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EXHIBIT 3.(b)
BYLAWS
OF
MARION MERRELL DOW INC.
(Formerly Marion Laboratories, Inc.)
(As Readopted in Full on November 18, 1991)
OFFICES
1. REGISTERED OFFICE AND REGISTERED AGENT. The location of the
registered office and the name of the registered agent of the corporation
in the State of Delaware shall be such as shall be determined from time to
time by resolution of the Board of Directors and on file in the appropriate
public offices of the State of Delaware pursuant to applicable provisions
of law.
2. CORPORATE OFFICES. The corporation may have such other corporate
offices and places of business anywhere within or without the State of
Delaware as the Board of Directors may from time to time designate or the
business of the corporation may require.
SEAL
3. CORPORATE SEAL. The corporate seal shall have inscribed thereon
the name of the corporation and the words "Corporate Seal, Delaware". The
corporate seal may be used by causing it or a facsimile thereof to be
impressed, affixed, reproduced, or otherwise inscribed or attached.
STOCKHOLDERS' MEETINGS
4. PLACE OF MEETINGS. All meetings of the stockholders shall be
held at the offices of the corporation in the City of Kansas City, State of
Missouri, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
5. ANNUAL MEETING. The annual meeting of stockholders for the
election of Directors and the transaction of other proper business shall be
held during the month of May each year at a time and place, within or
without Delaware, as determined by the Board of Directors, or in such other
month or time as the Board of Directors in its discretion may determine.
6. SPECIAL MEETINGS. Special meetings of the stockholders may be
held for any purpose or purposes, unless otherwise prescribed by statute or
by the certificate of incorporation, and may be called by the Chairman of
the Board, by the President, by the Secretary, by the Board of Directors,
or by the holders of, or by any officer or stockholder upon the written
request of the holders of, not less than twenty-five per cent (25%) of the
outstanding stock entitled to vote at such meeting, and shall be called by
any officer directed to do so by the Board of Directors or requested to do
so in writing by a majority of the Board of Directors. Any such written
request shall state the purpose or purposes of the proposed meeting.
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The "call" and the "notice" of any such meeting shall be deemed to be
synonymous.
7. VOTING. At all meetings of stockholders, every stockholder
having the right to vote shall be entitled to vote in person, or by proxy
appointed by an instrument in writing subscribed by such stockholder and
bearing a date not more than three years prior to said meeting, unless said
instrument shall provide for a longer period. Unless otherwise provided by
the certificate of incorporation or, in the case of Preferred Stock, by the
duly adopted resolution or resolutions of the Board of Directors fixing the
designations, powers, preferences, and rights of such Preferred Stock as
provided in the certificate of incorporation, each stockholder shall have
one vote for each share of stock that is entitled to vote at such meeting
and is registered in the name of such stockholder on the books of the
corporation. At all meetings of stockholders the voting may be viva voce,
except that, unless otherwise provided by the certificate of incorporation,
voting for the election of directors shall be by written ballot and except
that any qualified voter may demand a vote by ballot on any other matter,
in which event such vote shall be taken by ballot.
8. QUORUM. The holders of a majority of the stock (or, as to any
matter with respect to which voting by class of stock is required, of the
shares of each class of 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 any
business, except as otherwise provided by law, by the certificate of
incorporation, by these bylaws, or by duly adopted resolution or resolu-
tions of the Board of Directors fixing the designations, powers, prefer-
ences, and rights of Preferred Stock as provided in the certificate of
incorporation. Every decision of a majority in amount of stock (or, as to
any matter with respect to which voting by class of stock is required, of
the shares of each class of stock) of such quorum shall be valid as a
corporate act, except in those specific instances in which a larger vote is
required by law, by the certificate of incorporation, by these bylaws, or
by duly adopted resolution or resolutions of the Board of Directors fixing
the designations, powers, preferences, and rights of Preferred Stock as
provided in the certificate of incorporation.
If the holders of not less than twenty-five per cent (25%) of the
outstanding stock entitled to vote at any meeting are present in person or
by proxy at a meeting at which a quorum shall not be present, the holders
of a majority of the stock present in person or by proxy at such meeting
shall have power successively to adjourn the meeting from time to time to a
specified time and place, without notice to anyone other than announcement
at the meeting, until a quorum shall be present in person or by proxy. At
such adjourned meeting at which a quorum shall be present in person or by
proxy, any business may be transacted that could have been transacted at
the meeting as it was originally scheduled had such meeting not been
adjourned. If the adjournment is for more than thirty (30) days, or if
after adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
9. STOCK LEDGER. The original or duplicate stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required under section 10 of these bylaws, or the
books of the corporation, or to vote in person or by proxy at any meeting
of the stockholders.
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10. STOCKHOLDERS' LISTS. The Secretary or Assistant Secretary, who
shall have charge of the stock ledger, shall prepare and make, at least ten
(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 ten (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 who
is present.
