EXHIBIT 3.3
AMENDED AND RESTATED BY-LAWS
OF
OMNICARE, INC.
(a Delaware corporation)
ARTICLE I
Meetings of Stockholders
Section 1.01. Place. Meeting of stockholders shall be held at such
places, within or without the State of Delaware, as shall be specified in the
respective notices or waivers of notice thereof.
Section 1.02. Annual Meetings. An annual meeting of stockholders for
the election of directors and the transaction of such other business as may come
before it shall be held at 11:00 o'clock in the forenoon, or at such other hour
as may be stated in the notice thereof, on the third Monday in May in each year
unless such day is a holiday, in which case it shall be held on the next day
following that is not a holiday.
Section 1.03. Special Meetings. Special meetings of stockholders, for
any purpose or purposes, may be called at any time by the Chairman of the Board,
the President or the Secretary, and shall be called by the Chairman of the
Board, the President or the Secretary upon the written request of a majority of
the Board of Directors or of the holders of record of shares having a majority
of the voting power of the stock of the corporation then entitled to vote for
the election of directors, such written request to state the purpose or purposes
of the meeting and to be delivered to the Chairman of the Board, the President
or the Secretary.
Section 1.04. Notice and Waiver of Notice. Unless otherwise provided by
law, notice of each annual meeting or special meeting of stockholders, stating
the time, place and purpose or purposes thereof, shall be given to each
stockholder entitled to vote at such meeting, not less than ten nor more than
fifty days before the day on which the meeting is to be held, by mailing to such
stockholder, postage prepaid, a notice thereof addressed to him at his last
known post office address appearing on the records of the corporation. Notice of
any meeting of stockholders need not be given to any person who may become a
stockholder of record after the record date of such meeting fixed pursuant to
Section 7.03, nor to any person who shall attend the meeting in person or by
proxy nor to any stockholder who shall sign a waiver of such notice in writing
either before, after or at the time of such meeting. Except as otherwise
provided by law, notice of any adjourned meeting of stockholders need not be
given.
Section 1.05. List of Stockholders. The Secretary, or other officer of
the corporation who has charge of the stock ledger of the corporation, shall
prepare and make, at least ten 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 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 such meeting, either at a place within the city where such meeting is
to be held, which place shall be specified in the notice of such meeting, or, if
not so specified, at the place where such meeting is to be held, and such list
shall be produced and kept at the time and place of such meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 1.06. Quorum. At all meetings of stockholders, the holders of
record, present in person or by proxy, of shares having a majority of the voting
power of the stock of the corporation entitled to vote thereat, shall be
necessary and sufficient to constitute a quorum for the transaction of business.
In the absence of a quorum, the holders of record of shares having a majority of
the voting power of the stock of the corporation represented in person or by
proxy at the time and place of the meeting, or of any adjournment thereof, may
adjourn the meeting from time to time, without notice other than announcement at
the time and place of such meeting or adjournment, until a quorum shall be
present. At any adjourned session of any such meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally noticed.
Section 1.07. Voting. When a quorum is present at any meeting of
stockholders, the vote of the holders of shares having a majority of the voting
power of the stock of the corporation represented and entitled to vote at such
meeting shall decide any question brought before such meeting, unless the
question is one upon which, by express provision of law or of the Certificate of
Incorporation or these By-Laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. A
stockholder may vote either in person or by proxy, but no proxy shall be voted
or acted upon after three years from its date unless the proxy provides for a
longer period.
Section 1.08. Consent in lieu of meeting. Any action required or
permitted to be taken at a meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if consents in writing,
setting forth the action so taken, shall be signed by the holders of record of
shares having not less than the minimum voting power that would be necessary to
take such action at a meeting at which all shares entitled to vote thereon were
present and voted.
ARTICLE II
Directors
Section 2.01. Number. The number of directors which shall constitute
the whole Board of Directors shall be no fewer than three nor more than thirty.
