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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
AMERISOURCE-BERGEN CORPORATION
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TABLE OF CONTENTS
PAGE
ARTICLE I
OFFICES
Section 1.01. Registered Office......................................... 1
Section 1.02. Other Offices............................................. 1
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. Annual Meetings........................................... 1
Section 2.02. Special Meetings.......................................... 1
Section 2.03. Notice and Business of Meetings........................... 1
Section 2.04. Adjournments.............................................. 4
Section 2.05. Quorum.................................................... 4
Section 2.06. Organization.............................................. 5
Section 2.07. Inspectors of Elections................................... 5
Section 2.08. Fixing of Record Date..................................... 6
Section 2.09. Voting; Proxies........................................... 6
Section 2.10. Action by Stockholders Without a Meeting.................. 7
ARTICLE III
BOARD OF DIRECTORS
Section 3.01. Election and Term......................................... 7
Section 3.02. Number.................................................... 7
Section 3.03. General Powers............................................ 7
Section 3.04. Place of Meetings......................................... 7
Section 3.05. Organization Meeting...................................... 7
Section 3.06. Regular Meetings.......................................... 8
Section 3.07. Special Meetings; Notice and Waiver of Notice............. 8
Section 3.08. Organization of Meetings.................................. 8
Section 3.09. Quorum and Manner of Acting............................... 8
Section 3.10. Voting.................................................... 9
Section 3.11. Action Without a Meeting.................................. 9
Section 3.12. Resignations.............................................. 9
Section 3.13. Removal of Directors...................................... 9
Section 3.14. Vacancies................................................. 9
Section 3.15. Directors' Compensation................................... 9
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ARTICLE IV
COMMITTEES
Section 4.01. Constitution and Powers................................... 10
Section 4.02. Place of Meetings......................................... 10
Section 4.03. Meetings; Notice and Waiver of Notice..................... 10
Section 4.04. Organization of Meetings.................................. 10
Section 4.05. Quorum and Manner of Acting............................... 10
Section 4.06. Voting.................................................... 11
Section 4.07. Records................................................... 11
Section 4.08. Vacancies................................................. 11
Section 4.09. Members' Compensation..................................... 11
Section 4.10. Emergency Management Committee............................ 11
ARTICLE V
OFFICERS
Section 5.01. Officers; Election or Appointment......................... 11
Section 5.02. Term of Office; Resignation; Removal; Vacancies........... 12
Section 5.03. Powers and Duties......................................... 12
Section 5.04 Executive Management Committee............................ 12
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
Section 6.01. Stock Certificates; Uncertificated Shares................. 13
Section 6.02. Transfers of Stock........................................ 14
Section 6.03. Lost Certificates......................................... 14
Section 6.04. Determination of Holders of Record for Certain Purposes... 14
ARTICLE VII
CORPORATE SEAL
Section 7.01. Seal...................................................... 14
Section 7.02. Affixing and Attesting.................................... 14
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Fiscal Year............................................... 15
Section 8.02. Signatures on Negotiable Instruments...................... 15
Section 8.03. Execution of Proxies...................................... 15
Section 8.04. References To Article and Section Numbers and to the
By-Laws and the Certificate of Incorporation.............. 15
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ARTICLE IX
AMENDMENTS
Section 9.01. Amendments................................................ 15
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AMENDED AND RESTATED BYLAWS
OF
AMERISOURCE-BERGEN CORPORATION
ARTICLE I
OFFICES
Section 1.01. Registered Office. The registered office of
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AmeriSource-Bergen Corporation (the "Corporation") in the State of Delaware
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shall be The Corporation Trust Company, 1209 Orange Street, in the City of
Wilmington, County of New Castle, Delaware 19801, and the registered agent in
charge thereof shall be The Corporation Trust Company.
Section 1.02. Other Offices. The Corporation may also have an
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office or offices at any other place or places within or without the State of
Delaware as the Board of Directors of the Corporation (the "Board") may from
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time to time determine or the business of the Corporation may from time to time
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. Annual Meetings. The annual meeting of
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stockholders (as hereinafter defined) of the Corporation for the election of
Directors of the Corporation ("Directors"), and for the transaction of such
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other business as may properly come before such meeting, shall be held at such
place, date and time as shall be fixed by the Board and designated in the notice
or waiver of notice of such annual meeting.
