Exhibit 3.2
MONSANTO COMPANY
AMENDED AND RESTATED BY-LAWS
("By-Laws")
Amended September 19, 2002
Offices
1. Registered
The name of the registered agent of the Company is The
Corporation Trust Company and the registered office of the Company shall be
located in the City of Wilmington, County of New Castle, State of Delaware.
2. Other
The Company shall have its General Offices in the County of
St. Louis, State of Missouri, and may also have offices at such other places
both within or without the State of Delaware as the Board of Directors may from
time to time designate or the business of the Company may require.
Stockholders' Meetings
3. Annual Meeting
An annual meeting of stockholders shall be held on such day
and at such time as may be designated by the Board of Directors for the purpose
of electing Directors and for the transaction of such other business as properly
may come before such meeting. Any previously scheduled annual meeting of the
stockholders may be postponed by resolution of the Board of Directors upon
public notice given on or prior to the date previously scheduled for such annual
meeting of stockholders.
4. Business to be Conducted at Annual Meeting
(a) At an annual meeting of stockholders, only such business
shall be conducted as shall have been brought before the meeting (i) pursuant to
the Company's notice of the meeting, (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the Company who is a stockholder of
record at the time of giving of the notice provided for in this By-Law, who
shall be entitled to vote at such meeting and who shall have complied with the
notice procedures set forth in this By-Law.
(b) For business to be properly brought before an annual
meeting by a stockholder pursuant to Section (a)(iii) of this By-Law, notice in
writing must be delivered or mailed to the Secretary and received at the General
Offices of the Company, not less than 90 days nor more than 120 days prior to
the first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, notice by the
stockholder must be received not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day
prior to such annual meeting or the tenth day following the day on which public
announcement of the date of the annual meeting is first made. Such stockholder's
notice shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (i) a brief description of the business to be brought
before the annual meeting and the reasons for conducting such business at such
meeting; (ii) the name and address, as they appear on the Company's books, of
the stockholder proposing such business, and the name and address of the
beneficial owner, if any, on whose behalf the proposal is made; (iii) the class
and number of shares of the Company's stock which are beneficially owned by the
stockholder, and by the beneficial owner, if any, on whose behalf the proposal
is made; and (iv) any material interest of the stockholder, and of the
beneficial owner, if any, on whose behalf the proposal is made, in such
business. For purposes of these By-Laws, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable news service or in a document publicly filed by the Company
with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(c) Notwithstanding anything in these By-Laws to the contrary,
no business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this By-Law. The chairman of the meeting may, if the
facts warrant, determine that the business was not properly brought before the
meeting in accordance with the provisions of this By-Law; and if the chairman
should so determine, the chairman shall so declare to the meeting, and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this By-Law, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this By-Law.
Nothing in this By-Law shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Company's proxy statement pursuant to Rule
14a-8 under the Exchange Act. The provisions of this Section 4 shall also govern
what constitutes timely notice for purposes of Rule 14a-4(c) of the Exchange
Act.
5. Special Meetings
Special meetings of stockholders, unless otherwise provided by
the law of Delaware, may be called pursuant to resolution of the Board of
Directors. The Board of Directors shall have the sole right to determine the
proper purpose or purposes of such meeting. Business transacted at a special
meeting of stockholders shall be confined to the purpose or purposes of the
meeting as stated in the notice of such meeting. Any previously scheduled
special meeting of the stockholders may be postponed by resolution of the Board
of Directors upon notice by public announcement given on or prior to the date
previously scheduled for such special meeting of stockholders.
6. Place of Meetings
All meetings of stockholders shall be held at the General
Offices of the Company in the County of St. Louis, State of Missouri, unless
otherwise determined by resolution of the Board of Directors; provided that the
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Board may, in its sole discretion, determine that the meeting shall not be held
at any place, but may instead be held solely by means of remote communication as
authorized by Section 211(a)(2) of the General Corporation Law of the State of
Delaware (the "General Corporation Law of Delaware").
7. Notice of Meetings
(a) Except as otherwise required by the law of Delaware,
notice of each meeting of the stockholders, whether annual or special, shall be
given, by or at the direction of the Secretary or Chief Executive Officer,
except that (i) it shall not be necessary to give notice to any stockholder who
properly waives notice before or after the meeting, whether in writing or by
electronic transmission or otherwise, and (ii) no notice of an adjourned meeting
need be given except when required under these By-Laws or by law. Such notice
shall state the place, date and hour of the meeting, and in the case of a
special meeting, shall also state the purpose or purposes thereof. Each notice
of a meeting shall be given, personally or by mail or, as provided below, by
means of electronic transmission, not less than ten (10) nor more than sixty
(60) days before the meeting and shall state the time and place of the meeting,
or if held by remote communications, the means of remote communications by which
stockholders and proxyholders may be deemed to be present in person and vote at
such meeting, and unless it is the annual meeting, shall state at whose
direction or request the meeting is called and the purposes for which it is
called. The attendance of any stockholder at a meeting, without protesting at
the beginning of the meeting that the meeting is not lawfully called or
convened, shall constitute a waiver of notice by him or her. Any previously
scheduled meeting of stockholders may be postponed, and (unless the Amended and
Restated Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), otherwise provides) any special meeting of stockholders may be
canceled, by resolution of the Board upon public announcement (as defined in
Section 4 of these By-Laws) given on or prior to the date previously scheduled
for such meeting of stockholders.