The first Board of Directors shall consist of three directors. Thereafter,
within the minimum and maximum above specified, the number of directors which
shall constitute the whole Board of Directors shall be determined by resolution
of the Board of Directors or, in the absence thereof, shall be the number of
directors elected at the preceding annual meeting of stockholders.
Section 2.02. Election; Qualification. Directors shall be elected at
each annual meeting of stockholders, and may also be elected as provided in
Section 2.05 of this
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Article. Directors shall be chosen by a plurality of the votes cast. Directors
need not be stockholders of the corporation. No person may be nominated for
election as a director unless written notice of intention to nominate such
person shall have been given to the Chairman of the Board, the President or the
Secretary of the corporation by a stockholder entitled to notice of and to
attend a meeting of stockholders at which directors are to be elected no later
than fifteen (15) business days before such meeting. Such notice shall contain
the name, address and occupation of the nominee. The foregoing notice provision
shall not apply to any person nominated by the Board of Directors for election
as a director in the place of any person nominated by the Board who, after the
notice of the meeting of stockholders has been mailed and prior to the meeting,
dies or declines or is unable to serve as a director if nominated and elected.
Section 2.03. The Chairman of the Board. The Board of Directors may
elect from among its members one member to serve as Chairman of the Board, which
member shall serve as Chairman of the Board until another member is elected to
the position. The Chairman of the Board shall preside at all meetings of the
Board of Directors and of the stockholders.
Section 2.04. Term of Office. Each director shall serve until his
successor is elected and qualified, or until his death, resignation,
disqualification or removal.
Section 2.05. Resignations; Filling of Vacancies. Any director may
resign at any time by giving notice of such resignation to the Board of
Directors, the Chairman of the Board, the President or the Secretary. Unless
otherwise specified in such notice, such resignation shall be effective upon
receipt of such notice by the Board of Directors or such officers. Vacancies in
the Board of Directors, whether caused by resignation, removal, death or any
other reason, and newly created directorships resulting from any increase in the
authorized number of directors, may be filled either by majority vote of the
directors then remaining in office (whether or not sufficient in number to
constitute a quorum), or by a sole remaining director, or by a plurality of the
votes cast at the meeting of stockholders held for that purpose. In the event
that one or more directors shall resign from the Board, effective at a future
date, a majority of the directors then in office, including those who have so
resigned effective at a future date, shall have power to fill the vacancy or
vacancies which will result when such resignation or resignations become
effective, the vote thereon to take effect when such resignation or resignations
become effective.
Section 2.06. Powers. The business and affairs of the corporation shall
be managed by the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
ARTICLE III
Meetings of the Board of Directors
Section 3.01. Place. Meetings of directors, both regular and special,
may be held either within or without the State of Delaware.
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Section 3.02. Annual and Regular Meetings. The annual meeting of the
Board of Directors for the election of officers, and for the transaction of such
business as may be deemed desirable by the directors present, shall be held in
each year immediately following the annual meeting of stockholders, at the place
of such meeting, or at such time and place as the retiring Board of Directors
may have designated. If the annual meeting of the Board of Directors is so held,
no notice thereof need be given. If the annual meeting shall be held as soon
after the annual meeting of stockholders as practicable, upon notice as required
for special meetings of the Board of Directors under Section 3.03. The Board of
Directors from time to time may provide for the holding of regular meetings and
fix the times and places of such meetings, and no notice need be given of
regular meetings held at the times and places so fixed.
Section 3.03. Special Meetings and Notice thereof; Waiver of Notice.
Special meetings of the Board of Directors may be called at any time by the
Chairman of the Board, the President or the Secretary, and shall be called by
the Chairman of the Board, the President or the Secretary upon the written
request of any two directors, such written request to state the purpose or
purposes of the meeting and to be delivered to the Chairman of the Board, the
President or the Secretary. Notice of each special meeting of the Board of
Directors shall be mailed to each director, postage prepaid, addressed to him at
his residence or his usual place of business, at least two days before the day
on which the meeting is to be held, or shall be sent to him at such place by
telegram, radio or cable or shall be telephoned or delivered to him personally
not later than the day before the meeting is to be held. Notice of any special
meeting need not be given to any director who shall attend such meeting in
person or who shall waive notice thereof in writing or by telegram, radio or
cable, either before, after or at the time of such meeting. Except as otherwise
provided by law, notice of any adjourned meeting of the Board of Directors need
not be given.
