<PAGE> 1
- - - - - --------------------------------------------------------------------------------
- - - - - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
------------------
JUNE 23, 1994
(DATE OF REPORT)
------------------
JUNE 23, 1994
(DATE OF EARLIEST EVENT REPORTED)
------------------
PFIZER INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 1-3619 13-531570
(STATE OR OTHER JURISDICTION OF INCORPORATION) (COMMISSION FILE NUMBER) (I.R.S. IDENTIFICATION NO.)
</TABLE>
<TABLE>
<S> <C>
235 EAST 42ND STREET, NEW YORK, NEW YORK 10017
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
REGISTRANT'S TELEPHONE NUMBER, INCLUDING
AREA CODE (212) 573-2323
- - - - - --------------------------------------------------------------------------------
- - - - - --------------------------------------------------------------------------------
<PAGE> 2
ITEM 5. OTHER EVENTS
On June 23, 1994, the Board of Directors of Pfizer Inc. ("the Company")
approved certain amendments to the Company's By-laws, which are attached hereto
as Exhibit 3 (ii) and incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
Exhibit 3 (ii). By-laws of the Company, as amended.
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 thereunto duly authorized.
PFIZER INC.
(Registrant)
By /s/ C. L. Clemente
---------------------------------
C. L. Clemente
Senior Vice President, Corporate
Affairs and Secretary
Date: June 23, 1994
<PAGE> 1
EXHIBIT 3(ii)
PFIZER INC.
BY-LAWS
AS AMENDED JUNE 23, 1994
ARTICLE I
STOCKHOLDERS' MEETING
1. Place of Meeting. Meetings of the stockholders shall be held at the
registered office of the Corporation in Delaware, or at such other place within
or without the State of Delaware as may be designated by the Board of Directors
or the stockholders.
2. Annual Meeting. The annual meeting of the stockholders shall be held on
such date and at such time and place as the Board of Directors may designate.
The date, place and time of the annual meeting shall be stated in the notice of
such meeting delivered to or mailed to stockholders. At such annual meeting the
stockholders shall elect directors, in accordance with the requirements of the
Certificate of Incorporation, and transact such other business as may properly
be brought before the meeting.
3. Quorum. The holders of stock representing a majority of the voting
power of all shares of stock issued and outstanding and entitled to vote,
present in person or by proxy, shall be requisite for and shall constitute a
quorum of all meetings of the stockholders, except as otherwise provided by law,
by the Certificate of Incorporation or by these By-laws. If a quorum shall not
be present at any meeting of the stockholders, the stockholders present in
person or by proxy and entitled to vote shall, by the vote of holders of stock
representing a majority of the voting power of all shares present at the
meeting, have the power to adjourn the meeting from time to time in the manner
provided in paragraph 4 of Article I of these By-laws until a quorum shall be
present.
4. Adjournments. Any meeting of stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
5. Voting; Proxies. At each meeting of the stockholders of the
Corporation, every stockholder having the right to vote may authorize another
person to act for him or her by proxy. Such authorization must be in writing and
executed by the stockholder or his or her authorized officer, director,
employee, or agent. To the extent permitted by law, a stockholder may authorize
another person or persons to act for him or her as proxy by transmitting or
authorizing the transmission of a telegram, cablegram or other means of
electronic transmission to the person who will be the holder of the proxy or to
a proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission provided that the telegram, cablegram or electronic transmission
either sets forth or is submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder.
