.R.S. Employer Identification No. 95-0684440), which
was known as "The Walt Disney Company" until February 9, 1996,
when it became a wholly owned subsidiary of New Disney as a
consequence of the acquisition by New Disney of the outstanding
capital stock of Capital Cities/ABC, Inc., as more fully described
herein. References herein to the "Company" refer to Old Disney
prior to February 9, 1996 and New Disney thereafter.
** New Disney became subject to the reporting requirements of the
Securities Exchange Act of 1934 on February 9, 1996, upon the
effectiveness of its Registration Statement on Form 8-B, and has
filed all reports required to be filed since that date.
<PAGE>
PART I. FINANCIAL INFORMATION
THE WALT DISNEY COMPANY
CONDENSED CONSOLIDATED STATEMENT OF INCOME
In millions, except per share data (unaudited)
<TABLE>
<CAPTION>
Three Months
Ended
December 31
<C> 1995 <C> 1994
REVENUES
Filmed entertainment $ 2,032 $ 1,768
Theme parks and resorts 976 853
Consumer products 810 681
3,818 3,302
COSTS AND EXPENSES
Filmed entertainment 1,578 1,320
Theme parks and resorts 786 686
Consumer products 601 505
2,965 2,511
OPERATING INCOME
Filmed entertainment 454 448
Theme parks and resorts 190 167
Consumer products 209 176
853 791
CORPORATE ACTIVITIES
General and administrative expenses 54 42
Net interest expense 13 37
67 79
INCOME (LOSS) FROM INVESTMENT IN
EURO DISNEY (22) 28
INCOME BEFORE INCOME TAXES 764 740
Income taxes 268 258
NET INCOME $ 496 $ 482
EARNINGS PER SHARE $ 0.93 $ 0.91
AVERAGE NUMBER OF COMMON AND
COMMON EQUIVALENT SHARES
OUTSTANDING 534 528
</TABLE>
<PAGE>
THE WALT DISNEY COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
In millions
<TABLE>
<CAPTION>
<C>December 31, <C>September 30,
1995 1995
(unaudited)
ASSETS
Cash and cash equivalents $997 $1,077
Investments 614 866
Receivables 2,416 1,793
Merchandise inventories 784 824
Film and television costs 2,297 2,099
Theme parks, resorts and other property,
net of accumulated depreciation of $3,150
and $3,039 6,440 6,190
Investment in Euro Disney 506 533
Other assets 1,222 1,224
$15,276 $14,606
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts and taxes payable and other
accrued liabilities $3,360 $3,043
Borrowings 2,775 2,984
Unearned royalty and other advances 870 861
Deferred income taxes 1,147 1,067
Stockholders' equity
Preferred stock, $.10 par value
Authorized - 100 million shares
Issued - none
Common stock, $.025 par value
Authorized - 1.2 billion shares
Issued - 576 million shares and 575
million shares 1,243 1,226
Retained earnings 7,439 6,990
Cumulative translation and other
adjustments 45 38
8,727 8,254
Less treasury shares, at cost - 51
million shares 1,603 1,603
7,124 6,651
$15,276 $14,606
</TABLE>
<PAGE>
THE WALT DISNEY COMPANY
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
In millions (unaudited)
<TABLE>
<CAPTION>
Three Months Ended
December 31
<C> 1995 <C> 1994
CASH PROVIDED BY OPERATIONS BEFORE
INCOME TAXES $ 1,006 $ 817
Income taxes paid (37) (45)
969 772
INVESTING ACTIVITIES
Film and television costs (639) (456)
Investments in theme parks, resorts and
other property (375) (220)
Purchases of investments (15) (131)
Proceeds from sales of investments 228 483
Investment in Euro Disney - 145
Other 5 7
(796) (172)
FINANCING ACTIVITIES
Borrowings - 804
Reduction of borrowings (219) (75)
Repurchases of common stock - (349)
Dividends (47) (39)
Other 13 10
(253) 351
Increase (Decrease) in Cash and Cash
Equivalents (80) 951
Cash and Cash Equivalents, Beginning of
Period 1,077 187
Cash and Cash Equivalents, End of Period $997 $ 1,138
The difference between Income Before Income Taxes as shown on the
Condensed Consolidated Statement of Income and Cash Provided by
Operations Before Income Taxes is explained as follows:
INCOME BEFORE INCOME TAXES $764 $ 740
CHARGES TO INCOME NOT REQUIRING CASH OUTLAYS
Amortization of film and television costs 441 319
Depreciation 125 103
Euro Disney 22 (28)
Other 23 14
CHANGES IN
Investments in trading securities 41 11
Receivables (623) (403)
Merchandise inventories 40 70
Other assets (7) 37
Accounts payable and other accrued
liabilities 171 (30)
Unearned royalty and other advances 9 (16)
242 77
CASH PROVIDED BY OPERATIONS BEFORE INCOME
TAXES $1,006 $817
SUPPLEMENTAL CASH FLOW INFORMATION
Interest paid $47 $ 21
</TABLE>
<PAGE>
THE WALT DISNEY COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. These condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting
principles for interim financial information and with the
instructions to Rule 10-01 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by
generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments
(consisting only of normal recurring adjustments) considered
necessary for a fair presentation have been included. Operating
results for the quarter are not necessarily indicative of the
results that may be expected for the year ending September 30,
1996. For further information, refer to the consolidated financial
statements and footnotes thereto included in the Company's Annual
Report on Form 10-K for the year ended September 30, 1995.