11. NOTICE. Written or printed notice of each meeting of the
stockholders, whether annual or special, stating the place, date and hour
of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given to each stock-
holder of record of the corporation entitled to vote at such meeting,
either personally or by mail, not less than ten (10) days nor more than
sixty (60) days prior to the meeting. The Board of Directors may fix in
advance a date, which shall not precede the date upon which the resolution
fixing such date is adopted by the Board of Directors and which shall not
be more than sixty (60) nor less than ten (10) days preceding the date of
any meeting of the stockholders, as a record date for the determination of
the stockholders entitled to notice of, and to vote at, any such meeting
and any adjournment thereof; provided, however, that the Board of Directors
may fix a new record date for any adjourned meeting.
12. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless otherwise
provided in the certificate of incorporation, any action either required or
permitted to be taken at any annual or special meeting of stockholders of
the corporation may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by all of the holders of outstanding stock
who would have been entitled to vote on such action at such a meeting. If
the certificate of incorporation expressly authorizes action to be taken by
stockholders with the written consent of fewer than all of the holders of
outstanding stock who would have been entitled to vote on such action at
such a meeting, any such action may be taken without a meeting, without
prior notice, and without a vote if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of not
less than the minimum number of shares required to constitute the
percentage of shares specified by the certificate of incorporation or by
law for such action, provided that prompt notice of the taking of corporate
action without a meeting by less than unanimous written consent must be
given to all stockholders not signing such consent or consents.
BOARD OF DIRECTORS
13. MANAGEMENT. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors. The authorized
number of Directors shall be not less than eleven (11) nor more than
sixteen (16), as fixed by the Board from time to time. Unless required by
the certificate of incorporation, Directors need not be stockholders.
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At each annual meeting of stockholders, the Board of Directors
shall be elected to hold office for a term expiring at the next succeeding
annual meeting of stockholders. Each Director shall hold office for the
term for which he was elected and until his successor is elected and
qualified or until his earlier resignation or removal. Directors of the
corporation may be removed only for cause.
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(a) To authorize and cause to be executed
mortgages and liens upon the real and personal property of the corporation.
(b) To set apart out of any funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
(c) When and as authorized by the stockholders' vote required under
the provisions of Article FIFTEENTH of the certificate of incorporation, to
sell, lease or exchange all of the property or assets of the corporation,
including its goodwill and its corporate franchises, upon such terms and
conditions and for such consideration, which may be in whole or in part
shares of stock in, or other securities of (or both), any other corporation
or corporations as its Board of Directors may deem expedient and for the
best interest of the corporation.
(d) To sell, issue or otherwise dispose of common stock or any other
securities of the corporation, including preferred stock, debentures,
bonds, mortgages, notes, certificates, and any and all other securities
whatsoever, for such consideration as the Board of Directors in its
discretion shall determine; provided, however, that no shares of stock
shall be sold for any consideration not in accordance with the laws of the
State of Delaware.
This corporation may in these bylaws confer powers additional to the
foregoing upon the directors, in addition to the powers, authorities and
duties expressly conferred upon them by law.
14. VACANCIES AND NEWLY-CREATED DIRECTORSHIPS. Vacancies and newly
created directorships resulting from any increase in the authorized number
of Directors may be filled by a majority of the Directors then in office,
although less than a quorum, or by a sole remaining Director. Directors so
chosen shall hold office until the next election of Directors or until
their earlier resignation or removal.
15. MEETINGS OF THE NEWLY-ELECTED BOARD - ACCEPTANCE. The first
meeting of the members of each newly-elected Board of Directors shall be
held without notice immediately following the annual meeting of
stockholders for the election of officers and the transaction of such other
business as may come before it. Every Director of the corporation, upon
his election, shall qualify by accepting the office of Director, and his
attendance at, or his written approval of the minutes of, any meeting of
the Board subsequent to his election shall constitute his acceptance of
such office; or he may execute such acceptance by a separate writing, which
shall be placed in the minute book.
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16. REGULAR MEETING. Regular meetings of the Board of Directors may
be held without notice at such times and places either within or without
the State of Delaware as shall from time to time be determined by the Board
of Directors. Any business may be transacted at a regular meeting.
17. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called at any time by the Chairman of the Board, the President, any
Executive Vice President, any Senior Vice President, any Vice President, or
the Secretary or by any two (2) or more of the Directors. The place of the
special meeting may be within or without the State of Delaware as
designated in the notice of the special meeting.
18. MEETINGS BY CONFERENCE TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT. Unless otherwise restricted by the certificate of incorporation
or these bylaws, members of the Board of Directors of the corporation, or
any committee designated by such Board, may participate in a meeting of
such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant hereto
shall constitute presence in person at such meeting.
19. NOTICE OF SPECIAL MEETINGS. Written or printed notice of each
special meeting of the Board, stating the place, day and hour of the
meeting and the purpose or purposes thereof, shall be mailed or shipped by
overnight courier to each Director addressed to him at his 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 him by telegram, facsimile
transmission, or delivered personally, at least two (2) days before the day
on which the meeting is to be held. The notice may be given by any officer
having authority to call the meeting. "Notice" and "call" with respect to
such meetings shall be deemed to be synonymous. Any meeting of the Board
of Directors shall be a legal meeting without any notice thereof having
been given if all Directors shall be present thereat.