A copy, facsimile transmission or other reliable reproduction of a writing
or transmission authorized by this paragraph 5 of Article I may be substituted
for or used in lieu of the original writing or electronic transmission for any
and all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile transmission or other reproduction shall be a
complete reproduction of the entire original writing or transmission. No proxy
authorized hereby shall be voted or acted upon more than three years from its
date, unless the proxy provides for a longer period. No ballot, proxies or
votes, nor any revocations thereof or changes thereto shall be accepted after
the time set for the closing of the polls pursuant to paragraph 11 of Article I
of these By-laws unless the Court of Chancery upon application of a stockholder
shall determine otherwise. Each proxy shall be delivered to the inspectors of
election prior to or at the meeting. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is
1
<PAGE> 2
coupled with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by filing a subsequent duly executed proxy with the Secretary of the
Corporation. The vote for directors shall be by ballot. Unless a greater number
of affirmative votes is required by the Certificate of Incorporation, these
by-laws, the rules or regulations of any stock exchange applicable to the
Corporation, or as otherwise required by law or pursuant to any regulation
applicable to the Corporation, if a quorum exists at any meeting of
stockholders, stockholders shall have approved any matter, other than the
election of directors, if the votes cast by stockholders present in person or
represented by proxy at the meeting and entitled to vote on the matter in favor
of such matter exceed the votes cast by such stockholders against such matter.
Directors shall be elected by a plurality of the votes cast.
6. Notice. Written notice of an annual or special meeting shall be given
to each stockholder entitled to vote thereat, not less than ten nor more than
sixty days prior to the meeting. If mailed, such notice shall be deemed to be
given when deposited in the mail, postage pre-paid, directed to the stockholder
at his or her address as it appears on the records of the Corporation.
7. Inspectors of Election. The Corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors of election to act at
the meeting and make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. In the event that no inspector so appointed or designated is able to act at
a meeting of stockholders, the person presiding at the meeting shall appoint one
or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the number of shares of capital stock of the
Corporation outstanding and the voting power of each such share, (ii) determine
the shares of capital stock of the Corporation represented at the meeting and
the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares of capital stock of the Corporation
represented at the meeting and such inspectors' count of all votes and ballots.
Such certification shall specify such other information as may be required by
law. In determining the validity and counting of proxies and ballots cast at any
meeting of stockholders of the Corporation, the inspectors may consider such
information as is permitted by applicable law. No person who is a candidate for
an office at an election may serve as an inspector at such election.
8. Stock List. At least ten days before every meeting of the stockholders
a complete list of the stockholders entitled to vote at said meeting, arranged
in alphabetical order, with the post office address of each, and the number of
shares held by each, shall be prepared by the Secretary. Such list shall be open
to the examination of any stockholder for any purpose germane to the meeting,
during ordinary business hours at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held for said ten
days, and shall be produced and kept at the time and place of meeting during the
whole time thereof and subject to the inspection of any stockholder who may be
present. The original or duplicate stock ledger shall be provided at the time
and place of each meeting and shall be the only evidence as to who are the
stockholders entitled to examine the list of stockholders or to vote in person
or by proxy at such meeting.
9. Special Meetings. Special meetings of the stockholders for any purpose
or purposes may be called by the Chair of the Board, and shall be called by the
Chair of the Board or the Secretary at the request in writing of a majority of
the Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at all special meetings shall be confined
to the objects stated in the notice of special meeting.
10. Organization. Meetings of stockholders shall be presided over by the
Chair of the Board, if any, or in his or her absence by a Chair designated by
the Board of Directors, or in the absence of such designation by a Chair chosen
at the meeting. The Secretary shall act as secretary of the meeting, but in his
or her absence the Chair of the meeting may appoint any person to act as
secretary of the meeting.