(b) Without limiting the manner by which notice otherwise may
be given effectively to stockholders, any notice to a stockholder given by the
Company may be given by a form of electronic transmission consented to by the
stockholder to whom the notice is given. Any such consent shall be revocable by
the stockholder by written notice to the Company. Any such consent shall be
deemed revoked (i) if the Company is unable to deliver by electronic
transmission two consecutive notices given by the Company in accordance with
such consent and (ii) such inability becomes known to the Secretary or an
Assistant Secretary of the Company or to the transfer agent or other person
responsible for the giving of notice; provided, however, the inadvertent failure
to treat such inability as a revocation shall not invalidate any meeting or
other action. For purposes of these By-Laws, "electronic transmission" means any
form of communication, not directly involving the physical transmission of
paper, that creates a record that may be retained, retrieved and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process.
(c) Notice shall be deemed given, if mailed, when deposited in
the United States mail with postage prepaid, if addressed to a stockholder at
his or her address on the Company's records. Notice given by electronic
transmission shall be deemed given (i) if by facsimile, when directed to a
number at which the stockholder has consented to receive notice; (ii) if by
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electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (iii) if by posting on an
electronic network together with separate notice to the stockholder of such
specific posting, upon the later of (A) such posting and (B) the giving of such
separate notice; and (iv) by any other form of electronic transmission, when
directed to the stockholder.
(d) An affidavit of the Secretary or an Assistant Secretary or
of the transfer agent or other agent of the Company that the notice has been
given, whether by a form of electronic transmission or otherwise, shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
8. Nominations of Directors
(a) Only persons who are nominated in accordance with the
procedures set forth in these By-Laws shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors may be
made at a meeting of stockholders (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Company who is a stockholder of
record at the time of giving of the notice provided for in this By-Law, who
shall be entitled to vote for the election of Directors at the meeting and who
complies with the notice procedures set forth in this By-Law.
(b) Nominations by stockholders shall be made pursuant to
notice in writing, delivered or mailed to the Secretary and received at the
General Offices of the Company (i) in the case of an annual meeting, not less
than 90 days nor more than 120 days prior to the first anniversary of the
preceding year's annual meeting, provided, however, that in the event that the
date of the meeting is advanced by more than 30 days or delayed by more than 60
days from such anniversary date, notice by the stockholder must be received not
earlier than the 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to such annual meeting or
the tenth day following the day on which public announcement of the date of the
meeting is first made; or (ii) in the case of a special meeting at which
Directors are to be elected, not earlier than the 120th day prior to such
special meeting and not later than the close of business on the later of the
90th day prior to such special meeting or the tenth day following the day on
which public announcement of the date of the meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting is first made.
In the case of a special meeting of stockholders at which Directors are to be
elected, stockholders may nominate a person or persons (as the case may be) for
election only to such position(s) as are specified in the Company's notice of
meeting as being up for election at such meeting. Such stockholder's notice
shall set forth (i) as to each person whom the stockholder proposes to nominate
for election or reelection as a Director, all information relating to such
person that would be required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act (including such person's written consent
to being named as a nominee and to serving as a Director if elected); (ii) as to
the stockholder giving the notice, the name and address, as they appear on the
Company's books, of such stockholder and the class and number of shares of the
Company's stock which are beneficially owned by such stockholder; and (iii) as
to any beneficial owner on whose behalf the nomination is made, the name and
address of such person and the class and number of shares of the Company's stock
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which are beneficially owned by such person. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
Director shall furnish to the Secretary that information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee.
Notwithstanding anything in this By-Law to the contrary, in the event that the
number of Directors to be elected to the Board of Directors of the Company is
increased and there is no public statement naming all the nominees for Director
or specifying the size of the increased Board of Directors made by the Company
at least 100 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this By-Law shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal offices of
the Company not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Company.
(c) No person shall be eligible for election as a Director of
the Company unless nominated in accordance with the procedures set forth in
these By-Laws. The chairman of the meeting may, if the facts warrant, determine
that a nomination was not made in accordance with the procedures prescribed in
this By-Law; and if the chairman should so determine, the chairman shall so
declare to the meeting, and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this By-Law, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this By-Law.
