EXHIBIT 3.3
AMENDED AND RESTATED SEPTEMBER 26, 1994
BAXTER INTERNATIONAL INC.
BYLAWS
ARTICLE I
STOCKHOLDERS
SECTION 1. PLACE OF HOLDING MEETINGS. All meetings of the stockholders
shall be held at the office of the Corporation in Deerfield, Illinois, or such
other place as shall be determined by the Board of Directors.
SECTION 2. ELECTION OF DIRECTORS.
(a) The annual meeting of stockholders for the election of
directors and the transaction of other business shall be held at such time and
date as shall be determined by the Board of Directors.
(b) Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation, except as may be otherwise provided in the Certificate of
Incorporation of the Corporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board of Directors may be made at any annual meeting of stockholders, or at any
special meeting of stockholders called for the purpose of electing directors,
(i) by or at the direction of the Board of Directors (or any duly authorized
committee thereof) or (ii) by any stockholder of the Corporation (A) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 2 and on the record date for the determination of stockholders
entitled to vote at such meeting and (B) who complies with the notice procedures
set forth in this Section 2.
(c) 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.
(d) To be timely, a stockholder's notice to the secretary must
be delivered to or mailed and received at the principal executive offices of the
Corporation (i) in the case of an annual meeting, not less than sixty (60) days
nor more than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; PROVIDED, HOWEVER, that in the event
that the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was
made, whichever occurs first, and (ii) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever occurs first.
(e) To be in proper written form, a stockholder's notice to the
secretary must set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age, business address and
residence address of the person, (B) the principal occupation or employment of
the person, (C) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (D) 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 (ii) as to the stockholder giving
the notice (A) the name and record address of such stockholder, (B) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (C) 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, (D) a representation
that such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice and (E) 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.
(f) No person shall be eligible for election as a director of
the Corporation, at any annual meeting of stockholders or at any special meeting
of stockholders called for the purpose of electing directors, unless nominated
in accordance with the procedures set forth in this Section 2. If the chairman
of the 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 3. VOTING. Each stockholder entitled to vote in accordance with the
terms of the Certificate of Incorporation, these Bylaws or Delaware law shall,
unless the Certificate of Incorporation or Delaware law otherwise provides, be
entitled to one vote, in person or by proxy, for each share of stock entitled to
vote held by such stockholder, but no proxy shall be voted after three years
from its date unless such proxy provides for a longer period. The vote for
directors, and upon the demand of any stockholder, the vote upon any question
before the meeting, shall be by ballot. Except for the election of directors,
which shall be decided by a plurality of the shares present in person or
represented by proxy at the meeting and entitled to vote thereat, all matters
shall be decided by the affirmative vote of a majority of shares present in
person or represented by proxy at any meeting duly called and entitled to vote
thereat, except as otherwise provided by the Certificate of Incorporation and/or
Delaware law.
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The secretary shall prepare and make, at least ten days before each 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 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 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.
SECTION 4. QUORUM. Except as provided in the next section hereof, any
number of stockholders together holding a majority of the stock issued and
outstanding and entitled to vote thereat, who shall be present in person or
represented by proxy at any meeting duly called, shall constitute a quorum for
the transaction of business.
SECTION 5. ADJOURNMENT OF MEETINGS. If less than a quorum shall be in
attendance at any time for which the meeting shall have been called, the meeting
may, after the lapse of at least half an hour, be adjourned from time to time by
a majority of the stockholders present or represented and entitled to vote
thereat. If notice of such adjourned meeting is sent to the stockholders
entitled by statute to receive the same, and such notice contains a statement of
the purpose of the meeting, that the previous meeting failed for lack of a
quorum, and that under the provisions of this Section it is proposed to hold the
adjourned meeting with a quorum of those present, then any number of
stockholders, in person or by proxy, shall constitute a quorum at such meeting
unless otherwise provided by statute.
SECTION 6. SPECIAL MEETINGS: HOW CALLED. Special meetings of the
stockholders for any purpose or purposes may be called only (a) by the chairman
of the board and chief executive officer or secretary, and shall be called by
the chairman of the board and chief executive officer or secretary upon a
request in writing therefor, stating the purpose or purposes thereof, delivered
to the chairman of the board and chief executive officer or secretary, signed by
a majority of the directors or (b) by resolution of the directors.
