EXHIBIT 3.3
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As Amended February 27, 2001
BAXTER INTERNATIONAL INC.
BYLAWS
ARTICLE I
STOCKHOLDERS
SECTION l. 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 Corporate Secretary of the Corporation.
(d) To be timely, a stockholder's notice to the Corporate 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 Corporate
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
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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. The Corporate Secretary shall prepare and make, at least
ten days before each meeting of stockholders, a complete list of the
stockholders in either hard copy or electronic format, 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 at the
office of the Corporation in Deerfield, Illinois, for a period of at least ten
days prior to the meeting. 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.
The Corporate Secretary shall prepare and make, at least ten days before
each meeting of stockholders, a complete list of the stockholders, in either
hard copy or electronic format, 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 at the office of the Corporation in Deerfield,
Illinois, for a period of at least ten days prior to the meeting. 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, the Chief Executive Officer or the Corporate Secretary,
and shall be called by the Chairman of the Board, the Chief Executive Officer
or the Corporate Secretary upon a request in writing therefor, stating the
purpose or purposes thereof, delivered to the Chairman of the Board, the Chief
Executive Officer or the Corporate 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
Corporate Secretary, or such other officer as the Board of Directors may
designate, to each stockholder entitled to vote thereat at such stockholder's
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 or her 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 or her 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 or her 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 Corporate
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 Corporate 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 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 Corporate
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
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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 of Directors. If at any meeting of the
Board of Directors 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 of
Directors may also transact business without a meeting if all members of the
Board of Directors 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.
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 from their number, and a Chief Executive Officer, 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
Corporate Secretary, and one or more Assistant Corporate Secretaries, who need
not be directors. Such officers shall hold office until the next annual
election of officers, and until their successors are elected and qualified.
SECTION 4. SPECIAL MEETINGS: HOW CALLED: NOTICE. Special meetings of the
Board of Directors may be called by the Chairman of the Board, the Chief
Executive Officer, the President or the Corporate 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
of Directors a fixed fee may be paid together with expenses for 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.
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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 of Directors, 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.
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 annual or 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 annual
or 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 Audit 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.
(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 Audit
Committee's activities and recommend to the Board of Directors any changes
in the appointment of independent auditors which the Audit Committee may
deem to be in the best interests of the Corporation and its stockholders.
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(h) Have such other powers and perform such other duties as the Board of
Directors 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, the Chief Executive Officer and the
President and advise the Board of Directors of such determination, (b)
exercise the authority of the Board of Directors 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) exercise the authority of the Board of
Directors to issue stock of the Corporation as compensation or as an incentive
to non-employee directors, officers, employees, consultants or advisors, (e)
make recommendations to the Board of Directors concerning the salaries of the
Chairman of the Board, the Chief Executive Officer and the President, (f)
advise the Board of Directors and the Chief Executive Officer on other
compensation and benefit matters and (g) perform such other duties as shall be
requested by the Chairman of the Board or the Chief Executive Officer or
designated by Board of Directors 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
of Directors, 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 of Directors: (i) annual, quarterly or
extraordinary dividend proposals, (ii) financing proposals involving more
than $100 million, (iii) results of the management of pension assets and
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 of Directors
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 Planning and Organization Committee shall assist and advise the Board
of Directors in connection with Board of Directors membership, Board of
Directors committee structure and membership and general organization and
planning matters. To accomplish these purposes, the Planning and Organization
Committee shall:
(a) Develop general criteria for use in selecting potential new Board of
Directors members and assist the Board of Directors in identifying and
attracting qualified candidates for election to the Board of Directors;
(b) Recommend to the Board of Directors annually a slate of nominees to
be proposed by the Board of Directors to the stockholders as nominees for
election as directors and, from time to time, recommend persons to fill any
vacancy on the Board of Directors;
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(c) Recommend to the Board of Directors any changes in number, authority
and duties of Board of Directors committees and the chairmen and members
who should serve thereon;
(d) Advise the Board of Directors and the Chairman/Chief Executive
Officer on major organization matters and issues relating to the
organization structure of the Corporation, as well as management succession
plans;
(e) Oversee the succession planning process for the Chairman/Chief
Executive Officer;
(f) Develop and implement an annual process for evaluating the
performance of the Chairman/CEO that includes measurable performance
objectives, performance assessment against such objectives and
communication and coordination with the Compensation Committee in
furtherance of its responsibility to recommend to the full Board
compensation decisions with respect to the Chairman/CEO;
(g) In the event of the death, incapacity, resignation or other absence
(temporary or permanent) of the Chief Executive Officer, the Planning and
Organization Committee shall confer and recommend for election by the full
Board of Directors an acting or successor Chief Executive Officer;
(h) Make recommendations to the Board of Directors concerning
compensation payable for Board of Directors membership, as well as other
benefits available to Board of Directors members;
(i) Exercise the authority of the Board of Directors concerning policies
relating to service by directors and employees on other unrelated Board of
Directors of directors; and
(j) Have such other duties and authority as shall be assigned or granted
to it from time to time by the Chief Executive Officer or the Board of
Directors.