9. List of Stockholders
(a) Not less than ten (10) days prior to the date of any
meeting of stockholders, the Secretary of the Company shall prepare a complete
list of 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 such stockholder; provided, that the Company shall not
be required to include electronic mail addresses or other electronic contact
information on such list. For a period of not less than ten (10) days prior to
the meeting, the list shall be available during ordinary business hours for
inspection by any stockholder for any purpose germane to the meeting. During
this period, the list shall be kept either (1) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting or (2) during ordinary
business hours, at the principal place of business of the Company. If the
Company determines to make the list available on an electronic network, the
Company may take reasonable steps to ensure that such information is available
only to stockholders of the Company. If the meeting is to be held at a place,
then the list shall 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. If the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any stockholder during
the whole time of the meeting on a reasonably accessible electronic network, and
the information required to access such list shall be provided with the notice
of the meeting.
(b) The stock ledger of the Company shall be the only evidence
as to the identity of the stockholders entitled (i) to vote in person or by
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proxy at any meeting of stockholders, or (ii) to exercise the rights in
accordance with Delaware law to examine the stock ledger, the list required by
this By-Law or the books and records of the Company, or for any other purpose
permitted under Delaware law.
10. Quorum; Adjournment
The holders of a majority of the voting power of the shares of
capital stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at all meetings of the stockholders, except as otherwise provided
by the law of Delaware, by the Certificate of Incorporation or by these By-Laws.
The stockholders present at any duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of sufficient
stockholders to render the remaining stockholders less than a quorum. Whether or
not a quorum is present, either the chairman of the meeting or the holders of a
majority of the voting power of the shares of capital stock entitled to vote
thereat, present in person or by proxy, shall have power to adjourn the meeting
from time to time to another time or place or means of remote communications,
without notice other than announcement at the meeting of the time and place, if
any, and the means of remote communications, if any, by which stockholders and
proxy holders may be deemed to be present in person and vote at such adjourned
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting at which the requisite amount of
voting stock shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
11. Voting and Required Vote
(a) Subject to the provisions of the Certificate of
Incorporation, each stockholder shall, at every meeting of stockholders, be
entitled to one vote for each share of capital stock held by such stockholder.
Subject to the provisions of the Certificate of Incorporation and Delaware law,
Directors shall be chosen by the vote of a plurality of the shares present in
person or represented by proxy at the meeting; and all other questions shall be
determined by the affirmative vote of the holders of a majority of the shares
present in person or represented by proxy at the meeting. In all matters, votes
cast in accordance with any method adopted by the Company shall be valid so long
as such method is permitted under Delaware law.
(b) Any stockholder entitled to vote on any matter may vote
part of the shares in favor of the proposal and refrain from voting the
remaining shares or, except when the matter is the election of directors, may
vote the remaining shares against the proposal; but if the stockholder fails to
specify the number of shares which the stockholder is voting affirmatively or
otherwise indicate how the number of shares to be voted affirmatively is to be
determined, it will be conclusively presumed that the stockholder's approving
vote is with respect to all shares which the stockholder is entitled to vote.
(c) Voting need not be by ballot unless requested by a
stockholder at the meeting or ordered by the chairman of the meeting; however,
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all elections of directors shall be by written ballot, unless otherwise provided
in the Certificate of Incorporation; provided, that if authorized by the Board,
a written ballot may be submitted by electronic transmission, provided that any
such electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic transmission was
authorized by the stockholder or proxyholder.
12. Proxies
(a) Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for such stockholder
by proxy, in any manner permitted by law, including, without limitation, in the
form of a telegram, cablegram or other means of electronic transmission which
sets forth or is submitted with information from which it can be determined that
the telegram, cablegram or other means of electronic transmission was authorized
by the stockholder. No proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. The revocability of a proxy that states on its face that it
is irrevocable shall be governed by the provisions of Section 212(e) of the
General Corporation Law of Delaware. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by filing another duly executed
proxy bearing a later date with the Secretary of the Company.
(b) A proxy is not revoked by the death or incapacity of the
maker unless, before the vote is counted, written notice of such death or
incapacity is received by the Secretary of the Company.
13. Inspectors of Election; Polls
Before each meeting of stockholders, the Chairman of the
Board, the President or another officer of the Company designated by resolution
of the Board of Directors shall appoint one or more inspectors of election for
the meeting and may appoint one or more inspectors to replace any inspector
unable to act. If any of the inspectors appointed shall fail to attend, or
refuse or be unable to serve, substitutes shall be appointed by the chairman of
the meeting. Each inspector, who may be an employee of the Company, shall have
such duties as are provided by law, and shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of such person's ability. The chairman of the meeting shall fix and
announce at the meeting the date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at the meeting.
14. Organization
(a) The Chairman of the Board of Directors, or in the
Chairman's absence, (i) the President, if a member of the Board of Directors,
(ii) one of the Vice Chairmen of the Board who is a member of the Board of
Directors, if any, in such order as may be designated by the Chairman of the
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Board, in that order, or (iii) in the absence of each of them, a chairman chosen
by a majority of the Directors present, shall act as chairman of the meetings of
the stockholders.