2. On February 9, 1996, the Company acquired Capital Cities/ABC, Inc.
("Cap Cities") in a transaction that will be accounted for as a
purchase, pursuant to a reorganization agreement executed in July 1995.
As consideration for the purchase, stockholders of Cap Cities have
the right to receive one share of common stock and $65 in cash, or the
equivalent value in common stock or in cash, subject to certain
limitations, for each of their shares. The acquisition cost is $19
billion based upon the Company's common stock price as of the date
the transaction was announced.
Cap Cities, directly or through its subsidiaries, operates the ABC
Television Network, ten television stations, the ABC Radio
Networks and 21 radio stations, and provides programming for cable
television. Through joint ventures, Cap Cities is also engaged in
international broadcast/cable services and television production
and distribution. Cap Cities also publishes daily and weekly
newspapers, shopping guides, various specialized and business
periodicals and books, provides research services, and distributes
information from databases.
The Company's consolidated results of operations will incorporate
Cap Cities activity commencing upon the acquisition date. The
unaudited pro forma combined information below presents combined
results of operations of the Company as if the acquisition had
occurred October 1, 1995 and balance sheet information as if the
acquisition had occurred on December 31, 1995. The unaudited pro
forma combined information, based upon the historical consolidated
financial statements of the Company and Cap Cities, is based on an
acquisition cost of $19 billion and assumes that an estimated $16
billion excess of acquisition cost over the book value of Cap
Cities' net tangible assets is allocated to intangible assets with
a useful life of 40 years. In addition, since the exact amounts of
cash and/or shares of common stock issuable to Cap Cities
shareholders are dependent upon certain elections to be made by
Cap Cities shareholders and other conditions as defined in the
reorganization agreement, two alternative scenarios of unaudited
pro forma combined financial information are presented, which give
effect to the range of possible amounts of common stock and/or
cash to be received by Cap Cities shareholders. Scenario 1
assumes that all Cap Cities shareholders receive one share of
common stock of the Company and $65 in cash for each outstanding
share of Cap Cities common stock, reflecting the maximum number of
shares of common stock which could be issued in connection with
the acquisition. Scenario 2 assumes that all Cap Cities
shareholders receive solely cash for each outstanding share of Cap
Cities common stock.
<PAGE>
<TABLE>
<CAPTION>
Scenario Scenario
1 2
Quarter Quarter
ended ended
Dec. 31, 1995 Dec. 31, 1995
<C> <C>
Statement of
Income Data
Revenues $ 5,875 $ 5,875
Net income $ 578 $ 483
Earnings per share (1) $ 0.84 $ 0.90
Dec. 31, 1995 Dec. 31, 1995
Balance Sheet Data
Total assets $34,459 $34,459
Borrowings $11,371 $20,956
Stockholders' equity $15,936 $6,351
(1) Earnings per share excluding amortization of intangible
assets would be $0.99 and $1.09 under scenarios 1 and 2,
respectively.
</TABLE>
The unaudited pro forma combined information is not necessarily
indicative of the results of operations of the combined company
had the acquisition occurred October 1, 1995, or the financial
position had the acquisition occurred on December 31, 1995, nor is
it necessarily indicative of future results or financial position.
3. Dividends per share for the quarters ended December 31, 1995 and
1994 were $.09 and $.075, respectively.
4. During January 1996, the Company advised the Justice Department
and the Federal Communications Commission ("FCC") of its intention to
divest itself of KCAL-TV. In addition, the FCC has required that the
Company divest its interest in certain radio stations or newspapers
in Detroit and Fort Worth. The Company is evaluating various
disposition alternatives at this time. The Company does not expect
such dispositions to have a material impact on its financial
position.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The Company's businesses are subject to the effects of seasonality.
Consequently, the operating results for the quarter ended December 31,
1995 for each line of business, and for the Company as a whole, are
not necessarily indicative of results for the full year. The reader is
encouraged to read the Company's 1995 Annual Report on Form 10-K in
conjunction with this interim report.
Filmed Entertainment operating results fluctuate based upon the timing
of theatrical and home video releases. Release dates are determined by
several factors, including timing of vacation and holiday periods and
competition in the market.
The Theme Parks and Resorts business experiences fluctuations in theme
park attendance and resort occupancy resulting from the nature of
vacation travel. Peak attendance and resort occupancy generally occur
during the summer months when school vacations occur and during early-
winter and spring holiday periods.
Operating results for Consumer Products are influenced by seasonal
consumer purchasing behavior and by the timing of animated theatrical
releases.
RESULTS OF OPERATIONS
For the Quarter Ended December 31, 1995
Filmed Entertainment
Revenues increased 15% or $264 million to $2.03 billion, driven by
growth of $94 million in home video revenues, $78 million in
television revenues, and $34 million in theatrical revenues. Home
video revenues increased primarily due to titles in international
release, including the expanded release of The Lion King, and also
reflect the domestic release of Cinderella and The Santa Clause,
compared to the worldwide release of Snow White and the Seven Dwarfs
and the expanded international release of Aladdin in the prior year.