Section 2.02. Special Meetings. Special meetings of
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stockholders for any purpose or purposes may be called by the Board pursuant to
a resolution duly adopted by a majority of the members of the Board, to be held
at such place, date and time as shall be designated in the notice or waiver of
notice thereof. Only business within the purposes described in the notice
required by Section 2.03 of this Article II may be conducted at the special
meeting. The ability of the stockholders to call a special meeting of
stockholders of the Corporation is specifically denied.
Section 2.03. Notice and Business of Meetings. (a) General.
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Except as otherwise provided by law, written notice of each meeting of
stockholders shall be given either by delivering a notice personally or mailing
a notice to each stockholder of record entitled to vote thereat. If mailed, the
notice shall be directed to the stockholder in a postage-prepaid envelope at his
address as it appears on the stock books of the Corporation unless, prior to the
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time of mailing, he shall have filed with the Secretary a written request that
notices intended for him be mailed to some other address, in which case it shall
be mailed to the address designated in such request. Notice of each meeting of
stockholders shall be in such form as is approved by the Board and shall state
the purpose or purposes for which the meeting is called, the date and time when
and the place where it is to be held, and shall be delivered personally or
mailed not more than sixty (60) days and not less than ten (10) days before the
day of the meeting. Except as otherwise provided by law, the business which may
be transacted at any special meeting of stockholders shall consist of and be
limited to the purpose or purposes so stated in such notice. The Secretary or an
Assistant Secretary or the transfer agent of the Corporation shall, after giving
such notice, make an affidavit stating that notice has been given, which shall
be filed with the minutes of such meeting.
(b) Advance Notice Provisions for Business to be Transacted at
Annual Meeting. (i) No business may be transacted at an annual meeting of
stockholders, other than business that is either (A) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
(or any duly authorized committee thereof), (B) otherwise properly brought
before the annual meeting by or at the direction of the Board (or any duly
authorized committee thereof) or (C) otherwise properly brought before the
annual meeting by any stockholder of the Corporation who (x) is a stockholder of
record on the date of the giving of the notice provided for in this Section 2.03
and on the record date for the determination of stockholders entitled to vote at
such annual meeting and (y) complies with the notice procedures set forth in
this Section 2.03(b).
(ii) In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation.
(A) To be timely, a stockholder's notice shall be delivered to
the secretary at the principal executive offices of the corporation not less
than sixty (60) days nor more than ninety (90) days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than thirty
(30) days or delayed by more than sixty (60) days from such anniversary date,
notice by the stockholder to be timely must be delivered not earlier than the
(90th) day prior to such annual meeting and not later than the close of business
on the later of the sixtieth (60th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the date of
such meeting is first made; provided further that for purposes of the annual
meeting of stockholders held following the end of the fiscal year ending on
September 30, 2001, the date of the preceding year's annual meeting shall be
deemed to be February 14.
(B) To be in proper written form, a stockholder's notice to
the Secretary must set forth as to each matter such stockholder proposes to
bring before the annual meeting (1) 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, (2) the name and record address of such
stockholder, (3) the class or series and number of shares of capital stock of
the Corporation
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which are owned beneficially or of record by such stockholder, (4) a description
of all arrangements or understandings between such stockholder and any other
person or persons (including their names) in connection with the proposal of
such business by such stockholder and any material interest of such stockholder
in such business and (5) a representation that such stockholder intends to
appear in person or by proxy at the annual meeting to bring such business before
the meeting.
(iii) No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this Section 2.03, provided, however, that,
once business has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section 2.03 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
(c) Advance Notice Provisions for Election of Directors. (i)
To be timely, a shareholder's notice shall be delivered to the secretary at the
principal executive offices of the corporation not less than sixty (60) days nor
more than ninety (90) days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than thirty (30) days or delayed by more than
sixty (60) days from such anniversary date, notice by the shareholder to be
timely must be delivered not earlier than the (90th) day prior to such annual
meeting and not later than the close of business on the later of the sixtieth
(60th) day prior to such annual meeting or the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made.
(ii) In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
(A) To be timely, a stockholder's notice shall be delivered to
the secretary at the principal executive offices of the corporation not less
than sixty (60) days nor more than ninety (90) days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than thirty
(30) days or delayed by more than sixty (60) days from such anniversary date,
notice by the stockholder to be timely must be delivered not earlier than the
(90th) day prior to such annual meeting and not later than the close of business
on the later of the sixtieth (60th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the date of
such meeting is first made; provided further that for purposes of the annual
meeting of stockholders held following the end of the fiscal year ending on
September 30, 2001, the date of the preceding year's annual meeting shall be
deemed to be February 14.