(b) The Board shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem
appropriate. Subject to such rules and regulations of the Board, if any, the
person presiding over the meeting shall have the right and authority to convene
and adjourn the meeting, to prescribe such rules, regulations and procedures and
to do all such acts as, in the judgment of the person presiding over the
meeting, are necessary, appropriate or convenient for the proper conduct of the
meeting, including, without limitation, establishing an agenda or order of
business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such
meeting to stockholders of record of the Company and their duly authorized and
constituted proxies and such other persons as the person presiding over the
meeting shall permit, restrictions on entry to the meeting after the time fixed
for the commencement thereof, limitations on the time allotted to questions or
comments by participants and regulation of the opening and closing of the polls
for balloting and matters which are to be voted on by ballot. The person
presiding over the meeting, in addition to making any other determinations that
may be appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if the person presiding over the meeting should
so determine and declare, any such matter or business shall not be transacted or
considered.
(c) Without limiting the generality of the foregoing, if a
stockholder (or qualified representative) does not appear at the meeting of
stockholders of the Company to present a nomination or business pursuant to
Section 4 or Section 8 of these By-Laws, such nomination shall be disregarded
and such proposed business shall not be transacted, even though proxies in
respect of such vote may have been received by the Company.
15. No Stockholder Action by Written Consent
Any action required or permitted to be taken by the
stockholders of the Company must be effected at a duly called annual or special
meeting of stockholders of the Company and may not be effected by any consent in
writing in lieu of a meeting of such stockholders.
Board of Directors
16. General Powers, Number, Term of Office
(a) The business of the Company shall be managed under the
direction of its Board of Directors. Subject to the rights of the holders of any
series of preferred stock, par value $0.01 per share, of the Company ("Preferred
Stock") to elect additional Directors under specified circumstances, the number
of Directors of the Company which shall constitute the whole Board shall be not
less than five nor more than 20. The exact number of Directors within the
minimum and maximum limitation specified in the preceding sentence shall be
fixed from time to time exclusively by resolution of a majority of the whole
Board.
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(b) At the first annual meeting of stockholders after August
13, 2002 (the "First Meeting") , the Directors, other than those who may be
elected by the holders of any outstanding series of Preferred Stock or any other
series or class of stock as set forth in the Certificate of Incorporation, shall
be divided into three classes, as nearly equal in number as possible and
designated Class I, Class II and Class III. Class I shall be initially elected
for a term expiring at the first annual meeting of stockholders following the
First Meeting, Class II shall be initially elected for a term expiring at the
second annual meeting of stockholders following the First Meeting, and Class III
shall be initially elected for a term expiring at the third annual meeting of
stockholders following the First Meeting. Members of each class shall hold
office until their successors are elected and qualified. At each succeeding
annual meeting of the stockholders of the Company, the successors of the class
of Directors whose term expires at that meeting shall be elected for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election. In case of any increase or decrease, from time to
time, in the number of Directors, other than those who may be elected by the
holders of any outstanding series of Preferred Stock or any other series or
class of stock as set forth in the Certificate of Incorporation, the number of
Directors in each class shall be apportioned as nearly equal as possible.
(c) Directors need not be stockholders of the Company or
residents of the State of Delaware.
17. Vacancies
Subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock, newly created directorships resulting
from any increase in the authorized number of Directors or any vacancies in the
Board resulting from death, resignation, retirement, disqualification, removal
from office or other cause shall be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a
quorum of the Board. Any Director so chosen shall hold office until his or her
successor shall be elected and qualified and, if the Board at such time is
classified, until the next election of the class for which such Directors shall
have been chosen. No decrease in the number of Directors shall shorten the term
of any incumbent Director.
18. Regular Meetings
The Board of Directors by resolution may provide for the
holding of regular meetings and may fix the times and places at which such
meetings shall be held. Notice of regular meetings shall not be required,
provided that whenever the time or place of regular meetings shall be fixed or
changed, notice of such action shall be given promptly to each Director, as
provided in Section 19 below, who was not present at the meeting at which such
action was taken.
19. Special Meetings
Special meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board of Directors or the President, or
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in the absence of each of them, by any Vice Chairman of the Board, or by the
Secretary at the written request of a majority of the Directors.
20. Notices
Notice of any special meeting of the Board of Directors shall
be addressed to each Director at such Director's residence or business address
and shall be sent to such Director by mail, electronic mail, telecopier,
telegram or telex or telephoned or delivered to such Director personally. If
such notice is sent by mail, it shall be sent not later than three days before
the day on which the meeting is to be held. If such notice is sent by electronic
mail, telecopier, telegram or telex, it shall be sent not later than 12 hours
before the time at which the meeting is to be held. If such notice is telephoned
or delivered personally, it shall be received not later than 12 hours before the
time at which the meeting is to be held. Such notice shall state the time, place
and purpose or purposes of the meeting. Any oral notice given personally or by
telephone may be communicated either to the Director or to a person at the
office of the Director who the person giving the notice has reason to believe
will promptly communicate it to the Director.
