EXHIBIT 3
Published on August 13, 2004
BY-LAWS
of
BECTON, DICKINSON AND COMPANY
A New Jersey Corporation
as Amended and Restated as of July 27, 2004
ARTICLE I
Offices
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The registered office of Becton, Dickinson and Company ("Company")
shall be in the Borough of Franklin Lakes, County of Bergen, State of New Jersey
or such other place within or without the State of New Jersey as the Board of
Directors may designate. The Company may also establish and have such other
offices within or without the State of New Jersey, as the Board of Directors may
designate or its business may require.
ARTICLE II
Meetings of Shareholders
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SECTION 1. PLACE OF MEETINGS. Meetings of the shareholders shall be
held at the registered office of the Company in New Jersey, or at such other
place, within or without the State of New Jersey, as may be designated by the
Board of Directors and stated in the notice of the meeting.
SECTION 2.A. ANNUAL MEETINGS. The annual meeting of shareholders for
the election of directors and the transaction of such other business as may be
related to the purposes set forth in the notice of the meeting shall be held at
such time as may be fixed by the Board of Directors.
B. SPECIAL MEETING FOR ELECTION OF DIRECTORS. If the annual meeting of
shareholders is not held on the date designated, the Board of Directors may call
a special meeting of the shareholders for the election of directors and the
transaction of other business.
C. SPECIAL MEETINGS. Special meetings of the shareholders may be called
by the Board of Directors or by the Chairman of the Board or by the President,
and shall be called by the Chairman of the Board or by the President upon
written request of a majority of the Directors then in office, which request
shall state the time, place and purpose of the meeting.
D. ADVANCE NOTICE OF NOMINATIONS AND BUSINESS TO BE TRANSACTED AT
ANNUAL MEETINGS OF SHAREHOLDERS. No business may be transacted at an annual
meeting of shareholders, other than business that is either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors (or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (c) otherwise
properly brought before the annual meeting by any shareholder of the Company (i)
who is a shareholder of record on the date of the giving of the notice provided
for in this Section 2.D. and on the record date for the determination of
shareholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 2.D.
In addition to any other applicable requirements, for nominations of
persons for election to the Board of Directors or for other business to be
properly brought before an annual meeting by a shareholder, such shareholder
must have given timely notice thereof in proper written form to the Secretary of
the Company.
To be timely, a shareholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Company not
less than 90 days nor more than 120 days prior to the anniversary date of the
immediately preceding annual meeting of shareholders; provided however, that in
the event that the annual meeting is called for on a date that is not within 30
days before or after such anniversary date, notice by the shareholder in order
to be timely must be so received not earlier than the 120th day prior to such
annual meeting and not later than the close of business on the later of the 90th
day prior to such annual meeting or the tenth day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs.
In no event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of shareholder's notice as described
above.
Notwithstanding anything in the first sentence of the preceding
paragraph to the contrary, in the event that the number of directors to be
elected to the Board of Directors is increased and there is no notice or public
disclosure by the Company naming all of the nominees for director or specifying
the size of the increased Board of Directors at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 2.D. shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the Company
not later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made.
To be in proper written form, a shareholder's notice to the Secretary
must set forth (a) as to each person whom the shareholder proposes to nominate
for election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
and Rule 14a-11 thereunder (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected), (b) as to each matter such shareholder proposes to bring before the
annual meeting, a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (c) the name and record address of such shareholder, (d) the class or
series and number of shares of capital stock of the Company that are owned
beneficially or of record by such shareholder, (e) a description of all
arrangements or understandings between such shareholder and any other person or
persons (including their names) in connection with such nomination or proposal
of such business by such shareholder and any material interest of such
shareholder in such business and (f) a representation that such shareholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
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No business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 2.D; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in Section 2.D. shall be deemed to preclude discussion by
any shareholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
SECTION 3. QUORUM. The presence, in person or by proxy, of the holders
of shares representing a majority of the votes entitled to be cast at a meeting
shall constitute a quorum. The shareholders present in person or by proxy at a
duly organized meeting may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. If a quorum not be present or represented at any meeting, the Chairman
of the meeting or a majority of the shareholders present in person, or by proxy,
shall have power to adjourn the meeting without notice until the required voting
shares shall be represented. At such adjourned meeting with the requisite amount
of voting shares represented, any business may be transacted which might have
been transacted at the meeting as originally notified.
SECTION 4. NOTICE OF MEETINGS. A written notice of each annual or
special meeting of the shareholders of the Company, signed by the Chairman of
the Board or the President or the Secretary, which shall state the time, place
and purpose of such meeting, shall be delivered personally or mailed, not less
than 10 days nor more than 60 days before the date of any such meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, the notice
shall be directed to the shareholder at his address as it appears on the records
of the stock transfer agent. Any shareholder, in person or by proxy, may at any
time by a duly signed statement in writing to that effect, waive any statutory
or other notice of any meeting, whether such statement be signed before or after
such meeting.
SECTION 5. VOTING. At all meetings of the shareholders, each holder of
common stock having the right to vote, and present at the meeting in person or
by proxy, shall be entitled to one vote for each full share of common stock of
the Company entitled to vote and registered in his name. Each holder of
preferred stock of any series shall have such voting powers, if any, as the
Board of Directors shall have fixed by resolution prior to the issuance of any
shares of such series. Whenever any action is to be taken by vote of the
shareholders, it shall be authorized by a majority of the votes cast at a
meeting of the shareholders by the holders of shares entitled to vote, unless a
greater plurality is required by law or the Certificate of Incorporation.
SECTION 6. PROXIES. Any shareholder of record entitled to vote may be
represented at any annual or special meeting of the shareholders by a duly
appointed proxy. All proxies shall be written and properly signed, but shall
require no other attestation, and shall be filed with the Secretary of the
meeting before being voted.
SECTION 7. ORGANIZATION. The Chairman of the Board, or in the absence
of the Chairman of the Board, the Vice Chairman or the President, shall act as
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chairman of the meeting at all meetings of the shareholders. The Secretary, or
in his absence one of the Assistant Secretaries, shall act as secretary of the
meeting. In case none of the officers above designated to act as Chairman or
Secretary of the meeting shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a vote of the shareholders.
SECTION 8. ORDER OF BUSINESS. The order of business at all meetings of
the shareholders shall be as determined by the Chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a vote of the shareholders.
SECTION 9. RECORD DATE FOR ACTION BY WRITTEN CONSENT. In order that the
Corporation may determine the shareholders entitled to consent to corporate
action in writing without a meeting, 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 date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. Any shareholder of record
seeking to have the shareholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date has been fixed by
the Board of Directors within 10 days of the date on which such a request is
received, the record date for determining shareholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in New Jersey,
its principal place of business or to any officer or agent of the Corporation
having custody of the book in which proceedings of meetings of shareholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
shareholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action. Nothing in this
Article II, Section 9 shall require the Board of Directors to take any action
with respect to any proposed action or other proposal for which consent is
sought other than to fix a record date as provided for herein; and the fixing of
any such record date shall not be deemed to be an action taken by the Board of
Directors with respect to any such proposed action or other proposal for which
consent is sought for any other purpose.
