UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10/A
GENERAL FORM FOR REGISTRATION OF SECURITIES
Pursuant to Section 12(b) or (g) of The Securities Exchange Act of 1934
American Home Products Corporation
(Exact name of registrant as specified in its charter)
Delaware 13-2526821
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
Five Giralda Farms,
Madison, New Jersey 07940
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (973) 660-5000
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange
to be so registered on which each class
is to be registered
Common Stock, $.33-1/3 par value New York Stock Exchange
$2 Convertible Preferred Stock,
$2.50 par value New York Stock Exchange
<PAGE>
Item 11. Description of Common Stock
Item 11 is hereby amended and restated to read as follows:
The authorized capital stock of American Home Products Corporation (the
"Corporation") consists of 2,400,000,000 shares of Common Stock, $.33 1/3 par
value and 5,000,000 shares of Preferred Stock, $2.50 per value. A series of
Preferred Stock, designated as $2 Convertible Preferred Stock, has been issued
by the Corporation.
The holders of the Corporation's Common Stock are entitled to receive such
dividends as may be declared by the Board of Directors, which are non-cumulative
and, upon liquidation, to share pro-rata, on a share-for-share basis, in all
assets available for distribution to stockholders, subject to the prior rights
of the holders of the Corporation's Preferred Stock. The $2 Convertible
Preferred Stock is convertible at the option of the holder into thirty-six
shares of Common Stock and is redeemable at a price of $60 per share plus an
amount equal to accrued but unpaid dividends thereon to the redemption date.
The $2 Convertible Preferred Stock has a preference of $60 per share in the
event of voluntary liquidation and $52.50 per share in the event of involuntary
liquidation, plus accrued but unpaid dividends. The holders of the
Corporation's Common Stock are entitled to one vote per share on all matters
voted on by stockholders (except in certain circumstances, when holders of the
Corporation's Preferred Stock, as described below, are entitled to special
voting rights) and have no preemptive rights. The holders of the Corporation's
Convertible Preferred Stock are entitled to thirty-six votes per share when
voting with the shares of Common Stock at any annual or special meeting of
stockholders for the election of directors.
Item 15. Financial Statements and Exhibits.
Exhibit No. Description
(3.1) The Registrant's Restated Certificate of
Incorporation as amended through April 23, 1998
(3.2) The Registrant's By-laws as amended through April 23, 1998
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ Gerald A. Jibilian
Gerald A. Jibilian
Vice President
Dated: May 4, 1998
<PAGE>
EXHIBITS
Exhibit No. Description
(3.1) The Registrant's Restated Certificate of
Incorporation as amended through April 23, 1998
(3.2) The Registrant's By-laws as amended through April 23, 1998
RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN HOME PRODUCTS CORPORATION
AMENDED THROUGH APRIL 23, 1998
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN HOME PRODUCTS CORPORATION
FIRST: The name of the corporation is AMERICAN HOME PRODUCTS
CORPORATION.
SECOND: The principal office of the corporation in the State of Delaware is
located at 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name address of the agent of the corporation resident therein and in charge
thereof is The Prentice-Hall Corporation System, Inc., 1013 Centre Road,
Wilmington, Delaware 19805-1297.
THIRD: The nature of the business or objects or purposes to be transacted,
promoted or carried on by the corporation are as follows:
(a) To manufacture, produce, purchase or otherwise acquire and to hold, own,
use, lease, distribute or otherwise dispose of and generally to trade and deal
in and with, at wholesale, retail or otherwise, any and all kinds of medicines,
medicinal and pharmaceutical preparations, compounds and mixtures, food,
beverage and confectionery products, toilet articles, drugs, chemicals, dyes,
dye-stuffs and combinations, and mixtures and preparations thereof, and all
kinds of tools, machinery, equipment, utensils, builders' hardware, housewares
and household items of every type and description (including, without limitation
on, cutlery, kitchen tools, flatware, cookware, household bakeware, egg beaters,
can openers, cooking utensils, bathroom and closet fittings and accessories),
commercial bakeware, industrial food handling equipment and aluminum foil and
other containers, and materials and supplies for any of the foregoing or for use
in connection with the business of the corporation.
(b) To apply for, obtain, register, purchase, lease or otherwise acquire, hold,
own, use, operate, introduce, develop or control, sell, assign or otherwise
dispose of, take or grant licenses or other rights with respect to and in any
and all ways to exploit or turn to account inventions, improvements, processes,
copyrights, patents, trademarks, formulae, trade names and distinctive marks and
similar rights of any and all kinds and whether granted, registered or
established by or under the laws of the United States or of any state or
country.
(c) To acquire, buy, purchase, lease, own, hold, sell, mortgage and encumber
improved and unimproved real estate wherever situated and to construct and erect
thereon factories, works, plants, stores, mills, hotels, houses and building.
(d) To purchase or otherwise acquire and to hold, sell, pledge or otherwise
dispose of all forms of securities, including stocks, bonds, debentures, notes,
certificates of indebtedness, certificates of interest, mortgages and other
similar instruments and rights however issued or created, and to deal in and
with the same and to issue in exchange therefor or in payment therefor its own
stock, bonds or other obligations or securities and to exercise in respect
thereof any andall rights, powers and privileges of individual ownership or
interest therein,including the right to vote thereof and to consent or otherwise
act with respect thereto; to do any and all acts and things for the
preservation, protection, improvement and enhancement in value thereof,
or designed to accomplish any such purpose and to aid by loan, subsidy,
guaranty or in any other manner, those issuing, creating or responsible
for any of such securities; to acquire or become interested in any such
securities as aforesaid by original subscription, underwriting, participation
in syndicates or otherwise and to make payments thereon as called for and
to underwrite or subscribe for the same conditionally or otherwise and either
with a view to investment or for resale or for any other lawful purpose.
(e) To purchase or otherwise acquire, sell or otherwise dispose of, realize
upon or otherwise turn to account, manage, liquidate or reorganize the
properties, assets, business undertakings, enterprises or ventures or any part
thereof of corporations, associations, firms, individuals, syndicates and
others; to act as financial, commercial or general agent or representative of
any corporation, association, firm, syndicate or individual and as such to
develop, improve and extend the property, trade and business interests thereof
and to aid any lawful enterprise in connection therewith and in connection with
acting as agent or broker for any principal to give any other aid or assistance.
(f) To borrow money and for moneys borrowed or in payment for property acquired
or for any other objects and purposes of the corporation or otherwise in
connection with the transaction of any part of its business to issue bonds,
debentures, notes and other obligations secured or unsecured and to mortgage,
pledge or hypothecate any or all of its properties or assets as security
therefor; to make, accept, endorse, guarantee, execute and issue notes, bills of
exchange and other obligations; to mortgage, pledge or hypothecate any stocks,
bonds, other evidences of indebtedness or securities and any other property held
by it or in which it may be interested and to loan money with or without
collateral or other security; to guarantee the payment of dividends upon stocks
or the principal of and/or interest upon bonds, notes or other evidences of
indebtedness or obligations or the performance of the contracts or other
undertakings of any corporation, copartnership, syndicate or individual; to
enter into, make and perform contracts of every kind and for any lawful purpose
with any person, firm, corporation or syndicate.
(g) To purchase or otherwise acquire all or any part of the business, good
will, rights, property and assets and to assume or otherwise provide for all or
any part of the liabilities of any corporation, association, partnership or
individual; to take over as a going concern and continue any business so acquire
and to pay for any such business or properties, in cash, stock, bonds,
debentures or obligations of this corporation or otherwise.
(h) To manufacture, buy or otherwise acquire and to sell or otherwise dispose
of, distribute, deal in and deal with, either as principal, agent, dealer or
broker, goods, wares and merchandise of every kind and description, including
all materials or substances now known or hereafter to be discovered or invented;
to purchase or otherwise acquire and to sell or otherwise dispose of,
distribute, deal in and deal with, either as principal, agent, dealer or
broker, all kinds of personal property of every sort and description wheresoever
situated and all interests therein which this corporation may deem necessary
or convenient in connection with any part of its business.