21. Quorum
One-third of the total number of Directors constituting the
whole Board, but not less than two, shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such required number of Directors for a quorum is present at a meeting, a
majority of the Directors present may adjourn the meeting from time to time
without further notice. Except as otherwise specifically provided by the law of
Delaware, the Certificate of Incorporation or these By-Laws, the act of a
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
22. Organization
At each meeting of the Board of Directors, the Chairman of the
Board or, in the Chairman's absence, (i) the President, if a member of the Board
of Directors, (ii) one of the Vice Chairmen of the Board who is a member of the
Board of Directors, if any, in such order as may be designated by the Chairman
of the Board, in that order, or (iii) in the absence of each of them, a chairman
chosen by a majority of the Directors present, shall act as chairman of the
meeting, and the Secretary or, in the Secretary's absence, an Assistant
Secretary or any employee of the Company appointed by the chairman of the
meeting, shall act as secretary of the meeting.
23. Resignations
Any Director may resign at any time by giving notice in
writing or by electronic transmission to the Chairman of the Board, the
President or the Secretary of the Company. Such resignation shall take effect
upon receipt thereof or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
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24. Removal
Subject to the rights of the holders of any outstanding series
of Preferred Stock or any other series or class of stock as set forth in the
Certificate of Incorporation to elect additional Directors under specified
circumstances, any Director or the entire Board may be removed from office only
for cause and only by the affirmative vote of the holders of at least 70 percent
of the voting power of the outstanding stock of the Company entitled to vote,
voting together as a single class.
25. Action Without a Meeting
Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
26. Location of Books
Except as otherwise provided by resolution of the Board of
Directors and subject to the law of Delaware, the books of the Company may be
kept at the General Offices of the Company and at such other places as may be
necessary or convenient for the business of the Company.
27. Dividends
Subject to the provisions of the Certificate of Incorporation
and the law of Delaware, dividends upon the capital stock of the Company may be
declared by the Board of Directors at any regular or special meeting. Dividends
may be paid in cash, in property, or in shares of the Company's capital stock.
28. Compensation of Directors
Directors shall receive such compensation and benefits as may
be determined by resolution of the Board for their services as members of the
Board and committees. Directors shall also be reimbursed for their expenses of
attending Board and committee meetings. Nothing contained herein shall preclude
any Director from serving the Company in any other capacity and receiving
compensation therefor.
29. Additional Powers
In addition to the powers and authorities by these By-Laws
expressly conferred upon it, the Board of Directors may exercise all such powers
of the Company and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation or by these By-Laws directed or required to
be exercised or done by the stockholders.
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Committees of Directors
30. Designation, Power, Alternate Members
The Board of Directors may, by resolution or resolutions
passed by a majority of the whole Board, designate an Executive Committee and
one or more additional committees, each committee to consist of one or more of
the Directors of the Company. Any such committee, to the extent provided in said
resolution or resolutions and subject to any limitations provided by law, shall
have and may exercise the powers of the Board of Directors in the management of
the business and affairs of the Company. The Board of Directors may designate
one or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. The term of
office of the members of each committee shall be as fixed from time to time by
the Board; provided, however, that any committee member who ceases to be a
member of the Board shall automatically cease to be a committee member.
31. Quorum, Manner of Acting
At any meeting of a committee, the presence of one-third, but
not less than two, of its members then in office (or, in the case of a committee
consisting of one director, its sole member) shall constitute a quorum for the
transaction of business; and the act of a majority of the members present at a
meeting at which a quorum is present shall be the act of the committee;
provided, however, that in the event that any member or members of the committee
is or are in any way interested in or connected with any other party to a
contract or transaction being approved at such meeting, or are themselves
parties to such contract or transaction, the act of a majority of the members
present who are not so interested or connected, or are not such parties, shall
be the act of the committee. Each committee may provide for the holding of
regular meetings, make provision for the calling of special meetings and, except
as otherwise provided in these By-Laws or by resolution of the Board of
Directors, make rules for the conduct of its business.
32. Minutes
The committees shall keep minutes of their proceedings and
report the same to the Board of Directors when required; but failure to keep
such minutes shall not affect the validity of any acts of the committee or
committees.
Advisory Directors
33. Advisory Directors
The Board of Directors may, by resolution adopted by a
majority of the whole Board, appoint such number of senior executives of the
Company as Advisory Directors as the Board may from time to time determine. The
Advisory Directors shall have such advisory responsibilities as the Chairman of
the Board may designate and the term of office of such Advisory Directors shall
be as fixed by the Board.
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Officers
34. Designation
The officers of the Company shall be a Chairman of the Board,
a Chief Executive Officer, a President, a Chief Financial Officer, one or more
Vice Presidents, a Secretary, a Treasurer and a Controller. The Board of
Directors may also elect one or more Vice Chairmen of the Board, one or more
Vice Chairmen of the Company, one or more Executive Vice Presidents, Senior Vice
Presidents, Group Vice Presidents, Deputy and Assistant Secretaries, Deputy and
Assistant Treasurers, Deputy and Assistant Controllers and such other officers
as it shall deem necessary. Any number of offices may be held by the same
person. The Chairman of the Board of Directors shall be chosen from among the
Directors.