Television revenues reflect increases in domestic pay and syndicated
television, and growth in cable operations worldwide. Theatrical
revenues increased primarily due to titles in domestic release,
including Toy Story, and also reflect the expanded international
release of Pocahontas and While You Were Sleeping and the
international release of The Santa Clause, compared to the domestic
rerelease and expanded international release of The Lion King and the
domestic release of The Santa Clause and Pulp Fiction in the prior
year.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Filmed Entertainment (continued)
Operating income increased 1% or $6 million to $454 million, primarily
due to growth in home video and television. Theatrical results were
lower than the prior year. Costs and expenses, which consist
principally of production cost amortization and distribution and
selling expenses, increased 20% or $258 million, primarily due to
higher theatrical distribution and home video selling costs, and
higher production cost amortization.
Theme Parks and Resorts
Revenues increased 14% or $123 million to $976 million. The increase
reflected growth of $66 million due to higher domestic and
international theme park attendance in Florida and California, and $21
million from an increase in occupied rooms at Florida resorts,
primarily attributable to the successful phased opening of Disney's
All-Star Music Resort during the prior year.
Operating income increased 14% or $23 million to $190 million, driven
by higher theme park attendance and increased occupied rooms at
Florida resorts. Costs and expenses, which consist principally of
labor, costs of merchandise, food and beverages sold, depreciation,
repairs and maintenance, entertainment, and marketing and sales
expenses, increased 15% or $100 million. The increase was primarily
due to higher operating costs resulting from higher attendance and
expansion of theme park attractions and Florida resorts, and increased
marketing and sales efforts.
Consumer Products
Revenues increased 19% or $129 million to $810 million, driven by an
increase of $60 million from the Disney Stores and $45 million from
worldwide character merchandise licensing. The growth in the Disney
Stores resulted from the addition of 106 new locations worldwide since
the first quarter of the prior year, partially offset by a 7% decline
in comparable store sales due to a strong contribution from The Lion
King merchandise in the prior year. Worldwide merchandise licensing
growth was generated by the continued strength of traditional
characters, particularly internationally.
Operating income increased 19% or $33 million to $209 million,
reflecting worldwide growth in character merchandise licensing and
expansion of the Disney Stores. Costs and expenses, which consist
principally of costs of goods sold, labor, rent and occupancy, and
publicity and promotion, increased 19% or $96 million, primarily due
to ongoing expansion of the Disney Stores.
<PAGE>
THE WALT DISNEY COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Corporate Activities
General and administrative expenses increased 29% or $12 million for
the quarter, reflecting higher corporate general and administrative
expenses partially offset by improved operating results from Disney
Sports Enterprises (The Mighty Ducks of Anaheim).
Investment in Euro Disney
The Company's investment in Euro Disney resulted in a loss of $22
million. Results for the prior year quarter include a gain of $55
million from the sale of approximately 75 million shares, or 20% of
Old Disney's investment in Euro Disney, to Prince Alwaleed Bin Talal
Bin Abdulaziz Al Saud.
Income Taxes
The effective income tax rate was 35.1%, compared to 34.8% for the
prior-year quarter.
FINANCIAL CONDITION
For the quarter ended December 31, 1995, cash provided by operations
increased 26% or $197 million to $969 million, primarily due to
increased operating income in each business segment.
Net borrowings (borrowings less cash and liquid investments) increased
$120 million to $1.5 billion, primarily due to a reduction in cash and
liquid investments, partially offset by payments of existing debt.
During the quarter, the Company invested $639 million to develop and
produce film and television properties and $375 million primarily to
design and develop new theme park attractions and resort properties.
In February 1996, the Company acquired Capital Cities/ABC, Inc.
("Cap Cities") pursuant to a reorganization agreement executed in
July 1995. As consideration for the purchase, shareholders of Cap
Cities have the right to receive a combination of common stock and
cash. The relative proportions of common stock and cash consideration
payable to Cap Cities shareholders are dependent upon certain elections
to be made by Cap Cities shareholders and other conditions as defined
in the reorganization agreement.
The Company intends to initially fund the cash portion of the Cap
Cities purchase consideration through the issuance of commercial paper
and the use of existing cash and investments. The Company has
established bank facilities totaling $10 billion to support the
issuance of commercial paper. The Company may subsequently replace the
commercial paper with longer-term financing. The Company filed a shelf
registration statement in November 1995 permitting the issuance from
time to time of up to $5 billion of debt and preferred equity
securities.
Although the issuance of new debt and equity securities will
significantly change the Company's capitalization, the Company believes
that its financial condition will remain strong and that its cash,
other liquid assets, operating cash flows, access to equity capital
markets and borrowing capacity, taken together, will continue to
provide adequate resources to fund ongoing operating requirements and
future capital expenditures related to the expansion of existing
businesses and development of new projects.
<PAGE>
PART II. OTHER INFORMATION
THE WALT DISNEY COMPANY
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
(3) Amended and Restated By-Laws, dated as of November 13, 1995
(10) First Amendment to the Disney Salaried Retirement Plan as
amended and restated effective January 1, 1988
(27) Financial Data Schedule (filed electronically only)
(b) Reports on Form 8-K
(i) Report on Form 8-K, dated October 6, 1995, with respect
to the execution of an Amended and Restated Agreement and
Plan of Reorganization by the Company and Capital
Cities/ABC, Inc.
