SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THIS DOCUMENT IS A
____________________ COPY OF THE FORM 8-K
PREVIOUSLY FILED ON
MARCH 6, 1995 PURSUANT
TO A RULE 201 TEMPORARY
FORM 8-K HARDSHIP EXEMPTION.
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 3, 1995
-------------
BERGEN BRUNSWIG CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
New Jersey 1-5110 22-1444512
- ---------------------------- --------------------- -------------------
(State or other jurisdiction (Commission File No.) (I.R.S. Employer
of incorporation) Identification No.)
4000 Metropolitan Drive
Orange, California 92668-3510
- --------------------------------------------------------------------------------
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (714) 385-4000
--------------
<PAGE>
Item 5. Other Events.
------------
On March 3, 1995, the Board of Directors of Bergen Brunswig Corporation (the
"Corporation") adopted, effective as of March 3, 1995, Amended and Restated
By-Laws in the form attached hereto as Exhibit 1. The by-law amendments adopted
by the Board of Directors on March 3, 1995 include the following:
(a) Section 2 of Article II has been amended to permit the Corporation to
hold its annual meeting of shareholders in December, January or
February.
(b) Section 3 of Article II has been amended to provide that a special
meeting of shareholders may only be called by the Corporation's
Chairman of the Board, President or Board of Directors. Corresponding
changes have been made in Sections 3 and 4 of Article III.
(c) Section 6 of Article II has been added to set forth certain advance
notice requirements for shareholders desiring to nominate directors or
propose business for consideration at the Corporation's annual
shareholder meetings.
(d) Section 14 of Article II has been added to set forth certain notice
requirements for shareholders desiring to take action by written
consent without a meeting of shareholders and certain procedures for
the Board of Directors if it elects to set a record date for the taking
of such action by written consent.
(e) Section 8 of Article III has been amended to provide that notice of
annual or special meetings of the Corporation's Board of Directors may
be delivered via facsimile or overnight mail and to provide for
required notice of 24 hours in the case of notice via facsimile or hand
delivery and 48 hours in the case of notice via overnight mail.
(f) Sections 1, 2 and 3 of Article IV have been amended to provide that the
Executive Committee of the Corporation's Board of Directors will
consist of the Chairman of the Board, who will also act as the chairman
of the Executive Committee, the president, plus two or more other
directors.
This summary description of the amendments of the Corporation's by-laws does
not purport to be complete and is qualified in its entirety by reference to the
- 2 -
<PAGE>
Amended and Restated By-Laws of the Corporation as of March 3, 1995, which are
attached hereto as Exhibit 1 and are hereby incorporated herein by reference.
Item 7. Exhibits.
--------
1. Amended and Restated By-Laws of Bergen Brunswig Corporation as of March
3, 1995.
- 3 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BERGEN BRUNSWIG CORPORATION
By: /s/ Robert E. Martini
--------------------------------------
Robert E. Martini
Chairman of the Board and
Chief Executive Officer
Date: March 3, 1995
- 4 -
<PAGE>
EXHIBIT INDEX
Exhibit Description Page
- ------- ----------- ----
1 Amended and Restated By-Laws of Bergen 1
Brunswig Corporation as of March 3, 1995.
EXHIBIT 1
AMENDED AND RESTATED BY-LAWS
BERGEN BRUNSWIG CORPORATION
AS OF MARCH 3, 1995
__________________________________
ARTICLE I
Office
------
Section 1. Principal Office. The principal office of the corporation is
----------------
hereby fixed and located at 4000 Metropolitan Drive, in the City of Orange,
County of Orange, and State of California. The board of directors is hereby
granted full power and authority to change said principal office to another
office within or without the State of California.
Section 2. Other Offices. Branch or subordinate offices may at any time
-------------
be established by the board of directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
Meeting of Shareholders
-----------------------
Section 1. Place of Meetings. All meetings of shareholders shall be
-----------------
held at the principal office of the corporation or at such other place in the
States of New Jersey, California or New York as may be designated by the board
of directors or its executive committee and stated in the notice of the meeting.
<PAGE>
Section 2. Annual Meetings. An annual meeting of the shareholders of
---------------
the corporation shall be held on such day during the months of December, January
or February of each year, and at such hour, as shall be fixed by the board of
directors and designated in the notice of the meeting.
Section 3. Special Meetings. Special meetings of the shareholders may
----------------
be called for any purpose and at any time by the chairman of the board, the
president or by the board of directors or as provided in the certificate of
incorporation.
Section 4. Notice of Meetings. Written notice of the time, place and
------------------
purposes of annual and special meetings of shareholders shall be given to each
shareholder entitled to vote at such meeting at least ten (10) days and not more
than sixty (60) days before the date of such meeting, either personally or by
mail, charges prepaid, addressed to such shareholder at his address appearing on
the books of the corporation.