20. QUORUM. Unless otherwise required by law, the certificate of
incorporation or these bylaws, a majority of the authorized number of
Directors, as fixed by the Board from time to time, shall be necessary at
all meetings to constitute a quorum for the transaction of business, and
except as may be otherwise provided by law, the certificate of
incorporation or these bylaws, 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 at least two Directors or one-third of the whole Board of
Directors, whichever is greater, is present at any meeting at which a
quorum is not present, a majority of the Directors present at such meeting
shall have power successively to adjourn the meeting from time to time to a
subsequent date, without notice to any Director other than announcement at
the meeting. At such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the original
meeting which was adjourned.
21. ACTION WITHOUT A MEETING. Except as otherwise provided in these
bylaws, any action required or permitted to be taken at any meeting of the
Board of Directors, or any committee thereof, may be taken without a
meeting if written consent thereto is signed by all members of the Board or
of such committee, as the case may be, and such written consent is filed
with the minutes of proceedings of the Board or committee.
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22. (a) STANDING OR TEMPORARY COMMITTEES. The standing committees
of the Board of Directors shall be an Executive Committee, an Audit
Committee, a Compensation Committee, and a Committee on Directors, having
the respective duties assigned to each in this section 22 and any other
duties assigned to such committee by resolution passed by a majority of the
entire Board of Directors from time to time. Each such standing committee
shall consist of one or more Directors as regular members and such other
ex-officio members as the Board of Directors shall from time to time deter-
mine. The Chairman of each standing committee shall be one of such
committee's regular members who shall be designated as that committee's
chairman by a majority of the entire Board of Directors. Members of each
standing committee shall be elected by a majority of the entire Board of
Directors at its first meeting after each annual meeting of stockholders.
Vacancies in any standing committee shall be filled by a majority vote of
the entire Board of Directors. The Board of Directors may appoint
Directors or executive associates of the Corporation or its subsidiaries to
be ex-officio members of any standing committee. Ex-officio members of
standing committees shall be entitled to be present at all meetings of
their respective committees and to participate in committee discussions but
shall not be entitled to vote on any matter considered by the committee.
Each standing committee shall fix its own rules of procedure and shall meet
where and as provided by such rules, but the presence of a majority of its
regular members shall be necessary to constitute a quorum. The Board of
Directors may from time to time appoint such special committees with such
powers and such members as it may designate in a resolution or resolutions
adopted by a majority of the entire Board of Directors. All committees
appointed by the Board of Directors shall, unless otherwise provided by the
Board of Directors, keep regular minutes of the transactions of their
meetings and shall cause them to be recorded in books kept for that purpose
in the office of the corporation and shall report the same to the Board of
Directors at its next meeting.
(b) EXECUTIVE COMMITTEE. During the intervals between meetings
of the Board of Directors, the Executive Committee shall have and may
exercise all of the powers and authority of the Board of Directors in the
management of the business and affairs of this corporation, and any
exceptions to that authority shall be adopted by a majority of the entire
Board of Directors as required from time to time. The Executive Committee
shall consist of the Chairman of the Board, the President, and not less
than three other Directors. The Executive Committee shall keep regular
minutes of its meetings, which shall be filed in the minute book of this
corporation, and shall deliver a copy of the minutes of each such meeting
to each of the members of the Board of Directors of this corporation and
shall make a report of its proceedings to the Board of Directors at the
next meeting thereof immediately following such Executive Committee meeting
or meetings.
(c) AUDIT COMMITTEE. The Audit Committee shall consist of two
or more regular members, all of whom shall be independent of management of
the corporation as provided in the New York Stock Exchange Listed Company
Manual. The Audit Committee shall: (1) prior to each annual meeting of
stockholders, review the qualifications and performance of independent
public accountants proposed to be retained to conduct the annual audit of
the financial statements of the corporation and submit a recommendation to
the Board of Directors for the selection of independent public accountants
to be appointed for such purpose by the Board of Directors and submitted
for ratification or rejection by the stockholders at such annual meeting;
(2) annually consult with the independent public accountants retained by
the corporation with regard to the proposed plan of audit; (3) from time to
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time consult privately with such independent public accountants, the
corporation's internal auditor, Controller, and Chief Financial Officer to
review the accounting practices of the corporation and the adequacy of
internal controls; and (4) upon completion of the audit by the independent
public accountants and prior to the annual meeting of stockholders, review
the year-end financial statements of the corporation and meet with the
independent public accountants to review the nature and scope of their
audit, the results of such audit, and any recommendations resulting from
such audit.
(d) COMPENSATION COMMITTEE. The Compensation Committee shall
consist of three or more regular members, a majority of whom shall be
"disinterested persons" as defined in rule 16b-3 of the Securities and
Exchange Commission (the "SEC"). The Compensation Committee shall: (1)
adopt compensation philosophies, policies, and objectives applicable to all
"officers" (as defined in SEC rule 16a-1) of the Corporation, and to such
other personnel as the Board of Directors may from time to time delegate to
the Committee; (2) establish the levels, amounts, and types of compensa-
tion and other remuneration to be paid to the Chairman of the Board, the
President and all other such "officers" of the Corporation; (3) review and
approve compensation and benefit plan design; (4) report annually to the
shareholders of the Corporation concerning the compensation of the Chief
Executive Officer and on the policies applicable to executive compensation
in general, as required by applicable SEC rules; and (5) constitute the
membership and exercise all the powers of the administrative committees of
the Corporation's incentive compensation and stock option plans; provided
that with respect to any such plan in which Directors or Officers of the
Corporation are eligible to receive awards of "equity securities" or
"derivative securities" (as such terms are used in SEC rule 16a-1) of the
Corporation other than pursuant to a "formula" plan (as defined in SEC rule
16b-3), the members of the Compensation Committee who are not "dis-
interested persons" shall be nonvoting ex-officio members of the
administrative committee of such plan.