SECTION 7. NOTICE OF STOCKHOLDERS' MEETINGS. Written or printed notice
stating the time and place of regular or special meetings of the stockholders
and the general nature of the business to be considered shall be mailed by the
secretary, or such other officer as the Board of Directors may designate, to
each stockholder entitled to vote thereat at his address as it appears on the
records of the Corporation, at least twenty (20) days but not more than sixty
(60) days before the date of such meeting.
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SECTION 8. CONDUCT OF THE MEETINGS.
(a) The chairman of the meeting shall have absolute authority
over matters of procedure and there shall be no appeal from the ruling of the
chairman. If the chairman, in his absolute discretion, deems it advisable to
dispense with the rules of parliamentary procedure as to any one meeting of
stockholders or part thereof, the chairman shall so state and shall clearly
state the rules under which the meeting or appropriate part thereof shall be
conducted.
(b) If disorder should arise which prevents continuation of the
legitimate business of the meeting, the chairman may quit the chair and announce
the adjournment of the meeting; and upon his doing so, the meeting is
immediately adjourned.
(c) The chairman may ask or require that anyone not a bona fide
stockholder or proxy leave the meeting.
(d) A resolution or motion shall be considered for vote only if
(i) proposed by a stockholder or duly authorized proxy, and seconded by an
individual, who is a stockholder or a duly authorized proxy, other than the
individual who proposed the resolution and (ii) all other requirements under
law, the Corporation's Certificate of Incorporation, these Bylaws or otherwise,
for consideration of such a resolution or motion have been duly satisfied as
determined by the chairman in his absolute discretion, from which there shall be
no appeal.
SECTION 9. ANNUAL MEETINGS.
(a) No business may be transacted at an annual meeting of
stockholders, other than business that is either (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (ii) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (iii) otherwise properly
brought before the annual meeting by any stockholder of the Corporation (A) who
is a stockholder of record on the date of the giving of the notice provided for
in this Section 9 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (B) who complies with the notice
procedures set forth in this Section 9.
(b) 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, which notice is not withdrawn by such stockholder
at or prior to such annual meeting.
(c) To be timely, a stockholder's notice to the secretary must
be delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders; PROVIDED, HOWEVER, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the
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tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever occurs first.
(d) 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 (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
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 (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
(e) 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 9, PROVIDED, HOWEVER, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 9 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of the
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.
ARTICLE II
DIRECTORS
SECTION 1. QUALIFICATION AND QUORUM. No person shall be eligible for
election or appointment as a director who, at the time of his election or
appointment is 72 years old, or older, provided, however, that this provision
shall not be applicable to persons who have been elected or appointed as
directors prior to the 1978 annual meeting of the stockholders.
One-third of the total number of directors (rounded upwards, if necessary, to
the next whole number) shall constitute a quorum for the transaction of business
at any meeting of the board. If at any meeting of the board there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time until a quorum is obtained, and no further notice thereof need to
be given other than by announcement at said meeting which shall be so adjourned.
The board may also transact business without a meeting if all members of the
board consent thereto in writing.
SECTION 2. FIRST MEETING. The newly elected directors may hold their first
meeting for the purpose of organization and the transaction of business if a
quorum be present, immediately after the annual meeting of the stockholders; or
the time and place of such meeting may be fixed by consent in writing of all the
directors.
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SECTION 3. ELECTION OF OFFICERS. At the first meeting or at any subsequent
meeting called for the purpose, the directors shall elect a chairman of the
board and chief executive officer from their number, and a president, one or
more executive vice presidents, one or more senior vice presidents, one or more
group vice presidents, one or more vice presidents, a treasurer, a secretary,
and one or more assistant secretaries, who need not be directors. Each such
officer shall hold office until the next annual election of officers, and until
his successor is elected and qualified.
SECTION 4. SPECIAL MEETINGS: HOW CALLED: NOTICE. Special meetings of the
board may be called by the chairman of the board and chief executive officer or
the president or the secretary on the written request of any two directors on
twenty-four (24) hours notice to each director. Such notice, which need not
specify the purpose of the meeting or the matters to be considered thereat, may
be given as provided in Article VIII, personally (including by telephone) or by
telegram or other written communication delivered to the residence or office of
the director. Such personal notice or written communication shall be effective
when delivered.