(ii) Report on Form 8-K, dated December 1, 1995, with
respect to the effectiveness of the shelf registration
statement of the Company.
<PAGE>
THE WALT DISNEY COMPANY
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
THE WALT DISNEY COMPANY
(Registrant)
By /s/ Richard D. Nanula
Richard D. Nanula
Senior Executive Vice President and
Chief Financial Officer
February 14, 1996
Burbank, California
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary financial information extracted from the
condensed consolidated balance sheet and condensed consolidated statement
of income found on the Company's Form 10-Q for the three months ended
December 30, 1995 and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-1995
<PERIOD-START> OCT-01-1995
<PERIOD-END> DEC-31-1995
<EXCHANGE-RATE> 1
<CASH> 997
<SECURITIES> 614
<RECEIVABLES> 2416
<ALLOWANCES> 0
<INVENTORY> 784
<CURRENT-ASSETS> 0
<PP&E> 9590
<DEPRECIATION> 3150
<TOTAL-ASSETS> 15276
<CURRENT-LIABILITIES> 0
<BONDS> 2775
0
0
<COMMON> 1243
<OTHER-SE> 5881
<TOTAL-LIABILITY-AND-EQUITY> 15276
<SALES> 3818
<TOTAL-REVENUES> 3818
<CGS> 0
<TOTAL-COSTS> 2965
<OTHER-EXPENSES> 54
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 41
<INCOME-PRETAX> 764
<INCOME-TAX> 268
<INCOME-CONTINUING> 496
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 496
<EPS-PRIMARY> .93
<EPS-DILUTED> .93
</TABLE>
AMENDED AS OF
NOVEMBER 13, 1995
AMENDED BYLAWS
OF
DC HOLDCO, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle,
Delaware.
Section 2. Principal Place of Business. The principal place of
business of the Corporation is hereby fixed and located at 500 South Buena
Vista Street, Burbank, California 91521.
Section 3. Other Offices. The Corporation may also have offices
at such other places both within and without the State of Delaware as the
Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors (and in the case of a special
meeting, by the Board of Directors or the person calling the special meeting
as authorized by Section 3 of this Article II) and stated in the notice of
the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders
shall be held on such date and at such time and place as may be fixed by the
Board of Directors and stated in the notice of the meeting, for the purpose
of electing directors and for the transaction of such other business as is
properly brought before the meeting in accordance with these Bylaws.
To be properly brought before the Annual Meeting, business must be
either (i) specified in the notice of Annual Meeting (or any supplement or
amendment thereto) given by or at the direction of the Board of Directors,
(ii) otherwise brought before the Annual Meeting by or at the direction of
the Board of Directors, or (iii) otherwise (a) properly be requested to be
brought before the Annual Meeting by a stockholder of record entitled to vote
in the election of directors generally, and (b) constitute a proper subject
to be brought before such meeting. In addition to any other applicable
requirements, for business to be properly brought before an Annual Meeting by
a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at 500 South Buena Vista
Street, Burbank, California 91521, not less than 50 days nor more than 75
days prior to the meeting; provided, however, that in the event that less
than 65 days' notice or prior public disclosure of the date of the Annual
Meeting is given or made to stockholders, notice by a stockholder to be
timely must be so received not later than the close of business on the 12th
day following the day on which such notice of the date of the Annual Meeting
was mailed or such public disclosure was made, whichever first occurs. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the Annual Meeting (i) a brief
description of the business desired to be brought before the Annual
Meeting and the reasons for conducting such business at the Annual Meeting,
(ii) the name and record address of the stockholder proposing such business,
(iii) the class, series and number of shares of the Corporation which are
beneficially owned by the stockholder, and (iv) any material interest of the
stockholder in such business. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at the Annual Meeting except in
accordance with the procedures set forth in this Article II, Section 2. The
person presiding at an Annual Meeting shall, if the facts warrant, determine
and declare to the Annual Meeting that business was not properly brought
before the Annual Meeting in accordance with the provisions of this Article
II, Section 2, and if he should so determine, he shall so declare to the
Annual Meeting and any such business not properly brought before the meeting
shall not be transacted. Written notice of the Annual Meeting stating the
place, date and hour of the Annual Meeting shall be given to each stockholder
entitled to vote at such meeting not less than 10 nor more than 60 days
before the date of the meeting.
Section 3. Special Meetings. Special meetings of stockholders,
for any purpose or purposes, may be called by the Board of Directors, the
Chairman of the Board of Directors, or the President. Special meetings of
stockholders may not be called by any other person or persons. Written
notice of a special meeting stating the place, date and hour of the meeting
and the purpose or purposes for which the meeting is called shall be given
not less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting, and only such business as is
stated in such notice shall be acted upon thereat. Nominations of persons
for election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors, or (b) by a stockholder of the Corporation who is entitled to vote
at the meeting and who complies with the notice provisions contained in
Section 2 of this Article II.