(B) To be in proper written form, a stockholder's notice to
the Secretary must be set forth (1) as to each person whom the stockholder
proposes to nominate for election as a director (w) the name, age, business
address and residence address of the person, (x) the
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principal occupation or employment of the person, (y) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by the person and (z) any other information relating
to the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (2) as to the stockholder giving notice (v) the name
and record address of such stockholder, (w) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (x) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (y) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to nominate the
person(s) named in its notice and (z) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
(iii) No person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the procedures set forth
in this Section 2.03(c). If the chairman of an annual meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
chairman shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
Section 2.04. Adjournments.
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stockholders, annual or special, is adjourned to another date, time or place,
notice need not be given of the adjourned meeting if the date, time and place
thereof are announced at the meeting at which the adjournment is taken. 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 thereat. At the adjourned meeting,
any business may be transacted which might have been transacted at the original
meeting.
Section 2.05. Quorum.
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where otherwise required by law, the Certificate of Incorporation or these
Bylaws, the holders of a majority of the outstanding shares of stock entitled to
vote on a matter at the meeting, present in person or represented by proxy,
shall constitute a quorum. For purposes of the foregoing, where a separate vote
by class or classes is required for any matter, the holders of a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum to take action with respect to that vote on
that matter. Two or more classes or series of stock shall be considered a single
class if the holders thereof are entitled to vote together as a single class at
the meeting. In the absence of a quorum of the holders of any class of stock
entitled to vote on a matter, the meeting of such class may be adjourned from
time to time in the manner provided by these Bylaws until a quorum of such class
shall be so present or
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represented. Shares of its own capital stock belonging on the record date for
the meeting to the Corporation or to another corporation, if a majority of the
shares entitled to vote in the election of Directors of such other corporation
is held, directly or indirectly, by the Corporation, shall neither be entitled
to vote nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation to vote stock, including
but not limited to its own stock, held by it in a fiduciary capacity.
Section 2.06. Organization.
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act as chairman at all meetings of stockholders at which he or she is present,
and as such chairman shall call such meetings of stockholders to order and
preside thereat. If the Chairman of the Board shall be absent from any meeting
of stockholders, the duties otherwise provided in this Section 2.06 to be
performed by him or her at such meeting, shall be performed at such meeting by a
chairman designated by the Board, or in the absence of such designation, by a
chairman chosen at the meeting. The Secretary of the Corporation shall act as
secretary at all meetings of the stockholders, but in his or her absence the
chairman of the meeting may appoint any person present to act as secretary of
the meeting.
Section 2.07. Inspectors of Elections.
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stockholders, the Board, or a Chairman of the Board designated by the Board,
shall appoint one or more inspectors to act at such meeting and make a written
report thereof and 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 the meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall ascertain the
number of shares outstanding and the voting power of each, determine the shares
represented at the meeting and the validity of proxies and ballots, count all
votes and ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
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 to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted therewith, any
information provided by a stockholder who submits a proxy by telegram, cablegram
or other electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and record of
the Corporation, and they may also consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider other
reliable information for such purpose, they shall, at the time they make their
certification, specify the precise information considered by them,
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including the person or persons from whom they obtained the information, when
the information was obtained, the means by which the information was obtained
and the basis for the inspectors' belief that such information is accurate and
reliable.
Section 2.08. Fixing of Record Date. The Board may fix a date
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not more than sixty (60) days nor less than ten (10) days prior to the date of
any meeting of stockholders, as a record date for the determination of the
stockholders entitled to notice of and to vote at such meeting and any
adjournment thereof, and in such case such stockholders and only such
stockholders of record on the date so fixed shall be entitled to notice of, and
to vote at, such meeting and any adjournment thereof, notwithstanding any
transfer of any stock on the books of the Corporation after any such record date
fixed as aforesaid. No record date shall precede the date on which the Board
establishes such record date. The Secretary shall prepare and make or cause to
be prepared and made, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order and showing the address of each such
stockholder and the number of shares registered in the name of each such
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, specified in
the notice of the meeting, within the city where the meeting is to be held, or,
if not so specified, at the place where the meeting is to be held. Such list
shall be produced and kept at the time and place of the meeting during the whole
time thereof, and subject to the inspection of any stockholder who may be
present.