SECTION 5. PLACE OF MEETING. The directors may hold their meetings and have
one or more offices, and keep the books of the Corporation, outside the State of
Delaware, at any office or offices of the Corporation, or at any place as they
may from time to time by resolution determine.
SECTION 6. GENERAL POWERS OF DIRECTORS. The Board of Directors shall have
the management of the business of the Corporation, and subject to the
restrictions imposed by law, by the Certificate of Incorporation, or by these
Bylaws, may exercise all the powers of the Corporation, including any powers
incidental thereto.
SECTION 7. COMPENSATION OF DIRECTORS. Directors shall not receive any
stated salary for their services as directors, but by resolution of the board a
fixed fee may be paid together with expenses of attendance at meetings. Nothing
herein contained shall be construed to preclude any director from serving the
Corporation in any other capacity as an officer, agent or otherwise, and
receiving compensation therefor.
ARTICLE III
COMMITTEES
SECTION 1. The Board of Directors shall create an executive committee, an
audit committee, a compensation committee, a finance committee, a planning and
organization committee, and a public policy committee, and may create such other
committees as the board, from time to time, deems desirable. Each committee
shall consist of three or more of the directors of the Corporation and, to the
extent provided in the resolutions creating the committees or in these Bylaws,
shall have the powers of the Board of Directors in the management of the
business and affairs of the Corporation.
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SECTION 2. A majority of the executive committee shall consist of directors
who are independent of management and free from any relationships that, in the
opinion of the Board of Directors, would interfere with their exercise of
independent judgment as a committee member. The Policy Statement on Audit
Committees issued by the New York Stock Exchange shall be applicable in
determining which directors are "independent" for this purpose.
The executive committee shall have all the powers and authority of the Board of
Directors, including the authority to declare a regular quarterly dividend, to
authorize the issuance of stock and other securities and to adopt a Certificate
of Ownership and Merger under Delaware law, provided that the executive
committee shall not, in any event, have authority to amend the Certificate of
Incorporation, to adopt any agreement of merger or consolidation involving the
Corporation as a merging or consolidating party, to recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, to recommend to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, to amend the
Bylaws of the Corporation or to declare a dividend other than a regular
quarterly dividend.
SECTION 3. The audit committee shall consist solely of directors who are
independent of management as defined in Section 2.
The audit committee shall assist the Board of Directors in fulfilling its
responsibilities for the Corporation's accounting and financial reporting
practices and provide a channel of communication between the Board of Directors
and the Corporation's independent auditors.
To accomplish the above purposes, the audit committee shall:
(a) Review with the independent auditors the scope of their
annual and interim examinations, placing particular attention where either the
committee or the auditors believe such attention should be directed, and to
direct the auditors to expand (but not to limit) the scope of their audit
whenever such action is, in the opinion of the committee, necessary or
desirable. The independent auditors shall have sole authority to determine the
scope of the audit which they deem necessary for the formation of an opinion on
financial statements.
(b) Consult with the auditors during any annual or interim audit
on any situation which the auditors deem advisable for resolution prior to the
completion of their examination.
(c) Meet with the auditors to appraise the effectiveness of the
audit effort. Such appraisal shall include a discussion of the overall approach
to and the scope of the examination, with particular attention on those areas on
which either the committee or the auditors believe emphasis is necessary or
desirable.
(d) Determine through discussions with the auditors and
otherwise, that no restrictions were placed by management on the scope of the
examination or its implementation.
(e) Inquire into the effectiveness of the Corporation's
accounting and internal control functions through discussions with the auditors
and appropriate officers of the Corporation and exercise supervision of the
Corporation's policies which prohibit improper or illegal payments.
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(f) Review with the auditors and management any registration
statement which shall be filed by the Corporation in connection with the public
offering of securities and such other public financial reports as the committee
or the Board of Directors shall deem desirable.
(g) Report to the Board of Directors on the results of the
committee's activities and recommend to the Board of Directors any changes in
the appointment of independent auditors which the committee may deem to be in
the best interests of the Corporation and its stockholders.
(h) Have such other powers and perform such other duties as the
board shall, from time to time, grant and assign to it.