35. Election and Term
At least annually, the Board of Directors of the Company shall
elect the officers of the Company and at any time thereafter the Board may elect
additional officers of the Company and each such officer shall hold office until
the officer's successor is elected and qualified or until the officer's earlier
death, resignation, termination of employment or removal.
36. Removal
Any officer shall be subject to removal or suspension at any
time, for or without cause, by the affirmative vote of a majority of the whole
Board of Directors.
37. Resignations
Any officer may resign at any time by giving written notice to
the Chairman of the Board, the President or to the Secretary. Such resignation
shall take effect upon receipt thereof or at any later time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
38. Vacancies
A vacancy in any office because of death, resignation, removal
or any other cause may be filled for the unexpired portion of the term by the
Board of Directors.
39. Chairman of the Board
The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors, except as may be otherwise required
under the law of Delaware. The Chairman shall act in an advisory capacity with
respect to matters of policy and other matters of importance pertaining to the
affairs of the Company. The Chairman, alone or with the President, one or more
of the Vice Chairmen of the Board, and/or the Secretary shall sign and send out
reports and other messages which are to be sent to stockholders from time to
time. The Chairman shall also perform such other duties as may be assigned to
the Chairman by these By-Laws or the Board of Directors.
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40. Chief Executive Officer
The Chief Executive Officer shall have the general and active
management and supervision of the business of the Company. The Chief Executive
Officer shall see that all orders and resolutions of the Board of Directors are
carried into effect. The Chief Executive Officer shall also perform such other
duties as may be assigned to the Chief Executive Officer by these By-Laws or the
Board of Directors. The Chief Executive Officer shall designate who shall
perform the duties of the Chief Executive Officer in the Chief Executive
Officer's absence.
41. President
The President, if a member of the Board of Directors, shall,
in the absence of the Chairman of the Board, preside at all meetings of the
stockholders and of the Board of Directors. The President shall perform such
other duties as may be assigned to the President by these By-Laws, the Board of
Directors or the Chief Executive Officer.
42. Vice Chairmen of the Board; Vice Chairmen
The Vice Chairmen of the Board, if a member of the Board of
Directors, shall, in the absence of the Chairman of the Board and the President,
and in such order as may be designated by the Chairman of the Board, preside at
all meetings of the stockholders and of the Board of Directors. The Vice
Chairmen of the Board and the Vice Chairmen shall perform such other duties as
may be assigned to them by these By-Laws, the Board of Directors or the Chief
Executive Officer.
43. Chief Financial Officer
The Chief Financial Officer shall act in an executive
financial capacity. The Chief Financial Officer shall assist the Chairman of the
Board and the President in the general supervision of the Company's financial
policies and affairs.
44. Executive, Senior, Group and other Vice Presidents
Each Executive Vice President, Senior Vice President, Group
Vice President and each other Vice President shall perform the duties and
functions and exercise the powers assigned to such officer by the Board of
Directors or the Chief Executive Officer.
45. Secretary
The Secretary shall attend all meetings of the Board of
Directors and of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose. The Secretary shall give, or
cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors and, when appropriate, shall cause the
corporate seal to be affixed to any instruments executed on behalf of the
Company. The Secretary shall also perform all duties incident to the office of
Secretary and such other duties as may be assigned to the Secretary by these
By-Laws, the Board of Directors, the Chairman of the Board or the Chief
Executive Officer.
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46. Assistant Secretaries
The Assistant Secretaries shall, during the absence of the
Secretary, perform the duties and functions and exercise the powers of the
Secretary. Each Assistant Secretary shall perform such other duties as may be
assigned to such Assistant Secretary by the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or the Secretary.
47. Treasurer
The Treasurer shall have the custody of the funds and
securities of the Company and shall deposit them in the name and to the credit
of the Company in such depositories as may be designated by the Board of
Directors or by any officer or officers authorized by the Board of Directors to
designate such depositories; disburse funds of the Company when properly
authorized by vouchers prepared and approved by the Controller; and invest funds
of the Company when authorized by the Board of Directors or a committee thereof.
The Treasurer shall render to the Board of Directors, the Chief Executive
Officer, or the Chief Financial Officer, whenever requested, an account of all
transactions as Treasurer and shall also perform all duties incident to the
office of Treasurer and such other duties as may be assigned to the Treasurer by
these By-Laws, the Board of Directors, the Chief Executive Officer, or the Chief
Financial Officer.
48. Assistant Treasurers
The Assistant Treasurers shall, during the absence of the
Treasurer, perform the duties and functions and exercise the powers of the
Treasurer. Each Assistant Treasurer shall perform such other duties as may be
assigned to the Assistant Treasurer by the Board of Directors, the Chief
Executive Officer, the Chief Financial Officer or the Treasurer.
49. Controller
The Controller shall serve as the principal accounting officer
of the Company and shall keep full and accurate account of receipts and
disbursements in books of the Company and render to the Board of Directors, the
Chief Executive Officer, or the Chief Financial Officer, whenever requested, an
account of all transactions as Controller and of the financial condition of the
Company. The Controller shall also perform all duties incident to the office of
Controller and such other duties as may be assigned to the Controller by these
By-Laws, the Board of Directors, the Chief Executive Officer, or the Chief
Financial Officer.