Section 2.09. Voting; Proxies. Unless otherwise provided in
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the Certificate of Incorporation, each stockholder entitled to vote at any
meeting of stockholders shall be entitled to one vote for each share of stock
held by such stockholder which has voting power upon the matter in question. If
the Certificate of Incorporation provides for more or less than one vote for any
share on any matter, every reference in these Bylaws to a majority or other
proportion of shares of stock shall refer to such majority or other proportion
of the votes of such shares of stock. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power, regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the Corporation
generally. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or another duly executed proxy bearing a later date with a
Secretary. Voting at meetings of stockholders need not be by written ballot
unless so directed by the chairman of the meeting or the Board. Directors shall
be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
Directors. In all other matters, unless otherwise required by law, the
Certificate of Incorporation or these Bylaws, the affirmative vote of the
holders of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter shall be the act of the
stockholders. Where a separate vote by class or classes is required, the
affirmative vote of the
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holders of a majority (or, in the case of an election of Directors, a plurality)
of the shares of such class or classes present in person or represented by proxy
at the meeting shall be the act of such class or classes, except as otherwise
required by law, the Certificate of Incorporation or these Bylaws.
Section 2.10. Action by Stockholders Without a Meeting. The
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stockholders may not take any action without a duly called meeting of the
stockholders.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01. Election and Term. Except as otherwise provided
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by law or by the Certificate of Incorporation, and subject to the provisions of
Sections 3.12, 3.13 and 3.14 of this Article III, Directors shall be elected at
the annual meeting of stockholders to serve until the annual meeting of
stockholders in the third year following their election and until their
successors are duly elected and qualified, or until their earlier death,
resignation or removal.
Section 3.02. Number. The number of Directors may be fixed
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from time to time by resolution of the Board but shall not be less than three
(3) nor more than twelve (12).
Section 3.03. General Powers. The business, properties and
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affairs of the Corporation shall be managed by, or under the direction of, the
Board, which, without limiting the generality of the foregoing, shall have power
to elect and appoint officers of the Corporation, to appoint and direct agents,
to grant general or limited authority to officers, employees and agents of the
Corporation to make, execute and deliver contracts and other instruments and
documents in the name and on behalf of the Corporation and over its seal,
without specific authority in each case, and, by resolution adopted by a
majority of the whole Board, to appoint committees of the Board in addition to
those appointed pursuant to Article IV hereof, the membership of which may
consist of one or more Directors, and which may advise the Board with respect to
any matters relating to the conduct of the Corporation's business. The Board may
designate one or more Directors as alternate members of any committee, including
those appointed pursuant to Article IV hereof, who may replace any absent or
disqualified member at any meeting of the committee. In addition, the Board may
exercise all the powers of the Corporation and do all lawful acts and things
which are not reserved to the stockholders by law or by the Certificate of
Incorporation.
Section 3.04. Place of Meetings. Meetings of the Board may be
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held at any place, within or without the State of Delaware, from time to time
designated by the Board.
Section 3.05. Organization Meeting. A newly elected Board
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shall meet and organize, and also may transact any other business which might be
transacted at a regular meeting thereof, as soon as practicable after each
annual meeting of stockholders, at the place at which such meeting of
stockholders took place, without notice of such meeting, provided a majority of
the whole Board is present. If such a majority is not present, such
organizational
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meeting may be held at any other time or place which may be specified in a
notice given in the manner provided in Section 3.07 of this Article III for
special meetings of the Board, or in a waiver of notice thereof.
Section 3.06. Regular Meetings. Regular meetings of the Board
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shall be held at such times as may be determined by resolution of the Board and
no notice shall be required for any regular meeting. Except as otherwise
provided by law, any business may be transacted at any regular meeting of the
Board.
Section 3.07. Special Meetings; Notice and Waiver of Notice.