SECTION 10. INSPECTORS OF WRITTEN CONSENT. In the event of the
delivery, in the manner provided by Article II, Section 9, to the Company of the
requisite written consent or consents to take corporate action and/or any
related revocation or revocations, the Company shall engage nationally
recognized independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the consents and revocations.
For the purpose of permitting the inspectors to perform such review, no action
by written consent without a meeting shall be effective until such
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date as the independent inspectors certify to the Company that the consents
delivered to the Company in accordance with Article II, Section 9 represent at
least the minimum number of votes that would be necessary to take the corporate
action. Nothing contained in this paragraph shall in any way be construed to
suggest or imply that the Board of Directors or any shareholder shall not be
entitled to contest the validity of any consent or revocation thereof, whether
before or after such certification by the independent inspectors, or to take any
other action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
SECTION 11. EFFECTIVENESS OF WRITTEN CONSENT. Every written consent
shall bear the date of signature of each shareholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the earliest dated written consent received in
accordance with Article II, Section 9, a written consent or consents signed by a
sufficient number of holders to take such action are delivered to the Company in
the manner prescribed in Article II, Section 9.
ARTICLE III
Directors
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SECTION 1. QUALIFICATIONS. Each Director shall be at least 21 years of
age, a shareholder of record of the Company, and shall be elected in the manner
provided by these By-Laws.
SECTION 2. DUTIES AND POWERS. The Board of Directors shall control and
manage the business and affairs of the Company, and shall exercise all powers of
the Company and perform all acts which are not required to be exercised or
performed by the shareholders. The Directors may adopt such rules and
regulations for the conduct of their meetings and the management of the Company
as they may deem proper.
SECTION 3. PLACE OF MEETINGS. Meetings of the Board of Directors shall
be held at the principal office of the Company or at such other place within or
without the State of New Jersey, as the Chairman of the Board or the Board may
designate.
SECTION 4. TELEPHONE MEETINGS. Any or all Directors may participate in
a meeting of the Board or a committee of the Board by means of conference
telephone or any means of communication by which all persons participating in
the meeting are able to hear each other.
SECTION 5. NOTICE OF MEETINGS. There shall be an annual meeting of the
Board of Directors held without notice immediately following the annual meeting
of shareholders, or as soon thereafter as convenient, at the same place as the
annual meeting of shareholders unless some other location is designated by the
Chairman of the Board or by the President. Regular meetings, without notice, may
be held at such time and place as the Board of Directors may designate. The
Chairman of the Board or the President may call any special meeting of the Board
of Directors, and shall do so whenever
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requested in writing by at least one-third of the Directors. Notice of each
special meeting shall be mailed to each director at least four days before the
date on which the meeting is to be held, or be telephoned or sent to each
Director by telegraph, telex, TWX, cable, wireless or similar means of
communication, or be delivered in person, not later than the day before the date
on which such meeting is to be held. The Board of Directors may meet to transact
business at any time and place without notice, provided that each director shall
be present, or that any Director or Directors not present shall waive notice in
writing, either before or after such meeting. The attendance of any Director at
a meeting without protesting prior to the conclusion of the meeting the lack of
notice of such meeting shall constitute a waiver of notice by him. Neither the
business to be transacted at, nor the purpose of, any meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting.
Notice of an adjourned meeting need not be given if the time and place are fixed
at the meeting adjourning and if the period of adjournment does not exceed 10
days in any one adjournment.
SECTION 6. QUORUM. A majority of the Directors then in office shall
constitute a quorum for the transaction of business, but the Director or
Directors present, if less than a quorum, may adjourn any meeting from time to
time until such quorum shall be present. All questions coming before the Board
of Directors shall be determined and decided by a majority vote of the Directors
present, unless the vote of a greater number is required by statute, the
Certificate of Incorporation or these By-Laws.
SECTION 7. ACTION WITHOUT A MEETING. The Board of Directors may act
without a meeting if, prior or subsequent to such action, each Director shall
consent in writing to such action. Such written consent or consents shall be
filed with the minutes of the proceedings of the Board of Directors.
SECTION 8. COMPENSATION OF DIRECTORS. The Board may, by the affirmative
vote of a majority of the Directors then in office, fix reasonable fees or
compensation of the Directors for services to the Company, including attendance
at meetings of the Board of Directors or Committees of the Board. Nothing herein
contained shall be construed to preclude any Director from serving the Company
in any other capacity and receiving compensation therefor. Each Director shall
be entitled to receive reimbursement for reasonable expenses incurred in the
performance of his duties.
ARTICLE IV
Committees
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SECTION 1. HOW CONSTITUTED AND POWERS. The Board of Directors, by
resolution of a majority of the Directors then in office, shall appoint from
among its members the committees enumerated in the By-laws and may appoint one
or more other committees. The Board shall designate one member of each committee
its chairman. To the extent provided in the By-law or any resolution conferring
or limiting its powers each committee shall have and may exercise all the
authority of the Board, except that no committee shall:
(a) make, alter, or repeal any By-law of the Company;
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(b) elect, appoint or remove any Director, or elect, appoint or remove
any corporate officer;
(c) submit to shareholders any action that requires approval of
shareholders;
(d) amend or repeal any resolution adopted by the Board of Directors
which by its terms is amendable or repealable only by the Board;
(e) act on matters assigned to other committees appointed by the Board
of Directors;
(f) declare or pay any dividends or issue any additional shares of
authorized and unissued capital stock; or
(g) create, dissolve or fill any vacancy on any committee appointed by
the Board of Directors.
The Board, by resolution of a majority of the Directors then in office may fill
any vacancy in any committee; appoint one or more alternate members of any
committee to act in the absence or disability of members of such committees with
all the powers of such absent or disabled members; or remove any director from
membership on any committee.
SECTION 2. AUDIT COMMITTEE.
Purpose
The Audit Committee is created by the Board of Directors of the Company
to:
o assist the Board in its oversight of
o the integrity of the financial statements of the Company;
o the qualifications, independence and performance of the Company's
independent auditors;
o the performance of the Company's internal audit function; and
o compliance by the Company with legal and regulatory requirements; and
o prepare the audit committee report that Securities and Exchange Commission
rules require to be included in the Company's annual proxy statement.
Membership
The Audit Committee shall consist of at least three members, comprised
solely of independent directors meeting the independence and experience
requirements of the New York Stock Exchange. The Corporate Governance and
Nominating Committee shall recommend nominees for appointment to the Audit
Committee annually and as vacancies or newly created positions occur. Audit
Committee members shall be appointed by the Board and may be removed by the
Board at any time. The Corporate Governance and Nominating Committee shall
recommend to the Board, and the Board shall designate, the Chair of the Audit
Committee.