Section 4. Quorum. Except as may be otherwise provided by law or
by the Certificate of Incorporation, the holders of a majority of the capital
stock issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, a minority
of the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might
have been transacted at the meeting as originallynoticed. If the
adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these Bylaws, (i) at all meetings of
stockholders for the election of directors, a plurality of votes cast shall
be sufficient to elect, and (ii) any other question brought before any
meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereon. Unless
otherwise provided in the Certificate of Incorporation, each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote
for each share of the capital stock entitled to vote thereat held by such
stockholder. The Board of Directors, in its discretion, or the officer of
the Corporation presiding at a meeting of stockholders, in his discretion,
may require that any votes cast at such meeting shall be cast by written
ballot.
Section 6. Organization. All meetings of the stockholders shall be
presided over by the Chairman of the Board of Directors or, if he is not
present, by the Vice Chairman of the Board of Directors, and if he is not
present, by such officer or director as is designated by the Board of
Directors. The Secretary of the Corporation or, if he is not present, any
Assistant Secretary or other person designated by the presiding officer shall
act as secretary of the meeting.
Section 7. List of Stockholders Entitled to Vote. The officer of
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least 10 days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least 10 days
prior to the meeting, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder of the
Corporation who is present.
Section 8. Stock Ledger. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 7 of this Article II or the books
of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 9. Inspectors of Election. Before any meeting of
stockholders, the Board of Directors shall appoint one or more inspectors to
act at the meeting and make a written report thereof. The Board of Directors
may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his ability.
The inspectors shall:
(a) ascertain the number of shares outstanding and the voting
power of each,
(b) determine the shares represented at the meeting and the
validity of proxies and ballots,
(c) count all votes and ballots,
(d) determine and retain for a reasonable period a record of
the disposition of any challenges made to any determination made by the
inspectors, and
(e) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots.
The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the inspectors.
In determining the validity and counting of proxies and ballots, the
inspectors shall act in accordance with applicable law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. Subject to the rights,
if any, of holders of preferred stock of the Corporation to elect directors
of the Corporation, the Board of Directors shall consist of not less than
three nor more than 21 members with the exact number of directors to be
determined from time to time solely by resolution duly adopted by the Board
of Directors. Directors shall be elected by a plurality of the votes cast at
Annual Meetings of stockholders, and each director so elected shall hold
office as provided by Article FIFTH of the Certificate of Incorporation. A
director may be removed from office only as provided by Article SIXTH of the
Certificate of Incorporation. Any director may resign at any time effective
upon giving written notice to the Corporation, unless the notice specifies a
later time for the effectiveness of such resignation. Directors need not be
stockholders.
Section 2. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors of the Corporation at the Annual Meeting may be made at such
meeting by or at the direction of the Board of Directors, by any committee or
persons appointed by the Board of Directors or by any stockholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Article III, Section 2.
Such nominations by any stockholder shall be made pursuant to timely notice
in writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal
executive offices of the Corporation not less than 50 days nor more than 75
days prior to the meeting; provided, however, that in the event that less
than 65 days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely must be
so received not later than the close of business on the 15th day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made, whichever first occurs. Such stockholder's
notice to the Secretary shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director,
(a) the name, age, business address and residence address of the person,
(b) the principal occupation or employment of the person, (c) the class and
number of shares of capital stock of the Corporation which are beneficially
owned by the person, and (d) any other information relating to the person
that is required to be disclosed in solicitations for proxies for election of
directors pursuant to the Rules and Regulations of the Securities and
Exchange Commission under Section 14 of the Securities Exchange Act of 1934,
as amended; and (ii) as to the stockholder giving the notice (a) the name and
record address of the stockholder and (b) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as a director
of the Corporation. No person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the procedures set
forth herein. The officer of the Corporation presiding at an Annual Meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 3. Vacancies. Any vacancy on the Board of Directors,
howsoever resulting, may be filled by a majority of the directors then in
office, even if less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy shall hold office for a term that shall
coincide with the term of the class to which such director shall have been
elected.
Section 4. Duties and Powers. The business of the Corporation
shall be managed by or under the direction of the Board of Directors which
may exercise all such powers of the Corporation and do all such lawful acts
and things as are not by statute or by the Certificate of Incorporation or
by these Bylaws directed or required to be exercised or done by the
stockholders.
Section 5. Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State
of Delaware. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as may from time to time be determined
by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman of the Board of Directors, the President, or by a
majority of the Board of Directors. Notice thereof, stating the place, date
and hour of the meeting, shall be given to each director either by mail not
less than four days before the date of the meeting, or personally or by
telephone, telegram, telex or similar means of communication on 12 hours
notice, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the circumstances.
Section 6. Quorum; Action of Board of Directors. Except as may be
otherwise specifically provided by law, the Certificate of Incorporation or
these Bylaws, at all meetings of the Board of Directors, a majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the Board of Directors. If
a quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present.
Section 7. Action by Written Consent. 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 all the members of the
Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 8. Meetings by Means of Conference Telephone. Members of
the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 8 shall
constitute presence in person at such meeting.
