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EXHIBIT 3.2
MONSANTO COMPANY
AMENDED AND RESTATED BY-LAWS
("BY-LAWS")
AMENDED FEBRUARY 22, 2001
OFFICES
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1. REGISTERED
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The name of the registered agent of the Company is The
Corporation Trust Company and the registered office of the Company shall be
located in the City of Wilmington, County of New Castle, State of Delaware.
2. OTHER
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The Company shall have its General Offices in the County
of St. Louis, State of Missouri, and may also have offices at such other
places both within or without the State of Delaware as the Board of
Directors may from time to time designate or the business of the Company may
require.
STOCKHOLDERS' MEETINGS
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3. ANNUAL MEETING
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An annual meeting of stockholders shall be held on such
day and at such time as may be designated by the Board of Directors for the
purpose of electing Directors and for the transaction of such other business
as properly may come before such meeting. Any previously scheduled annual
meeting of the stockholders may be postponed by resolution of the Board of
Directors upon public notice given on or prior to the date previously
scheduled for such annual meeting of stockholders.
4. BUSINESS TO BE CONDUCTED AT ANNUAL MEETING
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(a) At an annual meeting of stockholders, only such
business shall be conducted as shall have been brought before the meeting
(i) pursuant to the Company's notice of the meeting, (ii) by or at the
direction of the Board of Directors or (iii) by any stockholder of the
Company who is a stockholder of record at the time of giving of the notice
provided for in this By-Law, who shall be entitled to vote at such meeting
and who shall have complied with the notice procedures set forth in this
By-Law.
(b) For business to be properly brought before an annual
meeting by a stockholder pursuant to Section (a)(iii) of this By-Law, notice
in writing must be delivered or mailed to the Secretary and received at the
General Offices of the Company, not less than 90 days nor more than 120 days
prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the meeting is
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advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the
stockholder must be received not earlier than the 120th day prior to such
annual meeting and not later than the close of business on the later of the
90th day prior to such annual meeting or the tenth day following the day on
which public announcement of the date of the annual meeting is first made.
Such stockholder's notice shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (i) a brief description of the
business to be brought before the annual meeting and the reasons for
conducting such business at such meeting; (ii) the name and address, as they
appear on the Company's books, of the stockholder proposing such business,
and the name and address of the beneficial owner, if any, on whose behalf
the proposal is made; (iii) the class and number of shares of the Company's
stock which are beneficially owned by the stockholder, and by the beneficial
owner, if any, on whose behalf the proposal is made; and (iv) any material
interest of the stockholder, and of the beneficial owner, if any, on whose
behalf the proposal is made, in such business. For purposes of these
By-Laws, "public announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable news
service or in a document publicly filed by the Company with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(c) Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this By-Law. The chairman of the
meeting may, if the facts warrant, determine that the business was not
properly brought before the meeting in accordance with the provisions of
this By-Law; and if the chairman should so determine, the chairman shall so
declare to the meeting, and any such business not properly brought before
the meeting shall not be transacted. Notwithstanding the foregoing
provisions of this By-Law, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this By-Law. Nothing in
this By-Law shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Company's proxy statement pursuant to Rule
14a-8 under the Exchange Act. The provisions of this Section 4 shall also
govern what constitutes timely notice for purposes of Rule 14a-4(c) of the
Exchange Act.
5. SPECIAL MEETINGS
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Special meetings of stockholders, unless otherwise
provided by the law of Delaware, may be called pursuant to resolution of the
Board of Directors or, until such time as Pharmacia Corporation and its
affiliates cease to beneficially own 50 percent or more of the total voting
power of the outstanding shares of all classes of capital stock entitled to
vote generally in the election of Directors of the Company (the "Pharmacia
Required Percentage"), by Pharmacia Corporation. Such person calling the
meeting shall have the sole right to determine the proper purpose or
purposes of such meeting. Business transacted at a special meeting of
stockholders shall be confined to the purpose or purposes of the meeting as
stated in the notice of such meeting. Any previously scheduled special
meeting of the stockholders may be postponed by resolution of the Board of
Directors upon notice by public announcement given on or prior to the date
previously scheduled for such special meeting of stockholders.
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6. PLACE OF MEETINGS
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All meetings of stockholders shall be held at the General
Offices of the Company in the County of St. Louis, State of Missouri, unless
otherwise determined by resolution of the Board of Directors; provided that
the Board may, in its sole discretion, determine that the meeting shall not
be held at any place, but may instead be held solely by means of remote
communication as authorized by Section 211(a)(2) of the General Corporation
Law of the State of Delaware (the "General Corporation Law of Delaware").