2
<PAGE> 3
11. Conduct of Meetings. The date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at such meeting by the person presiding over the meeting. The
Board of Directors of the Corporation may adopt by resolution such rules or
regulations for the conduct of meetings of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the chair of any meeting of stockholders
shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chair, are
appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the chair
of the meeting, may include, without limitation, the following: (1) the
establishment of an agenda or order of business for the meeting; (2) rules and
procedures for maintaining order at the meeting and the safety of those present;
(3) limitations on attendance at or participation in the meeting to stockholders
of record of the Corporation, their duly authorized and constituted proxies or
such other persons as the chair shall permit; (4) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (5) limitations
on the time allotted to questions or comments by participants. Unless, and to
the extent determined by the Board of Directors or the chair of the meeting,
meetings of stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
12. Fixing Date for Determination of Stockholders of Record. In order that
the Corporation may determine the stockholders entitled to notice of or to vote
at any meeting of the stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting; and (2) in the case of any
other action, shall not be more than sixty days prior to such other action. If
no record date is fixed: (1)(a) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the date next preceding the
day on which the meeting is held ; and (1)(b) the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
13. Notice of Stockholder Proposal. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder (other than the nomination of a person for election as a director,
which is governed by paragraph 13 of Article II of these By-Laws), the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation (1) 60
days in advance of such meeting if such meeting is to be held on a day which is
within 30 days preceding the anniversary of the previous year's annual meeting
or 90 days in advance of such meeting if such meeting is to be held on or after
the anniversary of the previous year's annual meeting; and (2) with respect to
any other annual meeting of stockholders, the close of business on the tenth day
following the date of public disclosure of the date of such meeting. (For
purposes of this paragraph 13 of Article I of these By-laws, public disclosure
shall be deemed to include a disclosure made in a press release reported by the
Dow Jones News Services, Associated Press or a comparable national news service
or in a document filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended.) A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting (a) a
brief description of the business
3
<PAGE> 4
desired to be brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (b) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business, (c) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder, and (d) any material interest of the stockholder in such
business. Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at any annual meeting except in accordance with the
procedures set forth in this paragraph 13 of Article I. The chair of the annual
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
provisions of this paragraph 13 of Article I, and if he or she should so
determine, he or she shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
ARTICLE II
DIRECTORS
1. Number; Election; Term. The number of directors which shall constitute
the whole Board shall not be less than ten, nor more than eighteen, the exact
number within said limits to be fixed from time to time solely by resolution of
the Board, acting by the vote of not less than a majority of the directors then
in office. A majority of the directors shall consist of persons who are not
employees of the Corporation or of any subsidiary of the Corporation. Should the
death, resignation or other removal of any non-employee director result in the
failure of the requirement set forth in the preceding sentence to be met, such
requirement shall not apply during the time of the vacancy caused by the death,
resignation or removal of any such non-employee director. The remaining
directors of the Corporation shall cause any such vacancy to be filled in
accordance with these By-laws within a reasonable period of time. At the annual
meeting directors shall be elected in accordance with the requirements of these
By-laws and the Certificate of Incorporation.
2. Place of Meetings, Records. The directors may hold their meetings and
keep the books of the Corporation outside of the State of Delaware at such
places as they may from time to time determine.
3. Vacancies. Subject to the rights of the holders of any one or more
series of Preferred Stock then outstanding, if the office of any director
becomes vacant for any reason or any new directorship is created by any increase
in the authorized number of directors, a majority of the directors then in
office, although less than a quorum, may choose a successor or successors or
fill the newly created directorship. Any director so chosen shall hold office
until the next election of the class for which such director shall have been
chosen and until his successor shall be elected and qualified.
4. Organizational Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, after each annual election of directors on the day and at the place of
the next regular meeting of the board. Notice of such meeting need not be given.
Such meeting may be held at any other time or place which shall be specified in
a notice given as hereinafter provided for special meetings of the Board of
Directors or in a consent and waiver of notice thereof signed by all of the
directors.
5. Regular Meetings. Regular meetings of the Board may be held without
notice at such time and place either within or without the State of Delaware as
shall from time to time be determined by the Board.
6. Special Meetings. Special meetings of the Board may be called by the
Chair of the Board, a Vice Chair of the Board or the President by the mailing of
notice to each director at least 48 hours before the meeting or by notifying
each director of the meeting at least 24 hours prior thereto either personally,
by telephone or by electronic transmission; special meetings shall be called on
like notice by the Chair of the Board, a Vice Chair of the Board, the President
or, on the written request of any two directors, by the Secretary.