SECTION 4. The compensation committee shall consist solely of directors who
are independent of management, as defined in Section 2.
The compensation committee shall (a) determine the salaries of officers, other
than the chairman of the board and chief executive officer and president and
advise the board of such determination, (b) exercise the authority of the board
concerning benefit plans, including those plans which are limited in their
application to officers and senior management, (c) serve as the administration
committee of the Corporation's stock option plans, (d) make recommendations to
the board concerning the salaries of the chairman of the board and chief
executive officer and president, (e) advise the board and the chairman of the
board and chief executive officer on other compensation and benefit matters and
(f) perform such other duties as shall be requested by the chairman of the board
and chief executive officer or designated by board resolution or specific
benefit plans.
SECTION 5. A majority of the finance committee shall consist of directors
who are independent of management as defined in Section 2.
The finance committee shall exercise the power and authority of the board, and
assist the Board of Directors in fulfilling its responsibilities, in connection
with the financial affairs of the Corporation, as follows:
The finance committee shall:
(a) have the authority to approve, without further action by the
Board of Directors: (i) financing proposals, including loans and securities
offerings involving not more than $100 million, and matters relating thereto,
and (ii) proposed capital expenditures, acquisitions, divestitures,
partnerships, strategic alliances involving the purchase or sale of a security,
and other similar transactions involving a commitment by the Corporation of more
than $10 million, but not more than $50 million (including the issue of the
Corporation's common stock in connection with such transactions); and
(b) review the following and, when appropriate, report or make
recommendations to the board: (i) quarterly and extraordinary dividend
proposals, (ii) financing proposals involving more than $100 million, (iii)
results of the management of pension assets and
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the reasonableness of the major actuarial assumptions which impact the funding
of the pension benefits, (iv) proposed capital expenditures, acquisitions,
divestitures, partnerships, strategic alliances involving the purchase or sale
of a security, and other similar transactions involving a commitment by the
Corporation of more than $50 million, and (v) the risk management program of the
Corporation; and
(c) exercise such other authority and duties as the board may
from time to time delegate to it.
SECTION 6. The planning and organization committee shall consist solely of
directors who are independent of management, as defined in Section 2.
The committee shall assist and advise the Board of Directors in connection with
board membership, board committee structure and membership and general
organization and planning matters. To accomplish these purposes, the
organization and planning committee shall:
(a) Develop general criteria for use in selecting potential new
board members and assist the board in identifying and attracting qualified
candidates for election to the board;
(b) Recommend to the board annually a slate of nominees to be
proposed by the board to the stockholders as nominees for election as directors
and, from time to time, recommend persons to fill any vacancy on the board;
(c) Recommend to the board any changes in number, authority and
duties of board committees and the chairmen and members who should serve
thereon;
(d) Advise the board and the chairman of the board and chief
executive officer on major organization matters and issues relating to the
organization structure of the Corporation, as well as management succession
plans;
(e) In the event of the death, incapacity, resignation or other
absence (temporary or permanent) of the chairman of the board and chief
executive officer, the planning and organization committee shall confer and
recommend for election by the full board an acting or successor chairman of the
board and chief executive officer;
(f) Make recommendations to the board concerning fees payable
for board membership, as well as retirement and other benefits available to
board members;
(g) Exercise the authority of the board concerning policies
relating to service by directors and employees on other unrelated boards of
directors; and
(h) Have such other duties and authority as shall be assigned or
granted to it from time to time by the chairman of the board and chief executive
officer or the board.
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SECTION 7. The public policy committee shall consist of directors of the
Corporation, a majority of whom are independent of management, as defined in
Section 2.
The public policy committee shall review the policies and practices of the
Corporation to assure that they are consistent with its social responsibility to
employees, to customers, and to society. It is anticipated that emphasis will
include the following areas:
(a) the health and safety of employees and consumers;
(b) the fulfillment of the company's responsibilities to women,
racial minorities, and disadvantaged persons;
(c) the physical and social environment;
(d) contributions to educational, health, cultural, and other
social institutions;
(e) community actions where it is necessary to close or move a
business unit or significantly reduce employment;
(f) the ethical standards of the Corporation; and
(g) other duties and authority as shall be assigned or granted
to it from time to time by the chairman of the board and chief executive officer
or the board.