Section 9. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. Any committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation. The Board of Directors shall have
the power to prescribe the manner in which proceedings of any such committee
shall be conducted. In the absence of any such prescription, such committee
shall have the power to prescribe the manner in which its proceedings shall
be conducted. Unless the Board of Directors or such committee shall
otherwise provide, regular and special meetings and other actions of any
such committee shall be governed by the provisions of this Article III
applicable to meetings and actions of the Board of Directors. Each committee
shall keep regular minutes and report to the Board of Directors when required.
Section 10. Fees and Compensation. Directors and members of
committees may receive such compensation, if any, for their services, and
such reimbursement for expenses, as may be fixed or determined by the Board
of Directors.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a Chairman of the Board of Directors
(who must be a director), a President, a Secretary and a Treasurer. The
Board of Directors, in its sole discretion, may also choose a Vice Chairman
of the Board of Directors (who must be a director), one or more Executive
Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices
may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these Bylaws.
Section 2. Election. The Board of Directors at its first meeting
held after each Annual Meeting of stockholders shall elect the officers of
the Corporation who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time
to time solely by the Board of Directors, which determination may be by
resolution of the Board of Directors or in any bylaw provision duly adopted
or approved by the Board of Directors; and all officers of the Corporation
shall hold office until their successors are chosen and qualified, or until
their earlier resignation or removal. Any officer elected by the Board of
Directors may be removed at any time by the Board of Directors with or
without cause. Any vacancy occurring in any office of the Corporation may be
filled only by the Board of Directors.
Section 3. Chairman of the Board of Directors. The Chairman of the
Board of Directors shall be the Chief Executive Officer of the Corporation,
shall preside at all meetings of the Board of Directors and of stockholders
and shall, subject to the provisions of the Bylaws and the control of the
Board of Directors, have general and active management, direction, and
supervision over the business of the Corporation and over its officers. He
shall be a member ex officio of all committees created by the Board of
Directors, excluding the Audit Review Committee and any committee to which he
has been designated a regular member by the Board of Directors. He shall
perform all duties incident to the office of chief executive and such other
duties as from time to time may be assigned to him by the Board of Directors.
He shall have the right to delegate any of his powers to any other officer or
employee.
Section 4. President. The President shall report and be responsible
to the Chairman of the Board. The President shall have such powers and
perform such duties as from time to time may be assigned or delegated to him
by the Board of Directors or are incident to the office or President.
During the absence, disability, or at the request of the Chairman of
the Board of Directors, the President shall perform the duties and exercise
the powers of the Chairman of the Board of Directors. In the absence or
disability of both the President and the Chairman of the Board of Directors,
the person designated by the Board of Directors shall perform the duties and
exercise the powers of the President, and unless otherwise determined by the
Board, the duties and powers of the Chairman.
Section 5. Executive Vice Presidents. The Executive Vice Presidents
shall have such powers and perform such duties as from time to time may be
prescribed for them respectively by the Board of Directors or are incident to
the office of Executive Vice President.
Section 6. Senior Vice Presidents. The Senior Vice Presidents shall
have such powers and perform such duties as from time to time may be
prescribed for them respectively by the Board of Directors or are incident to
the office of Senior Vice President.
Section 7. Vice Presidents. The Vice Presidents shall have such
powers and perform such duties as from time to time may be prescribed for
them respectively by the Board of Directors or are incident to the office of
Vice President.
Section 8. Secretary. The Secretary shall keep or cause to be
kept, at the principal executive office or such other place as the Board of
Directors may order, a book of minutes of all meetings of stockholders, the
Board of Directors and its committees, with the time and place of holding,
whether regular or special, and if special, how authorized, the notice
thereof given, the names of those present at Board of Directors and committee
meetings, the number of shares present or represented at stockholders'
meetings, and the proceedings thereof. The Secretary shall keep, or cause to
be kept, a copy of the Bylaws of the Corporation at the principal executive
office or business office of the Corporation.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the Corporation's transfer agent or
registrar, if one be appointed, a stock register, or a duplicate stock
register, showing the names of the stockholders and their addresses,
the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and of the Board of Directors and any committees
thereof required by these Bylaws or by law to be given, shall keep the seal
of the Corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors.
Section 9. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities of the Corporation and shall keep and
maintain, or cause to be kept and maintained, adequate and correct accounts
of the properties and business transactions of the Corporation, and shall
send or cause to be sent to the stockholders of the Corporation such
financial statements and reports as are by law or these Bylaws required to be
sent to them.
The Treasurer shall deposit all moneys and valuables in the name and
to the credit of the Corporation with such depositaries as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, shall render to
the President and directors, whenever they request it, an account of all
transactions and of the financial condition of the Corporation, and shall
have such other powers and perform such other duties as may be prescribed by
the Board of Directors.