Section 5. Record Date. The board of directors shall fix the record
-----------
date for determination of shareholders entitled to notice of and to vote at any
annual or special meeting of shareholders. Such record date shall not be more
than sixty (60) days nor less than ten (10) days before the date of such
meeting.
Section 6. Nominations of Directors and Proposals of Business To Be
--------------------------------------------------------
Considered. (a) Nominations of persons for election to the board of directors
- ----------
of the corporation and the proposal of business to be considered by the
- 2 -
<PAGE>
shareholders may be made at an annual meeting of shareholders (i) pursuant to
the corporation's notice of such annual meeting, (ii) by or at the direction of
the board of directors or (iii) by any shareholder of the corporation who was a
shareholder of record at the time of giving of the notice provided for in this
Article II, Section 6 and who is entitled to vote at the meeting, provided that
such shareholder has complied with the notice procedures set forth in this
Article II, Section 6.
(b) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (iii) of paragraph (a) of
this Article II, Section 6, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be timely, a
shareholder's notice shall be delivered to the secretary at the principal
executive offices of the corporation not less than sixty (60) days nor more than
ninety (90) days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than thirty (30) days or delayed by more than sixty
(60) days from such anniversary date, notice by the shareholder to be timely
must be so delivered not earlier than the ninetieth (90th) day prior to such
annual meeting and not later than the close of business on the later of the
sixtieth (60th) day prior to such annual meeting or the tenth (10th) day
following the day on which public announcement of the date of such meeting is
first made. Such shareholder's notice shall set forth (i) as to each person
- 3 -
<PAGE>
whom the shareholder proposes to nominate for election or reelection as a
director, all information relating to such person that is 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 Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including, without limitation,
such person's name, address and principal occupation and such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (ii) as to any other business that the shareholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any financial or other interest in such business of
such shareholder and the beneficial owner, if any, on whose behalf the proposal
is made; and (iii) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (1) the name
and address of such shareholder, as they appear on the corporation's books, and
of such beneficial owner and (2) the class and number of shares of the
corporation which are owned beneficially and of record by such shareholder and
such beneficial owner.
(c) Notwithstanding anything in the second sentence of paragraph (b)
of this Article II, Section 6 to the contrary, in the event that the number of
directors to be elected to the board of directors of the corporation is
- 4 -
<PAGE>
increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased board of directors made by the
corporation at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by this Article
II, Section 6 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 executive offices of the corporation not later than
the close of business on the tenth (10th) day following the day on which such
public announcement is first made by the corporation.
(d) Only such persons who are nominated in accordance with the
procedures set forth in this Article II, Section 6 shall be eligible to serve as
directors and only such business shall be conducted at an annual meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Article II, Section 6; provided, however, that
the presiding officer of the meeting may elect, for good cause shown, to waive
one or more of the procedures of this Article II, Section 6. The presiding
officer of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made in
accordance with the procedures set forth in this Article II, Section 6 and, if
any proposed nomination or business is not in compliance with this Article II,
Section 6 and the presiding officer elects not to waive such non-compliance, to
- 5 -
<PAGE>
declare that such defective proposed business or nomination shall be
disregarded.
(e) For purposes of this Article II, Section 6, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(f) Notwithstanding the foregoing provisions of this Article II,
Section 6, a shareholder 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 Article II, Section 6. Nothing in this Article II,
Section 6 shall be deemed to affect any rights of shareholders to request
inclusion of proposals in the corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
Section 7. Quorum. Except as otherwise provided in the certificate of
------
incorporation, the presence in person or by proxy of the holders of a majority
of any class or series voting separately at a meeting and a majority of any two
or more classes voting together as a class at such meeting shall constitute a
quorum for the transaction of business; if any matter to come before the meeting
requires a vote of less than all the outstanding classes, then the presence in
person or by proxy of the holders of a majority of the class or classes or
- 6 -
<PAGE>
series having the right to vote on such matter or matters shall constitute a
quorum for the transaction of such business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment notwithstanding the withdrawal of enough shareholders to leave
less than a quorum.
Section 8. Adjourned Meetings and Notice Thereof.
-------------------------------------
Any shareholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of a majority of the
shares the holders of which are either present in person or represented by proxy
at such meeting, but in the absence of a quorum no other business may be
transacted at such meeting; provided, however, that if a quorum of any class or
series is present and objects to such adjournment, the meeting shall not be
adjourned.