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Authority and Responsibilities
In addition to any other responsibilities which may be assigned from
time to time by the Board, the Audit Committee is responsible for the following
matters:
Independent Auditors
o The Audit Committee has the sole authority to appoint, compensate, retain and
terminate the independent auditors of the Company (subject, if applicable, to
shareholder ratification), including sole authority to approve all audit
engagement fees and terms and all non-audit services to be provided by the
independent auditors. The Audit Committee shall pre-approve all engagements
for audit services and each non-audit service to be provided by the Company's
independent auditors. The Audit Committee may consult with management in the
decision making process, but may not delegate this authority to management.
The Audit Committee may, from time to time, delegate its authority to
pre-approve non-audit services to one or more Audit Committee members,
provided that such designees present any such approvals to the full Audit
Committee at the next Audit Committee meeting. The independent auditors shall
report directly to the Audit Committee.
o The Audit Committee shall review and approve the scope and staffing of the
independent auditors' annual audit plan(s) and shall oversee the audit and
audit-related work of the independent auditors, including resolution of
disagreements, if any, between management and the auditor regarding financial
reporting.
o The Audit Committee shall evaluate the independent auditors' qualifications,
performance and independence, and shall present its conclusions and
recommendations with respect to the independent auditors to the full Board on
at least an annual basis. As part of such evaluation, at least annually, the
Audit Committee shall:
o obtain and review a report or reports from the Company's independent
auditors:
o describing the independent auditors' internal quality-control procedures;
o describing any material issues raised by (i) the most recent internal
quality-control review or peer review of the auditing firm, or (ii) any
inquiry or investigation by governmental or professional authorities,
within the preceding five years, regarding one or more independent audits
carried out by the auditing firm; and any steps taken to deal with any
such issues;
o describing all relationships between the independent auditors and the
Company; and
o assuring that Section 10A of the Securities Exchange Act of 1934 has not
been implicated;
o review and evaluate the partners of the independent auditor team(s),
particularly the lead audit and reviewing partners;
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o consider whether to rotate the independent auditors; and
o obtain the opinion of management and the internal auditors on the
independent auditors' performance.
o The Audit Committee shall establish policies for the Company's hiring of
current or former employees of the independent auditors.
Internal Auditors
o At least annually, the Audit Committee shall evaluate the performance,
responsibilities, budget and staffing of the Company's internal audit
function and review the internal audit plan. Such evaluation shall include a
review of the responsibilities, budget and staffing of the Company's internal
audit function with the independent auditors.
Financial Statements; Disclosure and Other Risk Management and Compliance
Matters
o The Audit Committee shall review with management and the independent
auditors, in separate meetings if the Audit Committee deems it appropriate:
o the annual audited financial statements, including the Company's
disclosures under "Management's Discussion and Analysis of Financial
Condition and Results of Operations", prior to the filing of the Company's
Form 10-K;
o the quarterly financial statements, including the Company's disclosures
under "Management's Discussion and Analysis of Financial Condition and
Results of Operations", prior to the filing of the Company's Form 10-Q;
o any analyses or other written communications prepared by management, the
internal auditors and/or the independent auditors setting forth
significant financial reporting issues and judgments made in connection
with the preparation of the financial statements, including analyses of
the effects of alternative GAAP methods on the financial statements;
o the critical accounting policies and practices of the Company;
o off-balance sheet transactions and structures;
o any major issues regarding accounting principles and financial statement
presentations, including any significant changes in the Company's
selection or application of accounting principles; and
o regulatory and accounting initiatives or actions applicable to the Company
(including any SEC investigations or proceedings).
o The Audit Committee shall review, in conjunction with management, the
Company's policies with respect to the Company's earnings press releases and
all financial information, such as earnings guidance, provided to analysts
and rating agencies, including the types of information to be disclosed and
the types of presentation to be made and paying particular attention to the
use of "pro forma" or "adjusted" non-GAAP information.
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o The Audit Committee shall, in conjunction with the CEO and CFO of the
Company, review the Company's internal controls and disclosure controls and
procedures, including whether there are any significant deficiencies in the
design or operation of such controls and procedures, material weaknesses in
such controls and procedures, any corrective actions taken with regard to
such deficiencies and weaknesses and any fraud involving management or other
employees with a significant role in such controls and procedures.
o The Audit Committee shall review and discuss with the independent auditors
any audit problems or difficulties and management's response thereto,
including those matters required to be discussed with the Audit Committee by
the auditors pursuant to Statement on Auditing Standards No. 61, such as:
o any restrictions on the scope of the independent auditors' activities or
access to requested information;
o any accounting adjustments that were noted or proposed by the auditors but
were "passed" (as immaterial or otherwise);
o any communications between the audit team and the audit firm's national
office regarding auditing or accounting issues presented by the
engagement;
o any management or internal control letter issued, or proposed to be
issued, by the auditors; and
o any significant disagreements between the Company's management and the
independent auditors.
o The Audit Committee shall review the Company's policies and practices that
govern the process by which risk assessment and management is undertaken
(with the understanding that the review of policies and practices relating to
specific areas of risk assessment and management may be the responsibility of
other committees of the Board). The Company's management shall also discuss
with the Audit Committee the Company's major financial risk exposures and the
steps that have been taken to monitor and control such exposures.
o The Audit Committee shall establish and maintain procedures for:
o the receipt, retention and treatment of complaints received by the Company
regarding accounting, internal accounting controls or auditing matters,
and
o the confidential, anonymous submission by employees of the Company of
concerns regarding questionable accounting or auditing matters.
o The Audit Committee shall review any significant complaints regarding
accounting, internal accounting controls or auditing matters received
pursuant to such procedures.
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o The Audit Committee shall prepare the audit committee report that Securities
and Exchange Commission rules require to be included in the Company's annual
proxy statement.
Reporting to the Board
o The Audit Committee shall report to the Board periodically. This report shall
include a review of any issues that arise with respect to the quality or
integrity of the Company's financial statements, the Company's compliance
with legal and regulatory requirements, the qualifications, independence and
performance of the Company's independent auditors, the performance of the
internal audit function, compliance by the Company with legal and regulatory
requirements and any other matters that the Audit Committee deems appropriate
or is requested to be included by the Board.
o At least annually, the Audit Committee shall evaluate its own performance and
report to the Board on such evaluation.
o The Audit Committee shall periodically review and assess the adequacy of this
charter and recommend any proposed changes to the Corporate Governance and
Nominating Committee.
Procedures
The Audit Committee shall meet as often as it determines is appropriate
to carry out its responsibilities under this charter, but not less frequently
than quarterly. The Chair of the Audit Committee, in consultation with the other
committee members and management, shall determine the frequency and length of
the committee meetings and shall determine meeting agendas consistent with this
charter.
The Audit Committee shall meet separately, periodically, with
management, with internal auditors or other personnel responsible for the
internal audit function and with the independent auditors.