(i) To conduct any and all of its business in the State of Delaware and any
other states, the District of Columbia, the territories, colonies and
dependencies of the United States and in foreign countries and places and to
have one or more offices outside of the State of Delaware, and to purchase or
otherwise acquire, hold, mortgage, convey, transfer, or otherwise dispose of,
outside of the State of Delaware, real and personal property.
(j) To do all and everything necessary, suitable, convenient or proper for the
accomplishment of any of the purposes or the attainment of any or all of the
objects hereinbefore enumerated or incidental to the powers herein named, or
which shall at any time appear conducive to or expedient for the protection or
benefit of the corporation, either as holder of or as interested in any property
or otherwise; and to have all the rights, powers and privileges named or
hereafter conferred by the General Corporation Laws of the State of Delaware.
The foregoing clauses shall be construed both as objects and powers and it
is hereby expressly provided that the enumeration herein of specific objects and
powers shall not be held to limit or restrict in any manner the general powers
of this corporation and all the powers of this corporation and all the powers
and purposes hereinbefore enumerated shall be exercised, carried on and enjoyed
by this corporation within the State of Delaware and outside of the State of
Delaware to such extent and in such manner as corporations organized under the
General Corporation Laws of the State of Delaware may properly and legally
exercise, carry on and enjoy.
FOURTH: The total number of shares of Capital Stock which may be issued by the
corporation is Two Billion Four Hundred Five Million (2,405,000,000) of which
Two Billion Four Hundred Million (2,400,000,000) shares shall be Common Stock,
par value of Thirty-three and One Third Cents (33-1/3 cents) per share and Five
million (5,000,000) shares shall be Preferred Stock (hereinafter referred to
as the "Preferred Stock"), par value of Two Dollars Fifty Cents ($2.50) per
share.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the shares of each class of stock
are as follows:
PREFERRED STOCK
I. The Preferred Stock may be issued from time to time in one or more series,
each of such series to have such voting powers full or limited, or without
voting powers, such designation, preferences and relative, participating,
optional or other special rights and qualifications, limitations or restrictions
thereof as are stated and expressed herein, or in a resolution or resolutions
providing for the issue of such series adopted by the Board of Directors as
hereinafter provided.
II. Authority is hereby expressly granted to the Board of Directors, subject to
the provisions of this Article Fourth, to authorize one or more series of
Preferred Stock and, with respect to each series (except the series hereinafter
designated as $2 Convertible Preferred Stock), to fix by resolution or
resolutions providing for the issue of such series:
(a) the number of shares to constitute such series and the distinctive
designation thereof;
(b) the dividend rate on the shares of such series, dividend payment
dates, whether such dividends shall be cumulative, and, if cumulative, the date
or dates from which dividends shall accumulate;
(c) whether or not the shares of such series shall be redeemable, and, if
redeemable, the redemption prices which the shares of such series shall be
entitled to receive upon the redemption thereof;
(d) whether or not the shares of such series shall be subject to the
operation of retirement or sinking funds to be applied to the purchase or
redemption of such shares for retirement and, if such retirement or sinking fund
or funds be established, the annual amount thereof and the terms and provisions
relative to the operation thereof;
(e) whether or not the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of
the same or any other class or classes of stock of the corporation and the
conversion price or prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall be stated and
expressed or provided in such resolution or resolutions;
(f) the preferences, if any, and the amounts thereof, which the shares of
such series shall be entitled to receive upon the voluntary and involuntary
dissolution of, or upon any distribution of the assets of, the corporation;
(g) the voting power, if any, of the shares of such series; and
(h) such other special rights and protective provisions as to the Board of
Directors may seem advisable.
Notwithstanding the fixing of the number of shares constituting a
particular series (including the $2 Convertible Preferred Stock) upon the
issuance thereof, the Board of Directors may at any time thereafter authorize
the issuance of additional shares of the same series.
III. Holders of Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of funds legally available for the
payment of dividends, dividends at the annual rates fixed by the Board of
Directors for the respective series and no more, payable on such dates in each
year as the Board of Directors shall fix for the respective series as provided
in subdivision (b) of Section II of this Article Fourth (hereinafter referred to
as "dividend dates"), in preference to dividends on any other class of stock of
the corporation, so that unless all accrued dividends on all series of Preferred
Stock entitled to cumulative dividends shall have been declared and set apart
for payment through the last preceding dividend date set for all such series and
dividends on all other series of Preferred Stock shall have been declared and
set apart for payment at the rate to which such other series of Preferred Stock
are entitled for the period commencing the second preceding dividend date and
ending on the last preceding dividend date set for such series, no cash payment
or distribution shall be made to holders of the Common Stock of the corporation.
No dividend shall be declared and set apart for payment on any series of
Preferred Stock in respect of any dividend period unless there shall likewise be
or have been declared and set apart for payment on all shares of Preferred Stock
of each series entitled to cumulative dividends at the time outstanding
dividends ratably in accordance with the sums which would be payable on the said
shares through the last preceding dividend date if all dividends were declared
and paid in full. Nothing herein contained shall be deemed to limit the right
of the corporation to purchase or otherwise acquire at any time any shares of
its capital stock; provided that no shares of capital stock shall be repurchased
at any time when accrued dividends on any series of Preferred Stock entitled to
cumulative dividends remain unpaid for any period to and including the last
preceding dividend date.
For the purposes of this Article Fourth, and of any certificate fixing the
terms of any series of Preferred Stock, the amount of dividends "accrued" on any
share of Preferred Stock of any series entitled to cumulative dividends as at
any dividend date shall be deemed to be the amount of any unpaid dividends
accumulated thereon to and including such dividend date, whether or not earned
or declared, and the amount of dividends "accrued" on any share of Preferred
Stock of any series entitled to cumulative dividends as at any date other than a
dividend date shall be calculated as the amount of any unpaid dividends
accumulated thereon to and including the last preceding dividend date, whether
or not earned or declared, plus an amount computed, on the basis of 360 days per
annum, for the period after such last preceding dividend date to and including
the date as of which the calculation is made at the annual dividend rate fixed
for the shares of such series or class.
IV. In the event that the Preferred Stock of any series shall be entitled to a
preference upon the dissolution of, or upon any distribution of the assets of,
the corporation, then upon any such dissolution of, or distribution of the
assets of, the corporation, before any payment or distribution of the assets of
the corporation (whether capital or surplus) shall be made to or set apart for
any other series or class or classes of stock, the holders of such series of
Preferred Stock shall be entitled to payment of the amount of the preference,
if any, payable upon such dissolution of, or distribution of the assets of the
corporation as may be fixed by the Board of Directors for the shares of the
respective series as provided in subdivision (f) of Section II of this Article
Fourth before any further payment or distribution shall be made on any other
class or series of capital stock. If, upon any such dissolution, or
distribution, the assets of the corporation distributable among the holders of
any such series of the Preferred Stock entitled to a preference shall be
insufficient to pay in full the preferential amount aforesaid, then such assets,
or the proceeds thereof, shall be distributed among the holders of each such
series of the Preferred Stock ratably in accordance with the sums which would be
payable on such distribution if all sums payable were discharged in full. The
voluntary sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the property
and assets of the corporation, the merger or consolidation of the corporation
into or with any other corporation, or the merger of any other corporation into
it, shall not be deemed to be a dissolution of, or a distribution of the assets
of, the corporation, for the purpose of this Section IV.