SECTION 8. The following provisions shall apply to all committees of the
Board of Directors:
(a) Any power or authority granted to a committee by these
bylaws may also be exercised by the board or the executive committee.
(b) Each member of a committee shall hold office until the next
regular annual meeting of the Board of Directors following his designation and
until his successor is designated as a member of a committee, or until the
committee is dissolved by a majority of the whole board or the member is removed
as hereinafter provided.
(c) Meetings of a committee may be called by any member thereof,
the chairman of the board and chief executive officer, the president, the
secretary, or any assistant secretary upon twenty-four (24) hours notice to each
member stating the place, date, and hour of the meeting, which notice may be
written or oral. If mailed, the notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the member of the committee at
his business address, provided it is mailed four (4) days prior to the meeting.
Any member of a committee may waive notice of any meeting and no notice of any
meeting need be given to any member thereof who attends in person. The notice
of a meeting of a committee need not state the business proposed to be
transacted at the meeting.
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(d) The lesser of a majority of the members or two members of a
committee shall constitute a quorum for the transaction of business at any
meeting thereof and action of a committee must be authorized by the affirmative
vote of a majority of the members present at a meeting at which a quorum is
present.
(e) Any action that may be taken by a committee at a meeting may
be taken without a meeting if a consent in writing, setting forth the action so
to be taken, shall be signed by all of the members of a committee and filed with
the minutes of the committee, which action shall be effective as of the date
stated in such consent.
(f) Any vacancy on a committee may be filled by a resolution
adopted by a majority of the Board of Directors.
(g) Any member of a committee may be removed at any time with or
without cause by resolution adopted by a majority of the Board of Directors.
(h) The chairman of the committee shall, if present, preside at
all meetings of a committee. A committee may fix its own rules of procedure
which shall not be inconsistent with these Bylaws. Each committee shall keep
regular minutes of its proceedings and report its proceedings at the next
meeting of the Board of Directors.
(i) The chairman of the board and chief executive officer and
the president shall act in an advisory capacity to all committees other than the
executive committee.
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Corporation shall be the senior chairman, the
chairman of the board and chief executive officer, the president, one or more
executive vice presidents, one or more senior vice presidents, one or more group
vice presidents, one or more vice presidents, a secretary, one or more assistant
secretaries, a treasurer, and such other officers as may from time to time be
elected or appointed by the Board of Directors.
SECTION 2. SENIOR CHAIRMAN. The senior chairman shall, in the absence of
the chairman of the board and chief executive officer and the president, preside
at all meetings of the stockholders and the Board of Directors. In addition,
the senior chairman shall advise the chairman of the board and chief executive
officer and the president on matters of long and short term strategic planning,
policy and other major matters affecting the Corporation and shall have such
duties, authority and responsibilities as the chairman of the board and chief
executive officer, the president or the board shall, from time to time, delegate
to him.
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SECTION 3. CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER. The
chairman of the board and chief executive officer shall be the chief executive
officer of the Corporation and shall have the responsibility for the management
of the Corporation and such other powers and duties as may be assigned to him
from time to time by the board. The chairman of the board and chief executive
officer shall, when present, preside at all meetings of the stockholders and of
the Board of Directors. He shall act as liaison from and as spokesman for the
board. He shall participate in long range planning for the Corporation. He may
sign shares of the Corporation, any deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors has authorized to be executed, or which
are in the ordinary course of business of the Corporation. He may vote, either
in person or by proxy, all the shares of the capital stock of any company which
the Corporation owns or is otherwise entitled to vote at any and all meetings of
the stockholders of such company and shall have the power to accept or waive
notice of such meetings. He shall in general perform all duties incident to the
office and such other duties as shall be prescribed by the Board of Directors
from time to time.
SECTION 4. PRESIDENT. The president shall have such duties and authority as
the chairman of the board and chief executive officer may determine from time to
time. In the absence or disability of the chairman of the board and chief
executive officer, the president shall exercise all powers and discharge all of
the duties of the chairman of the board and chief executive officer, including
the general supervision and control of all the business and affairs of the
Corporation. He may sign any deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors has authorized to be executed or which
are in the ordinary course of business of the Corporation. He may vote, either
in person or by proxy, all the shares of the capital stock of any company which
the Corporation owns or is otherwise entitled to vote at any and all meetings of
the stockholders of such company and shall have the power to accept or waive
notice of such meetings.