The Audit Committee is authorized to retain special legal, accounting
or other advisors, as it determines necessary to carry out its duties, and may
request any officer or employee of the Company or the Company's outside counsel
or independent auditors to meet with any members of, or advisors to, the Audit
Committee.
The Company shall provide for appropriate funding, as determined by the
Audit Committee, for payment of (i) compensation to the independent auditors
(ii) compensation to any advisors employed by the Audit Committee and (iii)
ordinary administrative expenses of the Audit Committee that are necessary or
appropriate in carrying out its duties.
The Audit Committee may delegate its authority to subcommittees or the
Chair of the Audit Committee when it deems appropriate and in the best interests
of the Company.
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Limitations Inherent in the Audit Committee's Role
While the Audit Committee has the responsibilities and powers set forth
in this Charter, it is not the duty of the Audit Committee to plan or conduct
audits or to determine that the Company's financial statements are complete and
accurate and are in accordance with generally accepted accounting principles.
This is the responsibility of management and the independent auditor. Nor is it
the duty of the Audit Committee to conduct investigations, to ensure compliance
with laws and regulations and the Company's Code of Conduct, or to assess and
manage the Company's exposure to risk. This is the responsibility of management,
subject to oversight by the Board of Directors.
SECTION 3. COMPENSATION AND BENEFITS COMMITTEE.
Purpose
The Compensation and Benefits Committee (the "Compensation Committee")
is created by the Board of Directors of the Company to:
o oversee the Company's compensation and benefits policies generally, including
the administration of employee benefits and benefit plans for the Company and
its subsidiaries;
o oversee and set compensation for the Company's senior executives; and
o prepare the report on executive compensation that Securities and Exchange
Commission rules require to be included in the Company's annual proxy
statement.
Membership
The Compensation Committee shall consist of at least three members,
comprised solely of independent directors meeting the independence requirements
of the New York Stock Exchange, all of whom also shall be "nonemployee
directors" within the meaning of Rule 16b-3(b)(3) under the Securities Exchange
Act of 1934, as amended. The Corporate Governance and Nominating Committee shall
recommend nominees for appointment to the Compensation Committee annually and as
vacancies or newly created positions occur. Compensation Committee members shall
be appointed by the Board and may be removed by the Board at any time. The
Corporate Governance and Nominating Committee shall recommend to the Board, and
the Board shall designate, the Chair of the Compensation Committee.
Authority and Responsibilities
In addition to any other responsibilities which may be assigned from
time to time by the Board, the Compensation Committee is responsible for the
following matters.
Compensation and Benefit Policies and Administration
o The Compensation Committee shall review and approve the Company's
compensation and benefits policies generally (subject, if applicable, to
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shareholder ratification), including reviewing and making recommendations to
the Board with respect to any incentive-compensation plans and equity-based
plans of the Company. In reviewing compensation and benefits policies, the
Compensation Committee may consider any factors that it deems appropriate.
The Compensation Committee shall report the results of such review and any
action it takes with respect to the Company's compensation and benefits
policies to the Board, including any new benefits or changes in existing
benefits.
o The Compensation Committee shall appoint from among management of the Company
committees to administer employee benefits and benefit plans.
o The Compensation Committee shall serve as the granting and administrative
committee for the Company's stock option and equity-based plans.
Executive Compensation
o The Compensation Committee shall review and approve for each of the Company's
senior executives his or her (i) annual base salary, (ii) annual incentive
compensation, (iii) long-term incentive compensation, (iv) employment,
severance and change-in-control agreements, if any, with the Company or any
subsidiary and (v) any other compensation or ongoing perquisites. In so
reviewing and approving executive compensation, the Compensation Committee
shall, among other things:
o Review and approve corporate goals and objectives relevant to executive
compensation;
o evaluate each senior executive's performance in light of such goals and
objectives and, either as a committee or together with the other
independent members of the Board (as directed by the Board), set each
senior executive's compensation based on such evaluation and such other
factors as may be deemed appropriate and in the best interests of the
Company, provided that the Chief Executive Officer's compensation shall be
reviewed and approved by the Board; and
o determine any long-term incentive component of each senior executive's
compensation based on awards given to such executive in past years, the
Company's performance, shareholder return and the value of similar
incentive awards relative to such targets at comparable companies and such
other factors as the Compensation Committee deems appropriate and in the
best interests of the Company.
o The Compensation Committee shall report the results of such review and any
action it takes with respect to the compensation of the Company's senior
executives to the Board.
o The Compensation Committee may delegate to one or more directors of the
Company the authority to make grants and awards to any non-Section 16 officer
of the Company under such of the Company's incentive-compensation or other
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equity-based plans as the Compensation Committee deems appropriate and in
accordance with the terms of such plans.
Disclosure
o The Compensation Committee shall prepare the report on executive compensation
that Securities and Exchange Commission rules require to be included in the
Company's annual proxy statement.
Reporting to the Board
o The Compensation Committee shall report to the Board periodically. This
report shall include a review of any recommendations or issues that arise
with respect to Company compensation and benefits policies, executive
compensation and any other matters that the Compensation Committee deems
appropriate or is requested to be included by the Board.
o At least annually, the Compensation Committee shall evaluate its own
performance and report to the Board on such evaluation.
o The Compensation Committee shall periodically review and assess the adequacy
of this charter and recommend any proposed changes to the Corporate
Governance and Nominating Committee.
Procedures
The Compensation Committee shall meet as often as it determines is
appropriate to carry out its responsibilities under this charter. The Chair of
the Compensation Committee, in consultation with the other committee members and
management, shall determine the frequency and length of the committee meetings
and shall determine meeting agendas consistent with this charter.
The Compensation Committee has the sole authority to retain and
terminate any compensation consultant assisting the Compensation Committee in
the evaluation of CEO or senior executive compensation, including sole authority
to approve all such compensation consultants' fees and other retention terms.
The Company shall provide for appropriate funding, as determined by the
Compensation Committee, for payment of (i) compensation to any consultant
retained by the Compensation Committee and (ii) ordinary administrative expenses
of the Compensation Committee that are necessary or appropriate in carrying out
its duties.
The Compensation Committee may delegate its authority to subcommittees
or to the Chairman of the Compensation Committee when it deems appropriate and
in the best interests of the Company.
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SECTION 4. CORPORATE AFFAIRS COMMITTEE.
Purpose
The Corporate Affairs Committee is created by the Board of Directors of
the Company to assist the Board in its oversight of matters impacting the
Company's image and reputation and its standing as a responsible corporate
citizen.
Membership
The Corporate Affairs Committee shall consist of at least three
members. The Corporate Governance and Nominating Committee shall recommend
nominees for appointment to the Committee annually and as vacancies or newly
created positions occur. Committee members shall be appointed by the Board and
may be removed by the Board at any time. The Corporate Governance and Nominating
Committee shall recommend to the Board, and the Board shall designate, the Chair
of the Committee.