When any shareholders' meeting, either annual or special, is adjourned
for more than thirty days, notice of the adjourned meeting shall be given as in
the case of an original meeting. If any such meeting is adjourned for thirty
days or less, however, and the time and place of the adjourned meeting is
announced at the meeting at which the adjournment is taken, and the only
business transacted at the adjourned meeting is such as might have been
transacted at the original meeting, no further notice of the adjourned meeting
need be given to shareholders. If after the adjournment, the board of directors
- 7 -
<PAGE>
fixes a new record date for the adjourned meeting, however, a notice of the
adjourned meeting shall be given to each shareholder of record on the new record
date.
Section 9. Voting. Shareholders shall vote their stock in the manner
------
provided in the certificate of incorporation as amended from time to time.
Shares held by the corporation shall not be voted at any meeting of shareholders
for any purpose.
Section 10. Proxies. Every shareholder entitled to vote at a meeting of
-------
shareholders may authorize another person or persons to act for him by proxy.
Every proxy shall be executed in writing by the shareholder or his agent, except
that a proxy may be given by a shareholder or his agent by telegram or cable or
by any means of electronic communication which results in a writing. No proxy
shall be valid after eleven months from the date of its execution unless a
longer time is expressly provided therein. Unless it states that it is
irrevocable and is coupled with an interest either in the stock itself or in the
corporation, a proxy shall be revocable at will. A proxy shall not be revoked
by the death or incapacity of the shareholder but the proxy shall continue to be
in force until revoked by the personal representative or guardian of the
shareholder. The presence at a meeting of any shareholder who has given a proxy
does not revoke the proxy unless the shareholder files written notice of the
revocation with the secretary of the meeting prior to the voting of the proxy or
votes the shares subject to the proxy by written ballot. A person named in a
- 8 -
<PAGE>
proxy as the attorney or agent of a shareholder may, if the proxy so provides,
substitute another person to act in his place, including any other person named
as an attorney or agent in the same proxy. The substitution shall not be
effective until an instrument effecting it is filed with the secretary of the
corporation.
Section 11. Officers of Meetings. The chairman of the board, if present,
--------------------
shall preside at all meetings of shareholders. In his absence, the president,
if present, shall preside. In his absence, the vice president of the
corporation who has held that office for the longest period of those present at
the meeting shall preside. The secretary of the corporation shall, if present,
act as secretary of all meetings of shareholders. In his absence, any assistant
secretary of the corporation who is present shall act as secretary of the
meeting. If no assistant secretary is present, a temporary secretary for that
particular meeting shall be elected.
Section 12. Order of Business. The order of business at all meetings of
-----------------
the shareholders, unless changed by a majority vote of the shares entitled to
vote at such meeting, shall be as follows: (i) call to order; (ii) proof of
mailing of notice of meeting, proxy and proxy statement; (iii) report on
presence of a quorum; (iv) reading or waiver of minutes of preceding meeting;
(v) election of directors; (vi) vote on other proposals; (vii) report of
officers; and (viii) other business and adjournment.
- 9 -
<PAGE>
Section 13. Voting List. The secretary or any assistant secretary shall
-----------
produce at each shareholders' meeting a list of shareholders entitled to vote at
the meeting or any adjournment thereof. Such list shall (a) be arranged
alphabetically within each class and series, with the address of, and the number
of shares held by, each shareholder, (b) be subject to the inspection of any
shareholder for reasonable periods during the meeting, and (c) be prima facie
evidence as to persons who are the shareholders entitled to examine such list or
to vote at the meeting.
Section 14. Action by Shareholders Without a Meeting. In order that the
----------------------------------------
corporation may determine the shareholders entitled to consent to corporate
action in writing without a meeting pursuant to Section 14A:5-6 of the New
Jersey Business Corporation Act, any shareholder of record seeking to have the
shareholders authorize or take corporate action by written consent shall, by
written notice to the secretary, request that the board of directors set a
record date. Upon receipt of such written notice, or in the absence of such
written notice at any time at its election, the board of directors may, as it
deems appropriate and in the best interests of the corporation, adopt a
resolution setting a record date for purposes of determining the shareholders
entitled to consent to corporate action in writing without a meeting. Any
record date set by the board of directors pursuant to this Section 14 shall not
precede, and shall not be more than ten (10) days after, the date on which the
- 10 -
<PAGE>
resolution setting the record date is adopted by the board of directors.
ARTICLE III
Board of Directors
------------------
Section 1. Number of Directors. The board of directors of the
-------------------
corporation shall be composed of not less than nine (9) nor more than fifteen
(15) until changed by an amendment of the certificate of incorporation duly
adopted by the shareholders of the corporation.
The board of directors, following the adoption of these amended
by-laws, shall initially consist of twelve (12) members. The number of
directors may be increased or decreased within the foregoing limitations by an
amendment to this Section 1 of Article III duly adopted by the board of
directors.