7. Quorum. At all meetings of the Board the presence of one-third of the
total number of directors determined by resolution pursuant to paragraph 1 of
this Article II to constitute the Board of Directors shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the act
of a majority of
4
<PAGE> 5
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
law, by the Certificate of Incorporation or by these By-laws.
8. Executive Committee. There shall be an Executive Committee of three or
more directors elected by a majority of the Board. The Committee shall be
composed of the Chief Executive Officer, the President, and such other directors
as the Board shall elect. The Board, by resolution, may designate one or more
directors as alternate members of the Committee, who may replace any absent or
disqualified member at any meeting of the Committee. In the absence or
disqualification of a member of the Committee, the member or members present at
any meeting of the Committee and not disqualified from voting, whether or not
he, she or they constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such absent or disqualified
member. The ratio of inside directors to outside directors serving on the
Committee shall, to the extent feasible, be as near as possible to the ratio of
inside directors to outside directors serving on the full Board. A quorum shall
be a majority of the members of the Committee. Regular meetings of the Committee
shall be held without notice at such time and place as shall from time to time
be determined by the Committee; special meetings of the Committee may be called
pursuant to the rules determined by the Committee. The Committee shall generally
perform such duties and exercise such powers as may be directed or delegated by
the Board of Directors from time to time. Except as otherwise provided by law,
the Committee shall have authority to exercise all the powers of the Board while
the Board is not in session. The act of a majority of the Committee members
present at any meeting at which there is a quorum shall be the act of the
Committee except as may be otherwise specifically provided by law, by the
Certificate of Incorporation or by these By-laws. The Committee shall keep
regular minutes of its proceedings and report the same to the Board at its next
regular meeting.
9. Additional Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more additional committees,
each committee to consist of one or more of the directors of the Corporation. In
the event that the Board shall designate a committee that shall have the power
to recommend changes in the compensation of senior management of the Corporation
and/or a committee that shall have the power to recommend nominees for election
as directors of the Corporation, the membership of such committees shall consist
solely of directors who are not employees of the Corporation or of any
subsidiary of the Corporation. The Board may designate one or more directors as
alternate members of any such additional committee, who may replace any absent
or disqualified member at any meeting of the committee. Any such committee shall
have such powers as are granted to it by the resolution of the Board or by
subsequent resolutions passed by a majority of the whole Board. Nothing herein
shall limit the authority of the Board of Directors to appoint other committees
consisting in whole or in part of persons who are not directors of the
Corporation to carry out such functions as the Board may designate. Unless
otherwise provided for in any resolution of the Board of Directors designating a
committee pursuant to this paragraph 9 of Article II: (i) a quorum for the
transaction of business of such committee shall be fifty percent or more of the
authorized number of members of such committee; and (ii) the act of a majority
of the members of such committee present at any meeting of such committee at
which there is a quorum shall be the act of the committee (except as otherwise
specifically provided for by law, the Certificate of Incorporation or by these
By-laws).
10. Presence at Meeting. Members of the Board of Directors or any
committee designated by such Board may participate in the meeting of said Board
or committee by means of conference telephone or similar communications
equipment by means of which all persons in the meeting can hear each other and
participate. The ability to participate in a meeting in the above manner shall
constitute presence at said meeting for purposes of a quorum and any action
thereat.
11. Action Without Meetings. Any action required or permitted to be taken
at any meeting of the Board of Directors or any committee designated by such
Board may be taken without a meeting, if all members of the Board or committee
consent thereto in writing and the writing or writings are filed with the
minutes of the proceedings of the Board or committee.
12. Eligibility to Make Nominations. Nominations of candidates for
election as directors at any meeting of stockholders called for election of
directors (an "Election Meeting") may be made (1) by any
5
<PAGE> 6
stockholder entitled to vote at such Election Meeting only in accordance with
the procedures established by paragraph 13 of this Article II, or (2) by the
Board of Directors. In order to be eligible for election as a director, any
director nominee must first be nominated in accordance with the provisions of
these By-laws.