Section 3.04. Quorum. At each meeting of the Board of Directors
(subject to the provision of Section 2.04 regarding the filling of vacancies),
the presence of a majority of the total number of directors constituting the
whole Board of Directors shall constitute a quorum for the transaction of
business. Except as otherwise provided in these By-Laws, the vote of a majority
of the directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors. In the absence of a quorum, a majority of the
directors present at the time and place of any meeting or of any adjournment
thereof (or if only one director be present, then that one) may adjourn the
meeting from time to time, without notice other than announcement at the time
and place of such meeting or adjournment, until a quorum shall be present. At
any adjourned session of any such meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally noticed.
Section 3.05. Consent in lieu of Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the Board of Directors.
Section 3.06. Participation of Telephone. Directors may participate in
any meeting of the Board of Directors by means of conference telephone or
similar communications
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equipment by means of which all persons participating in such meeting can hear
each other, and such participation shall constitute such directors' presence at
such meeting.
ARTICLE IV
Executive Committee and Other Committees
Section 4.01. Creation of Committee. The Board of Directors may, by
action of a majority of the whole Board of Directors, designate an Executive
Committee and/or one or more other committees, each consisting of two or more
directors.
Section 4.02. Powers of Committee. Subject to any limitations imposed
by law or by resolution adopted by a majority of the whole Board of Directors,
the Executive Committee shall have and may exercise, when the Board of Directors
is not in session, all power and authority of the Board of Directors in the
management of the business and affairs of the corporation, except any power or
authority in reference to (a) amending the Certificate of Incorporation, (b)
approving an agreement of merger or consolidation, (c) recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, (d) approving the dissolution of the
corporation or the revocation of a dissolution, (e) altering, amending or
repealing these By-Laws, (f) declaring a dividend or authorizing any other
distribution to the stockholders, (g) authorizing the issuance of capital stock
of the corporation, or any rights, options or warrants to acquire the same,
except pursuant to a plan previously approved by the Board of Directors, (h)
designating any committee of the Board of Directors or appointing or removing a
member of any committee designated by the Board of Directors, (i) filling
vacancies on the Board of Directors, or (j) electing or removing the Chairman of
the Board or an officer of the corporation. Each other committee shall have and
may exercise, when the Board of Directors is not in session, such powers, not
exceeding those which may be granted to the Executive Committee, as the Board of
Directors shall confer.
Section 4.03. Meetings and Proceedings. Except as otherwise provided in
these By-Laws or by resolutions of the Board of Directors, each committee may
adopt its own rules governing the conduct of its proceedings. All action by any
committee shall be reported to the Board of Directors at the next meeting
thereof and shall be subject to revision and alteration by the Board of
Directors, provided that no such revision or alteration shall affect the rights
of third parties. At each meeting of any committee, the presence of a majority
of the total number of members constituting the committee shall constitute a
quorum for the transaction of business. The vote of a majority of the members of
the committee present at any meeting at which a quorum is present shall be the
action of the committee.
Section 4.04. Term of Office; Resignations; Removals; Filling of
Vacancies. The term of office of a member of a committee shall be as provided in
the resolution of the Board of Directors designating the committee or
designating him as a member but shall not exceed his term of office as a
director. If prior to the end of his term of office as a member of a committee a
member should cease to be a director, he shall cease to be a member of the
committee. Any member of any committee may resign at any time by giving notice
of such resignation to the Board of Directors, the Chairman of the Board, the
President or the Secretary. Unless
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otherwise specified in such notice, such resignation shall be effective upon
receipt of such notice by the Board of Directors or such officer. Any member of
any committee may be removed at any time from such committee, either for or
without cause, by action of a majority of the whole Board of Directors.