Section 2. Term of Office; Classification of Directors. The board shall
-------------------------------------------
be divided into three classes, which shall be denominated Classes I, II and III,
respectively. The number of directors in each class shall be as nearly equal as
possible. All persons who are now Class A directors shall continue in office
until the expiration of the terms for which they were elected and thereafter
until their successors shall have been elected and qualified. All other
directors shall continue in office until the first meeting of shareholders
following the conversion of all Class B Common Stock into Class A Common Stock
- 11 -
<PAGE>
pursuant to the certificate of incorporation (the "First Meeting"), and
thereafter until their successors shall have been elected and qualified.
At the First Meeting, Class I directors shall be elected for a term
ending at the third annual meeting of shareholders thereafter; Class II
directors shall be elected for a term ending at the first annual meeting of
shareholders thereafter; and Class III directors shall be elected for a term
ending at the second annual meeting of shareholders thereafter. Management
shall recommend, and the board of directors shall determine, which directors
shall be nominated for each such Class.
At each meeting of shareholders after the First Meeting, directors
shall be elected to fill the directorships of the Class of directors whose terms
have expired. Those directors shall hold office until the third successive
annual meeting of shareholders after their election and until their successors
shall have been elected and qualified, so that directors elected at annual
meetings of shareholders subsequent to the First Meeting shall each be elected
for a three year term, and that the term of one class of directors shall expire
at each annual meeting.
Section 3. Resignation and Removal. Any director may resign at any
-----------------------
time. Any director may be removed with or without cause as provided in the
certificate of incorporation. A special meeting for the purpose of removing a
director may be called for by the chairman of the board, the president or the
board of directors. Notice of such meeting shall be given to all the
- 12 -
<PAGE>
shareholders of Class A Common Stock in the manner provided by these by-laws for
any annual or special meeting. A new director may be elected at the special
meeting called for the purpose of removing such director or at any subsequent
annual or special meeting of shareholders. If such director is elected at a
special meeting of shareholders, he shall serve until the term of the removed
director would have expired and thereafter until his successor shall have been
elected and qualified.
Section 4. Vacancies. If any vacancy should occur in the board of
---------
directors for any reason whatsoever, such vacancy may be filled by a majority of
the remaining directors. Each director so elected shall hold office until the
next succeeding annual or special meeting of the shareholders and thereafter
until his successor shall have been elected and qualified.
A vacancy or vacancies in the board of directors shall be deemed to
exist in the case of the death, resignation or removal of any director, or if
the authorized number of directors be increased, or if the shareholders fail at
any special meeting of the shareholders at which any director or directors are
elected to elect the authorized number of directors to be voted for at that
meeting. No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of office.
- 13 -
<PAGE>
Subject to the provisions of the certificate of incorporation, the
shareholders may elect a director or directors at any time to fill any vacancy
or vacancies not filled by the directors. If the board of directors accepts the
resignation of a director tendered to take effect at a future time, the board or
the shareholders shall have the power to elect a successor to take office when
the resignation is to become effective.
If the chairman of the board, the president or the board of directors
shall so direct, the secretary shall promptly call a special meeting of
shareholders to elect a director to fill such vacancy. Any director so elected
shall hold office for a term which is not inconsistent with Section 2 of Article
III of these by-laws, and thereafter until his successor shall have been elected
and qualified.
If a vacancy of all directors shall occur, the president or secretary
shall promptly call a special meeting of the shareholders to elect directors to
fill such vacancies. The persons so elected shall hold office until the next
annual meeting of shareholders and thereafter until their respective successors
shall have been elected and qualified.
Section 5. Place of Meeting. The board of directors may hold its
----------------
meetings at such place or places within or without the State of New Jersey as
the board may from time to time determine.
Section 6. Regular Meetings. Regular meetings of the board of directors
----------------
shall be held on such day in March or April, June or July and September or
- 14 -
<PAGE>
October as shall be determined from time to time by the board, at 10:00 a.m. or
at such other time designated by the board on such day; provided, however, that
should said day fall upon a legal holiday, then any such meeting shall be held
at the same hour and place on the next succeeding day which is not a legal
holiday. A fourth regular meeting of the board of directors shall take place
immediately following the conclusion of the annual meeting of shareholders. At
the regular meeting of the board held immediately following the annual meeting
of shareholders, the board of directors shall organize and elect officers.
Section 7. Special Meetings. Special meetings of the board of directors
----------------
for any purpose or purposes may be called at any time by the chairman of the
board, the president, or by any three (3) directors.
Section 8. Notice of Meetings. Notice of the place of each regular
------------------
meeting of the board, and notice of the time and place of each special meeting
of the board, shall be given in writing to each director either by hand
delivery, facsimile transmission or mail, to the address or facsimile number, as
the case may be, of such director as shown upon the records of the corporation.