13. Procedure for Nominations by Stockholders. Any stockholder entitled to
vote for the election of a director at an Election Meeting may nominate one or
more persons for such election only if written notice of such stockholder's
intent to make such nomination is delivered to or mailed and received by the
Secretary of the Corporation. Such notice must be received by the Secretary not
later than the following dates: (1) with respect to an annual meeting of
stockholders, 60 days in advance of such meeting if such meeting is to be held
on a day which is within 30 days preceding the anniversary of the previous
year's annual meeting or 90 days in advance of such meeting if such meeting is
to be held on or after the anniversary of the previous year's annual meeting;
and (2) with respect to any other annual meeting of stockholders or a special
meeting of stockholders, the close of business on the tenth day following the
date of public disclosure of the date of such meeting. (For purposes of this
paragraph 13 of Article II of these By-laws, public disclosure shall be deemed
to include a disclosure made in a press release reported by the Dow Jones News
Services, Associated Press or a comparable national news service or in a
document filed with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended.) The written
notice shall set forth (i) the name, age, business address and residence address
of each nominee proposed in such notice, (ii) the principal occupation or
employment of each such nominee, (iii) the number of shares of capital stock of
the Corporation which are beneficially owned by each such nominee, and (iv) such
other information concerning each such nominee as would be required, under the
rules of the United States Securities and Exchange Commission in a proxy
statement soliciting proxies for the election of such nominee as a director.
Such notice shall include a signed consent of each such nominee to serve as a
director of the Corporation, if elected.
14. Compliance with Procedures. If the Chair of the Election Meeting
determines that a nomination of any candidate for election as a director was not
made in accordance with the applicable provisions of these By-laws, such
nomination shall be void, provided, however, that nothing in these By-laws shall
be deemed to limit any class voting rights upon the occurrence of dividend
arrearages provided to holders of Preferred Stock.
ARTICLE III
OFFICERS
1. Election; Term of Office; Appointments. The Board of Directors, at its
first meeting after each annual meeting of stockholders, shall elect at least
the following officers: a Chair of the Board and/or a President, one or more
Vice Presidents, a Controller, a Treasurer and a Secretary. The Board may also
elect, appoint, or provide for the appointment of such other officers and agents
as may from time to time appear necessary or advisable in the conduct of the
affairs of the Corporation. Officers of the Corporation shall hold office until
their successors are chosen and qualify in their stead or until their earlier
death, resignation or removal, and shall perform such duties as from time to
time shall be prescribed by these By-laws and by the Board and, to the extent
not so provided, as generally pertain to their respective offices. The Board of
Directors may fill any vacancy occurring in any office of the Corporation at any
regular or special meeting. Two or more offices may be held by the same person.
2. Removal and Resignation. Any officer elected or appointed by the Board
of Directors or the Executive Committee may be removed at any time by the
affirmative vote of a majority of the whole Board of Directors. If the office of
any officer elected or appointed by the Board becomes vacant for any reason, the
vacancy may be filled by the Board. Any officer may resign at any time upon
written notice to the Corporation.
3. Chair of the Board. The Chair of the Board shall be the chief executive
officer of the Corporation, unless otherwise prescribed by the Board of
Directors, and shall preside at all meetings of the stockholders and of the
directors. He or she shall perform such other duties, and exercise such powers,
as from time to time shall be prescribed by these By-laws or by the Board of
Directors.
6
<PAGE> 7
4. President. The President, in the absence of the Chair of the Board or
the Vice Chair, if any, shall preside at meetings of the Directors. He or she
shall have such authority and perform such duties in the management of the
Corporation as from time to time shall be prescribed by the Board of Directors
and, to the extent not so prescribed, he or she shall have such authority and
perform such duties in the management of the Corporation, subject to the control
of the Board, as generally pertain to the office of President.