SECTION 5. VICE PRESIDENTS. In the absence or disability of the chairman of
the board and chief executive officer and the president, the functions of the
chairman of the board and chief executive officer shall be performed by the
executive vice president who was first elected to that office and who is not
then absent or disabled, or, if none, the senior vice president who was first
elected to that office and who is not then absent or disabled, or, if none, the
group vice president who was first elected to that office and who is not then
absent or disabled, or, if none, the vice president who was first elected to
that office and who is not then absent or disabled. Each executive vice
president, senior vice president, group vice president and vice president shall
have such powers and shall discharge such duties as may be assigned to him from
time to time by the chairman of the board and chief executive officer or the
president and may sign any deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors has authorized to be executed or which
are in the ordinary course of business. Each executive vice president, senior
vice president, group vice president and vice president may vote, either in
person or by proxy, all the shares of the capital stock of any company which the
Corporation owns or is otherwise entitled to vote at any and all meetings of the
stockholders of such company and shall have the power to accept or waive notice
of such meetings.
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SECTION 6. SECRETARY. The secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these Bylaws, and in the case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the chairman of the board and chief executive officer or the directors, upon
whose requisition the meeting is called as provided in these Bylaws. He shall
record all the proceedings of the meetings of the stockholders and of the
directors in a book to be kept for that purpose, and shall perform such other
duties as may be assigned to him by the Board of Directors or the president. He
shall have the custody of the seal of the Corporation and shall affix the same
to all instruments requiring it, when authorized by the Board of Directors, the
chairman of the board and chief executive officer or the president, and attest
the same. He shall have charge of the original stock books, transfer books and
stock ledgers, and act as transfer agent in respect of the stock and the
securities of the Corporation in the absence of designation by the Board of
Directors of a corporate transfer agent, and shall perform all of the other
duties incident to the office of secretary. He may vote, either in person or by
proxy, all the shares of the capital stock of any company which the Corporation
owns or is otherwise entitled to vote at any and all meetings of the
stockholders of such company and shall have the power to accept or waive notice
of such meetings.
SECTION 7. ASSISTANT SECRETARY. Each assistant secretary shall have such
powers and perform such duties as shall be assigned to him by the directors or
delegated to him by the secretary, and in the absence or inability of the
secretary to act, shall have the same general powers as the secretary.
SECTION 8. TREASURER. The treasurer shall perform such duties as shall be
delegated to him by the Board of Directors.
ARTICLE V
RESIGNATIONS; FILLING OF VACANCIES;
INCREASE OF NUMBER OF DIRECTORS
SECTION 1. RESIGNATIONS. Any director, member of a committee or other
officer may resign at any time. Such resignations shall be made in writing and
shall take effect at the time specified therein and, if no time be specified, at
the time of the receipt of such resignation by the chairman of the board and
chief executive officer or president or secretary. The acceptance of the
resignation shall not be necessary to make it effective.
SECTION 2. FILLING OF VACANCIES. If the office of any member of a committee
or other officer becomes vacant, the vacancy may be filled only by the remaining
directors in office, although less than a quorum, who, by a majority vote, may
appoint any qualified person to fill such vacancy. Except as set forth below,
any vacancy on the Board of Directors may be filled by a
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majority of the directors then in office, although less than a quorum, or by a
sole remaining director. A person appointed to fill a vacancy shall hold office
for the unexpired term and until his successor shall be elected and qualify.
SECTION 3. INCREASE IN NUMBER OF DIRECTORS. The number of directors may be
increased or decreased at any time by the affirmative vote of a majority of the
directors at a regular meeting or a special meeting called for that purpose.
Any vacancy on the Board of Directors that results from an increase in the
number of directors may be filled by a majority of the directors then in office.
These additional directors may be chosen at such meeting to hold office until
the next election of the class for which such directors have been chosen and
until their successors are elected and qualify.
ARTICLE VI
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK. Certificates of stock, numbered and with
the seal of the Corporation affixed, signed by the chairman of the board and
chief executive officer, the president or vice president, and secretary or an
assistant secretary, shall be issued to each stockholder certifying the number
of shares owned by him in the Corporation. Any of or all the signatures on
these certificates may be facsimile. In case any officer or transfer agent who
has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer or transfer agent before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer or transfer agent at the date of issue.