If such notice is delivered by hand or by facsimile transmission, it shall be
delivered or transmitted, as the case may be, at least twenty-four (24) hours
prior to the time of the holding of the meeting. If such notice is mailed, it
shall be sent either by overnight mail, in which case it shall be deposited with
the overnight mail service at least two days prior to the time of the holding of
- 15 -
<PAGE>
the meeting, or by airmail, in which case it shall be deposited in the United
States Mails at least one week prior to the time of the holding of the meeting.
Such hand delivery, facsimile transmission or mailing as above provided shall be
due, legal and personal notice to such director.
Section 9. Waiver of Notice and Consent. The transactions of any
----------------------------
meeting of the board, however called and noticed or wherever held, shall be as
valid as though such meeting had been duly held after a regular call and notice,
if a quorum be present and if, before or after the meeting, each of the
directors not present signs a written waiver of notice or a consent to the
holding of such meeting or an approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
Section 10. Action without Meeting. Any action required or permitted to
----------------------
be taken by the board of directors by law or these by-laws may be taken without
a meeting, if, prior or subsequent to such action, all members of the board
shall individually or collectively consent in writing to such action. Each such
written consent or consents shall be filed with the minutes of the proceedings
of the board. Such action by written consent shall have the same force and
effect as a unanimous vote of such directors, for all purposes. Any certificate
or other document which relates to action so taken shall state that the action
was taken by unanimous written consent of the board of directors without a
- 16 -
<PAGE>
meeting, and that the by-laws authorize the directors so to act.
Section 11. Quorum. A majority of the entire board of directors shall
------
constitute a quorum for the transaction of business.
Section 12. Voting. Every act or decision done or made by a majority of
------
the directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the board of directors. In determining the presence
of a quorum and the result of a vote taken by the board, no distinction shall be
made among the directors with respect to the class or classes or series of
shareholders which elected them.
Section 13. Presiding Officer. The chairman of the board shall preside
-----------------
at all meetings of the board at which he is present. In the absence of the
chairman of the board, the president shall preside. If the secretary of the
corporation or any assistant secretary is present, he shall record the minutes
of the meeting, and if neither of them is present the board shall designate a
secretary to record the minutes of the meeting.
Section 14. Adjournment. A quorum of the directors may adjourn any
-----------
directors' meeting to meet again at a time and place fixed in the resolutions
adjourning such meeting, and no notice of the time and place of the adjourned
meeting need be given if the period of adjournment does not exceed ten days in
any one adjournment. A meeting of directors at which less than a quorum is
- 17 -
<PAGE>
present may also be adjourned until the next regular meeting of the board.
Section 15. Directors Emeritus. The title of director emeritus may be
------------------
conferred by the board of directors upon any former director of the corporation
or of a corporation acquired by the corporation who, in the judgment of the
board, has brought credit and distinction to this corporation, or such acquired
corporation, through long and faithful service. The title hereby created is
honorary only and does not carry with it the powers, duties or obligations of a
director of this corporation or any other power, duty or obligation. The title
may be conferred upon as many persons as the board deems appropriate. A
director emeritus shall not be deemed a director or member of the board of
directors but may attend meetings of the board and, upon invitation of the
chairman, may take part in the deliberative proceedings of the board, but may
not vote.
Section 16. Fees and Compensation. Directors shall receive for
---------------------
attendance at each regular or special meeting of the board a fixed sum and
expenses of attendance, if any, and an annual fee for service as a director,
such as may be allowed by resolution of the board. The board of directors may,
if it so desires, fix one fee for directors who are officers or employees of the
corporation (or who are receiving retirement benefits from it or a subsidiary or
under a pension trust of a subsidiary) and a higher fee for other directors.
Nothing herein contained shall be construed to preclude any director from
- 18 -
<PAGE>
serving the corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
Committees
----------
Section 1. Establishment of Committees. The board of directors may, by
---------------------------
resolution adopted by a majority of the entire board, designate an executive
committee, consisting of the chairman of the board, the president and two (2) or
more other directors, and may at any time designate additional committees, each
of which shall consist of two (2) or more directors. Subject to the limitations
contained in Section 8 of this Article IV, the executive committee shall have
the maximum authority permitted by law in effect at the time of the exercise of
such authority and each other committee shall have such authority, not exceeding
the authority of the executive committee, as is provided by the board of
directors in the resolutions creating such committee.
Section 2. Presiding Officer and Secretary. The chairman of the board
-------------------------------
shall be chairman of the executive committee. In the absence of the chairman of
the board, the president shall reside. Each other committee shall choose one of
its members to act as chairman. Each committee shall from time to time
designate a secretary of the committee who shall keep a record of its
proceedings.