Vacancies in any committee may be filled by the Board of Directors by action of
a majority of the whole Board of Directors.
ARTICLE V
Officers
Section 5.01. Election; Number; Qualifications; Term. The officers of
the corporation shall be elected by a majority of the whole Board of Directors,
and shall include a President, one or more Vice Presidents, a Secretary, one or
more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers and
such other officers as may be elected in the discretion of the Board of
Directors. Any two or more offices may be held by the same person. Officers need
not be directors or stockholders of the corporation. Each officer shall hold
office until his successor is elected and qualified, or until his death,
resignation, disqualification or removal.
Section 5.02. Powers and Duties in General. In addition to the powers
and duties prescribed by these By-Laws or assigned to them by the Board of
Directors, the officers and assistant officers shall have such powers and duties
as are usually incident to their respective offices, subject to the control of
the Board of Directors.
Section 5.03. The President. The President shall be the Chief Executive
Officer of the Corporation and shall, subject to the direction of the Board of
Directors, have general charge of the business and affairs of the Corporation
and general supervision of its officers, employees and agents. The President
shall, during any absence of the Chairman of the Board, preside at meetings of
the stockholders and carry out all of the duties of the Chairman of the Board,
and preside at meetings of the Board of Directors. He shall also perform such
other duties as may be assigned to him by the Board of Directors and he shall
prepare and present reports to the Board concerning the state of the
corporation's business and affairs. The Board may designate one of the other
officers of the corporation to perform the duties of the President in his
absence.
Section 5.04. The Vice Presidents. An Executive Vice President, a
Senior Vice President or Vice President shall perform such duties as from time
to time may be assigned to him by the President or by the Board of Directors or
by any committee thereunto authorized.
Section 5.05. The Secretary. The Secretary shall cause the minutes of
all proceedings of the stockholders and the Board of Directors to be recorded in
the minute book of the corporation, shall cause all notices to be duly given in
accordance with the provisions of these By-Laws and as required by law, and
shall have charge and custody of the records and the seal of the corporation.
Section 5.06. The Treasurer. The Treasurer shall have charge and
custody of the corporate funds and securities, shall keep full and accurate
accounts of receipts and
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disbursements, shall deposit all monies and other valuable effects in the name
and to the credit of the corporation in such depositories as may be designated
in accordance with these By-Laws, and shall render a report and account of the
transactions of the corporation and of the financial condition of the
corporation whenever so required by the Board of Directors, the Chairman of the
Board or the President.
Section 5.07. Resignations; Removals; Filling of Vacancies. Any officer
may resign at any time by giving notice of such resignation to the Board of
Directors, the Chairman of the Board, the President or the Secretary. Unless
otherwise specified in such notice, such resignation shall be effective upon
receipt of such notice by the Board of Directors or such officer. Any officer
may be removed at any time, either for or without cause, by action of a majority
of the whole Board of Directors.
Section 5.08. Bonding. None of the officers, assistant officers and
other employees, agents or representatives of the corporation shall be required
to give bond unless the Board of Directors shall in its discretion require any
such bond or bonds. Any bond so required shall be payable to the corporation in
such amount and with such conditions and security as the Board of Directors may
require.
ARTICLE VI
Instruments, Deposits, Checks, Proxies
Section 6.01. Execution of Instruments. The President or any Vice
President may enter into any contract or execute and deliver any instrument
(including, but not limited to, any check, bill of exchange, order for the
payment of money, promissory note, acceptance, evidence of indebtedness or proxy
to vote with respect to shares of stock of another corporation owned by or
standing in the name of the corporation) in the name and on behalf of the
corporation, subject to the control of the Board of Directors. The Board of
Directors may authorize any officer, employee or agent to enter into any
contract or execute and deliver any such instrument in the name and on behalf of
the corporation, and such authorization may be general or confined to specific
instances. To the extent authorized by the Board of Directors the signature of
any such person may be a facsimile.