(e) COMMITTEE ON DIRECTORS. The Committee on Directors shall
(1) recommend to the Board the individuals to constitute nominees to the
Board of the Directors for election at the next annual meeting of stock-
holders and who will be named as such nominees named in the proxy statement
used in solicitation of proxies by the Board; (2) recommend and nominate an
individual for Director to fill the unexpired term of any vacancy existing
in the Board of Directors or created by an increase in the size of the
Board; (3) conduct continuing studies of the size and composition of the
Board of Directors and from time to time make recommendations to the Board
for enlargement or reduction in size of the Board; and (4) recommend and
nominate individuals for election as officers and members of committees;
and (5) conduct studies of the cash and non-cash compensation of the Board
of Directors and from time to time make recommendations to the Board for
increases or reductions in such compensation.
23. COMPENSATION. Unless otherwise restricted by the certificate of
incorporation, the Board of Directors may, by resolution, fix the
compensation to be paid Directors for serving as Directors of this
corporation and may, by resolution, fix a sum which shall be allowed and
paid for attendance at each meeting of the Board of Directors and in such
case may provide for reimbursement of expenses incurred by Directors in
attending each meeting; provided that nothing herein contained shall be
construed to preclude any Director from serving this corporation in any
other capacity and receiving his regular compensation therefor. Members of
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special or standing committees may be allowed like compensation for
attending committee meetings.
24. RESIGNATIONS. Any Director may resign at any time by giving a
written notice to the Chairman of the Board, the President, or the
Secretary of the corporation. Such resignation shall take effect at the
time specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
25. INDEMNIFICATION AND LIABILITY OF DIRECTORS, OFFICERS, AND
EMPLOYEES. The corporation may, up to the full extent permitted or
authorized by applicable laws of the State of Delaware and subject to the
provisions thereof and of the certificate of incorporation, indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative, or investigative, including any action by
or in the right of the corporation or any of its subsidiaries, by reason of
the fact that such person is or was a Director, officer, employee, or agent
of the corporation or of any subsidiary of the corporation, or is or was
serving at the request of the corporation as a Director, officer, employee,
or agent of another corporation (other than a subsidiary), partnership,
joint venture, trust, or other enterprise including, by way of example but
not by way of limitation, the corporation's profit sharing plan trust,
associate stock ownership plan trust, comprehensive health care plan trust,
or other associate benefit plans (all of which entities shall hereinafter
be collectively referred to as "other corporations or enterprises"),
against expenses, (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit, or proceeding.
Without limiting the foregoing or any other provision of these bylaws
or of the certificate of incorporation, no person shall be liable to the
corporation or any of its subsidiaries for any loss, damage, liability, or
expense suffered by it on account of any action taken or omitted to be
taken by such person as a Director, officer, or employee of the
corporation, any of its subsidiaries, or of any other corporations or
enterprises where such person served as a Director, officer, employee at
the request of the corporation, if such person took or omitted to take such
action in reliance upon advice of counsel for the corporation or any of its
subsidiaries, or for such other corporations or enterprises, or upon state-
ments made or information furnished by Directors, officers, employees, or
agents of the corporation or any of its subsidiaries, or of such other
corporations or enterprises, which such person had no reasonable grounds to
disbelieve.
The corporation may, up to the full extent permitted or authorized by
applicable laws of the State of Delaware and subject to the provisions
thereof and of the certificate of incorporation, pay in advance of final
disposition the expenses (including attorneys' fees) incurred by a
Director, officer, employee, or agent of the corporation in defending any
civil, criminal, administrative, or investigative action, suit, or
proceeding with respect to which such person might ultimately be indemni-
fied hereunder; provided that in the case of any Director or officer, the
corporation shall have received an undertaking by or on behalf of such
person to repay all amounts so advanced if and to the extent it shall
ultimately be determined that such Director or officer is not entitled to
be indemnified by the corporation under applicable law.
The indemnification and advancement of expenses provided by, or
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granted pursuant to, this section 25 shall not be deemed exclusive of any
other rights to which one seeking indemnification or advancement of
expenses may be entitled under any applicable law, the certificate of
incorporation, any bylaw, agreement, vote of stockholders or disinterested
Directors, or otherwise, both as to action in such person's official
capacity and as to action in any other capacity while holding such office.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this section 25 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
Director, officer, employee, or agent of the corporation or any of its
subsidiaries or a Director, officer, employee, or agent of any other
corporations or enterprises and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
26. ADVISORY BOARD OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint one (1) or more
officers of this corporation, who at the time of their appointment are not
members of the Board of Directors, to serve as members of an Advisory Board
of Directors. The Advisory Directors shall attend all meetings of the
Board of Directors, may participate in the deliberations of the Board, and
shall inform and counsel the Board of Directors on such matters as the
Board may deem appropriate. The Advisory Directors, however, shall not be
entitled to vote on any matter considered by the Board of Directors. An
Advisory Director shall serve until the next following annual meeting of
stockholders after his appointment or until his successor is appointed by
the Board of Directors, whichever is the latter to occur. Advisory
Directors may be appointed for an unlimited number of terms by the Board.