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 Chief Executive Officer or the Board of Directors.
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 of Directors 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 of Directors 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, the Chief Executive Officer, the President, the
Corporate Secretary, or any Assistant Corporate 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
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States mail, addressed to the member of the committee at his or her
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.
(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, 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 include, when and if
designated by the Board of Directors, a Senior Chairman, a Chairman of the
Board, a Chief Executive Officer, 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 Corporate Secretary, one or more
Assistant Corporate Secretaries, a Treasurer, and such other officers as may
from time to time be elected or appointed by the Board of Directors. Any one
person may hold any number of offices of the Corporation unless specifically
prohibited therefrom by law.
SECTION 2. SENIOR CHAIRMAN. The Senior Chairman shall, in the absence of
the Chairman of the Board, the 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 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 Chief Executive Officer, the President
or the Board of Directors shall designate from time to time.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any, shall
be an officer of the Corporation and, subject to the direction of the Board of
Directors, shall perform such executive, supervisory and management functions
and duties as may be assigned to him or her from time to time by the Board of
Directors. The Chairman of the Board shall, when present, preside at all
meetings of the stockholders and of the Board of Directors. He or she shall
act as spokesman for the Board of Directors and as a liaison between the Board
of Directors and the Corporation. The Chairman of the Board shall perform all
other duties commonly incident to this office and shall also perform such
other duties and have such other powers as the Board of Directors shall
designate from time to time
SECTION 4. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall have
responsibility for the management of the Corporation, including the general
supervision and control of all the business and affairs of the Corporation,
and shall have such other powers and duties as may be assigned to him or her
from time to time by the Board of Directors. The Chief Executive Officer
shall, in the absence of the Chairman of the Board, preside at all meetings of
the stockholders and of the Board of Directors. The Chief Executive Officer
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shall participate in long range planning for the Corporation. He or she 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. The Chief
Executive Officer 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. The Chief
Executive Officer shall perform other duties commonly incident to this office
and shall also perform such other duties and have such other powers as the
Board of Directors shall designate from time to time.
SECTION 5. PRESIDENT. The President shall have such duties and authority as
the Chief Executive Officer may determine from time to time. In the absence or
disability of the Chief Executive Officer, the President shall exercise all
powers and discharge all of the duties of the Chief Executive Officer,
including the general supervision and control of all the business and affairs
of the Corporation. The President shall, in the absence of the Chairman of the
Board and the Chief Executive Officer, preside at all meetings of stockholders
and the Board of Directors. The President 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.
The 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. The
President shall perform all other duties commonly incident to this office and
shall also perform such other duties and have such powers as the Chief
Executive Officer shall designate from time to time.
SECTION 6. VICE PRESIDENT. In the absence or disability of the Chief
Executive Officer and the President, the functions of the 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 or her from time to time by the 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. Each Vice President shall perform
all other duties commonly incident to this office and shall also perform such
other duties and have such powers as the Chief Executive Officer or President
shall designate from time to time.
SECTION 7. CORPORATE SECRETARY. The Corporate 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 or her
absence or refusal or neglect so to do, any such notice may be given by any
person thereunto directed by the Chief Executive Officer or the directors, upon
whose requisition the meeting is called as provided in these Bylaws. The
Corporate Secretary 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 or her by the Board
of Directors, the Chief Executive Officer or the President. The Corporate
Secretary 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 Chief Executive Officer or the President, and attest the same.
The Corporate Secretary 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 Corporate Secretary. The Corporate Secretary
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 8. ASSISTANT CORPORATE SECRETARY. Each Assistant Corporate Secretary
shall have such powers and perform such duties as shall be assigned to him or
her by the directors or delegated to him
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by the Corporate Secretary, and in the absence or inability of the Corporate
Secretary to act, shall have the same general powers as the Corporate
Secretary.
SECTION 9. 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,
the Chief Executive Officer, the President or the Corporate 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 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 or her successor shall have been elected and
qualified.
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 have been elected and qualified.
ARTICLE VI
CAPITAL STOCK
SECTION l. CERTIFICATES OF STOCK. Certificates of stock, numbered and with
the seal of the Corporation affixed, signed by the Chief Executive Officer,
the President or any Vice President, and the Corporate Secretary or an
Assistant Corporate Secretary, shall be issued to each stockholder certifying
the number of shares owned by such stockholder 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 or she were such officer or transfer agent at the
date of issue unless otherwise provided in accordance with Delaware law.
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 such owner's 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.
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.
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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 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. 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.
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(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 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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