SECTION 2. LOST, STOLEN OR DESTROYED CERTIFICATES. A new certificate of
stock may be issued in the place of any certificate theretofore issued by the
Corporation, alleged to have been lost, stolen or destroyed, and the directors
may, in their discretion, require the owner of the lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond, in
such sum as they may direct, sufficient to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the Corporation shall
be transferable only upon its books by the holders thereof in person or by their
duly authorized attorneys or legal representatives, and upon such transfer the
old certificates shall be surrendered to the Corporation by the delivery thereof
to the person in charge of the stock and transfer books and ledgers, or to such
other person as the directors may designate, by whom they shall be canceled, and
new certificates shall thereupon be issued. A record shall be made of each
transfer, and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer.
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SECTION 4. DETERMINATION OF RECORD DATE.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than 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.
(b) If no record date is fixed:
(1) The record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(2) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 5. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, if any, and Delaware law, the directors may declare dividends
upon the capital stock of the Corporation as and when they deem expedient.
Before declaring any dividend there may be set apart out of any funds of the
Corporation available for dividends, such sum or sums as the directors from time
to time in their discretion think proper for working capital or as a reserve
fund to meet contingencies or for equalizing dividends, or for such other
purposes as the directors shall think conducive to the interests of the
Corporation.
ARTICLE VII
AMENDMENTS
SECTION 1. AMENDMENTS OF BYLAWS. The stockholders by the affirmative vote
of the holders of the majority of the stock issued and outstanding, or the
directors by the affirmative vote of a majority of the directors present at any
meeting, may amend or alter any of these Bylaws, provided the substance of the
proposed amendment shall have been stated in the notice of the meeting.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 1. CORPORATE SEAL. The corporate seal of the Corporation shall be
circular in form and shall contain the name of the Corporation, and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or facsimile
thereof to be impressed or affixed or reproduced or otherwise.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall be the
calendar year.
SECTION 3. PRINCIPAL OFFICE. The registered office shall be established and
maintained at the office of The Corporation Trust Company, in the City of
Wilmington and County of New Castle, and such company shall be the registered
agent of this Corporation.
SECTION 4. BANK ACCOUNTS, CHECKS, DRAFTS, NOTES. The Corporation shall
maintain such bank accounts and checks upon such accounts shall be signed and/or
countersigned by such officers as may be designated by resolution of the Board
of Directors. Notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or officers, agent or agents of
the Corporation, and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 5. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by
these Bylaws to be given, personal notice is not meant unless expressly so
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in a post office box in a sealed post paid wrapper,
addressed to the person entitled thereto at his last known post office address,
and such notice shall be deemed to have been given on the day of such mailing.
Any notice required to be given under these Bylaws may be waived by the person
entitled thereto. Stockholders not entitled to vote shall not be entitled to
receive notice of any meetings except as otherwise provided by statute.
SECTION 6. CERTAIN PURCHASES BY THE CORPORATION OF OUTSTANDING SHARES OF ITS
COMMON STOCK.
(a) VOTE REQUIRED FOR CERTAIN PURCHASES. Except as set forth
in subsection (b) of this Section 6, in addition to any vote of the
Corporation's stockholders required by law, the Corporation's Certificate of
Incorporation or these Bylaws, the affirmative vote of the holders of not less
than a majority of the Voting Stock (as defined below) of the Corporation shall
be required before the Corporation may purchase any outstanding shares of Common
Stock of the Corporation at a price known by the Corporation to be above Market
Price (as defined below) from a person
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known by the Corporation to be a Selling Stockholder (as defined below). Such
affirmative vote will be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or any agreement
with any national securities exchange.
(b) WHEN A VOTE IS NOT REQUIRED. The provisions of subsection
(a) of this Section 6 will not apply to:
(i) any purchase or other acquisition of securities made as part
of a tender or exchange offer by the Corporation to purchase
securities of the same class made on the same terms to all holders of
such securities and complying with the applicable requirements of the
Exchange Act and the rules and regulations promulgated thereunder;
(ii) any purchase or acquisition made pursuant to an open market
purchase program approved by the Board of Directors; or
(iii) any purchase or acquisition which is approved by the
vote of a majority of the directors then in office and which is made
at no more than the Market Price, on the date that the understanding
between the Corporation and the Selling Stockholder is reached with
respect to such purchase (whether or not such purchase is made or a
written agreement relating to such purchase is executed on such date),
of shares of the Common Stock of the Corporation to be purchased.