V. In the event that the Preferred Stock of any series shall be redeemable,
then, at the option of the Board of Directors, the corporation at any time or
from time to time may redeem all, or any number less than all, of the
outstanding shares of such series at the redemption price thereof fixed by the
Board of Directors as provided in subdivision (c) of Section II of this Article
Fourth (the sum so payable upon any redemption of Preferred Stock being herein
referred to as the "redemption price"); provided, that not less than 30 days
previous to the date fixed for redemption a notice of the time and place thereof
shall be mailed to each holder of record of the shares so to be redeemed at
his address as shown by the records of the corporation; and provided further,
that in case of redemption of less than all of the outstanding shares of any
series of Preferred Stock the shares to be redeemed shall be chosen by lot in
such equitable manner as may be prescribed by the Board of Directors. At any
time after notice of redemption shall have been mailed as above provided to the
holders of the stock so to be redeemed, the corporation may deposit the
aggregate redemption price, in trust, with a bank or trust company in the
Borough of Manhattan, The City of New York, having capital, surplus and
undivided profits of at least $5,000,000, named in such notice, for payment, on
or before the date fixed for redemption, of the redemption price for the shares
called for redemption. Upon the making of such deposit, or if no such deposit is
made then upon such redemption date (unless the corporation shall default in
making payment of the redemption price), holders of the shares of Preferred
Stock called for redemption shall cease to be stockholders with respect to such
shares notwithstanding that any certificate for such shares shall not have been
surrendered, and thereafter such shares shall no longer be transferable on the
books of the corporation and such holders shall have no interest in or claim
against the corporation with respect to said shares, except the right (a) to
receive payment of the redemption price upon surrender of their certificates, or
(b) to exercise on or before the date fixed for redemption the rights, if any,
not theretofore expiring, to convert the shares so called for redemption into,
or to exchange such shares for, shares of stock of any other class or classes or
of any other series of the same class or any other class or classes of stock of
the corporation. Any funds deposited in trust as aforesaid which shall not be
required for such redemption, because of the exercise of any right of conversion
or otherwise subsequent to the date of such deposit, shall be returned to the
corporation forthwith. The corporation shall be entitled to receive from any
such bank or trust company the interest, if any, allowed on any moneys deposited
as in this Section provided, and the holders of any shares so redeemed shall
have no claim to any such interest. Any funds so deposited by the corporation
and unclaimed at the end of five years from the date fixed for such redemption
shall be repaid to the corporation upon its request, after which repayment the
holders of such shares who shall not have made claim against such moneys prior
to such repayment shall be deemed to unsecured creditors of the corporation, but
only for a period of two years from the date of such repayment (after which all
rights to holders of such shares as unsecured creditors or otherwise shall
cease), for an amount equivalent to the amount deposited as above stated for the
redemption of such shares and so repaid to the corporation, but shall in no
event be entitled to any interest.
In order to facilitate the redemption of any shares of Preferred Stock, the
Board of Directors is authorized to cause the transfer books of the corporation
to be closed as to the shares to be redeemed.
VI. Any shares of Preferred Stock which shall at any time have been redeemed,
or which shall at any time have been surrendered for conversion or exchange or
for cancellation pursuant to any retirement or sinking fund provisions with
respect to any series of Preferred Stock, shall be retired and shall thereafter
have the status of authorized and unissued shares of Preferred Stock
undesignated as to series.
VII. There is hereby authorized an initial series of the Preferred Stock having
the following voting powers, designation, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions:
(a) The number of shares to constituted such series shall be Two million
eight hundred thirty thousand (2,830,000) and the distinctive designation
thereof shall be "$2 Convertible Preferred Stock".
(b) The dividend rate on the shares of such series shall be $2.00 per
annum, payable in cash quarterly on January 1, April 1, July 1 and October 1 in
each year. Dividends shall accumulate on any shares of such series issued upon
conversion of outstanding shares of Ekco Products Company upon the Merger Date
of the Agreement of Merger (herein called the "Agreement of Merger") dated July
29, 1965 of American Home Products Corporation and Ekco Products Company from
and after January 1, 1966 and upon any other shares of such series from and
after the dividend date next following the issuance of such shares.
(c) The shares of such series shall be redeemable on and after the fifth
anniversary of the Merger Date of the Agreement of Merger if at the time of
mailing of the notice of redemption the average market price per share (as
hereafter defined) of the Common Stock is at least $80.00 per share, or in the
event that an adjustment in the number of shares issuable upon conversion of
shares of such series under Section (e) of this Article Fourth shall have
occurred, then a market price per share equal to the product of multiplying
$60.00 per share by the reciprocal of the then current conversion rate and the
redemption price which the shares of such series shall be entitled to receive
upon the redemption thereof shall be the amount of $60.00 per share in cash plus
a sum equal to the accrued but unpaid dividends thereon to the redemption date.
(d) The shares of such series shall not be subject to the operation of any
sinking fund to be applied to the purchase or redemption of such shares for
retirement.
(e) Subject to the provisions for adjustment hereinafter set forth, the
shares of such series shall be convertible at the option of the holder thereof,
at any time, upon surrender for conversion to any Transfer Agent for such shares
of the certificate representing the shares so to be converted, into full paid
and non-assessable shares of Common Stock of the corporation at the rate of .75
shares of Common Stock for each such share of such series so surrendered for
conversion. The right, if any, to convert shares of such series called for
redemption shall terminate at the time specified in the notice of redemption
given pursuant to the provisions of Section VII of this Article Fourth. Upon
conversion, no payment or adjustment shall be made for dividends on any class of
shares.
The number of shares of Common Stock and the number of shares of stock of
other classes of the corporation, if any, into which each share of such series
is convertible shall be subject to adjustment from time to time as follows:
(i) In case the corporation shall (a) take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend declared
payable in shares of the corporation, (b) subdivide its outstanding Common
Stock, (c) combine the outstanding Common Stock into a smaller number of shares,
or (d) issue by reclassification of shares of Common Stock any shares of the
Corporation, the holder of each share of such series shall thereafter be
entitled to receive upon the conversion of such share, the number of shares of
the corporation which he would have owned or have been entitled to receive after
the happening of any of the events described above had such share been converted
immediately prior to the happening of such event. Further such adjustment shall
be made whenever any of the events listed above shall occur.
(ii) In case the corporation shall take a record of the holders of its
Common Stock for the purpose of entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the average market price
(as hereinafter defined) for the time at which such record is taken, in each
such case, the number of shares of Common Stock into which each such share of
such series shall thereafter be convertible shall be determined by multiplying
the number of shares of Common Stock into which such share of such series was
theretofore convertible by a fraction of which the numerator shall be the sum of
the number of shares of Common Stock outstanding at the time of the taking of
such record and the number of additional shares of Common Stock so offered for
subscription or purchase, and of which the denominator shall be the sum of the
number of shares of Common Stock outstanding at the time of the taking of such
record and the number of shares of Common Stock which the aggregate public
offering price (without deduction of expenses of the issue, including
underwriting commissions) of the total number of shares so offered would
purchase at the average market price per share for such time.
(iii) In case the corporation shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive any distribution of
evidence of its indebtedness or assets (excluding cash distributions on Common
Stock after December 31, 1964 not exceeding the amount of consolidated net
earnings after December 31, 1964 of the corporation and its subsidiaries, less
cash distributions after December 31, 1964 on stock other than Common Stock, all
determined in accordance with good accounting practice) or rights to subscribe,
excluding those referred to in paragraph (ii) above, in each such case the
number of shares of Common Stock into which each such share of such series shall
thereafter be convertible shall be determined by multiplying the number of
shares of Common Stock into which such share of such series was theretofore
convertible by a fraction of which the numerator shall be the average market
price per share of Common Stock for the time at which such record is taken and
of which the denominator shall be the average market price per share of Common
Stock for such time less the fair value (as determined by the Board of Directors
of the corporation, whose determination shall be conclusive and described in a
statement filed with the Transfer Agent or Agents for such shares of such series
and for the Common Stock) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights applicable to one of
the outstanding shares of Common Stock.
(iv) For the purpose of any computation under this Article Fourth, the
"average market price per share" of any shares of capital stock for any time
shall be the average of the daily mean of the high and low sales prices, or bid
prices, as the case may be, for five consecutive business days commencing ten
business days before the time in question on which transactions have been
reported by any accepted financial publication of general circulation in the
Borough of Manhattan, The City of New York, on the New York Stock Exchange, if
such shares are regularly traded on such Exchange, or on any other national
securities exchange if such shares be not regularly traded on the New York Stock
Exchange, or if such shares be not regularly traded on any national securities
exchange the bid prices as reported by the National Quotation Bureau, Inc. or by
any successor organization.
(v) No adjustment in the number of shares of Common Stock into which any
share of such series is convertible shall be required unless such adjustment
would require an increase or decrease of at least 1% in the total number of
shares of Common Stock into which all shares of such series are then
convertible; provided, however, that any adjustments which by reason of this
paragraph (v) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment.