Authority and Responsibilities
In addition to any other responsibilities which may be assigned from
time to time by the Board, the Committee is to assist the Board in its oversight
of the Company's policies, practices and procedures in the general areas of
ethical conduct and legal compliance, including, but not limited to, issues
relating to the following areas:
o Communications
- Policies and practices relating to communications
with key stakeholders (other than the financial
community), including shareholders; governments;
employees; and the general public. This also includes
crisis management organization and activities.
o Employment Practices
- Equal employment opportunity and workforce diversity;
business ethics; health and safety matters; and
compliance with laws.
o Community Relations
- Policies with respect to charitable contributions
(including the underlying goals and purposes of the
Company's contribution program).
o Environment
- Policies and compliance.
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o Customer Relations
- Quality control; recall process; and litigation relating to
products or to business practices.
o Business Practices and Ethics
- Oversee compliance with laws and with the Company's
Business Conduct and Compliance Guide (the "Code of
Conduct") including, without limitation, in the areas
of the Foreign Corrupt Practices Act; anti-boycott
legislation; antitrust compliance; political
contributions (including activities of the BD
political action committee) and conflict of interest
and insider trading policies.
- Communication and training regarding expected standards of
conduct.
- Review and make recommendations to the Board
regarding shareholder proposals that relate to public
policy.
The Committee also shall review all requests for and, if it determines
any such requests appropriate after consultation with the Corporate Governance
and Nominating Committee of the Board, may grant waivers of provisions of the
Company's Code of Conduct, to the Company's executive officers and directors.
The Committee shall report any such waiver to the full Board of Directors.
Reporting to the Board
The Committee shall report to the Board periodically. This report shall
include a review of any issues that arise with respect to the Company's
policies, practices and procedures, and any other matter that the Committee
deems appropriate or is requested to be included by the Board.
At least annually, the Committee shall evaluate its own performance and
report to the Board on such evaluation.
The Committee shall periodically review and assess the adequacy of this
Charter and recommend any proposed changes to the Corporate Governance and
Nominating Committee.
Procedures
The Corporate Affairs Committee shall meet as often as it determines is
appropriate to carry out its responsibilities under this Charter. The Chair of
the Corporate Affairs Committee, in consultation with the other committee
members and management, shall determine the frequency and length of the
committee meetings and shall determine meeting agendas consistent with this
Charter.
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The Committee is authorized to retain special legal or other advisors,
as it determines necessary to carry out its duties, and may request any officer
or employee of the Company or the Company's outside counsel to meet with any
members of, or advisors to, the Committee.
The Company shall provide for appropriate funding, as determined by the
Committee, for payment of (i) compensation to any advisors retained by the
Committee and (ii) ordinary administrative expenses of the Committee that are
necessary or appropriate in carrying out its duties.
The Committee may delegate its authority to subcommittees or the Chair
of the Committee when it deems appropriate and in the best interests of the
Company.
Limitations Inherent in the Role of the Corporate Affairs Committee
While the Corporate Affairs Committee has the responsibilities and
powers set forth in this Charter, it is not the duty of the Corporate Affairs
Committee to ensure compliance with laws and regulations and the Company's Code
of Conduct. This is the responsibility of management, subject to oversight by
the Board of Directors.
SECTION 5. CORPORATE GOVERNANCE AND NOMINATING COMMITTEE.
Purpose
The Corporate Governance and Nominating Committee (the "Committee") is
created by the Board of Directors of the Company to:
o identify individuals qualified to become Board members, and recommend to the
Board director nominees for election at the next annual or special meeting of
shareholders at which directors are to be elected or to fill any vacancies or
newly created directorships that may occur between such meetings;
o recommend directors for appointment to Board committees, and recommend a
director for appointment as the Lead Director;
o evaluate Board performance;
o oversee and recommend to the Board compensation for the Company's directors;
and
o review and recommend to the Board, as appropriate, modifications or additions
to the Corporate Governance Principles of the Company.
Membership
The Committee shall consist of at least four members, comprised solely
of independent directors meeting the independence requirements of the New York
Stock Exchange. The Board shall appoint members to the Committee annually and as
vacancies or newly created positions occur. Committee members may be removed by
the
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Board at any time. The Committee shall recommend to the Board, and the Board
shall designate, the Chair of the Committee.
Authority and Responsibilities
In addition to any other responsibilities which may be assigned from
time to time by the Board, the Committee is responsible for the following
matters.
Board/Committee Nominees/Lead Director
o The Committee shall identify qualified individuals for membership on the
Company's Board of Directors.
o The Committee shall recommend criteria for Board membership.
o The Committee shall recommend individuals for membership on the Company's
Board of Directors, directors for appointment to the committees of the Board
and committee chairs, and a director for appointment as the Lead Director. In
making its recommendations, the Committee shall:
o review candidates' qualifications for membership on the Board or a
committee of the Board or for appointment as the Lead Director (including
a determination as to the independence of the candidate);
o in evaluating a current director for re-nomination to the Board or
re-appointment to any Board committees, or for re-appointment as the Lead
Director, assess the performance of such director;
o periodically review the composition of the Board and its committees in
light of the current challenges and needs of the Board and each committee,
and determine whether it may be appropriate to add or remove individuals
after considering issues of judgment, diversity, age, skills, background
and experience;
o consider rotation of committee members, committee Chairs and the Lead
Director; and
o consider any other factors that are set forth in the Company's Corporate
Governance Principles or are deemed appropriate by the Committee.
Evaluating the Board and its Committees
o At least annually, the Committee shall lead the Board in a self-evaluation to
determine whether it and its committees are functioning effectively. The
Committee shall oversee the evaluation process and report on such process and
the results of the evaluations, including any recommendations for proposed
changes, to the Board.
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o The Committee shall periodically review the size and responsibilities of the
Board and its committees and recommend to the Board any proposed changes,
including changes to Board committee charters.
Director Compensation
o The Committee shall review and recommend to the Board compensation (including
stock option grants and other equity-based compensation) for the Company's
directors. In so reviewing and approving director compensation, the Committee
shall:
o identify corporate goals and objectives relevant to director compensation;
o recommend to the Board director compensation based on such factors as the
Committee deems appropriate and in the best interests of the Company; and
o recommend to the Board any long-term incentive component of director
compensation based on the value of similar incentive awards relative to
such targets at comparable companies and such other factors as the
Committee deems appropriate and in the best interests of the Company.
o The Committee also shall review and recommend to the Board all consulting
and employment contracts of the Company or of any subsidiary with any
active or retired director.
Corporate Governance Matters
o The Committee shall review and recommend to the Board, as appropriate,
modifications or additions to the Corporate Governance Principles for the
Company. At least annually, the Committee shall review and reassess the
adequacy of such Corporate Governance Principles and recommend any proposed
changes to the Board.
o The Committee shall be responsible for any tasks assigned to it from time to
time in the Company's Corporate Governance Principles.