(c) CERTAIN DEFINITIONS. For purposes of this Section 6,
the following terms are defined as follows:
(i) "VOTING STOCK" means the outstanding shares of capital stock
of the Corporation entitled to vote in elections of directors of the
Corporation considered as one class.
(ii) "MARKET PRICE" means the highest closing sale price, during
the 30-day period immediately preceding the date of the making of such
purchase agreement, of a share of the Common Stock of the Corporation
on the Composite Tape for the New York Stock Exchange. If such stock
is not quoted on the Composite Tape or is not listed on the New York
Stock Exchange, then such price during the 30-day period on the
principal United States securities exchange registered under the
Exchange Act on which such stock is listed. If such stock is not
listed on any such exchange, then the highest closing bid quotation
with respect to a share of such stock during the 30-day period on the
National Association of Securities Dealers, Inc. Automated Quotations
System or any system then in use. If no such quotations are
available, the fair market value on the date in question of a share of
such stock.
(iii) "SELLING STOCKHOLDER" means and includes any person
(other than the Corporation, any of its Subsidiaries, any benefit plan
or trust of or for the benefit of the Corporation or any of its
Subsidiaries, or any trustee, agent or other representative of any of
the foregoing) who or which is the beneficial owner of in the
aggregate five percent (5%) or more of the outstanding shares of
Common Stock of the Corporation and who or which has purchased or
agreed to purchase any of such shares within the most recent two-year
period.
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For purposes of determining whether a person is a Selling Stockholder, the
number of shares of Common Stock deemed to be outstanding and the number of
shares beneficially owned by the person shall include shares respectively deemed
owned through application of Article VIII, Section 6(c)(v), but shall not
include any other shares of Common Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(iv) A "PERSON" means any individual, firm, partnership,
corporation or other entity (including, without limitation, a "group"
within the meaning of Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder).
(v) A person shall be the "BENEFICIAL OWNER" of any shares of
Common Stock of the Corporation:
(A) which such person or any of its Affiliates or
Associates (as defined below) beneficially owns, directly or
indirectly; or
(B) which such person or any of its Affiliates or
Associates has (1) the right to acquire (whether such right is
conditional or exercisable immediately or only after the passage
of time), pursuant to any agreement, arrangement or understanding
or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (2) the right to vote
pursuant to any agreement, arrangement or understanding; or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing thereof.
(vi) The terms "AFFILIATE" and "ASSOCIATE" have the respective
meanings ascribed to such terms in Rule 12b-2 of the rules and
regulations under the Exchange Act.
(vii) "SUBSIDIARY" means any corporation at least a majority
of the outstanding securities of which having ordinary voting power to
elect a majority of the board of directors of such corporation
(whether or not any other class of securities has or might have voting
power by reason of the happening of a contingency) is at the time
owned or controlled directly or indirectly by the Corporation and/or
one or more Subsidiaries.
(d) FIDUCIARY DUTY OF SELLING STOCKHOLDER. Nothing
contained in this Section 6 shall be construed to relieve any Selling
Stockholder or any other person from any fiduciary obligation imposed by law.
(e) INTERPRETATIONS. The Board of Directors of the
Corporation has the power to construe and interpret this Section 6, including,
without limitation, (i) whether a person is a Selling Stockholder, (ii) whether
a person is an Affiliate or Associate of another, (iii) whether this Section 6
is applicable to a proposed transaction, (iv) what is the Market Price and
whether a price is above
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Market Price, and (v) when or whether a purchase or agreement to purchase any
shares of Common Stock of the Corporation has occurred and when or whether a
person has become a beneficial owner of any shares of Common Stock of the
Corporation. Any decision or action reasonably taken by the Board of Directors
of the Corporation in good faith in connection with the interpretation of this
Section 6 shall not constitute a violation of and shall be deemed to be in
accordance with the terms of this Section 6.
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