OFFICERS
27. (a) OFFICERS; WHO SHALL CONSTITUTE. The officers of the
corporation shall be a Chairman of the Board, a President, one or more
Executive Vice Presidents, one or more Senior Vice Presidents, one or more
Vice Presidents, a Secretary, and a Treasurer each of whom shall be elected
by the Board of Directors at their first meeting after the annual meeting
of stockholders. The Board of Directors may also designate additional
Assistant Secretaries and Assistant Treasurers. In the discretion of the
Board of Directors (and subject to election by vote of the stockholders or
otherwise as provided in these bylaws), the incumbent Chairman of the Board
(if any) shall at all times be, and other officers may be, members of the
Board of Directors. Any two or more offices may be held by the same
person.
(b) TERM OF OFFICE. Each officer of the corporation shall hold
his office at the pleasure of the Board of Directors or for such other
period as the Board may specify at the time of his election or appointment,
or until his death, resignation or removal by the Board, whichever first
occurs. In any event, each officer of the corporation who is not re-
elected or reappointed at the annual meeting of the Board next succeeding
his election or appointment and at which any officer of the corporation is
elected or appointed shall be deemed to have been removed by the Board,
unless the Board provides otherwise at the time of his election or
appointment.
(c) OTHER OFFICERS AND AGENTS. The Board from time to time may
also appoint such other officers and agents for the corporation as it shall
deem necessary or advisable, each of whom shall serve at the pleasure of
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the Board or for such period as the Board may specify, and shall exercise
such powers, have such titles and perform such duties as shall be
determined from time to time by the Board or by any officer empowered by
the Board to make such determinations.
(d) ORDER OF SUCCESSION. In the event of the disability,
inability, or refusal of both the Chairman of the Board, and the President
to act, the Secretary of the corporation shall, immediately upon occurrence
of such event, call a special meeting of the Board of Directors for the
express purpose of electing a successor Chairman of the Board and a
successor President of the corporation each of whom shall be vested with
all powers and perform all duties of the respective offices to which such
persons are hereunder elected.
28. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall have
such executive powers and duties of supervision and management as are
usually vested in the office of Chairman of the Board, shall carry into
effect all directions and resolutions of the Board and shall be in general
and active charge of the business and affairs of the corporation. He shall
preside at all meetings of the stockholders and Directors at which he may
be present, be consulted on all quarterly report decision items, have
approval power on the commencement or conclusion of significant litigation
involving the corporation. In addition, he shall serve as Chairman of the
Executive Committee of the Board of Directors. He shall have such other
duties, powers and authority as may be prescribed elsewhere in these bylaws
or delegated to him by the Board of Directors, other than those conferred
by law exclusively on the President. He may further execute all bonds,
notes, debentures, mortgages, and other instruments for and in the name of
the corporation, and may cause the corporate seal to be affixed thereto.
The Chairman of the Board, or any person designated in writing by him,
shall have full power and authority on behalf of this corporation (i) to
attend and to vote or take action at any meeting of the holders of
securities of corporations in which this corporation may hold securities,
and at such meetings shall possess and may exercise any and all rights and
powers incident to being a holder of such securities and which as the
holder thereof this corporation may have possessed and exercised if
present, and (ii) to execute and deliver waivers of notice and proxies for
and in the name of the corporation with respect to any such securities held
by this corporation.
He shall, unless the Board or these bylaws otherwise provide, be ex-
officio a member of all standing committees.
29. PRESIDENT. The President shall perform such duties as may be
specifically delegated to him by the Board of Directors and as are
conferred exclusively upon him by the laws of Delaware. In the absence of
the Chairman of the Board or in the event of his disability, inability or
refusal to act, the President shall perform the duties and exercise the
powers of the Chairman of the Board. In addition, the President shall have
general executive powers and duties with respect to the purchase and
operation of corporation aircraft.
The President may execute all bonds, notes, debentures, mortgages, and
other instruments for and in the name of the corporation, and may cause the
corporate seal to be affixed thereto.
In the absence of the Chairman of the Board, the President or any
person designated in writing by him shall have full power and authority on
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behalf of this corporation (i) to attend and to vote or take action at any
meeting of the holders of securities of corporations in which this
corporation may hold securities, and at such meetings shall possess and may
exercise any and all rights and powers incident to being a holder of such
securities and which as the holder thereof this corporation may have pos-
sessed and exercised if present, and (ii) to execute and deliver waivers of
notice and proxies for and in the name of the corporation with respect to
any such securities held by this corporation.
He shall have such other or further duties and authority as may be
prescribed elsewhere in these bylaws or from time to time by the Board of
Directors.
30. EXECUTIVE VICE PRESIDENT. The Board of Directors may designate
one or more Executive Vice Presidents who shall have such powers and duties
in support of the President as are usually vested in the office of
Executive Vice President. An Executive Vice President shall perform such
other duties as the Board of Directors, the Chairman of the Board, or the
President may from time to time assign or delegate to him.