(vi) If the corporation shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive any dividend, distribution or
subscription rights and shall, thereafter and before delivery to shareholders of
any such dividend, distribution or subscription rights, legally abandon its plan
to pay or deliver such dividend, distribution or subscription rights, then no
adjustment in the number of shares of Common Stock or of other shares of the
corporation into which any share of such Stock is convertible, nor the giving of
any notice to the holders of shares of such series, shall be required by reason
of the taking of such record.
(vii) Whenever any adjustment is required in the shares into which any
share of such series is convertible, the corporation shall forthwith (a) file
with the Transfer Agent or Transfer Agents for shares of such series and for the
Common Stock a statement describing in reasonable detail the adjustment and the
method of calculation used, and (b) cause a notice stating the nature and amount
of such adjustment to be published at least once in a newspaper printed in the
English language and customarily published on five days each calendar week and
of general circulation in the Borough of Manhattan, The City of New York and in
the City of Chicago, Illinois.
(viii) No fractional shares shall be issued upon conversion of shares of
such series, but in lieu thereof the corporation shall pay to the holder thereof
an amount in cash equal to the value of such fractional interest in a share
determined upon the basis of the closing price per share on the New York Stock
Exchange as reported in an accepted financial publication of general circulation
in the Borough of Manhattan, The City of New York if such shares are regularly
traded upon such exchange or on any other national securities exchange if such
shares be not regularly traded on the New York Stock Exchange, or if such shares
be not regularly traded on any national securities exchange upon the basis of
the closing bid price reported by the National Quotation Bureau, Inc. or by any
successor organization, on the date upon which the certificate representing the
shares of such series shall be surrendered for conversion.
(ix) Shares of such series shall be deemed to be converted and the holder
thereof shall be deemed to have become a holder of record of the shares of the
corporation into which the shares of such series are convertible at the close of
business on the date upon which the certificate representing shares of such
series has been surrendered to any Transfer Agent for conversion, or if such
date shall be a legal holiday in the jurisdiction in which such Transfer Agent
is located or a date fixed by the Board of Directors for the closing of the
transfer books or the taking of a record of the holders of the shares of the
corporation into which the shares of such series are convertible, then on the
next succeeding business day when such transfer books are open.
(x) The corporation shall at all times reserve and keep available out of
its authorized but unissued shares the full number of shares into which all
shares of such series from time to time outstanding are convertible.
(f) The shares of such series shall be entitled to receive in preference
to shares of the Common Stock of the corporation upon any dissolution of, or
distribution of assets of, the corporation (i) the amount of $60.00 per share in
the event of any voluntary liquidation, dissolution or winding-up of the
corporation and (ii) the amount of $52.50 in the event of any involuntary
liquidation, dissolution or winding-up of the corporation, plus, in either case,
an amount equal to all accrued but unpaid dividends to the date of such
liquidation, dissolution or winding-up.
(g) The shares of such series shall be entitled to thirty-six (36) votes
per share voting with the shares of Common Stock at any annual or special
meeting of stockholders for the election of directors and upon any other matter
coming before such meeting. In addition, the shares of such series shall have
the following special voting powers and rights:
(i) So long as any shares of such series are outstanding, the corporation
shall not, without the consent (given by vote at a meeting called for that
purpose) of the holders of at least two-thirds of the total number of shares of
such series and any other series of the Preferred Stock then outstanding having
voting rights in the premises, voting as a class:
(a) create or authorize any class of stock ranking prior to or on a parity
with the Preferred Stock, or create or authorize any obligation or security
convertible into shares of stock of any such class; or
(b) amend, alter, change or repeal any of the express terms of such series
or of the Preferred Stock then outstanding in a manner prejudicial to the
holders thereof; provided, however, if any such change shall effect only a
single series of the Preferred Stock, then only the holders of such series
shall have any special voting right hereunder.
(ii) If and when dividends payable on such series shall be in default in an
amount equivalent to six (6) full quarter-yearly dividends on all shares of such
series at the time outstanding, the number of directors of the corporation shall
thereupon, and until all dividends in default on such series shall have been
paid or declared and set apart for payment, be two more than the full number
constituting the Board of Directors immediately prior to such default. The
holders of all shares of such series, voting separately as one class with any
other series of the Preferred Stock having voting powers in the premises, shall
be entitled to elect directors to fill the vacancies resulting from such
increase in the number of directors of the corporation. Such holders shall, at
a meeting called and held as provided in subparagraph (v) hereof elect such two
directors to hold office until the next annual meeting of stockholders;
provided, however, that the terms of office of such directors shall terminate
upon the curing of all defaults in dividends on such series as provided in
subparagraph (iii) hereof, unless dividend defaults shall still exist on other
series of the Preferred Stock.
(iii) If and when all dividends then in default on such series at the
time outstanding shall be paid, the holders of shares of such series shall
thereupon be divested of any special right with respect to the election of
directors provided in subparagraph (ii) hereof and the number of directors of
the corporation shall be reduced by two (except as provided in paragraph (ii)
hereof); but always subject to the same provisions for vesting such special
rights in such series in case of further like default or defaults in dividends
thereon.
(iv) In case of any vacancy in the Board of Directors occurring among the
directors elected by the holders of such series, as a class, pursuant to
subparagraph (ii) hereof, the holders of such series and of any other series of
Preferred Stock then outstanding and entitled to vote may elect a successor to
hold office for the unexpired term of the directors whose place shall be vacant.
In all other cases, any vacancy occurring among the directors shall be filled by
the vote of a majority of the remaining directors.
(v) Whenever the holders of such series, as a class, become entitled to
elect directors of the corporation pursuant to subparagraph (ii) or (iv) hereof,
a meeting of the holders of such series shall be held at any time thereafter
upon call by the holders of not less than 1,000 shares of such series or upon
call by the Secretary of the corporation at the request in writing of any
stockholder addressed to him at the principal office of the corporation. At all
meetings of stockholders held for the purpose of electing directors during such
times as the holders of shares of such series shall have the special right,
voting separately as one class, to elect directors pursuant to subparagraph (ii)
hereof, the presence in person or by proxy of the holders of a majority of the
outstanding shares of the series of Preferred Stock entitled to vote separately
as a class shall be required to constitute a quorum of such class for the
election of directors for such class; provided, however, that the absence of a
quorum of the holders of stock of such class shall not prevent the election at
any such meeting or adjournment thereof of any other directors by the necessary
quorum of the holders of all classes of stock having voting rights for the
election of directors (other than as a separate class) if such quorum is present
in person or by proxy at such meeting; and provided further that in the absence
of a quorum of the holders of stock having the right to vote separately as a
class, a majority of those holders of the stock of such class who are present in
person or by proxy shall have power to adjourn the election of the directors to
be elected by such class from time to time without notice other than
announcement at the meeting until the holders of the requisite number of shares
of such class shall be present in person or by proxy.
(h) The shares of such series shall not have any other special rights or
provisions.
COMMON STOCK
Each share of Common Stock shall be equal in all respects to every other
share of the Common Stock of the Corporation.
FIFTH: The corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
SEVENTH: The Board of Directors of the corporation shall have power to
issue the authorized shares of stock of the corporation from time to time for
such consideration as they may fix and determine.
EIGHTH: In furtherance and not in limitation of powers conferred by
Statute the following provisions are inserted for the regulation of the business
and to define and regulate the powers of the corporation and of its directors
and stockholders:
(a) The number of directors of the corporation shall be fixed and may be
altered from time to time as may be provided in by-laws. Any vacancies in the
Board of Directors, by reason of an increase in the number of directors or
otherwise, shall be filled solely by the Board of Directors, by a majority vote
of the directors then in office, though less than a quorum, but any such
director so elected shall hold office only until the next succeeding annual
meeting of stockholders. Advance notice of nominations for the election of
directors, other than by the Board of Directors or a committee thereof, shall be
given in the manner provided in the by-laws.