50. Assistant Controllers
The Assistant Controllers shall, during the absence of the
Controller, perform the duties and functions and exercise the powers of the
Controller. Each Assistant Controller shall perform such other duties as may be
assigned to such officer by the Board of Directors, the Chief Executive Officer,
the Chief Financial Officer or the Controller.
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51. Other Officers
The Board of Directors may appoint such other officers as it
shall deem necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board.
Company Checks, Drafts and Proxies
52. Checks, Drafts
All checks, drafts or other orders for the payment of money by
the Company shall be signed by such person or persons as from time to time may
be designated by the Board of Directors or by any officer or officers authorized
by the Board of Directors to designate such signers; and the Board of Directors
or such officer or officers may determine that the signature of any such
authorized signer may be facsimile.
53. Voting of Interests in Other Companies or Entities
Except as otherwise provided by resolution of the Board of
Directors, the Chairman of the Board, the President, any Vice Chairman of the
Board, the Chief Financial Officer, any Vice President, the Treasurer and any
Assistant Treasurer, the Controller and any Assistant Controller, the Secretary
and any Assistant Secretary of the Company, shall each have full power and
authority, on behalf of the Company, to vote, represent and exercise any and all
rights of the Company incident to its ownership of shares or other interests in
any other company or entity of any type, foreign or domestic (including without
limitation corporations, limited liability companies and partnerships),
including without limitation the authority to vote at any meeting of
shareholders, members or partners of such other company or entity, to execute
and deliver proxies, and to consent in writing to action without a meeting.
Capital Stock
54. Stock Certificates and Transfers
The interest of each stockholder of the Company shall be
evidenced by certificates or by registration in book-entry accounts without
certificates for shares of stock in such form as the appropriate officers of the
Company may from time to time prescribe. The shares of the stock of the Company
shall be transferred on the books of the Company by the holder thereof in person
or by his attorney, upon surrender for cancellation of certificates for the same
number of shares, with an assignment and power of transfer endorsed thereon or
attached thereto, duly executed, with such proof of the authenticity of the
transfer and payment of any applicable transfer taxes as the Company or its
agents may reasonably require or by appropriate book-entry procedures.
Certificates of stock shall be signed by, or in the name of
the Company by, the Chairman of the Board, the President, any Vice Chairman of
the Board, any Executive Vice President, any Senior Vice President, any Group
Vice President or any other Vice President, and by the Treasurer or any
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Assistant Treasurer, or the Secretary or any Assistant Secretary, of the
Company, certifying the number of shares owned by such holder in the Company.
Any of or all the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Company with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
55. Record Ownership
The Company shall be entitled to treat the person in whose
name any share, right or option is registered as the owner thereof, for all
purposes, and shall not be bound to recognize any equitable or other claim to or
interest in such share, right or option on the part of any other person, whether
or not the Company shall have notice thereof, except as otherwise provided by
the law of Delaware.
56. Record Dates
In order that the Company 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 a record date, which shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and 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.
57. Lost, Stolen or Destroyed Certificates
The Board of Directors may authorize a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Company alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of the fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or the
owner's legal representative, to give the Company a bond sufficient to indemnify
it against any claim that may be made against the Company on account of the
alleged loss, theft or destruction of such certificate or the issuance of such
new certificate.
58. Terms of Preferred Stock
The provisions of these By-Laws, including those pertaining to
voting rights, election of Directors and calling of special meetings of
stockholders, are subject to the terms, preferences, rights and privileges of
any then outstanding class or series of Preferred Stock as set forth in the
Certificate of Incorporation and in any resolutions of the Board of Directors
providing for the issuance of such class or series of Preferred Stock; provided,
however, that the provisions of any such Preferred Stock shall not affect or
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limit the authority of the Board of Directors to fix, from time to time, the
number of Directors which shall constitute the whole Board as provided in
Section 16 above, subject to the right of the holders of any class or series of
Preferred Stock to elect additional Directors as and to the extent specifically
provided by the provisions of such Preferred Stock.
Indemnification
59. Indemnification
(a) The Company shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any claim, action, suit, or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that the person, or a person for whom he or she is the legal
representative, is or was a Director or officer of the Company or is or was
serving at the request of the Company as a director, officer or fiduciary of
another corporation or of a partnership, joint venture, trust, non-profit
entity, or other enterprise, including service with respect to employee benefit
plans, against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person. The right to
indemnification conferred in this By-Law shall be a contract right. Except as
provided in paragraph (c) of this By-Law with respect to proceedings seeking to
enforce rights to indemnification, the Company shall indemnify a person in
connection with a proceeding initiated by such person or a claim made by such
person against the Company only if such proceeding or claim was authorized by
the Board of Directors of the Company.