31. SENIOR VICE PRESIDENT. The Board of Directors may designate one
or more Senior Vice Presidents who shall have such powers and duties of
supervision and management as are usually vested in the office of Senior
Vice President. A Senior Vice President shall perform such other duties as
the Board of Directors, the Chairman of the Board, or the President may
from time to time assign or delegate to him.
32. CHIEF FINANCIAL OFFICER. Unless the Board of Directors otherwise
provides, one of the Vice Presidents shall also be the Chief Financial
Officer of the corporation with such general administrative powers and
duties of supervision and management as are usually vested in the office of
the Chief Financial Officer of a corporation, and he shall carry into
effect all directions and resolutions of the Board as may be directed to
his office. The Chief Financial Officer shall be responsible for all
financial matters of the corporation and shall keep or cause to be kept and
audited all accounting records of the corporation. He shall perform such
other duties and shall have such other responsibilities and authority as
may be prescribed elsewhere in these bylaws or from time to time by the
Board of Directors.
33. PRESIDENT OF AN OPERATING UNIT. The Board of Directors may
designate one or more Presidents of operating units of the corporation who
shall have such powers and duties of supervision and management as are
usually vested in the office of the President of an operating unit. The
President of an operating unit shall perform such other duties as the Board
of Directors, the Chairman of the Board, or the President may from time to
time prescribe or designate to him.
34. VICE PRESIDENT-GENERAL COUNSEL. Unless the Board otherwise
provides, the Vice President--General Counsel shall be the Chief Legal
Officer of the corporation with such general administrative powers and
duties of supervision and management as are usually vested in the office of
the Chief Legal Officer and he shall carry into effect all directions and
resolutions of the Board.
35. VICE PRESIDENT. The Board of Directors may designate one or more
Vice Presidents who shall have such powers and duties of supervision and
management as are usually vested in the office of the Vice President. The
Vice President shall perform such other duties as the Board of Directors,
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the Chairman of the Board, or the President may from time to time prescribe
or designate to him.
36. SECRETARY AND ASSISTANT SECRETARIES. The Secretary may attend
all sessions of the Board and all meetings of the stockholders, and shall
record or cause to be recorded all votes taken and the minutes of all
proceedings in a minute book of the corporation to be kept for that
purpose. He shall perform like duties for the Executive and other standing
committees when requested by the Board or any such committee to do so.
It shall be the principal responsibility of the Secretary to give, or
cause to be given, notice of all meetings of the stockholders and of the
Board of Directors, but this shall not lessen the authority of others to
give such notice as is authorized elsewhere in these bylaws.
The Secretary shall see that all books, records, lists and
information, or duplicates, required to be maintained in Delaware, or
elsewhere, are so maintained.
The Secretary shall keep in safe custody the seal of the corporation,
and shall have authority to affix the seal to any instrument requiring it,
and when so affixed, he shall attest the seal by his signature. The Board
of Directors may give general authority to any other officer to affix the
seal of the corporation and to attest the affixing by his signature.
The Secretary shall perform such other duties and have such other
authority as may be prescribed elsewhere in these bylaws or from time to
time by the Board of Directors or the Chairman of the Board of the corpora-
tion, under whose direct supervision he shall be.
In the absence of the Secretary or in the event of his disability,
inability or refusal to act, the Assistant Secretary (or in the event there
be more than one Assistant Secretary, the Assistant Secretaries in the
order designated by the Board, or in the absence of any designation, then
in the order of their election) may perform the duties and exercise the
powers of the Secretary, and shall perform such other duties as the Board
of Directors may from time to time prescribe.
37. THE TREASURER AND ASSISTANT TREASURERS. The Treasurer shall have
responsibility for the safekeeping of the funds and securities of the
corporation, shall keep or cause to be kept full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
keep, or cause to be kept, all other books of account and accounting
records of the corporation. He shall deposit or cause to be deposited all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors or by any officer of the corporation to whom such authority has
been granted by the Board of Directors.
He shall disburse, or permit to be disbursed, the funds of the
corporation as may be ordered, or authorized generally, by the Board, and
shall render to the Chairman of the Board of the corporation and the
Directors, whenever they may require it, an account of all his transactions
as Treasurer and of those under his jurisdiction, and of the financial
condition of the corporation.
He shall perform such other duties and shall have such other
responsibility and authority as may be prescribed elsewhere in these bylaws
or from time to time by the Board of Directors.
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He shall have the general duties, powers and responsibility of a
Treasurer of a corporation.
If required by the Board, he shall give the corporation a bond in a
sum and with one or more sureties satisfactory to the Board, for the
faithful performance of the duties of his office, and for the restoration
to the corporation, in the case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control which
belong to the corporation.
In the absence of the Treasurer or in the event of his disability,
inability or refusal to act, the Assistant Treasurer (or in the event there
be more than one Assistant Treasurer, the Assistant Treasurers in the order
designated by the board, or in the absence of any designation, then in the
order of their election) may perform the duties and exercise the powers of
the Treasurer, and shall perform such other duties and have such other
authority as the Board of Directors may from time to time prescribe.