(b) The Board of Directors may, by majority vote of the whole Board
designate three or more directors to constitute an Executive Committee which, to
the extent provided by the directors or in the by-laws, shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the corporation and shall have power to authorize the seal of the
corporation to be affixed to all papers which may require it.
(c) The Board of Directors shall have power to make, alter, amend or
repeal the by-laws of the corporation, but any by-laws so made, altered or
amended by the directors may be altered or repealed by the stockholders.
Notwithstanding the foregoing and anything contained in this Certificate of
Incorporation to the contrary, sections two and seven of the by-laws shall not
be altered, amended or repealed and no provision inconsistent therewith shall be
adopted without the affirmative vote of the holders of at least 80% of the
voting power of all the shares of the corporation entitled to vote generally in
the election of directors, voting together as a single class.
(d) No holder of stock shall be entitled as of right to subscribe for,
purchase or receive any part of any authorized but unissued stock or of any new
or additional issue of stock, preferred or common, or of bonds, notes,
debentures or other securities convertible into stock, but all such unissued,
new or additional shares of stock or bonds, notes, debentures or other
securities convertible into stock may be issued and disposed of by the Board of
Directors to such person or persons and on such terms and for such lawful
consideration as the Board of Directors in their absolute discretion may deem
advisable.
(e) The corporation reserves the right to amend, alter or repeal any
provision herein contained in the manner now or hereafter prescribed by law and
all rights conferred on stockholders hereunder are granted subject to this
provision. Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of all shares of the corporation
entitled to vote generally in the election of directors, voting together a
single class, shall be required to alter, amend, adopt any provision
inconsistent with, or repeal, this Article EIGHTH or any provision hereof.
(f) A director may (except directors elected by shares of Preferred Stock
voting separately as a class), by vote of a majority of the entire Board of
Directors for any cause deemed by them sufficient, be removed as such director.
Any director may also be removed from office, for any cause deemed by them
sufficient, by the affirmative vote of the holders of 80% of the combined voting
power of the then outstanding shares of stock entitled to vote generally in the
election of directors, voting together as a single class, except that directors
elected by shares of Preferred Stock voting separately may only be removed by
such stockholders at any special meeting for any cause deemed sufficient by such
meeting. Directors of the corporation need not be stockholders therein.
(g) A director of the corporation shall not, in the absence of fraud, be
disqualified by his office from dealing or contracting with the corporation
either as a vendor, purchaser or otherwise, nor in the absence of fraud shall
any transaction or contract of the corporation be void or voidable by reason of
the fact that any director or any firm of which any director is a member, or any
corporation of which any director is a shareholder or director is in any way
interested in such transaction or contract, provided that such transaction or
contract is or shall be authorized, ratified or approved either:
(1) by vote of a majority of a quorum of the Board of Directors or of the
Executive Committee without counting in such majority or quorum any director so
interested or a member of a firm so interested or a shareholder or a director of
a corporation so interested, or
(2) by vote at a stockholders' meeting of the holders of record of a
majority of all the outstanding shares of stock of the corporation, or by
writing or writings signed by a majority of such holders; nor shall any director
be liable to account to the corporation for any profit realized by him from or
through any such transaction or contract of the corporation ratified or approved
as aforesaid by reason of the fact that he or any firm of which he is a member
or any corporation of which he is a shareholder or director was interested in
such transaction or contract. Nothing herein contained shall create any
liability in the events above described or prevent the authorization,
ratification or approval of such contracts or transactions in any other manner
permitted by law.
(h) Any action required or permitted to be taken by the stockholders of
the corporation must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing by such holders.
Except as provided in paragraph VII(g)(v) of Article FOURTH respecting rights of
holders of Preferred Stock to call meetings of such holders in certain dividend
default situations, special meetings of stockholders, unless otherwise provided
in law, may be called only by the Chairman or Vice-Chairman of the Board of
Directors or the President, or by the Secretary on the written request of a
majority of all the directors, such request to state the purpose of the proposed
meeting.
NINTH: No director shall be personally liable to the corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director, except (i) for breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
*******************************************************************************
_______________________________________________________________________________
BY-LAWS
OF
AMERICAN HOME PRODUCTS CORPORATION
AS AMENDED THROUGH APRIL 23, 1998
________________________________________________________________________________
********************************************************************************
________________________________________________________________________________
<PAGE>
CONTENTS
STOCKHOLDERS MEETINGS
1. Annual Meeting 1
2. Special Meetings 1
3. Notice 1
4. Place 2
5. Quorum 2
6. Voting; Proxies 2
BOARD OF DIRECTORS
7. Powers; Number; Election; Term; Vacancies 3
8. Regular Meetings 5
9. Special Meetings 5
10. Quorum; Voting 5
11. Compensation 5
12. Residual Powers of Board 6
EXECUTIVE COMMITTEE
13. Appointment 6
14. Duties and Powers 6
15. Meetings 7
16. Quorum; Voting 7
17. Minutes 7
FINANCE COMMITTEE
18. Appointment 7
19. Duties and Powers 7
20. Meetings 8
21. Quorum; Voting 8
22. Minutes 8
AUDIT COMMITTEE
23. Appointment 8
24. Duties and Powers 8
25. Meetings 9
26. Quorum; Voting 9
27. Minutes 9
OTHER COMMITTEES
28. Appointment 9
29. Organization and Operation 10
OFFICERS
30. Principal Officers 10
31. Other Officers 10
32. Salaries 11
33. Term of Office; Removal 11
34. Vacancies 11
35. Chairman 11
36. Vice Chairman 11
37. President 12
38. Executive Vice Presidents 12
39. Senior Vice Presidents 12
40. Vice Presidents 13
41. Principal Financial Officer 13
42. Secretary 13
43. Treasurer 14
44. Comptroller 14
45. Delegation of Officer's Duties by Board 14
46. Delegation of Officer's Duties by Officer 15
47. Indemnification of Directors,
Officers and Employees 15
AUTHORITY TO ACT AND SIGN
48. Instrument Execution 17
49. Bank Accounts 17
50. Voting of Stock in Other Corporations 18
51. Sale and Transfer of Securities 18
STOCK
52. Stock Certificates; Uncertificated Shares 19
53. Transfer 20
54. Transfer Agent and Registrar 20
55. Record Date 20
56. Registered Stockholders 21
57. Lost Certificates 21
MISCELLANEOUS
58. Notices 21
59. Fiscal Year 22
60. Offices 22
61. Seal 22
62. Amendments 22
<PAGE>
BY-LAWS
of
AMERICAN HOME PRODUCTS CORPORATION
* * * * * * * * * * * * * * * * * * * * *
STOCKHOLDERS MEETINGS
1. Annual Meeting. An annual meeting of stockholders for election of directors
and transaction of other business properly before the meeting shall be held
on the fourth Wednesday of April in each year, or on such other date and at
such time as the Board of Directors may designate.
2. Special Meetings. Except as provided in paragraph VII (g) (v) of Article
FOURTH of the Certificate of Incorporation respecting rights of holders of
Preferred Stock to call meetings of such holders in certain dividend default
situations, special meetings of stockholders, unless otherwise provided by
law, may be called by the Chairman or Vice Chairman of the Board of Directors
or the President or by the Secretary on the written request of a majority of
all the directors, such request to state the purpose of the proposed meeting,
which meeting shall thereupon be called by the Secretary. Business at
special meetings shall be confined to the matters stated in the notice.
3. Notice. Written notice of each meeting of stockholders shall be mailed, not
less than ten days prior to the meeting, to each stockholder entitled to vote
at such address as appears on the stock books of the corporation. The notice
shall specify the time and place of the meeting and, as to special meetings,
the matter or matters to be acted upon at such meeting.
4. Place. Meetings of stockholders shall be held at the office of the
corporation in Wilmington, Delaware, or at such other place, within or
without the State of Delaware, as the Board of Directors may designate.