Section 3. Vacancies. Vacancies occurring from time to time in the
---------
membership of any committee may be filled by a majority of the entire board for
the unexpired term of the member whose death, resignation, removal or disability
- 19 -
<PAGE>
causes such vacancy, and shall be so filled, if, as the result of such vacancy,
there shall be less than three (3) directors on the executive committee or less
than two (2) directors on any other committee, or, in the case of the executive
committee, if the chairman of the board should be the one whose death,
resignation, removal or disability causes such vacancy.
Section 4. Meetings. Each committee shall adopt its own rules of
--------
procedure and shall meet at such stated time as it may, by resolution, appoint,
and shall also meet whenever called together by the chairman of the board or the
president.
Section 5. Notice of Meetings. If the committee established regular
------------------
meeting dates, it shall not be necessary to give notice of any such regular
meeting. Notice of every special meeting shall be given in the manner and
within the time periods specified in Section 8 of Article III with respect to
notices of special meetings of the board of directors. Notice of any special
meeting may be waived in writing by all of the absent members of the committee
either before or after the meeting.
Section 6. Quorum. A quorum at any meeting of any committee shall be
------
not less than one-half (1/2) of the entire committee. In the case of the
executive committee, however, a quorum shall be not less than three (3) members.
Every act or decision done or made by a majority of the directors present at a
committee meeting duly held at which a quorum is present shall be regarded as
the act of the committee.
- 20 -
<PAGE>
Section 7. Reports. Actions taken at a meeting of any committee shall
-------
be reported to the board at its next meeting following such committee meeting,
except that when the meeting of the board is held within two (2) days after the
committee meeting, such report shall, if not made at the first meeting, be made
to the board at the second meeting following such committee meeting.
Section 8. Limitation of Powers. No committee of the board of directors
--------------------
shall have authority to do any of the following:
(a) make, alter or repeal any by-law of the corporation;
(b) elect or appoint any director, or remove any officer or director;
(c) submit to shareholders any action that requires shareholders' approval;
(d) amend or repeal any resolution theretofore adopted by the board which
by its terms is amendable or repealable only by the board;
(e) fix the compensation of any officer who is a member of the committee
for serving as an officer of the corporation.
Section 9. Additional Powers of the Board. The board shall have the
------------------------------
power, with respect to existing committees, to
(a) fill any vacancy in any such committee;
(b) appoint one or more directors to serve as alternative members of any
such committee to act in the absence or disability of members of any such
committee with all the powers of such absent or disabled members;
- 21 -
<PAGE>
(c) abolish any such committee at its pleasure; and
(d) remove any director from membership on such committee at any time, with
or without cause.
ARTICLE V
Officers
--------
Section 1. Officers Enumerated. The board of directors shall designate
-------------------
and elect the officers of the corporation which shall include but shall not be
limited to a chairman of the board, a president, one or more vice presidents, a
treasurer, one or more assistant treasurers, a secretary, and one or more
assistant secretaries. Any two or more offices may be held by the same person,
except that no one person may hold the offices of president and secretary. The
chairman of the board and the president shall be directors.
Section 2. Additional Officers. The board of directors may from time to
-------------------
time elect such other officers as it shall deem necessary, who shall hold their
offices for such terms and have such powers and perform such duties as shall be
prescribed from time to time by the board.
Section 3. Election and Term of Office. Each officer shall hold office
---------------------------
until the next annual election of officers, and until his successor has been
elected and qualified, unless he is earlier removed. All officers of the
corporation shall hold office at the pleasure of the board of directors, except
- 22 -
<PAGE>
as otherwise provided by contract between the corporation and any such officer.
Section 4. Vacancies. Any vacancy in an enumerated office or in any
---------
other office may be filled by the board of directors.
Section 5. Removal and Resignation. Except as provided by contract
-----------------------
between the corporation and any officer, any officer may be removed, either with
or without cause, by a majority of the directors at any regular or special
meeting of the board or by any officer upon whom such power of removal may be
conferred by the board. Any officer may resign at any time by giving written
notice to the board or to the president. Any such resignation shall take effect
at the date of the receipt of such notice 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.
Section 6. Powers and Duties. The officers shall each have such
-----------------
authority and perform such duties in the management of the corporation as from
time to time may be prescribed by the board of directors or the executive
committee and as may be delegated by the chairman of the board or president.
Without limiting the foregoing,
(a) Chairman of the Board. The chairman of the board shall be the
---------------------
chief executive officer of the corporation. He shall preside at all meetings of
the shareholders and at all meetings of the directors. He shall, subject only
- 23 -
<PAGE>
to the direction and control of the board of directors, have general charge of,
supervision over and responsibility for the business and affairs of the
corporation. He shall generally possess such powers and perform such duties as
usually pertain to his office or to the office of the president.