38. DUTIES OF OFFICERS MAY BE DELEGATED. If any officer of the
corporation be absent or unable to act, or for any other reason that the
Board may deem sufficient, the Board may delegate for the time being, some
or all of the functions, duties, powers and responsibilities of any officer
to any other officer, or to any other agent or employee of the corporation
or other responsible person, provided a majority of the whole Board concurs
therein.
39. REMOVAL. Any officer or agent elected or appointed by the Board
of Directors, and any employee, may be removed or discharged at any time by
the affirmative vote of a majority of the Board of Directors, but such
removal or discharge shall be without prejudice to the contract rights, if
any, of the person so removed or discharged.
40. SALARIES AND COMPENSATION. Salaries and compensation of all
"officers" (as defined in SEC rule 16a-1) of the corporation shall be
fixed, increased or decreased by the Compensation Committee. Salaries and
compensation of all other appointed officers, agents and employees of the
corporation may be fixed, increased or decreased by the Board of Directors,
the Chairman of the Board, the President, or such other officer or commit-
tee as may be designated by the Board of Directors to do so.
41. DELEGATION OF AUTHORITY TO HIRE, DISCHARGE AND DESIGNATE DUTIES.
The Board from time to time may delegate to the Chairman of the Board, the
President, or other officer or executive employee of the corporation,
authority to hire, discharge, and fix and modify the duties, salary or
other compensation of employees of the corporation under their juris-
diction, and the Board may delegate to such officer or executive employee
similar authority with respect to obtaining and retaining for the corpo-
ration the services of attorneys, accountants and other experts.
STOCK
42. CERTIFICATES OF STOCK. Certificates of stock shall be issued in
numerical order, and each stockholder shall be entitled to a certificate
signed by the Chairman of the Board, or the President, an Executive Vice
President or a Senior Vice President, or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, certifying the number of shares owned by him. Any or all of the
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signatures on such 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, such
certificate may nevertheless be issued by the corporation with the same
effect as if such officer, transfer agent or registrar who signed the
certificate, or whose facsimile signature shall have been used thereon, had
not ceased to be such officer, transfer agent or registrar of the corpo-
ration.
43. TRANSFER OF STOCK. Transfers of stock shall be made only upon
the transfer books of the corporation, kept at the office of the
corporation or respective transfer agents designated to transfer the
several classes of stock, and before a new certificate is issued the old
certificate shall be surrendered for cancellation. Until and unless the
board appoints some other person, firm or corporation as its transfer agent
or transfer clerk (and upon the revocation of any such appointment, there-
after until a new appointment is similarly made) the secretary of the
corporation shall be the transfer agent or transfer clerk of the
corporation without the necessity of any formal action of the Board, and
the Secretary, or any person designated by him, shall perform all of the
duties thereof.
44. REGISTERED STOCKHOLDERS. Registered stockholders only shall be
entitled to be treated by the corporation as the holders and owners in fact
of the shares standing in their respective names and the corporation shall
not be bound to recognize any equitable or other claim to or interest in
such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as expressly provided by the laws
of Delaware.
45. LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates 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 or certificates to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or
certificates, 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 certificates, or his legal repre-
sentative, to give the corporation and its transfer agents and registrars,
if any, a bond in such sum as it may direct to indemnify it against any
claim that may be made against it with respect to the certificate or
certificates alleged to have been lost, stolen or destroyed or the issuance
of such new certificate or certificates.
46. REGULATIONS. The Board of Directors shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer, conversion and registration of certificates
for shares of the capital stock of the corporation, not inconsistent with
the laws of Delaware, the certificate of incorporation, and these bylaws.
47. FIXING 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 to express consent to corporate
action in writing without a meeting, 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
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may fix, in advance, a record date, which shall not be more than sixty (60)
nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action, and which shall not precede the
date upon which the resolution fixing such date is adopted by the Board of
Directors. 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; providing, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
DIVIDENDS AND FINANCE
48. DIVIDENDS; CANCELLATION OF STOCK. Dividends upon the outstanding
shares of the corporation, subject to the provisions of the certificate of
incorporation and of any applicable law and of these bylaws, may be
declared by the Board of Directors at any meeting. Subject to such
provisions, dividends may be paid in cash, in property, or in shares of the
capital stock of the corporation; provided, however, that:
(a) The Secretary, acting on behalf of the corporation, is hereby
authorized to instruct the transfer agent and registrar of the corporation
to cancel any shares of its capital stock, pursuant to the provisions of
the certificate of incorporation of the corporation, of a holder or owner
whose address remains unknown to the corporation or its stock transfer
agent for a period of at least twenty-four (24) consecutive calendar
months. Any shares of capital stock shall not thereafter be deemed to be
issued or outstanding until such time as the lawful holder or owner thereof
establishes ownership rights as set forth in these bylaws; and
(b) No dividend shall be paid on any shares of the capital stock of
the corporation to a holder or owner whose shares of corporate stock have
been canceled under paragraph (a) above.