5. Quorum. Except as provided in paragraph VII (g) (v) of Article FOURTH of the
Certificate of Incorporation respecting meetings of stockholders during
certain dividend default situations, at which meetings holders of Preferred
Stock have special voting rights, the holders of a majority of the
outstanding stock having voting power, present in person or by proxy, shall
constitute a quorum at all meetings of stockholders for the transaction of
business unless otherwise provided by law. Except as provided in such
paragraph VII (g) (v) of Article FOURTH of the Certificate of Incorporation,
if a quorum shall not be present at any meeting of stockholders, the
stockholders entitled to vote, present in person or by proxy, may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present; and at such adjourned meeting at
which a quorum shall be present any business may be transacted which might
have been transacted at the meeting originally called.
6. Voting; Proxies. At each meeting of stockholders every stockholder entitled
to vote may vote in person or by proxy appointed by an instrument in writing
subscribed by such stockholder or his duly appointed attorney-in-fact or in
any other manner prescribed by the General Corporation Law of the State of
Delaware. Except as provided in paragraphs VII (g) (i) and VII (g) (v) of
Article FOURTH of the Certificate of Incorporation respecting holders of
Preferred Stock voting in certain situations, each holder of Common Stock
shall have one vote and each holder of Preferred Stock shall have thirty-six
(36) votes on each matter submitted to a vote at a meeting of stockholders
for each share of, respectively, Common and Preferred Stock having voting
power, registered in his name on the stock books of the corporation. The
vote for directors and, upon the demand of any stockholder, the vote upon any
other matter before the meeting, shall be by ballot. Elections shall be
decided by a plurality of the votes cast and other matters shall be decided
by a majority of the votes cast on such matters.
BOARD OF DIRECTORS
7. Powers; Number; Election; Term; Vacancies. The property and business of the
corporation shall be managed by its Board of Directors, which shall be not
less than eight nor more than fifteen in number as determined from time to
time by the Board, except as provided in paragraph VII (g) (ii) of Article
FOURTH of the Certificate of Incorporation respecting additional directors in
certain dividend default situations. Directors shall be elected at the
annual meeting of stockholders and each director shall continue in office
until his successor shall be elected or until his earlier removal or
resignation.
Except as provided in paragraph VII (g) (ii) of Article FOURTH of the
Certificate of Incorporation respecting additional directors in certain
dividend default situations, nominations for the election of directors may be
made by the Board of Directors or a committee appointed by the Board of
Directors or by any stockholder entitled to vote in the election of directors
generally. However, any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election as
directors only if written notice of such stockholder's intent to make such
nomination or nominations has been given, either by personal delivery or by
United States Mail, postage prepaid, to the Secretary of the corporation not
later than (i) with respect to an election to be held at an annual meeting of
stockholders, ninety days prior to the anniversary date of the immediately
preceding annual meeting, and (ii) with respect to an election to be held at
a special meeting of stockholders for the election of directors, the close of
business on the tenth day following the date on which notice of such meeting
is first given to stockholders. Each such notice shall set forth: (a) the
name and address of the stockholder who intends to make the nomination and of
the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission;
and (e) the consent of each nominee to serve as a director of the corporation
if so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
Except as provided in Paragraph VII (g) (v) of Article FOURTH of the
Certificate of Incorporation respecting the additional directors in certain
dividend default situations, vacancies in the membership of the Board,
whether or not caused by an increase in the number of directors, will 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 of
Directors. Any director elected in accordance with the preceding sentence
shall hold office only until the next succeeding annual meeting of
stockholders.
8. Regular Meetings. Regular meetings of the Board may be held without notice
at such time and place as the Board shall from time to time determine.
9. Special Meetings. Special Meetings of the Board may be called by direction
of the Chairman, the Vice Chairman, the President or two directors on two
days notice to each director specifying the time and place of meeting.
10. Quorum; Voting. At all meetings of the Board a majority of all the
directors then in office, or if the number of directors is then an even
number, one-half such number shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board unless otherwise
provided by law, the Certificate of Incorporation or these by-laws.
11. Compensation. Directors shall be paid such fees for their services as
directors and for attending meetings of the Board and committees appointed
thereby as shall be determined from time to time by the Board. The Board may
also provide for compensation to a director for expenses he may incur in
attending such meetings. Nothing herein shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
12. Residual Powers of Board. In addition to the powers conferred by these by-
laws upon the Board, the Board may exercise all such powers of the
corporation and do all such lawful acts and things as are not by law, the
Certificate of Incorporation or these by-laws directed or required to be
exercised or done by the stockholders. Nothing contained in these by-laws
shall restrict the Board or any committee thereof from taking any action in
any manner permitted by law, including unanimous written consent and
conference communication by means of telephone or similar communications
equipment by which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
EXECUTIVE COMMITTEE
13. Appointment. The Board may by vote of a majority of all the directors
appoint three or more members to constitute an Executive Committee which
shall serve at the pleasure of the Board. Vacancies in the membership of the
Executive Committee shall be filled by the Board by vote of a majority of all
the directors.
14. Duties and Powers. During the intervals between meetings of the Board, the
Executive Committee shall perform all the duties and exercise all the powers
of the Board in the management of the property and business of the
corporation except such duties and powers as are by law, the Certificate of
Incorporation or these by-laws directed or required to be performed or
exercised specifically by the Board as such or by any proportion thereof.
The Chairman of the Executive Committee shall assist the Chairman of the
Board, shall perform such of the duties and exercise such of the powers of
the Chairman as the latter may delegate to him and shall, in the absence or
disability of the President, perform the duties and exercise the powers of
the President. He shall perform such other duties and exercise such other
powers as the Board or the Chairman shall from time to time prescribe.
15. Meetings. The Executive Committee may meet at stated times without notice,
or on two days notice to all by one of its members.
16. Quorum; Voting. A majority of the Executive Committee shall constitute a
quorum for the transaction of business and the act of a majority of those
present at any meeting at which there is a quorum shall be the act of the
Committee.
17. Minutes. The Executive Committee shall keep regular minutes of its
proceedings and report its actions to the Board when it so requests.
FINANCE COMMITTEE
18. Appointment. The Board may appoint three or more directors, officers or
employees of the corporation or its subsidiaries to constitute a Finance
Committee which shall serve at the pleasure of the Board. Vacancies in the
membership of the Finance Committee shall be filled by the Board.
19. Duties and Powers. The Finance Committee shall supervise the financial
affairs, budgets and procedures of the corporation and its subsidiaries and
shall fix the salaries of officers and employees of the corporation and its
subsidiaries, except such thereof as may be fixed by the Board or any other
committee appointed by it for such purpose.
20. Meetings. The Finance Committee may meet at stated times without notice,
or on notice to all by the Chairman or Vice-Chairman of the Board, the
President, an Executive Vice President or a Senior Vice President.
21. Quorum; Voting. A majority of the Finance Committee shall constitute a
quorum for the transaction of business and the act of a majority of those
present at any meeting at which there is a quorum shall be the act of the
Committee.
22. Minutes. The Finance Committee shall keep regular minutes of its
proceedings and make copies thereof available to the Board at its meetings.
AUDIT COMMITTEE
23. Appointment. The Board shall appoint three or more directors of the
Corporation, none of whom is presently employed by the Corporation or any of
its subsidiaries, to constitute an Audit Committee, which shall serve at the
pleasure of the Board. Vacancies in the membership of the Audit Committee
shall be filled by the Board.
24. Duties and Powers. The Audit Committee shall recommend a firm of
independent public accountants to be engaged as the principal auditor for
each year's annual audit on behalf of the Corporation subject to the approval
of the Board of Directors and ratification by the stockholders. The Audit
Committee shall discuss with the auditors the scope and results of the audit
and shall report to the Board of Directors thereon. The Audit Committee
shall undertake such other financial reviews as the Board deems appropriate.
25. Meetings. The Audit Committee may meet at stated times without notice, or
on notice to all by the Chairman or Vice Chairman of the Board, the
President, an Executive Vice President or a Senior Vice President, or by one
of the members of the Audit Committee.
26. Quorum; Voting. A majority of the Audit Committee shall constitute a
quorum for the transaction of business and the act of a majority of those
present at any meeting at which there is a quorum shall be the act of the
Committee.
27. Minutes. The Audit Committee shall keep regular minutes of its proceedings
and make copies thereof available to the Board at its meetings.