Section 10. Other Officers. Such other officers or assistant officers
as the Board of Directors may choose shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of
Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
Section 11. Execution of Contracts and Other Documents. Each officer
of the Corporation may execute, affix the corporate seal and/or deliver, in
the name and on behalf of the Corporation, deeds, mortgages, notes, bonds,
contracts, agreements, powers of attorney, guarantees, settlements, releases,
evidences of indebtedness, conveyances, or any other document or instrument
which is authorized by the Board of Directors or is required to be executed
in the ordinary course of business, except in cases where the execution,
affixation of the corporate seal and/or delivery thereof shall be expressly
and exclusively delegated by the Board of Directors to some other officer or
agent of the Corporation.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of
the Corporation (i) by the Chairman or Vice Chairman of the Board of
Directors, the President or any Executive Vice President, Senior Vice
President or Vice President and (ii) by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by
(i) a transfer agent or (ii) a registrar, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct
a new certificate to be issued in place of any certificate theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to advertise
the same in such manner as the Board of Directors shall require and/or to
give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect
to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Transfers of shares of capital stock of
the Corporation shall be made only on the stock record of the Corporation
by the holder of record thereof or by his attorney thereunto authorized
by the power of attorney duly executed and filed with the Secretary of the
Corporation or the transfer agent thereof, and only on surrender of the
certificate or certificates representing such shares, properly endorsed
or accompanied by a duly executed stock transfer power. The Board of
Directors may make such additional rules and regulations as it may deem
expedient concerning the issue and transfer of certificates representing
shares of the capital stock of the Corporation.
Section 5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall
not be more than 60 days nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to vote as such
owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, and shall not be bound to recognize
any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by
law, the Certificate of Incorporation or these Bylaws, to be given to any
director or stockholder, such notice may be given by mail, addressed to
such director or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in
the United States mail. Written notice may also be given personally
or by telegram, telex, cable or facsimile transmission followed, if required
by law, by deposit in the United States mail, with postage prepaid.
Section 2. Waivers of Notice. Whenever any notice is required
by law, the Certificate of Incorporation or these Bylaws, to be given to
any director or stockholder, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Disbursements. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from time to
time designate.
Section 2. Fiscal Year. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers
of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed
in the name of and on behalf of the Corporation by the Chairman of the
Board of Directors or the President or any other officer or officers
authorized by the Board of Directors, the Chairman of the Board of
Directors or the President, and any such officer may, in the name of and
on behalf of the Corporation, vote, represent and exercise on behalf of
the Corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of the Corporation and
take all such action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of any corporation
in which the Corporation may own securities and at any such meeting shall
possess and may exercise any and all rights and power incident to the
ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board
of Directors may, by resolution, from time to time confer like powers upon
any other person or persons.
ARTICLE VIII
INDEMNIFICATION
Section 1. General. The Corporation shall indemnify to the
full extent authorized or permitted by law (as now or hereafter in effect)
any person made, or threatened to be made, a defendant or witness to any
action, suit or proceeding (whether civil or criminal or otherwise) by
reason of the fact that he, his testator or intestate, is or was a director
or officer of the Corporation or by reason of the fact that such director
or officer, at the request of the Corporation, is or was serving any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, in any capacity. Nothing contained herein shall
affect any rights to indemnification to which employees other than directors
and officers may be entitled by law. No amendment or repeal of this
Section 1 shall apply to or have any effect on any right to indemnification
provided hereunder with respect to any acts or omissions occurring prior
to such amendment or repeal.
Section 2. Further Assurance. In furtherance and not in
limitation of the powers conferred by statute:
(a) the Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the Corporation would have the power to indemnify him against
such liability under the provisions of law; and
(b) the Corporation may create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters of
credit, surety bonds and/or other similar arrangements), as well as enter
into contracts providing indemnification to the full extent authorized or
permitted by law and including as part thereof provisions with respect to a
ny or all of the foregoing to ensure the payment of such amounts as may
become necessary to effect indemnification as provided therein, or elsewhere.
ARTICLE IX
AMENDMENTS
Section 1. General. These Bylaws may be altered, amended or
repealed, in whole or in part, or new Bylaws may be adopted by either the
holders of 66-2/3% of the outstanding capital stock entitled to vote
thereon or by the Board of Directors.
ARTICLE X
EMERGENCY PROVISIONS
Section 1. General. The provisions of this Article X shall
be operative only during a national emergency declared by the President
of the United States or the person performing the President's functions,
or in the event of a nuclear, atomic or other attack on the United States
or a disaster making it impossible or impracticable for the Corporation
to conduct its business without recourse to the provisions of this
Article X. Said provisions in such event shall override all other Bylaws
of the Corporation in conflict with any provisions of this Article X, and
shall remain operative so long as it remains impossible or impracticable
to continue the business of the Corporation otherwise, but thereafter
shall be inoperative; provided that all actions taken in good faith
pursuant to such provisions shall thereafter remain in full force and
effect unless and until revoked by action taken pursuant to the provisions
of the Bylaws other than those contained in this Article X.
Section 2. Unavailable Directors. All directors of the
Corporation who are not available to perform their duties as directors
by reason of physical or mental incapacity or for any other reason or
who are unwilling to perform their duties or whose whereabouts are unknown
shall automatically cease to be directors, with like effect as if such
persons had resigned as directors, so long as such unavailability continues.
Section 3. Authorized Number of Directors. The authorized
number of directors shall be the number of directors remaining after
eliminating those who have ceased to be directors pursuant to Section 2
of this Article X, or the minimum number required by law, whichever
number is greater.
Section 4. Quorum. The number of directors necessary to
constitute a quorum shall be one-third of the authorized number of
directors as specified in Section 3 of this Article X, or such other
minimum number as, pursuant to the law or lawful decree then in force,
it is possible for the Bylaws of a Corporation to specify.
