EXHIBIT 3.2
MONSANTO COMPANY
AMENDED AND RESTATED BY-LAWS
("By-Laws")
Amended May 4, 2004
Offices
1. Registered
The name of the registered agent of the Company is Corporation Service
Company and the registered office of the Company shall be located at 1013 Centre
Drive, Wilmington, Delaware 19805 (County of New Castle).
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
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determined by resolution of the Board of Directors; provided that the 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 electronic mail, when
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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
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number of shares of the Company's stock 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 proxy at any
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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, all elections of
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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
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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 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 in the absence of
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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, other than meetings of the
non-management Directors in executive session, 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. The non-management Directors
shall choose a non-management Director to preside at meetings of the
non-management Directors in executive session.
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
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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.
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
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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.
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
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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.
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 of the Board shall also preside at all meetings of the
Board of Directors except, if the Chairman is an employee of the Company, at
meetings of the non-management Directors in executive session. The Chairman,
alone or with the President, one or more of the Vice Chairmen of the Board,
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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.
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, except at meetings of the non-management Directors in
executive session. 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, except at meetings
of the non-management Directors in executive session. 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
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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.
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.
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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.
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
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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 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.
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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 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
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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 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.
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61. Fiscal Year
The fiscal year of the Company shall end on the last day of August in each
year.
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,
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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, 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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