OTHER COMMITTEES
28. Appointment. The Board may from time to time appoint further standing or
special committees of directors, officers or employees of the corporation or
its subsidiaries to serve at the pleasure of the Board and confer upon such
committees such powers and duties as the Board may deem expedient within the
limits permitted by law.
29. Organization and Operation. Unless otherwise provided in the resolutions
appointing any such committee and determining its powers and duties, the
committee may establish procedures for calling and conducting meetings,
provided that no less than a majority of its members shall constitute a
quorum for the transaction of business and the act of no less than a majority
of those present at a meeting at which there is a quorum shall be the act of
the committee, and the committee shall keep regular minutes of its
proceedings and report its actions to the Board when it so requests.
OFFICERS
30. Principal Officers. The principal officers shall be chosen annually by the
Board and shall be a Chairman of the Board of Directors, a President, one or
more Vice Presidents, a Secretary, a Treasurer and a Comptroller and, in the
discretion of the Board, a Vice Chairman of the Board of Directors, one or
more Executive Vice Presidents and one or more Senior Vice Presidents. The
Chairman or Vice Chairman and President may be the same person; the Secretary
and Treasurer may be the same person and Executive Vice President, Senior
Vice President or Vice President may hold at the same time the office of
Secretary, Treasurer or Comptroller. The Chairman and Vice Chairman, if
any, and the President shall be chosen from the members of the Board; the
other principal officers need not be directors.
31. Other Officers. The Board may choose such other officers and agents as it
shall deem necessary, who shall hold their offices for such terms and shall
perform such duties and exercise such powers as are delegated to them
pursuant to these by-laws or as the Board shall from time to time prescribe.
32. Salaries. The salaries of all principal officers shall be fixed by the
Board.
33. Term of Office; Removal. Each officer shall hold office until his successor
is chosen or until his earlier removal or resignation. The Board may remove
any officer or agent provided that removal of a principal officer be by vote
of a majority of all the directors.
34. Vacancies. Vacancies in any office may be filled by the Board.
35. Chairman. The Chairman of the Board of Directors shall preside at all
meetings of stockholders and of the Board. He shall be ex-officio a member of
all standing committees appointed by the Board, shall be the chief executive
officer of the corporation, shall have all powers and perform all duties
incident to such chief executive office and, subject to the direction of the
Board, shall have general and active supervision of the property and business
of the corporation. He shall be the officer through whom the Board delegates
authority to corporate management and he shall be the medium of communication
to the Board of information as to the affairs of the corporation and of all
matters presented for the Board's consideration. He shall be responsible to
see that all orders and resolutions of the Board are carried into effect by
the proper officers.
36. Vice Chairman. The Vice Chairman of the Board of Directors shall assist
the Chairman of the Board, shall perform such of the duties and exercise such
of the powers of the Chairman as the latter may delegate to him and shall, in
the absence or disability of the Chairman, perform the duties and exercise
the powers of the Chairman. He shall perform such other duties and exercise
such other powers as the Board or the Chairman shall from time to time
prescribe.
37. President. The President shall assist the Chairman and Vice Chairman of
the Board, shall perform such of the duties and exercise such of the powers
of the Chairman as the latter may delegate to him and shall, in the absence
or disability of the Vice Chairman, perform the duties and exercise the
powers of the Vice Chairman. He shall perform such other duties and exercise
such other powers as the Board, the Chairman or the Vice Chairman shall from
time to time prescribe.
38. Executive Vice Presidents. Each Executive Vice President shall serve in a
general executive capacity, more particularly as general assistant to the
President. In the absence or disability of the President, and in the event
the Chairman of the Executive Committee is absent or disabled, an Executive
Vice President shall, in the order of seniority in that office, perform the
duties and exercise the powers of the President. Executive Vice Presidents
shall perform such other duties and exercise such other powers as the Board,
the Chairman, the Vice Chairman or the President shall from time to time
prescribe.
39. Senior Vice Presidents. Each Senior Vice President shall serve in a
general executive capacity, more particularly as general assistant to the
President or to one or more Executive Vice Presidents. In the absence or
disability of the President, and in the event the Chairman of the Executive
Committee and all Executive Vice Presidents are absent or disabled, a Senior
Vice President shall, in the order of seniority in that office, perform the
duties and exercise the powers of the President. Senior Vice Presidents
shall perform such other duties and exercise such other powers as the Board,
the Chairman, the Vice Chairman or the President shall from time to time
prescribe.
40. Vice Presidents. In the absence or disability of the Executive Vice
Presidents and Senior Vice Presidents, a Vice President shall, in the order
of seniority in that office, perform the duties and exercise the powers of
the Executive Vice Presidents and Senior Vice Presidents. Vice Presidents
shall perform such other duties and exercise such other powers as the Board,
the Chairman, the Vice Chairman or the President shall from time to time
prescribe.
41. Principal Financial Officer. The Board may designate an Executive Vice
President, a Senior Vice President, a Vice President or the Treasurer as the
Principal Financial Officer of the corporation.
42. Secretary. The Secretary shall attend all meetings of stockholders and of
the Board and shall record the minutes of all proceedings of such meetings in
books to be kept for that purpose, and shall perform like duties for the
standing committees appointed by the Board unless the Board directs
otherwise. He shall have custody of the seal of the corporation and shall
affix it or cause it to be affixed to all instruments requiring it. He shall
give or cause to be given the notice required of all meetings of stockholders
and of the Board. He shall perform such other duties and exercise such other
powers as the Board, the Chairman, the Vice Chairman or the President shall
from time to time prescribe.
43. Treasurer. The Treasurer shall have general charge of and responsibility
for the corporate funds and securities. He shall deposit or cause to be
deposited in the name of the corporation all moneys and other valuable
effects of the corporation in such depositories as may be designated in
accordance with these by-laws. He shall disburse the funds of the
corporation as directed by the Board or by any other principal officer,
taking proper vouchers for such disbursements. He shall advise upon all
terms of credit granted by the corporation. He shall render to the Board,
when the Board so requests, an accounting of all his transactions as
Treasurer and of the financial condition of the corporation. He shall
perform such other duties and exercise such other powers as the Board, the
Chairman, the Vice Chairman or the President shall from time to time
prescribe.
44. Comptroller. The Comptroller shall have general supervision of the
accounting practices of the corporation and its subsidiaries and the
preparation of statements and other reports respecting financial aspects of
the corporation's or its subsidiaries' operations. He shall establish,
through appropriate channels, recording and reporting procedures and
standards pertaining to such matters. He shall be responsible for collection
of all corporation accounts. He shall perform such other duties and exercise
such other powers as the Board, the Chairman, the Vice Chairman or the
President shall from time to time prescribe.
45. Delegation of Officer's Duties by Board. In the absence or disability of
any principal officer, or for any other reason that the Board may deem
sufficient, the Board may by vote of a majority of all the directors delegate
any or all of the powers or duties of such officer to any other officer.
46. Delegation of Officer's Duties by Officer. Any principal officer may
delegate portions of his powers and duties to any assistant officer chosen by
the Board and acting under the principal officer's supervision.
INDEMNIFICATION OF
DIRECTORS, OFFICERS AND EMPLOYEES
47. Each person (and heirs and legal representatives of such person) who serves
or has served as a director, officer or employee of the corporation or of any
other corporation or entity when requested by this corporation, and of which
this corporation is or was a stockholder, a creditor or otherwise interested,
shall be indemnified by this corporation against all liability and reasonable
expense, including but not limited to counsel fees and disbursements and
amounts of judgments, fines or penalties, incurred by or imposed upon him in
connection with any claim, action, suit or proceeding, actual or threatened,
whether civil, criminal, administrative or investigative, and appeals in
which he may become involved as a party or otherwise by reason of acts or
omissions in his capacity as and while a director, officer or employee of
this corporation or such other corporation or entity, provided that such
person is wholly successful with respect thereto and unless the Board in its
absolute discretion shall determine that such person did not meet the
standard of conduct required herein.
The term "wholly successful" shall mean termination of any claim,
action, suit or proceeding against such person without any finding of
liability or guilt against him and without any settlement by payment, promise
or undertaking by or for such person or the expiration of a reasonable period
of time after the making of any claim or threat without action, suit or
proceeding having been brought and without any settlement by payment,
promise, or undertaking by or for such person.