Director Orientation and Continuing Education
o The Committee shall develop and review an orientation and continuing
education program for directors meeting the requirements set forth in the
Company's Corporate Governance Principles.
Periodic Review of the Company's Shareholder Rights Plan
o The Committee shall periodically review, and recommend changes to, the
Company's shareholder rights plan.
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Reporting to the Board
o The Committee shall report to the Board periodically. This report shall
include a review of any recommendations or issues that arise with respect to
Board or committee nominees or membership, Board performance, corporate
governance or any other matters that the Committee deems appropriate or is
requested to be included by the Board.
o At least annually, the Committee shall evaluate its own performance and
report to the Board on such evaluation.
o The Committee shall periodically review and assess the adequacy of this
charter and recommend any proposed changes to the Board for approval.
Procedures
The Committee shall meet as often as it determines is appropriate to
carry out its responsibilities under this charter. The Chair of the Committee,
in consultation with the other Committee members and management, shall determine
the frequency and length of the Committee meetings and shall determine meeting
agendas consistent with this charter.
The Committee has the sole authority to retain and terminate any search
firm assisting the Committee in identifying director candidates, including sole
authority to approve all such search firms' fees and other retention terms. In
addition, the Committee has the sole authority to retain and terminate any
compensation consultant assisting the Committee in the evaluation of director
compensation, including sole authority to approve all such compensation
consultant's fees and other retention terms.
The Committee is authorized to retain any other special legal or other
advisors, as it determines necessary to carry out its duties, and may request
any officer or employee of the Company or the Company's outside counsel to meet
with any members of, or advisors to, the Committee.
The Company shall provide for appropriate funding, as determined by the
Committee, for payment of (i) compensation to any search firm, consultant or
other advisor retained by the Committee and (ii) ordinary administrative
expenses of the Committee that are necessary or appropriate in carrying out its
duties.
The Committee may delegate its authority to subcommittees or the Chair
of the Committee when it deems appropriate and in the best interests of the
Company.
SECTION 6. EXECUTIVE COMMITTEE.
The Executive Committee shall consist of not less than 3 members.
During the intervals between meetings of the Board of Directors and subject to
Section 1 of this Article, the Executive Committee shall possess and may
exercise all the powers and authority of the Board of Directors in the control
and management of the business and affairs of the Company.
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SECTION 7. FINANCE AND INVESTMENT COMMITTEE.
Purpose
The Finance and Investment Committee is created by the Board of
Directors of the Company to oversee the financial affairs of the Company.
Membership
The Finance and Investment Committee shall consist of not less than
four members. The Corporate Governance and Nominating Committee shall recommend
nominees for appointment to the Committee annually and as vacancies or newly
created positions occur. Committee members shall be appointed by the Board and
may be removed by the Board at any time. The Corporate Governance and Nominating
Committee shall recommend to the Board, and the Board shall designate, the Chair
of the Committee.
Authority and Responsibilities
Based upon periodic reports and recommendations of management, the
Finance and Investment Committee shall regularly review the financial affairs of
the Company and shall:
(i) monitor the Company's financial structure and recommend to the Board
appropriate debt or equity financing and stock repurchases to meet the
Company's long-term objectives;
(ii) review and approve the Company's dividend policy and recommend to the
Board appropriate dividend action;
(iii) review and approve capital expenditure budgets and capital expenditures
(including leases) that on an individual basis exceed $10 million and
that are not included in the capital expenditure budget;
(iv) monitor the Company's financial strategies regarding:
(A) risk (currency and interest rate exposure and use of derivatives);
and
(B) asset management (investment portfolio).
(v) review and approve purchases and dispositions of real property;
provided, that notwithstanding the foregoing or anything contained in
clause (iii) above to the contrary, any two executive officers of the
Company acting together shall have the power, without the need for any
approval of the Finance and Investment Committee or the Board, to
approve, execute and effect from time to time (A) acquisitions of real
property that on an individual basis have purchase prices of up to and
including $25 million, and (B) dispositions of real property that on an
individual basis have sale prices of up to and including $25 million
and do not result in a pre-tax loss of $5 million or more on the
consolidated books of the Company;
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(vi) review and recommend appropriate Board action with respect to
acquisitions and divestitures of assets (including, without limitation,
stock and other equity interests in corporations, partnerships or other
entities and intellectual property rights, but excluding individual
purchases and dispositions of real property and acquisitions of assets
approved pursuant to clause (iii) above) that, individually or in the
aggregate, in one or more of a series of related transactions, have a
purchase or sale price, as applicable, equal to or greater than $10
million;
(vii) review and approve (A) the establishment of a subsidiary in a country
in which the Company has no other subsidiary if the operation of such
subsidiary would involve an investment of more than $2.5 million, (B)
the dissolution of a subsidiary that would result in a pre-tax loss of
$5 million or more on the consolidated books of the Company, (C) the
establishment of a subsidiary in a country in which the Company has an
existing subsidiary if the operation of such new subsidiary would
involve an investment of more than $25 million, and (D) any change in
capital of a subsidiary that exceeds $25 million or that would result
in a pre-tax charge of $5 million or more on the consolidated books of
the Company;
(viii) (a) periodically review actual results versus original estimates for
acquisitions and/or capital expenditures approved five years earlier in
individual amounts of $10 million or greater and (b) review on a
quarterly basis, pursuant to guidelines established from time to time
by this Committee, (i) actions taken by management during the prior
three-month period without specific Board or Committee approval,
pursuant to the delegations of authority set forth in sub-paragraphs
(v), (vi) and (vii) above, (ii) any notable changes or deviations in
financial condition, and (iii) the Company's foreign exchange exposure
and its management thereof; and
(ix) periodically undertake a comprehensive review of the Company's
insurance program and business continuity risk management strategies.
Reporting to the Board
The Committee shall report to the Board periodically. This report shall
include a review of any issues that arise with respect to the Company's capital
structure, financial policies, capital expenditures, acquisitions or
divestitures, risk management strategies and any other matter that the Committee
deems appropriate or is requested to be included by the Board.
At least annually, the Committee shall evaluate its own performance and
report to the Board on such evaluation.
The Committee shall periodically review and assess the adequacy of this
Charter and recommend any proposed changes to the Corporate Governance and
Nominating Committee.
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Procedures
The Finance and Investment Committee shall meet as often as it
determines is appropriate to carry out its responsibilities under this Charter.
The Chair of the Committee, in consultation with the other committee members and
management, shall determine the frequency and length of the committee meetings
and shall determine meeting agendas consistent with this Charter.
The Committee is authorized to retain special legal or other advisors,
as it determines necessary to carry out its duties, and may request any officer
or employee of the Company or the Company's outside counsel to meet with any
members of, or advisors to, the Committee.
The Company shall provide for appropriate funding, as determined by the
Committee, for payment of (i) compensation to any advisors retained by the
Committee and (ii) ordinary administrative expenses of the Committee that are
necessary or appropriate in carrying out its duties.