5. Vice Presidents. Vice Presidents shall perform such duties as from time
to time shall be prescribed by these By-laws, by the Chair of the Board, by the
President or by the Board of Directors, and except as otherwise prescribed by
the Board of Directors, they shall have such powers and duties as generally
pertain to the office of Vice President.
6. Secretary. The Secretary or person appointed as secretary at all
meetings of the Board and of the stockholders shall record all votes and the
minutes of all proceedings in a book to be kept for that purpose, and he or she
shall perform like duties for the Executive Committee when required. He or she
shall give, or cause to be given, notice of all meetings of the stockholders,
and of the Board of Directors if required. He or she shall perform such other
duties as may be prescribed by these By-laws or as may be assigned to him or her
by the Chair of the Board, the President or the Board of Directors, and, except
as otherwise prescribed by the Board of Directors, he or she shall have such
powers and duties as generally pertain to the office of Secretary.
7. Treasurer. The Treasurer shall have custody of the Corporation's funds
and securities. He or she shall perform such other duties as may be prescribed
by these By-laws or as may be assigned to him or her by the Chair of the Board,
the President or the Board of Directors, and, except as otherwise prescribed by
the Board of Directors, he or she shall have such powers and duties as generally
pertain to the office of Treasurer.
8. Controller. The Controller shall have charge of the Corporation's books
of account, and shall be responsible for the maintenance of adequate records of
all assets, liabilities and financial transactions of the Corporation. The
Controller shall prepare and render such balance sheets, profit and loss
statements and other financial reports as the Board of Directors, the Chair of
the Board or the President may require. He or she shall perform such other
duties as may be prescribed by these By-laws or as may be assigned to him or her
by the Chair of the Board, the President or the Board of Directors, and, except
as otherwise prescribed by the Board of Directors, he or she shall have such
powers and duties as generally pertain to the office of Controller.
ARTICLE IV
STOCK
1. Certificates of Stock. The certificates of stock of the Corporation
shall be in the form or forms from time to time approved by the Board of
Directors. Such certificates shall be numbered and registered, shall exhibit the
holder's name and the number of shares, and shall be signed in the name of the
Corporation by the following officers of the Corporation: the Chair of the Board
of Directors, or the President or a Senior Vice President or Vice President; and
by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. If any certificate is manually signed (1) by a transfer agent other
than the Corporation or its employee, or (2) by a registrar other than the
Corporation or its employee, any other signature on the certificate, including
those of the aforesaid officers of the Corporation, 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.
2. Lost Certificates. The Board of Directors or any officer of the
Corporation to whom the Board of Directors has delegated authority may authorize
any transfer agent of the Corporation to issue, and any registrar of the
Corporation to register, at any time and from time to time unless otherwise
directed, a new certificate or certificates of stock in the place of a
certificate or certificates theretofore issued by the Corporation, alleged to
have been lost or destroyed, upon receipt by the transfer agent of evidence of
such loss or destruction, which may be the affidavit of the applicant; a bond
indemnifying the Corporation and any transfer agent and registrar of the class
of stock involved against claims that may be made against it or them
7
<PAGE> 8
on account of the lost or destroyed certificate or the issuance of a new
certificate, of such kind and in such amount as the Board of Directors shall
have authorized the transfer agent to accept generally or as the Board of
Directors or an authorized officer shall approve in particular cases; and any
other documents or instruments that the Board of Directors or an authorized
officer may require from time to time to protect adequately the interest of the
Corporation. A new certificate may be issued without requiring any bond when, in
the judgment of the directors, it is proper to do so.
3. Transfers of Stock. Transfers of stock shall be made upon the books of
the Corporation upon presentation of the certificates by the registered holder
in person or by duly authorized attorney, or upon presentation of proper
evidence of succession, assignment or authority to transfer and upon surrender
of the certificate therefor.
4. Holder of Record. The Corporation shall be entitled to treat the holder
of record of any share or shares 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, save as expressly provided by the laws of
the State of Delaware.