The standard of conduct required shall be that such person acted in
good faith for a purpose which he reasonably believed to be in or not opposed
to the best interests of the corporation, and, in addition, in any criminal
action or proceeding, had no reasonable cause to believe that his conduct was
unlawful.
Should indemnification be requested hereunder in respect to any claim,
action, suit or other proceeding where the person seeking indemnification has
not been wholly successful, such indemnification may be made only upon the
prior determination by a resolution of a majority of those members of the
Board who are not involved in the claim, action, suit or other proceeding,
that such person met the standards of conduct required herein, or, in the
discretion of the Board, upon the prior determination by non-employee legal
counsel, in written opinion, that such person has met such standards, and
where a settlement is involved, that the amount thereof is reasonable.
Indemnification under this by-law shall not include any amount payable
by such person to the corporation or entity in satisfaction of any judgment
or settlement, or any amount payable on account of profits realized by him in
the purchase or sale of securities of the corporation, and shall be reduced
by the amount of any other indemnification or reimbursement of such liability
and expense to such person.
The termination of any claim, action, suit or other proceeding, by
judgment, order, settlement (whether with or without court approval) or
conviction or upon a plea of guilty or of nolo contendere, or its equivalent,
shall not of itself create a presumption that such person did not meet the
standard of conduct required herein.
Expenses incurred which are subject to indemnification hereunder may
be advanced by the corporation prior to final disposition of the claim,
action, suit or other proceeding upon receipt of an undertaking acceptable to
the corporation by or on behalf of the recipient to repay such amount unless
it shall ultimately be determined that he is entitled to indemnification.
The right of indemnification herein provided shall be in addition to
other rights to which those to be indemnified may otherwise be entitled by
agreement, vote of stockholders, operation of law or otherwise, and shall be
available whether or not the claim asserted against such person is based upon
matters which antedate the adoption of this by-law. If any word, clause or
provision of this by-law or any indemnification made hereunder shall for any
reason be determined to be invalid, the provisions hereof shall not otherwise
be affected thereby but shall remain in full force and effect.
AUTHORITY TO ACT AND SIGN
48. Instrument Execution. Unless otherwise provided by law or by the Board,
all instruments to be executed on behalf of the corporation, whether or not
requiring the seal of the corporation, may be executed by the Chairman, the
Vice Chairman, the President, any Executive Vice President, any Senior Vice
President or any Vice President and attested by the Secretary or an Assistant
Secretary.
49. Bank Accounts. Unless otherwise provided by the Board, any two of the
following officers: the Chairman, the Vice Chairman, the President, any
Executive Vice President, any Senior Vice President, any Vice President and
the Treasurer, may from time to time (1) open and maintain in the name of the
corporation, and terminate, general and special bank accounts for the funds
of the corporation with such banks, trust companies or other depositories as
they may designate and (2) designate, and revoke the designation of, the
officers or employees of the corporation who may sign, manually or by
facsimile, checks, drafts or orders on such bank accounts. Any such action,
designation or revocation shall be by written instrument, signed by the
officers taking the action or making or revoking the designation and filed
with the bank, trust company or other depository.
50. Voting of Stock in Other Corporations. Unless otherwise directed by the
Board, Chairman, the Vice Chairman, the President, any Executive Vice
President, any Senior Vice President, the Treasurer or the Secretary may, on
behalf of the corporation, attend, act and vote at any meeting of
stockholders of any corporation in which this corporation may hold stock and
at any such meeting shall possess and may exercise all rights of this
corporation incident to ownership of such stock or may give a proxy or
proxies in the name of this corporation to any other person or persons who
may vote such stock and exercise any and all other rights in regard to it as
are here accorded to the officers mentioned.
51. Sale and Transfer of Securities. Unless otherwise directed by the Board,
any two of the following officers: the Chairman, the Vice Chairman, the
President, any Executive Vice President, any Senior Vice President and the
Treasurer may, on behalf of the corporation, transfer, convert, endorse,
sell, assign, set over and deliver, or take action appropriate to the
encumbrance by the corporation of any bonds, shares of stock, warrants or
other securities owned by or standing in the name of the corporation, and may
execute and deliver in the name of the corporation all written instruments
necessary or proper to implement the authority herein contained.
STOCK
52. Stock Certificates; Uncertificated Shares. The shares of the corporation
shall be represented by certificates, provided that the Board of Directors
of the corporation may provide by resolution or resolutions that some or
all of any or all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates and upon request every
holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the Chairman or Vice
Chairman of the Board of Directors, or the President or Vice President,
and by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of such corporation representing the number of shares
registered in certificate form. Any or all of 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
corporation with the same effect as if he or she were such officer,
transfer agent or registrar at the date of issue.
53. Transfer. Transfer of stock shall be made on the books of the corporation
only upon surrender of the certificate therefor, endorsed by the person named
in the certificate or accompanied by proper written evidence of succession,
assignment or authority to transfer such stock or upon receipt of proper
transfer instructions from the owner of uncertificated shares.
54. Transfer Agent and Registrar. The Board may appoint one or more Transfer
Agents to record transfers of shares of stock and to keep the stock
certificate books, transfer books and stock ledgers of the corporation. The
Board may also appoint one or more Registrars to register certificates of
stock. The Board may require all certificates of stock to bear the
signatures of either or both a Transfer Agent and a Registrar. Where any
such certificate is manually signed by the Registrar, the signature of any
Transfer Agent may be facsimile engraved or printed.
55. Record Date. The Board may fix in advance a date, not less than ten nor
more than sixty days preceding the date of any meeting of stockholders or the
date for the payment of any dividend or the date for the allotment of rights
or the date when any change, conversion or exchange of stock shall go into
effect or the date in connection with obtaining consent of stockholders or
any class thereof for any purpose, as a record date for the determination of
stockholders entitled to notice of and to vote at any such meeting or to
receive payment of any such dividend or to receive any allotment of rights or
to exercise the rights or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation
after any such record date fixed as aforesaid. The Board may direct that
the stock books of the corporation be closed against transfers during such
period.
56. Registered Stockholders. The corporation shall be entitled to treat the
holder of record of any share of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to
or interest in such share on the part of any other person, whether or not it
shall have express or other notice thereof, except as provided by law.
57. Lost Certificates. The Board may direct a new certificate of stock to be
issued in place of any certificate theretofore issued and claimed to have
been lost, stolen or destroyed, provided that any person claiming a
certificate to be lost, stolen or destroyed shall make an affidavit of
ownership and of the facts of such loss, theft or destruction and, if the
Board so requires, shall advertise the same, and provided further that the
Board may require the owner of the certificate claimed to be lost, stolen or
destroyed, or his legal representative, to deliver to the corporation for
itself, its officers Transfer Agents and Registrars, a bond of indemnity in
such amount or unlimited in amount, upon such terms and secured by such
surety as the Board may require.
MISCELLANEOUS
58. Notices. Whenever under the provisions of these by-laws notice is required
to be given to any person other than in his capacity as stockholder, it may
be given by hand delivery, by telegram or by mail. Whenever under the
provisions of these by-laws notice is required to be given to any
stockholder, it may be given by mail, by depositing the same in the post
office or a letter box, in a post-paid, sealed envelope, addressed to such
stockholder at such address as appears on the stock books of the corporation,
and such notice shall be deemed to be given at the time when the same shall
be thus mailed. Any person entitled to notice under any provision of these
by-laws may waive such notice.
59. Fiscal Year. The fiscal year of the corporation shall begin the first day
of January in each year.
60. Offices. The corporation may have an office in New York, New York, and at
such other places as the business of the corporation may require.
61. Seal. The corporate seal shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Delaware."
62. Amendments. These by-laws may be altered or repealed and new by-laws may
be adopted at any meeting of stockholders by the vote of the holders of a
majority of the outstanding stock having voting power, provided the notice of
such meeting includes the proposed alterations or repeal or the proposed new
by-laws, or a summary thereof, or the Board by vote of a majority of all the
directors.
