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Exhibit 3.2
MONSANTO COMPANY
AMENDED AND RESTATED BY-LAWS
("By-Laws")
As adopted August 23, 2000
Offices
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1. Registered
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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
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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
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3. Annual Meeting
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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
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(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
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the event that the date of the meeting is advanced by more
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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
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Special meetings of stockholders, unless otherwise provided by the law
of Delaware, may be called pursuant to resolution of the Board of Directors or,
until such time as Pharmacia Corporation and its affiliates cease to
beneficially own 50 percent or more of the total voting power of the outstanding
shares of all classes of capital stock entitled to vote generally in the
election of Directors of the Company (the "Pharmacia Required Percentage"), by
Pharmacia Corporation. Such person calling the meeting 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.
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6. Place of Meetings
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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.
7. Notice of Meetings
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Except as otherwise required by the law of Delaware, notice of each
meeting of the stockholders, whether annual or special, shall, at least ten days
but not more than sixty days before the date of the meeting, be given to each
stockholder of record entitled to vote at the meeting by mailing such notice in
the United States mail, postage prepaid, addressed to such stockholder at such
stockholder's address as the same appears on the records of the Company. 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.
8. Nominations of Directors
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(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 principal
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
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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
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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 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
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(a) The Secretary of the Company shall prepare, at least ten days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
(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 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.
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10. Quorum
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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 Amended and Restated Certificate of Incorporation
(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,
without notice other than announcement at the 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
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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 votes cast by the holders 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 voting power 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.
12. Proxies
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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. No proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period.
13. Inspectors of Election; Polls
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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 shall have such duties as are provided by law, and
shall take and sign an oath faithfully
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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
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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 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. The order
of business and the procedure at any meeting of stockholders shall be determined
by the chairman of the meeting.
15. Stockholder Action by Written Consent
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(a) Until such time as Pharmacia Corporation and its affiliates cease
to beneficially own the Pharmacia Required Percentage, any action required or
permitted to be taken by the stockholders of the Company may be effected,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted.
(b) At such time as Pharmacia Corporation and its affiliates cease to
beneficially own the Pharmacia Required Percentage, 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
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16. General Powers, Number, Term of Office
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(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.
(b) At the first annual meeting of stockholders (the "First Meeting")
following the time, if any, when Pharmacia Corporation and its affiliates cease
to beneficially own the Pharmacia Required Percentage, the Directors, other than
those who may be elected by the
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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.
Directors need not be stockholders of the Company or residents of the State of
Delaware.
17. Vacancies
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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
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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
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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 each of them, by any Vice Chairman of the Board, or by the Secretary
at the written request of a majority of the Directors.
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20. Notices
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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.
21. Quorum
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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. Supermajority Approval
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Until such time as Pharmacia Corporation and its affiliates cease to
beneficially own the Pharmacia Required Percentage, the unanimous written
consent, or the affirmative vote of Directors constituting at least 80 percent
of the total number of Directors constituting the whole Board shall be required
to authorize the following matters: (i) transactions, capital expenditures,
additional debt or other non-ordinary course financial commitments including
litigation settlements by the Company, valued at $100 million or more, other
than as specifically approved as part of the Company's annual operating or
capital budgets; (ii) any issuance or repurchase of equity securities or other
equity interests of the Company, except pursuant to the exercise of employee
stock options or stock appreciation rights or under compensation plans approved
by the Company's Board of Directors, unless, after giving effect to such
proposed issuance or repurchase, the aggregate amount of equity securities or
other equity interests issued or repurchased, respectively, since the initial
public offering of the Company's common stock without the approval required by
this By-Law would not exceed one percent of the Company's common stock
outstanding on the date of such proposed issuance or repurchase; (iii) approval
of the Company's annual operating and capital budgets and annual strategic plan;
(iv) selection, compensation and removal of the Company's Chief Executive
Officer; and (v) any change in the size of the Company's Board of Directors.
23. Organization
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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
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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.
24. Resignations
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Any Director may resign at any time by giving written notice 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.
25. Removal
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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 at
any time with or without cause, but only by the affirmative vote of the holders
of at least 70 percent of the voting power of the stock of the Company entitled
to vote, voting together as a single class; provided, however, that at such time
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as Pharmacia Corporation and its affiliates cease to beneficially own the
Pharmacia Required Percentage, a Director 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.
26. Action Without a Meeting
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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.
27. Location of Books
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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.
28. Dividends
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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
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Directors at any regular or special meeting. Dividends may be paid in cash, in
property, or in shares of the Company's capital stock.
29. Compensation of Directors
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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.
30. Additional Powers
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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
Amended and Restated Certificate of Incorporation or by these By-Laws directed
or required to be exercised or done by the stockholders.
Committees of Directors
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31. 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 two 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
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member of the Board shall automatically cease to be a committee member.
32. Quorum, Manner of Acting
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At any meeting of a committee, the presence of one-third, but not less
than two, of its members then in office 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
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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
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otherwise provided in these By-Laws or by resolution of the Board of Directors,
make rules for the conduct of its business.
33. Minutes
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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
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34. Advisory Directors
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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.
Officers
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35. Designation
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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.
36. Election and Term
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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.
37. Removal
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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.
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38. Resignations
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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.
39. Vacancies
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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.
40. Chairman of the Board
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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.
41. 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.
42. 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.
43. 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
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such other duties as may be assigned to them by these By-Laws, the Board of
Directors or the Chief Executive Officer.
44. 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.
45. 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.
46. 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.
47. 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.
48. 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 Amended and
Restated By-Laws, the Board of Directors, the Chief Executive Officer, or the
Chief Financial Officer.
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49. 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.
50. 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.
51. 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.
52. 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.
53. Additional Powers
-----------------
In addition to the powers and authorities by these By-Laws expressly
conferred upon them, any officer, assistant officer or deputy officer, or any of
their delegates, may execute, or grant a power of attorney for others to
execute, any documents relating to permits or registrations from governmental
agencies or allowing the Company to obtain rights from or otherwise interact
with such agencies in the normal course of business.
Company Checks, Drafts and Proxies
----------------------------------
54. 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
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<PAGE>
signers; and the Board of Directors or such officer or officers may determine
that the signature of any such authorized signer may be facsimile.
55. Proxies
-------
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, in
behalf of the Company, to exercise any and all rights of the Company with
respect to any meeting of stockholders of any corporation in which the Company
holds stock, including the execution and delivery of proxies therefor, and to
consent in writing to action by such corporation without a meeting.
Capital Stock
-------------
56. 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, the Chief Financial
Officer, 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 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.
57. 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.
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<PAGE>
58. 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.
59. 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.
60. 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
---------------
61. 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
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<PAGE>
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) 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 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
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<PAGE>
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
-------------
62. 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.
63. Fiscal Year
-----------
The fiscal year of the Company shall begin on the first day of January
in each year.
64. Auditors
--------
The Board of Directors 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.
65. 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, 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
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<PAGE>
specified in any written waiver of notice unless so required by the Certificate
of Incorporation or by these By-Laws.
Amendment to By-Laws
--------------------
66. 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 (i) until such time as Pharmacia Corporation and its
affiliates cease to beneficially own the Pharmacia Required Percentage, the
affirmative vote of at least 80 percent of the whole Board of Directors at any
regular or special meeting of the Board of Directors, or (ii) at such time as
Pharmacia Corporation and its affiliates cease to beneficially own the Pharmacia
Required Percentage, 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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