(b) President. The president shall generally possess such powers and
---------
perform such duties as usually are incident to the office of the president,
including power to supervise the business and activities of the corporation and
to instruct, direct and control its other officers, agents and employees, and
shall perform such other duties as the chairman of the board shall direct. In
the absence of the chairman of the board, he shall preside at all meetings of
shareholders and of the board of directors.
(c) Vice President. The corporation shall have one or more vice
--------------
presidents as determined by the board of directors. The board of directors may
designate one or more of such vice presidents as executive vice president or
senior vice president. All vice presidents shall have such authority and shall
perform such duties as may be delegated from time to time by the chairman of the
board, the president or the board of directors. Unless otherwise ordered by the
board of directors, any vice president may sign contracts or other instruments
- 24 -
<PAGE>
authorized either generally or specifically by the board of directors.
(d) Secretary. The secretary or any assistant secretary shall cause
---------
notices of all meetings to be served as prescribed in these by-laws and shall
keep the minutes of all meetings of the shareholders, board of directors and all
committees of the board of directors or shareholders, and shall have charge of
the seal of the corporation. He shall perform such other duties and possess
such other powers as are incident to his office or as are assigned to him by the
chairman of the board, the president or the board of directors.
(e) Treasurer. The treasurer shall have the custody of the funds and
---------
securities of the corporation and shall keep or cause to be kept regular books
of account for the corporation. He shall account to the chairman of the board,
the president or the board of directors whenever they may require concerning all
his transactions as treasurer and concerning the financial condition of the
corporation. The treasurer shall perform such other duties and possess such
other powers as are incident to his office or as shall be assigned to him by the
chairman of the board, the president or the board of directors.
(f) Controller. The Controller shall have the immediate
----------
responsibility for the corporation's accounting practices, maintenance of its
fiscal records, preparation of its financial reports and the responsibility for
- 25 -
<PAGE>
general accounting, cost accounting, budgetary controls and insurance functions
of the corporation. He shall be under the broad administrative direction of the
Vice President, Financial and Chief Financial Officer, and shall perform such
other duties and possess such other powers as are incident to his office or as
shall be assigned to him by the chairman of the board, the president or the
board of directors.
ARTICLE VI
Capital Stock and Other Securities
----------------------------------
Section 1. Issuance of Stock and Other Securities. Certificates of any
--------------------------------------
class of capital stock of the corporation and certificates representing any
other securities of the corporation shall be signed by the president or any vice
president and may be countersigned by the secretary or the treasurer or the
assistant secretary. Any or all signatures upon a certificate may be a
facsimile. Such certificates shall be sealed with the seal of the corporation,
or shall bear a facsimile of such seal; and such certificates shall be
registered in such manner as the board of directors may by resolution prescribe.
Section 2. Lost, Stolen and Destroyed Certificates. In case of lost,
---------------------------------------
stolen or destroyed certificates, new certificates may be issued to take their
place upon receipt by the corporation of such bond of indemnity and under such
- 26 -
<PAGE>
regulations as shall be prescribed by the board of directors, but the giving of
a bond of indemnity may be waived by the board.
Section 3. Transfer of Securities. Shares of capital stock or any other
----------------------
registered securities of the corporation shall be transferable on the books of
the corporation by the holder thereof in person or by his authorized attorney
upon surrender for cancellation to the transfer agent for such security of an
outstanding certificate or certificates for the same number of shares or other
security with an assignment and authorization to transfer endorsed thereon or
attached thereto, duly executed, together with such proof of the authenticity of
the signature and of the power of assignor to transfer such securities as the
corporation or its agents may require.
Section 4. Record Date for Dividends or Rights. The board of directors
-----------------------------------
may fix a record date in advance as of which shares of stock shall be held of
record to entitle a shareholder to the payment of any dividend, to the allotment
of rights, or to exercise rights in respect to any change, conversion or
exchange of capital stock of the corporation. Such record date shall not
precede by more than sixty (60) days the date of such dividend payment, or such
allotment of rights, or the date when such change, conversion or exchange of
capital stock shall take effect. Only shareholders of record on such record
date shall be entitled to receive or exercise such rights or benefits when they
- 27 -
<PAGE>
shall accrue, notwithstanding any transfer of any stock on the books of the
corporation subsequent to the record date which is fixed.
Section 5. Issue of New Shares or Sale of Treasury Stock. Shares of the
---------------------------------------------
capital stock of the corporation which have been authorized but not issued and
treasury shares may be issued or sold from time to time and for such
consideration as may be determined by the board of directors. This amendment
shall be effective as of December 1, 1988.
ARTICLE VII
Corporate Seal
--------------
Section 1. Form and Use. The corporate seal shall have inscribed
------------
thereon the name of the corporation, the year of its incorporation, and the
words "Corporate Seal, New Jersey". The seal may be used by causing it or a
facsimile thereof to be impressed or reproduced on a document or instrument, or
affixed thereto.