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Special meetings of the Board shall be called by the Secretary on the request of
the Chairman of the Board or the President, or on the request in writing of any
three other Directors stating the purpose or purposes of such meeting. Notice of
any special meeting shall be in form approved by the Chairman of the Board or
the President, as the case may be. Notices of special meetings shall be mailed
to each director, addressed to him at his residence or usual place of business,
not later than two (2) days before the day on which the meeting is to be held,
or shall be sent to him at such place by telegraph, cable or other form of
recorded communication or be delivered personally or by telephone, not later
than the day before such day of meeting. Notice of any meeting of the Board need
not be given to any director if he shall sign a written waiver thereof either
before or after the time stated therein, or if he shall attend a meeting, except
when he attends such 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 special meeting of the Board need be specified in any
notice or written waiver of notice unless so required by the Certificate of
Incorporation or by the Bylaws. Unless limited by law, by the Certificate of
Incorporation or by the Bylaws, any and all business may be transacted at any
special meeting.
Section 3.08. Organization of Meetings. The Chairman of the
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Board shall preside at all meetings of the Board at which he or she is present.
If the Chairman of the Board shall be absent from any meeting of the Board, the
duties otherwise provided in this Section 3.08 of Article III to be performed by
him or her at such meeting shall be performed at such meeting by the director
chosen by a majority of the other Directors who are present. The Secretary of
the Corporation shall act as the secretary at all meetings of the Board, and in
his or her absence a temporary secretary shall be appointed by the chairman of
the meeting.
Section 3.09. Quorum and Manner of Acting. Except as otherwise
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provided by Section 3.05 of this Article III, at every meeting of the Board a
majority of the total number of Directors constituting the whole Board shall
constitute a quorum but in no event shall a quorum be constituted by less than
two (2) Directors. Except as otherwise provided by law or by the Certificate of
Incorporation, or by Section 3.14 of this Article III, or by Section 4.01 or
Section 4.08 of Article IV, or by Article IX, the act of a majority of the
Directors present at any such meeting, at which a quorum is present, shall be
the act of the Board. In the absence of a quorum, a majority of the Directors
present may adjourn any meeting, from time to time, until a quorum is present.
No notice of any adjourned meeting need be given other than by
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announcement at the meeting that is being adjourned. Members of the Board or any
committee thereof may participate in a meeting of the Board or of such 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 by a member of the Board in a meeting pursuant to this Section
3.09 of Article III shall constitute his presence in person at such meeting.
Section 3.10. Voting. On any question on which the Board shall
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vote, the names of those voting and their votes shall be entered in the minutes
of the meeting if any member of the Board so requests at the time.
Section 3.11. Action Without a Meeting. Except as otherwise
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provided by law or by the Certificate of Incorporation, any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting, if prior to such action all members of the Board
or of such 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 or
the committee.
Section 3.12. Resignations. Any director may resign at any
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time upon written notice of resignation to the Corporation. Any resignation
shall be effective immediately unless a date certain is specified for it to take
effect, in which event it shall be effective upon such date, and acceptance of
any resignation shall not be necessary to make it effective, irrespective of
whether the resignation is tendered subject to such acceptance.
Section 3.13. Removal of Directors. Subject to the rights of
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the holders of any series of Preferred Stock or any other class of capital stock
of the Corporation (other than the Common Stock) then outstanding, no Director
may be removed except both for cause and with the affirmative vote of the
holders of not less than 80% of the voting power of all outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class.
Section 3.14. Vacancies. Subject to the rights of the holders
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of any series of Preferred Stock or any other class of capital stock of the
Corporation (other than the Common Stock) then outstanding, any vacancies in the
Board for any reason, including by reason of any increase in the number of
Directors, shall, if occurring prior to the expiration of the term of office of
the class in which such vacancy occurs, be filled only by the Board, acting by
the affirmative vote of a majority of the remaining Directors then in office,
although less than a quorum, and any Directors so elected shall hold office
until the next election of the class for which such Directors have been elected
and until their successors are duly elected and qualified.
Section 3.15. Directors' Compensation. Any and all Directors
------------- -----------------------
may receive such reasonable compensation for their services as such, whether in
the form of salary, a fixed fee for attendance at meetings or otherwise, with
expenses, if any, as the Board may from time to time determine. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
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ARTICLE IV
COMMITTEES
Section 4.01. Constitution and Powers. The Board may, by
------------- -----------------------
resolution adopted by affirmative vote of a majority of the whole Board, appoint
one or more committees of the Board, which committees shall have such powers and
duties as the Board shall properly determine. Unless otherwise provided by the
Board, no such other committee of the Board shall be composed of fewer than
three (3) Directors.
Section 4.02. Place of Meetings. Meetings of any committee of
------------- -----------------
the Board may be held at any place, within or without the State of Delaware,
from time to time designated by the Board or such committee.