Section 5. Creation of Emergency Committee. In the event the
number of directors remaining after eliminating those who have ceased to
be directors pursuant to Section 2 of this Article X is less than the
minimum number of authorized directors required by law, then until the
appointment of additional directors to make up such required minimum,
all the powers and authorities which the Board of Directors could by law
delegate including all powers and authorities which the Board of
Directors could delegate to a committee, shall be automatically vested
in an emergency committee, and the emergency committee shall thereafter
manage the affairs of the Corporation pursuant to such powers and
authorities and shall have all other powers and authorities as may by
law or lawful decree be conferred on any person or body of persons during
a period of emergency.
Section 6. Constitution of Emergency Committee. The emergency
committee shall consist of all the directors remaining after eliminating
those who have ceased to be directors pursuant to Section 2 of this
Article X, provided that such remaining directors are not less than
three in number. In the event such remaining directors are less than
three in number, the emergency committee shall consist of three persons,
who shall be the remaining director or directors and either one or two
officers or employees of the Corporation, as the remaining director or
directors may in writing designate. If there is no remaining director,
the emergency committee shall consist of the three most senior officers
of the Corporation who are available to serve, and if and to the extent
that officers are not available, the most senior employees of the
Corporation. Seniority shall be determined in accordance with any
designation of seniority in the minutes of the proceedings of the Board,
and in the absence of such designation, shall be determined by rate of
remuneration. In the event that there are no remaining directors and no
officers or employees of the Corporation available, the emergency committee
shall consist of three persons designated in writing by the stockholder
owning the largest number of shares of record as of the date of the last
record date.
Section 7. Powers of Emergency Committee. The emergency
committee, once appointed, shall govern its own procedures and shall have
power to increase the number of members thereof beyond the original number,
and in the event of a vacancy or vacancies therein, arising at any time,
the remaining member or members of the emergency committee shall have the
power to fill such vacancy or vacancies. In the event at any time after
its appointment all members of the emergency committee shall die or resign
or become unavailable to act for any reason whatsoever, a new emergency
committee shall be appointed in accordance with the foregoing provisions \
of this Article X.
Section 8. Directors Becoming Available. Any person who has
ceased to be a director pursuant to the provisions of Section 2 of this
Article X and who thereafter becomes available to serve as a director
shall automatically become a member of the emergency committee.
Section 9. Election of Board of Directors. The emergency
committee shall, as soon after its appointment as is practicable, take
all requisite action to secure the election of a board of directors,
and upon such election all the powers and authorities of the emergency
committee shall cease.
Section 10. Termination of Emergency Committee. In the event,
after the appointment of an emergency committee, a sufficient number of
persons who ceased to be directors pursuant to Section 2 of this Article X
become available to serve as directors, so that if they had not ceased
to be directors as aforesaid, there would be enough directors to constitute
the minimum number of directors required by law, then all such persons
shall automatically be deemed to be reappointed as directors and the
powers and authorities of the emergency committee shall be at an end.
FIRST AMENDMENT
DISNEY SALARIED RETIREMENT PLAN
WHEREAS, The Walt Disney Company ("Company") maintains the Disney
Salaried Retirement Plan, as amended and restated effective January 1, 1988
(the "Plan"); and
WHEREAS, Article 11 of the Plan authorizes the Committee under the
Plan to make certain Plan amendments, and this First Amendment may be made by
the Committee in accordance with such authorization; and
WHEREAS, the Committee adopted an amendment to the Plan at its
meeting held on September 7, 1995; and
WHEREAS, the Committee authorized the officers of the Company, and
each of them, to take any and all actions deemed necessary to effectuate the
intent of said Plan amendment and one of said acts is the drafting and
execution of a formal plan amendment pursuant to said intent.
NOW, THEREFORE, effective as of September 7, 1995 the Plan is
hereby amended as follows:
1. Section 11.01 is amended in its entirety to read as follows:
11.01 Amendment of Plan
The Company, acting through the Board of Directors reserves the
right at any time and from time to time, and retroactively if
deemed necessary or appropriate, to amend in whole or in part
any or all of the provisions of the Plan. Effective as of
November 21, 1994, the Committee may also amend the Plan
provided that any amendment adopted by the Committee may not
have an impact on the Company's annual expense of more than
five million dollars, except that such five million dollar
limitation shall not apply to amendments necessary to comply
with laws or regulations. However, no amendment shall make it
possible for any part of the funds of the Plan to be used for,
or diverted to, purposes other than for the exclusive benefit
of persons entitled to benefits under the Plan before the
satisfaction of all liabilities with respect to them. No
amendment shall be made which has the effect of decreasing the
Accrued Pension of any Participant or of reducing the
nonforfeitable percentage of the Accrued Pension of a
Participant below the nonforfeitable percentage computed under
the Plan as in effect on the date on which the amendment is
adopted or, if later, the date on which the amendment becomes
effective. In addition, if the Plan is amended to change
the vesting requirements, any Participant with at least three
Years of Vesting Service may elect to have his vested
percentage computed under the Plan without regard to the
amendment. Any action required or permitted to be taken by the
Board of Directors or the Committee at a meeting held either in
person or by telephone or other electronic means, or by
unanimous written consent, in lieu of a meeting.