ARTICLE VIII
Fiscal Year
-----------
Section 1. Time. The fiscal year of the corporation shall commence on
----
October 1 of each calendar year.
- 28 -
<PAGE>
ARTICLE IX
Amendments
----------
Section 1. Amendments by Shareholders. These by-laws may be altered,
--------------------------
amended or repealed and new by-laws may be added by the shareholders.
Section 2. Amendments by the Board of Directors. Subject to the right
------------------------------------
of the shareholders provided in Section 1 of this Article IX to adopt, amend or
repeal the by-laws, the board of directors may adopt, amend or repeal these
by-laws; provided, however, that a by-law or amendment thereto changing the
number of directors may be adopted, amended or repealed by the board of
directors only for the purpose of fixing the exact number of directors within
the limits specified in Article III, Section 1, hereof.
ARTICLE X
Miscellaneous
-------------
Section 1. Inspection of Corporate Records. The share register, or
-------------------------------
duplicate share register, the books of accounts and minutes of proceedings of
the shareholders, directors and of the executive committee may be examined for
any proper purpose upon the written demand of any person who shall have been a
shareholder of record or holder of a voting trust certificate for at least six
(6) months immediately preceding his demand, or any person holding, or so
authorized in writing by the holders of, at least five percent (5%) of the
outstanding shares of any class. Such inspection shall be made at any
reasonable time not less than five (5) days after such person shall have given
written notice of his demand to the corporation. Such inspection may be made in
- 29 -
<PAGE>
person or by an agent or attorney and shall include the right to make extracts.
Demand for inspection other than at a shareholders' meeting shall be made in
writing upon the president or secretary of the corporation.
Section 2. Checks, Drafts, Etc. All checks, drafts or other orders for
-------------------
the payment of money, notes or other evidences of indebtedness, issued in the
name of or payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner, manually or by facsimile signature, as
shall be determined from time to time by the board of directors.
Section 3. Execution of Contracts. The board of directors may authorize
----------------------
any officer or officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances and, unless so
authorized by the board of directors, no officer, agent or employee shall have
any power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or for any amount.
Section 4. Voting Shares of Other Corporations. The chairman of the
-----------------------------------
board, the president or any vice president is hereby authorized to vote,
represent and exercise on behalf of this corporation all rights incident to any
- 30 -
<PAGE>
and all shares of stock of any other corporation or corporations standing in the
name of this corporation. The authority herein granted may be exercised by such
officers either in person or by proxy or by power of attorney duly executed by
said officer.
Section 5. Employee Benefit Plans. The corporation, by resolution of
----------------------
the board of directors, may adopt any one or more of the following plans for the
benefit of some or all employees, as hereinafter defined, and their families,
dependents or beneficiaries:
(a) plans providing for the sale or distribution of its shares of any
class or series, held by it or issued or purchased by it for the purpose,
including stock option, stock purchase, stock bonus, profit-sharing, savings,
pension, retirement, deferred compensation and other plans of similar nature,
whether or not such plans also provide for the distribution of cash or property
other than its shares;
(b) plans providing for payments solely in cash or property other than
shares of the corporation, including profit-sharing, bonus, savings, pension,
retirement, deferred compensation and other plans of similar nature; and
(c) plans for the furnishing of medical service, life, sickness,
accident, disability or unemployment insurance or benefits; education; housing,
- 31 -
<PAGE>
social and recreational service; and other similar aids and services.
The term "employees" as used in this Section means employees, officers,
directors, and agents of the corporation or any subsidiary thereof, or other
persons who are or have been actively engaged in the conduct of the business of
the corporation or any subsidiary thereof, including any who have retired,
become disabled or died prior to the establishment of any plan heretofore or
hereafter adopted.
Section 6. Director Loans. The corporation may lend money to or
--------------
guarantee any obligation of, or otherwise assist any director of the corporation
or of any subsidiary, whenever, in the judgment of the board of directors, such
loan, guarantee or assistance may reasonably be expected to benefit the
corporation. Any such loan, guarantee or other assistance may be made only when
authorized by a majority of the entire board of directors and may be made with
or without interest and whether unsecured or secured in such manner as the board
shall approve, including, without limitation, by a pledge of shares of the
corporation, and may be made upon such other terms and conditions as the board
may determine. A director shall be disqualified from voting on any loan,
guarantee or other assistance proposed to be made to him or her pursuant to this
section. The statutory power of the board of directors to make such loans and
guarantees and to provide other assistance to employees of the corporation other
- 32 -
<PAGE>
than directors shall not in any way be limited to this section.
- 33 -