Section 4.03. Meetings; Notice and Waiver of Notice. Regular
------------- -------------------------------------
meetings of any committee of the Board shall be held at such times as may be
determined by resolution either of the Board or of such committee and no notice
shall be required for any regular meeting. Special meetings of any committee
shall be called by the secretary thereof upon request of any two members
thereof. Notice of any special meeting of any committee shall be in form
approved by the Chairman of the Board or the President, as the case may be.
Notices of special meetings shall be mailed to each member, addressed to him at
his residence or usual place of business, not later than two (2) days before the
day on which the meeting is to be held, or shall be sent to him at such place by
telegraph, cable or any other form of recorded communication, or be delivered
personally or by telephone, not later than the day before such day of meeting.
Neither the business to be transacted at, nor the purpose of, any special
meeting of any committee, need be specified in any notice or written waiver of
notice unless so required by the Certificate of Incorporation or the Bylaws.
Notices of any such meeting need not be given to any member of any committee,
however, if waived by him as provided in Section 3.07 of Article III, and the
provisions of such Section 3.07 with respect to waiver of notice of meetings of
the Board shall apply to meetings of any committee as well.
Section 4.04. Organization of Meetings. The most senior
------------- ------------------------
officer of the Corporation present, if any be members of the committee, and, if
not, the director present who has served the longest as a director, except as
otherwise expressly provided by the Board or the committee, shall preside at all
meetings of any committee. The Secretary of the Corporation, except as otherwise
expressly provided by the Board, shall act as secretary at all meetings of any
committee and in his absence a temporary secretary shall be appointed by the
chairman of the meeting.
Section 4.05. Quorum and Manner of Acting. A majority of the
------------- ---------------------------
members of any committee then in office shall constitute a quorum for the
transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present, shall be the act of such committee. In the
absence of a quorum, a majority of the members of any committee present, or, if
two or fewer members shall be present, any member of the committee present or
the Secretary, may adjourn any meeting, from time to time, until a quorum
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is present. No notice of any adjourned meeting need be given other than by
announcement at the meeting that is being adjourned. The provisions of Section
3.09 of Article III with respect to participation in a meeting of a committee of
the Board and the provisions of Section 3.11 of Article III with respect to
action taken by a committee of the Board without a meeting shall apply to
participation in meetings of and action taken by any committee.
Section 4.06. Voting. On any question on which any committee
------------- ------
shall vote, the names of those voting and their votes shall be entered in the
minutes of the meeting if any member of such committee so requests.
Section 4.07. Records. All committees shall keep minutes of
------------- -------
their acts and proceedings, which shall be submitted at the next regular meeting
of the Board unless sooner submitted at an organization or special meeting of
the Board, and any action taken by the Board with respect thereto shall be
entered in the minutes of the Board.
Section 4.08. Vacancies. Any vacancy among the appointed
------------- ---------
members or alternate members of any committee of the Board may be filled by
affirmative vote of a majority of the whole Board.
Section 4.09. Members' Compensation. Members of all committees
------------- ---------------------
may receive such reasonable compensation for their services as such, whether in
the form of salary, a fixed fee for attendance at meetings or otherwise, with
expenses, if any, as the Board may from time to time determine. Nothing herein
contained shall be construed to preclude any member of any committee from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 4.10. Emergency Management Committee. In the event
------------- ------------------------------
that a quorum of the Board cannot readily be convened as a result of emergency
conditions following a catastrophe or disaster, then all the powers and duties
vested in the Board shall vest automatically in an Emergency Management
Committee which shall consist of all readily available members of the Board and
which Committee shall have and may exercise all of the powers of the Board in
the management of the business and affairs of the Corporation. Two members shall
constitute a quorum. Other provisions of these Bylaws notwithstanding, the
Emergency Management Committee shall call a meeting of the Board as soon as
circumstances permit, for the purpose of filling vacancies on the Board and its
committees and to take such other action as may be appropriate. The powers of
the Emergency Management Committee shall terminate upon the convening of the
meeting of the Board above prescribed at which a majority of the members thereof
shall be present.
ARTICLE V
OFFICERS
Section 5.01. Officers; Election or Appointment. The Board
------------- ---------------------------------
shall take such action as may be necessary from time to time to ensure that the
Corporation has such
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officers as are necessary, under this Section 5.01 and the Delaware General
Corporation Law as currently in effect or as the same may hereafter be amended,
to enable it to sign stock certificates.