49. PROCEDURE. So long as the corporation, in the opinion of its
Chief Legal Officer, is not otherwise prohibited by law or by any order of
any court of competent jurisdiction, the corporation shall, under the terms
of these bylaws, issue to a bona fide owner shares of its capital stock, in
replacement of shares canceled by the corporation under authority of the
certificate of incorporation and/or pay to such owner dividends thereon
which had not heretofore been paid, if each of the following conditions are
fully met, to the satisfaction of the Chief Legal Officer of the
corporation, by such owner:
(a) The owner (or the heir, devisee, assignee, or legal
representative thereof, hereinafter referred to as the "applicant") shall
execute and deliver a written application to and on a form prepared by the
corporation, requesting that the corporation reissue such canceled shares
of capital stock and/or pay dividends thereon for such period or periods
during which no dividends from the corporation have been received by said
applicant;
(b) The applicant executes and delivers to the corporation a duly
notarized affidavit in which the applicant shall, under oath, swear to and
state in writing (and to which affidavit there are attached documents or
papers which are satisfactory in the opinion of the Chief Legal Officer for
the corporation to show) that applicant is the true and lawful owner of all
right, title, and interest in and to the shares of capital stock of the
corporation sought by the applicant to be reissued by the corporation and
that the applicant is entitled to receive all dividends thereon not
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received by said applicant during the period of the applicant's ownership
of shares of capital stock of the corporation; and
(c) The Chief Legal Officer is hereby directed to implement the
procedures adopted from time to time by the corporation, consistent with
protecting the interests of the corporation and its stockholders, with a
view to expediting the review and approval by the corporation of any
applications and affidavits submitted by any stockholder pursuant to these
bylaws.
50. CREATION OF RESERVES. The Directors may set apart out of any of
the funds of the corporation available for dividends a reserve or reserves
for any proper purpose or may abolish any such reserve in the manner in
which it was created.
51. MONEYS. The moneys of the corporation shall be deposited in the
name of the corporation in such bank or banks or trust company or trust
companies as the Board of Directors shall designate, and shall be drawn out
only by check signed by persons designated by resolution adopted by the
Board of Directors, except that the Board of Directors may delegate said
powers in the manner hereinafter provided in this bylaw 51. The Board of
Directors may by resolution authorize an officer or officers of the
corporation to designate any bank or banks or trust company or trust
companies in which moneys of the corporation may be deposited, and to
designate the persons who may sign checks drawn on any particular bank
account or bank accounts of the corporation, whether created by direct
designation of the Board of Directors or by an authorized officer or
officers as aforesaid.
52. FISCAL YEAR. The Board of Directors shall have power to fix and
from time to time change the fiscal year of the corporation. In the
absence of action by the Board of Directors, however, the fiscal year of
the corporation shall end each year on December 31 until such time, if any,
as the fiscal year shall be changed by the Board of Directors.
53. DIRECTORS' ANNUAL STATEMENT. The Board of Directors may present
at each annual meeting of the stockholders, and when called for by vote of
the stockholders shall present to any annual or special meeting of the
stockholders, a full and clear statement of the business and condition of
the corporation.
BOOKS AND RECORDS
54. BOOKS, ACCOUNTS AND RECORDS. The books, accounts and records of
the corporation, except as may be otherwise required by the laws of the
State of Delaware, may be kept outside of the State of Delaware, at such
place or places as the Board of Directors may from time to time determine.
The Board of Directors shall determine whether, to what extent and the
conditions upon which the accounts and books of the corporation, or any of
them, shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any account or book or document
of the corporation, except as conferred by law or by resolution of the
stockholders or directors.
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NOTICES
55. PROVISIONS. Whenever the provisions of the statutes of the State
of Delaware, the certificate of incorporation or these bylaws require
notice to be given to any Director, officer or stockholder, they shall not
be construed to require actual personal notice. Notice by mail or
overnight courier may be given in writing by depositing the same in a post
office or letter box, or with an overnight courier or in a parcel pickup
box, as appropriate to the carrier selected, postage or other charges
prepaid or provided for, in a sealed wrapper, addressed to such Director,
officer or stockholder at his or her address as the same appears in the
books of the corporation, and the time when the same shall be so deposited
shall be deemed to be the time of the giving of such notice. If notice is
given by telegraph, such notice shall be deemed to be given when the same
is delivered to the telegraph company. If notice is given by facsimile
transmission, such notice shall be deemed to be given when transmission
thereof is completed.
56. WAIVER. Whenever any notice is required to be given under the
provisions of the statutes of Delaware or of the certificate of
incorporation or of these bylaws, 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 to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting,
except when a person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, Directors, or members of a committee
of Directors need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these bylaws.
MISCELLANEOUS
57. CONTRACTS. Whenever the management of this corporation decides
that a contract should be signed in the ordinary course of business of this
corporation, the Chairman of the Board, the President, any Executive Vice
President, any Senior Vice President, any President of an Operating Unit,
any Vice President or the Treasurer of the corporation or any of their
delegates, shall have the authority to execute such a contract and the
Secretary or any Assistant Secretary shall have the authority to attest
thereto. Whenever the management of this corporation decides that a
contract should be signed which is not deemed to be in the ordinary course
of business of this corporation, the Board of Directors, or the Executive
Committee within the limits of authority delegated to it by the Board of
Directors, may authorize any officer or officers, agent or agents, to enter
into any such contract or execute and deliver any instrument in the name of
and on behalf of the corporation, and such authority may be general or
confined to specific instances.