The Committee may delegate its authority to subcommittees or the Chair
of the Committee when it deems appropriate and in the best interests of the
Company
SECTION 8. QUALIFIED LEGAL COMPLIANCE COMMITTEE.
Purpose
The Qualified Legal Compliance Committee ("QLCC") is created by the
Board of Directors of the Company to review any report by an attorney
representing the Company or its subsidiaries of a material violation of U.S.
federal or state securities law, a material breach of fiduciary duty arising
under U.S. federal or state law or a similar material violation of any U.S.
federal or state law (a "material violation"), all in accordance with the
provisions of 17 CFR Part 205, as amended from time to time ("Part 205"). Any
terms not otherwise defined herein shall have the definitions given them, if
any, in Part 205.
Membership
The QLCC shall consist of at least one member of the Company's audit
committee and two or more members of the Company's Board of Directors who are
independent and are not employed, directly or indirectly, by the Company. The
Corporate Governance and Nominating Committee shall recommend nominees for
appointment to the QLCC annually and as vacancies or newly created positions
occur. QLCC members shall be appointed by the Board and may be removed by the
Board at any time. The Corporate Governance and Nominating Committee shall
recommend to the Board, and the Board shall designate, the Chair of the QLCC.
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Authority and Responsibilities
In addition to any other responsibilities which may be assigned from
time to time by the Board, the QLCC has the authority and responsibility for the
following matters:
o The QLCC shall adopt written procedures for the confidential receipt,
retention and consideration of any report of evidence of a material violation
under Part 205 (a "report").
o Upon receipt of a report, the QLCC shall:
o inform the Company's general counsel ("GC") and chief executive officer
("CEO") of such report, unless such notification would be futile; and
o determine whether an investigation is necessary regarding any report of
evidence of a material violation by the Company, its officers, directors,
employees or agents.
o If the QLCC determines an investigation is necessary or appropriate, the QLCC
shall:
o Notify either the audit committee or the full board of directors; and
o initiate an investigation, which may be conducted either by the GC or by
outside attorneys.
o At the conclusion of any such investigation, the QLCC shall:
o recommend that the Company implement an appropriate response to the
evidence of a material violation, which appropriate response may include:
o a finding that no material violation has occurred, is ongoing or is
about to occur;
o the adoption of appropriate remedial measures, including appropriate
steps or sanctions to stop any material violations that are ongoing, to
prevent any material violation that has yet to occur, and to remedy or
otherwise appropriately address any material violation that has already
occurred and to minimize the likelihood of its recurrence; or
o retaining or directing an attorney to review the reported evidence of a
material violation and either (i) the Company substantially implements
any remedial recommendations made by such attorney after a reasonable
investigation and evaluation of the reported evidence, or (ii) the
attorney advises the Company that such attorney may, consistent with
his or her professional obligations, assert a colorable defense on
behalf of the Company or its officers, directors, employees or agents,
in any investigation or judicial or
-24-
administrative proceeding relating to the reported evidence of a
material violation; and
o inform the GC, the CEO and the Board of the results of any such
investigation initiated by the QLCC and the appropriate remedial measures
to be adopted.
o The QLCC may take all other appropriate action, including the authority to
notify the Securities and Exchange Commission, if the Company fails in any
material respect to implement an appropriate response that the QLCC has
recommended the Company to take.
o The QLCC shall evaluate its own performance and report to the Board on such
evaluation.
o The QLCC shall review and assess the adequacy of this charter and recommend
any proposed changes to the Corporate Governance and Nominating Committee.
Procedures
The QLCC may act only by majority vote.
The QLCC shall meet as often as appropriate to carry out its
responsibilities under this charter. The Chairman of the QLCC, in consultation
with the other committee members, shall determine the frequency and length of
the committee meetings and shall set meeting agendas consistent with this
charter.
The QLCC is authorized (without seeking Board approval) to retain
outside attorneys and other expert personnel to assist the QLCC as it deems
necessary.
SECTION 9. MEETINGS AND PROCEDURES. Each committee may make its own
rules of procedure and shall meet as provided by such rules or by resolution of
the Board of Directors, and shall also meet at the call of the chairman of the
committee, the Chairman of the Board, the President, or a majority of the
members of the committee.
A majority of the members of a committee shall constitute a quorum. The
affirmative vote of a majority of all of the members shall be necessary for the
adoption of a resolution or to approve any matter within the scope of the
authority of a committee. Minutes of the proceedings of a committee shall be
recorded in a book provided for that purpose and filed with the Secretary of the
Company. A committee may act without a meeting if, prior or subsequent to such
action, each member shall consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
committee.
Action taken by a committee, with or without a meeting, shall be
reported to the Board of Directors at its next regular meeting following such
committee action; except that, when the meeting of the Board is held within 2
days after the committee action, such report, if not made at the first meeting,
shall be made to the Board at its second meeting following such action.
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ARTICLE V
Officers
--------
SECTION 1. ENUMERATION, APPOINTMENT AND REMOVAL. The corporate officers
of the Company shall be a Chairman of the Board, a Vice Chairman of the Board, a
President, one or more Executive Vice Presidents, one or more Senior Vice
Presidents, one or more Sector Presidents, one or more Group Presidents, one or
more Vice Presidents, a Controller, a Treasurer, a Secretary and such other
corporate officers (including assistant corporate officers) as the Board of
Directors may deem necessary or desirable for the transaction of the business of
the Company. In its discretion, the Board of Directors may leave unfilled any
office except those of the President, Treasurer, and Secretary, and should any
vacancy occur among said officers by death, resignation or otherwise, the same
shall be filled at the next regular meeting of the Board of Directors or at a
special meeting. Any two or more offices may be held by the same person. The
Board of Directors, by resolution adopted by a majority of the Directors, then
in office, shall designate the Chairman of the Board or the President to serve
as the Chief Executive Officer of the Company.
The corporate officers shall be elected at the first meeting of the
Board of Directors after the annual election of Directors, and shall hold office
until the next succeeding annual meeting of the Board of Directors, subject to
the power of the Board of Directors to remove any corporate officer at pleasure
by an affirmative vote of the majority of the Directors then in office.
Every corporate officer shall have such authority and perform such
duties in the management of the Company as may be provided in these By-laws, or
such duties consistent with these By-laws as may be assigned by the Board of
Directors or the Chief Executive Officer.
SECTION 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be elected from among the members of the Board of Directors and shall have
general charge and supervision over and responsibility for the business and
affairs of the Company. He shall keep the Board of Directors fully informed
concerning those areas in his charge, and shall perform such other duties as may
be assigned to him by the Board of Directors. In the absence or disability of
the Chairman of the Board and of the Vice Chairman of the Board, the Chief
Executive Officer shall have all the powers and perform all the duties of the
Chairman of the Board.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the Board of Directors and of the shareholders and
shall perform such other duties as these By-laws or the Board of Directors may
prescribe.