Section 5.02. Term of Office; Resignation; Removal; Vacancies.
------------- -----------------------------------------------
Unless otherwise provided in the resolution of the Board electing or authorizing
the appointment of any officer, each officer shall hold office until his or her
successor is elected or appointed and qualified or until his or her earlier
resignation or removal. Any officer may resign at any time upon written notice
to the Board or to such person or persons as the Board may designate. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. The Board may remove any officer with or without cause at
any time. Any officer authorized by the Board to appoint a person to hold an
office of the Corporation may also remove such person from such office with or
without cause at any time, unless otherwise provided in the resolution of the
Board providing such authorization. Any such removal shall be without prejudice
to the contractual rights of such officer, if any, with the Corporation, but the
election or appointment of an officer shall not of itself create contractual
rights. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled by the Board at any regular or
special meeting or by an officer authorized by the Board to appoint a person to
hold such office.
Section 5.03. Powers and Duties.
------------- ----------------- The officers of the
Corporation shall have such powers and duties in the management of the
Corporation as shall be stated in these Bylaws or in a resolution of the Board
which is not inconsistent with these Bylaws and, to the extent not so stated, as
generally pertain to their respective offices, subject to the control of the
Board. A Secretary or such other officer appointed to do so by the Board shall
have the duty to record the proceedings of the meetings of the stockholders, the
Board and any committees in a book to be kept for that purpose. The Board may
require any officer, agent or employee to give security for the faithful
performance of his or her duties.
Section 5.04. Executive Management Committee.
------------- ------------------------------ There shall be
an Executive Management Committee composed of (a) the President and Chief
Executive Officer of the Corporation, (b) the Executive Vice President and Chief
Operating Officer of the Corporation, (c) the Executive Vice President and Chief
Financial Officer of the Corporation, (d) the Senior Vice President of the
Corporation and President of AmeriSource-Bergen Drug Company, (e) the Senior
Vice President of the Corporation and President of Pharmerica, Inc. and (f) the
Senior Vice President of the Corporation and President of ASD Specialty
Healthcare, Inc..
The Executive Management Committee shall have and may exercise all
the powers and authority in the management of the business and affairs of the
Corporation, insofar as it pertains to capital expenditures and acquisitions, as
the Board may determine.
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ARTICLE VI
SHARES AND TRANSFERS OF SHARES
Section 6.01. Stock Certificates; Uncertificated Shares.
------------- ----------------------------------------- (a)
The shares of stock in the Corporation shall be represented by certificates,
provided that the Board of the Corporation may provide by resolution or
resolutions that some or all of any or all classes or series of its stock shall
be uncertificated shares. Any such resolution shall not apply to any such shares
represented by a certificate theretofore issued until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution or resolutions by the Board of the Corporation, every holder of stock
represented by certificates, and upon request every holder of uncertificated
shares, shall be entitled to have a certificate signed by or in the name of the
Corporation by the Chairman of the Board or the President or a Vice President,
and by a Treasurer, Assistant Treasurer, Secretary or Assistant Secretary,
representing the number of shares of stock in the Corporation owned by such
holder. If such certificate is manually signed by one or more officers or
manually countersigned by a transfer agent or by 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 such person were such officer, transfer agent or
registrar at the date of issue. Certificates representing shares of stock of the
Corporation may bear such legends regarding restrictions on transfer or other
matters as any officer or officers of the Corporation may determine to be
appropriate and lawful.
(b) If the Corporation is authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications or restrictions of
such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, provided that, except as otherwise required by
law, in lieu of the foregoing requirements, there may be set forth on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock a statement that the Corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of such class or
series of stock and the qualifications, limitations or restrictions of such
preferences and/or rights. Within a reasonable time after the issuance or
transfer of uncertificated shares of any class or series of stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required by law to be set forth or stated on
certificates representing shares of such class or series or a statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of such class or series and the qualifications, limitations or
restrictions of such preferences and/or rights.
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(c) Except as otherwise expressly provided by law, the rights
and obligations of the holders of uncertificated shares and the rights and
obligations of the holders of certificates representing stock of the same class
and series shall be identical.
Section 6.02. Transfers of Stock.