Section 6.02. Deposits. Monies and other valuable effects of the
corporation may be deposited from time to time to the credit of the corporation
with such depositories as may be selected by the Board of Directors or by any
committee, officer or agent of the corporation to whom power of selection may be
delegated from time to time by the Board of Directors.
ARTICLE VII
Stock Certificates; Registered Holders
Section 7.01. Issuance; Signatures. Every holder of stock of the
corporation shall be entitled to have a certificate signed by, or in the name of
the corporation by the President or a Vice President, and by either the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
of the corporation certifying the number of shares
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owned by him in the corporation. If such certificate is countersigned by a
transfer agent other than the corporation or one of its employees, or a
registrar other than the corporation or its employees, any other signature on
the certificate may be a facsimile. Stock certificates shall be in such form as
shall be approved by the Board of Directors.
Section 7.02. Continuing Validity of Signatures. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon any such certificate shall cease to be such officer, transfer agent
or registrar, whether because of death, resignation or otherwise, before such
certificate is issued, such certificate may nevertheless 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.
Section 7.03. Record Date. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive any dividend payment, distribution or
allotment of rights, or entitled to exercise 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 nor less than ten days before the date of such meeting nor more
than sixty days prior to any other action, and only such stockholders as shall
be stockholders of record on the record date so fixed shall be entitled to such
notice of or to be present or to vote at such meeting or any adjournment
thereof, or to express such consent, or to receive such payment, distribution or
allotment, or to exercise such rights, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation after any such record date
fixed as aforesaid.
Section 7.04. Registered Stockholders. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to have the rights of a stockholder with respect thereto,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
Section 7.05. Lost Certificates. When any certificate of stock is
alleged to have been lost, destroyed or wrongfully taken the corporation shall
issue a new certificate if the owner (a) so requests before the corporation has
notice that the certificate has been acquired by a bona fide purchaser, (b)
files with the corporation a sufficient indemnity bond and (c) satisfies any
other reasonable requirements imposed by the corporation. The Board of Directors
may waive the requirement of any such indemnity bond.
ARTICLE VIII
Miscellaneous
Section 8.01. Offices. The principal office of the corporation in the
State of Delaware shall be at 100 West Tenth Street, Wilmington, Delaware. The
corporation may also have offices at other places within or without the State of
Delaware.
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Section 8.02. Fiscal Year. The fiscal year of the corporation shall
begin on the 1st day of January in each year, and shall end on the 31st day of
December in such year.
Section 8.03. Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced.
Section 8.04. Compensation of Directors. The Board of Directors shall
have authority to fix the compensation of directors, including the Chairman of
the Board. The directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance of each meeting of the Board of Directors and/or a stated salary as
director. Members of committees may be allowed like compensation and expenses
for attending committee meetings. No such payment shall preclude any director or
committee member from serving the corporation in any other capacity and
receiving compensation therefor.
Section 8.05. Compensation of Officers and Employees. The compensation
of the President and, to the extent the Board of Directors shall deem advisable,
the compensation of all other officers, employees, agents and representatives of
the corporation shall be fixed by the Board of Directors or in accordance with
procedures adopted by it. Compensation may be contingent and/or measured in
whole or in part by the profits of the corporation and its subsidiaries or a
segment thereof. Bonuses, other extra or incentive compensation, deferred
compensation and retirement benefits may be paid. Such amounts may be payable in
cash, stock of the corporation or other property. The Board of Directors may
delegate the authority contained in this section to such directors, officers,
employees or agents of the corporation as the Board of Directors deems
advisable.
Section 8.06. Amendment of By-Laws. The By-Laws may be altered, amended
or repealed from time to time, and new By-Laws may be made and adopted, by
action of a majority of the whole Board of Directors or by the stockholders.
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