SECTION 4. VICE CHAIRMAN OF THE BOARD. In the absence or disability of
the Chairman of the Board, the Vice Chairman of the Board shall have all the
powers and perform all the duties of the Chairman of the Board. He shall perform
such other duties as may be assigned to him by the Board of Directors or
Chairman of the Board.
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SECTION 5. PRESIDENT. The President shall have such powers and perform
such duties as may be provided by statute, these By-laws, and as may be assigned
by the Board of Directors or the Chief Executive Officer.
SECTION 6. TREASURER. The Treasurer shall have the care and custody of
the Company funds and securities, maintain banking relationships and execute
credit and collection policies. He shall perform such other duties and possess
such other powers as are incident to his office.
SECTION 7. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and of the shareholders, and shall record all proceedings of
such meetings in books to be kept for that purpose. The Secretary shall give, or
cause to be given, notice of all meetings of the shareholders and the Board of
Directors. He shall have the custody of the seal of the Company and shall affix
the same to all instruments requiring it, and attest the same. He shall perform
such other duties and possess such other powers as are incident to his office.
ARTICLE VI
Certificate of Capital Stock
----------------------------
SECTION 1. FORM AND TRANSFERS. The interest of each shareholder of the
Company shall be evidenced by certificates for shares of capital stock,
certifying the number of shares represented thereby and in such form as the
Board of Directors may from time to time prescribe.
Transfers of shares of the capital stock of the Company shall be made
only on the books of the Company, which shall include the books of the stock
transfer agent, by the registered holder thereof, or by his attorney authorized
by power of attorney duly executed and filed with the Secretary of the Company,
or a transfer agent appointed as provided in Section 4 of this Article, and on
surrender of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon. The person in whose name shares of capital
stock stand on the books of the Company shall be deemed the owner thereof for
all purposes. The Board may, from time to time, make such additional rules and
regulations as it may deem expedient concerning the issue, transfer, and
registration of certificates for shares of the capital stock of the Company.
Certificates shall be signed by, or in the name of the corporation by, the
Chairman or Vice Chairman of the Board, or the President or a Vice-President,
and may be countersigned by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the corporation and may be sealed with
the seal of the corporation or a facsimile thereof. Any or all signatures upon a
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon such
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 were such officer, transfer agent or registrar at the date
of its issue.
SECTION 2. FIXING RECORD DATE. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
an adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining the shareholders entitled
to receive payment of
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any dividend or allotment of any right, or for the purpose of any other action,
the Board of Directors shall fix a date not more than 60 days nor less than 10
days before the date of any such meeting, nor more than 60 days prior to any
other action, as the record date for any such determination of shareholders.
SECTION 3. LOST, STOLEN, DESTROYED, OR MUTILATED CERTIFICATES. No
certificate for shares of capital stock in the Company shall be issued in place
of any certificate alleged to have been lost, destroyed or stolen, except on
production of evidence of such loss, destruction or theft and on delivery to the
Company, if the Board of Directors shall so require, of a bond of indemnity upon
such terms and secured by such surety as the Board of Directors may in its
discretion require. A new certificate may be issued without requiring any bond
when, in the judgment of the Board of Directors, it is proper to do so.
SECTION 4. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint one or more transfer agents and one or more registrars, and may require
all certificates of capital stock to bear the signature or signatures of any of
them. One corporation may serve as both transfer agent and registrar.
SECTION 5. EXAMINATION OF BOOKS BY SHAREHOLDERS. So far as it is not
inconsistent with the law of New Jersey, the Board of Directors shall have power
to determine, from time to time, whether and to what extent and at what times
and places and under what conditions and regulations the books and records of
account, minutes of the proceedings of the shareholders, Board of Directors and
any committee of the Company, and other documents of the Company, or any of
them, shall be open to inspection of the shareholders.
SECTION 6. VOTING SHARES OF OTHER CORPORATIONS. Unless otherwise
ordered by the Board of Directors, the Chairman of the Board and the President,
or either of them, shall have full power and authority on behalf of the Company
to attend and to act and to vote at any meeting of Shareholders of any
corporation in which this Company may hold stock, and at any such meeting shall
possess and may exercise any and all rights and powers incident to the ownership
of such stock, and which, as the owner thereof, this Company might have
possessed and exercised if present. The Board of Directors, by resolution, from
time to time, may confer like powers upon any other person or persons.
ARTICLE VII
Dividends
---------
Dividends shall be declared and paid at such times and in such amounts
as the Board of Directors may in its absolute discretion determine and
designate, subject to the restrictions and limitations imposed by law.
ARTICLE VIII
Signatures
----------
Unless otherwise required by law, by the Certificate of Incorporation,
by these By-laws, or by resolution of the Board of Directors, the Chief
Executive Officer, the President or any Executive Vice President, Senior Vice
President, Sector President,
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Group President, or Vice President, or the Controller or the Treasurer of the
Company may enter into and execute in the name of the Company, contracts or
other instruments in the regular course of business, or contracts or other
instruments not in the regular course of business which are authorized either
generally or specifically by the Board of Directors, and the Secretary or an
Assistant Secretary shall affix the Company seal thereto and attest the same, if
required.
ARTICLE IX
Fiscal Year
-----------
The fiscal year of the Company shall begin on the 1st day of October in
each year and end on the September 30th next succeeding.
ARTICLE X
Directors May Contract With Company
-----------------------------------
Any Director or corporate officer may be a party to or may be
interested in any agreement or transaction of this Company by which he may
personally benefit, with the same force and effect as if he were either an
entire stranger to the Company or to the Board of Directors, provided the fact
that he is so interested or may personally benefit shall be disclosed or shall
have been known to the majority of the Board of Directors; and further provided
that such agreement or transaction shall be approved or ratified by the
affirmative vote of a majority of the Directors not so interested or benefited.
ARTICLE XI
Indemnification
---------------
The Company shall indemnify to the full extent authorized or permitted
by the New Jersey Business Corporation Act, any corporate agent (as defined in
said Act), or his legal representative, made, or threatened to be made, a party
to any action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he is or was a corporate agent of this
Company.
ARTICLE XII
Amendments
----------
These By-laws may be altered, amended or repealed by the shareholders
or by a majority vote of the Directors then in office. Any By-law adopted,
amended or repealed by the shareholders may be amended or repealed by a majority
vote of the Directors then in office unless the resolution of the shareholders
adopting such By-law expressly reserves the right to amend or repeal it to the
shareholders.
ARTICLE XIII
Force and Effect of By-Laws
---------------------------
These By-laws are subject to the provisions of the New Jersey Business
Corporation Act and the Company's Certificate of Incorporation, as it may be
amended from time to time. If any provision in these By-laws is inconsistent
with a provision in that Act or the Certificate of Incorporation, the provision
of that Act or the Certificate of Incorporation shall govern to the extent of
such inconsistency.
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