------------- ------------------ Transfers of stock shall be
made on the books of the Corporation by the person named in the certificate, or
by an attorney lawfully constituted in writing, and upon surrender and
cancellation of a certificate or certificates for a like number of shares of the
same class or series of stock, duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer, and with such proof of the
authenticity of the signatures as the Corporation or its agents may reasonably
require and with all required stock transfer tax stamps affixed thereto and
canceled or accompanied by sufficient funds to pay such taxes.
Section 6.03. Lost Certificates.
------------- ----------------- In case any certificate of
stock shall be lost, stolen or destroyed, the Board, in its discretion, or any
officer or officers thereunto duly authorized by the Board, may authorize the
issue of a substitute certificate in place of the certificate so lost, stolen or
destroyed; provided, however, that, in each such case, the applicant for a
substitute certificate shall furnish evidence to the Corporation, which it
determines in its discretion is satisfactory, of the loss, theft or destruction
of such certificate and of the ownership thereof, and also such security or
indemnity as may be required by it.
Section 6.04. Determination of Holders of Record for Certain
------------- ----------------------------------------------
Purposes.
- -------- In order to determine the stockholders or other holders of securities
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 capital stock or other securities or for the purpose
of any other lawful action, the Board may fix, in advance, a record date, not
more than sixty (60) days prior to the date of payment of such dividend or other
distribution or allotment of such rights or the date when any such rights in
respect of any change, conversion or exchange of stock or securities may be
exercised, and in such case only holders of record on the date so fixed shall be
entitled to receive payment of such dividend or other distribution or to receive
such allotment of rights, or to exercise such rights, notwithstanding any
transfer of any stock or other securities on the books of the Corporation after
any such record date fixed as aforesaid. No record date shall precede the date
on which the Board establishes such record date.
ARTICLE VII
CORPORATE SEAL
Section 7.01. Seal.
------------ ----- The Board may provide a suitable Seal
containing the name of the Corporation.
Section 7.02. Affixing and Attesting.
------------- ---------------------- The seal of the
Corporation shall be in the custody of the Secretary, who shall have power to
affix it to the proper corporate instruments and documents, and who shall attest
it. In his absence, it may be affixed and attested
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by an Assistant Secretary, or by the Treasurer or an Assistant Treasurer or by
any other person or persons as may be designated by the Board.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Fiscal Year.
------------- ----------- The fiscal year of the Corporation
shall end on the thirtieth day of September of each year unless changed by
resolution of the Board.
Section 8.02. Signatures on Negotiable Instruments.
------------- ------------------------------------ All bills,
notes, checks or other instruments for the payment of money shall be signed or
countersigned by such officers or agents and in such manner as, from time to
time, may be prescribed by resolution (whether general or special) of the Board,
or may be prescribed by any officer or officers, or any officer and agent
jointly, thereunto duly authorized by the Board.
Section 8.03. Execution of Proxies.
------------- -------------------- The President, or, in his
absence or his disability, any Vice President, may authorize, from time to time,
the execution and issuance of proxies to vote shares of stock or other
securities of other corporations held of record by the Corporation and the
execution of consents to action taken or to be taken by any such corporation.
All such proxies and consents, unless otherwise authorized by the Board, shall
be signed in the name of the Corporation by the Chairman, the President or any
Vice President.
Section 8.04. References to Article and Section Numbers and to
------------- ------------------------------------------------
the Bylaws and the Certificate of Incorporation.
- ----------------------------------------------- Whenever in the Bylaws reference
is made to an Article or Section number, such reference is to the number of an
Article or Section of the Bylaws. Whenever in the Bylaws reference is made to
the Bylaws, such reference is to these Bylaws of the Corporation, as amended,
and whenever reference is made to the Certificate of Incorporation, such
reference is to the Certificate of Incorporation of the Corporation, as amended,
including all documents deemed by the General Corporation Law of the State of
Delaware to constitute a part thereof.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments.
------------ ---------- The Bylaws may be altered, amended or
repealed at any annual meeting of stockholders, or at any special meeting of
holders of shares of stock entitled to vote thereon by a vote of the holders of
not less than 80% of the shares of stock present in person or by proxy at the
meeting and entitled to vote thereon, or (except as otherwise expressly provided
in any Bylaw adopted by the stockholders) by the Board at any valid meeting by
the affirmative vote of a majority of the whole Board, provided that in the case
of a special meeting of stockholders, notice of such proposed alteration,
amendment or repeal be included in the notice of meeting.
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