(b) Subject to applicable law, the Company shall pay the
expenses incurred in defending any proceeding in advance of its final
disposition, provided, however, that if and to the extent required by law the
payment of expenses incurred by any person covered hereunder in advance of the
final disposition of the proceeding shall be made only upon receipt of an
undertaking by or on behalf of the affected person to repay all amounts advanced
if it should ultimately be determined that such person is not entitled to be
indemnified under this By-Law or otherwise.
(c) If a claim for indemnification or payment of expenses
under this By-Law is not paid in full within thirty days, or such other period
as might be provided pursuant to contract, after a written claim therefor has
been received by the Company, the claimant may file suit to recover the unpaid
amount of such claim or may seek whatever other remedy might be provided
pursuant to contract. In any such action the Company shall have the burden of
proving that the claimant was not entitled to the requested indemnification or
payment of expenses under applicable law. If successful in whole or in part,
claimant shall be entitled to be paid the expense of prosecuting such claim.
Neither the failure of the Company (including its Directors, independent legal
counsel or stockholders) to have made a determination prior to the commencement
of such action that indemnification of the claimant is proper in the
circumstances because the claimant has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
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determination by the Company (including its Directors, independent legal counsel
or stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(d) Any determination regarding whether indemnification of any
person is proper in the circumstances because such person has met the applicable
standard of conduct set forth in the General Corporation Law of the State of
Delaware shall be made by independent legal counsel selected by such person with
the consent of the Company (which consent shall not unreasonably be withheld).
(e) The Company may, but shall not be required to, indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise involved in any claim, action,
suit, or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that the person, or a person for whom he or
she is the legal representative, is or was an employee or agent of the Company
or is or was serving at the request of the Company as an employee or agent of
another corporation or of a partnership, joint venture, trust, non-profit
entity, or other enterprise, including service with respect to employee benefit
plans, against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person.
(f) The rights conferred on any person by this By-Law shall
not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(g) Any repeal or modification of the foregoing provisions of
this By-Law shall not adversely affect any right or protection hereunder of any
person with respect to any act or omission occurring prior to or at the time of
such repeal or modification.
Miscellaneous
60. Corporate Seal
The seal of the Company shall be circular in form, containing
the words "Monsanto Company" and the word "Delaware" on the circumference
surrounding the word "Seal." Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
61. Fiscal Year
The fiscal year of the Company shall begin on the first day of
January in each year.
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62. Auditors
The Audit and Finance Committee of the Board of Directors, or
any successor audit committee, shall select certified public accountants to
audit the books of account and other appropriate corporate records of the
Company annually and at such other times as the Board shall determine by
resolution.
63. Waiver of Notice
Whenever notice is required to be given pursuant to the law of
Delaware, the Certificate of Incorporation or these By-Laws, a written waiver
thereof, signed by the person entitled to notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at
a meeting of stockholders or the Board of Directors or a committee thereof shall
constitute a waiver of notice of such meeting, except when the stockholder or
Director attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders or the
Board of Directors or committee thereof need be specified in any written waiver
of notice or any waiver by electronic transmission unless so required by the
Certificate of Incorporation or by these By-Laws.
64. Construction; Definitions
Unless the context requires otherwise, the general provisions,
rules of construction, and definitions in the General Corporation Law of
Delaware shall govern the construction of these By-Laws. Without limiting the
generality of this provision, the singular number includes the plural, the
plural number includes the singular, the term "person" includes a natural
person, a corporation or any other entity of any type, and the masculine gender
includes the feminine gender and vice versa.
65. Provisions Additional to Provisions of Law
All restrictions, limitations, requirements and other
provisions of these By-Laws shall be construed, insofar as possible, as
supplemental and additional to all provisions of law applicable to the subject
matter thereof and shall be fully complied with in addition to the said
provisions of law unless such compliance shall be illegal.
66. Provisions Contrary to Provisions of Law
Any article, section, subsection, subdivision, sentence,
clause or phrase of these By-Laws which upon being construed in the manner
provided in Section 65 hereof, shall be contrary to or inconsistent with any
applicable provisions of law, shall not apply so long as said provisions of law
shall remain in effect, but such result shall not affect the validity or
applicability of any other portions of these By-Laws, it being hereby declared
that these By-Laws would have been adopted and each article, section,
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subsection, subdivision, sentence, clause or phrase thereof, irrespective of the
fact that any one or more articles, sections, subsections, subdivisions,
sentences, clauses or phrases is or are illegal.
Amendment to By-Laws
67. Amendments
Notwithstanding any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any series of Preferred Stock of the Company required by law, the
Certificate of Incorporation or any Preferred Stock designation, the affirmative
vote of the holders of at least 70 percent of the voting power of all of the
then-outstanding shares of the Company's voting stock, voting together as a
single class, shall be required for the stockholders to amend or repeal the
By-Laws or to adopt new By-Laws. The By-Laws may also be amended or repealed,
and new By-Laws may be adopted, by the affirmative vote of a majority of the
whole Board of Directors at any regular or special meeting of the Board of
Directors.
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