ARTICLE V
INDEMNIFICATION AND SEVERANCE
1. Right to Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, nonprofit entity, or other enterprise,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys' fees) reasonably incurred
by such person. The Corporation shall be required to indemnify a person in
connection with a proceeding (or part thereof) initiated by such person only if
the proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation.
2. Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred by an officer or director of the
Corporation in defending any proceeding in advance of its final disposition,
provided, however, that the payment of such expenses shall be made only upon
receipt of an undertaking by the director or officer to repay all amounts
advanced if it shall ultimately be determined that the director or officer is
not entitled to be indemnified. Payment of such expenses incurred by other
employees and agents of the Corporation may be made by the Board of Directors in
its discretion upon such terms and conditions, if any, as it deems appropriate.
3. Claims. If a claim for indemnification or payment of expenses
(including attorneys' fees) under this Article is not paid in full within sixty
days after a written claim therefor has been received by the Corporation the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden
of proving that the claimant was not entitled to the requested indemnification
or payment of expenses under applicable law.
4. Nonexclusivity of Rights. The right conferred on any person by this
Article V shall not be exclusive of any other rights which such person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, these By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
5. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
8
<PAGE> 9
trust, enterprise or non-profit entity shall be reduced by any amount such
person may collect as indemnification from such other corporation, partnership,
joint venture, trust, non-profit entity, or other enterprise.
6. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article V shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
7. Severance. Any written agreement or any amendment of an existing
written agreement that provides for payments to a director, officer or other
employee of the Corporation or any subsidiary of the Corporation upon (i) a
"change in control" of the Corporation or (ii) the termination or constructive
termination of the employment of such director, officer, or other employee
following a "change in control" of the Corporation, must be approved by (a) the
unanimous vote of the members of the committee of the Board of Directors which
has the power to recommend changes in the compensation of the senior management
of the Corporation, if any, and (b) a majority of the Directors who are not
employees of the Corporation or any subsidiary of the Corporation. For the
purposes hereof, a "change of control" of the Corporation shall mean through (i)
the accumulation by a person or group of related persons of 20% or more of the
Company's outstanding capital stock and/or (ii) a change in the composition of a
majority of the Corporation's Board of Directors without the approval of the
incumbent Board.
ARTICLE VI
MISCELLANEOUS
1. Delaware Office. The address of the registered office of the
Corporation in the State of Delaware shall be at Corporation Trust Center, 1209
Orange Street, Wilmington, County of New Castle, Delaware 19801 and the name of
its registered agent at such address is Corporation Trust Company.
2. Other Offices. The Corporation may also have an office in the City and
State of New York, and such other offices at such places as the Board of
Directors from time to time may appoint or the business of the Corporation may
require.
3. Seal. The corporate seal shall be in the form adopted by the Board of
Directors. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise. The seal may be affixed by any
officer of the Corporation to any instrument executed by authority of the
Corporation, and the seal when so affixed may be attested by the signature of
any officer of the Corporation.
4. Notice. Whenever notice is required to be given by law, the Certificate
of Incorporation or these By-laws, a written waiver signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
5. Amendments. The Board of Directors shall have the power to adopt, amend
or repeal the By-laws of the Corporation by the affirmative action of a majority
of its members. The By-laws may be adopted, amended or repealed by the
affirmative vote of a majority of the stock issued and outstanding and entitled
to vote at any regular meeting of the stockholders or at any special meeting of
the stockholders if notice of such proposed adoption, amendment or repeal be
contained in the notice of such special meeting.
6. Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minutes books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs, or any other information storage device,
provided that the records so kept can be converted into clearly legible form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
7. Checks. All checks, drafts, notes and other orders for the payment of
money shall be signed by such officer or officers or agents as from time to time
may be designated by the Board of Directors or by such officers of the
Corporation as may be designated by the Board to make such designation.
8. Fiscal Year. The fiscal year shall begin the first day of January in
each year.
9