7. NOTICE OF MEETINGS
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(a) Except as otherwise required by the law of Delaware,
notice of each meeting of the stockholders, whether annual or special, shall
be given, by or at the direction of the Secretary or Chief Executive
Officer, except that (i) it shall not be necessary to give notice to any
stockholder who properly waives notice before or after the meeting, whether
in writing or by electronic transmission or otherwise, and (ii) no notice of
an adjourned meeting need be given except when required under these By-Laws
or by law. Such notice shall state the place, date and hour of the meeting,
and in the case of a special meeting, shall also state the purpose or
purposes thereof. Each notice of a meeting shall be given, personally or by
mail or, as provided below, by means of electronic transmission, not less
than ten (10) nor more than sixty (60) days before the meeting and shall
state the time and place of the meeting, or if held by remote communications,
the means of remote communications by which stockholders and proxyholders
may be deemed to be present in person and vote at such meeting, and unless it
is the annual meeting, shall state at whose direction or request the meeting
is called and the purposes for which it is called. The attendance of any
stockholder at a meeting, without protesting at the beginning of the meeting
that the meeting is not lawfully called or convened, shall constitute a waiver
of notice by him or her. Any previously scheduled meeting of stockholders may
be postponed, and (unless the Amended and Restated Certificate of Incorporation,
as amended (the "Certificate of Incorporation"), otherwise provides) any special
meeting of stockholders may be canceled, by resolution of the Board upon public
announcement (as defined in Section 4 of these By-Laws) given on or prior to
the date previously scheduled for such meeting of stockholders.
(b) Without limiting the manner by which notice otherwise
may be given effectively to stockholders, any notice to a stockholder given
by the Company may be given by a form of electronic transmission consented
to by the stockholder to whom the notice is given. Any such consent shall be
revocable by the stockholder by written notice to the Company. Any such
consent shall be deemed revoked (i) if the Company is unable to deliver by
electronic transmission two consecutive notices given by the Company in
accordance with such consent and (ii) such inability becomes known to the
Secretary or an Assistant Secretary of the Company or to the transfer agent
or other person responsible for the giving of notice; provided, however, the
inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action. For purposes of these By-Laws,
"electronic transmission" means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may
be retained, retrieved and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
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(c) Notice shall be deemed given, if mailed, when
deposited in the United States mail with postage prepaid, if addressed to a
stockholder at his or her address on the Company's records. Notice given by
electronic transmission shall be deemed given (i) if by facsimile, when
directed to a number at which the stockholder has consented to receive
notice; (ii) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (iii) if
by posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting and
(B) the giving of such separate notice; and (iv) by any other form of
electronic transmission, when directed to the stockholder.
(d) An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent or other agent of the Company that the
notice has been given, whether by a form of electronic transmission or
otherwise, shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
8. NOMINATIONS OF DIRECTORS
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(a) Only persons who are nominated in accordance with the
procedures set forth in these By-Laws shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors may
be made at a meeting of stockholders (i) by or at the direction of the Board
of Directors or (ii) by any stockholder of the Company who is a stockholder
of record at the time of giving of the notice provided for in this By-Law,
who shall be entitled to vote for the election of Directors at the meeting
and who complies with the notice procedures set forth in this By-Law.
(b) Nominations by stockholders shall be made pursuant to
notice in writing, delivered or mailed to the Secretary and received at the
principal offices of the Company (i) in the case of an annual meeting, not
less than 90 days nor more than 120 days prior to the first anniversary of
the preceding year's annual meeting, provided, however, that in the event
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that the date of the meeting is advanced by more than 30 days or delayed by
more than 60 days from such anniversary date, notice by the stockholder must
be received not earlier than the 120th day prior to such annual meeting and
not later than the close of business on the later of the 90th day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of the meeting is first made; or (ii) in the case
of a special meeting at which Directors are to be elected, not earlier than
the 120th day prior to such special meeting and not later than the close of
business on the later of the 90th day prior to such special meeting or the
tenth day following the day on which public announcement of the date of the
meeting and of the nominees proposed by the Board of Directors to be elected
at such meeting is first made. In the case of a special meeting of
stockholders at which Directors are to be elected, stockholders may nominate
a person or persons (as the case may be) for election only to such
position(s) as are specified in the Company's notice of meeting as being up
for election at such meeting. Such stockholder's notice shall set forth (i)
as to each person whom the stockholder proposes to nominate for election or
reelection as a Director, all information relating to such person that would
be required to be disclosed in solicitations of proxies for election of
Directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Exchange Act (including such person's written consent to being
named as a nominee and to serving as a Director if elected); (ii) as to the
stockholder giving the notice, the name and address, as they appear on the
Company's books, of
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such stockholder and the class and number of shares of the Company's stock
which are beneficially owned by such stockholder; and (iii) as to any
beneficial owner on whose behalf the nomination is made, the name and
address of such person and the class and number of shares of the Company's
stock which are beneficially owned by such person. At the request of the
Board of Directors, any person nominated by the Board of Directors for
election as a Director shall furnish to the Secretary that information
required to be set forth in a stockholder's notice of nomination which
pertains to the nominee. Notwithstanding anything in this By-Law to the
contrary, in the event that the number of Directors to be elected to the
Board of Directors of the Company is increased and there is no public
statement naming all the nominees for Director or specifying the size of the
increased Board of Directors made by the Company at least 100 days prior to
the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this By-Law shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal offices of the Company not later
than the close of business on the 10th day following the day on which such
public announcement is first made by the Company.
(c) No person shall be eligible for election as a Director
of the Company unless nominated in accordance with the procedures set forth
in these By-Laws. The chairman of the meeting may, if the facts warrant,
determine that a nomination was not made in accordance with the procedures
prescribed in this By-Law; and if the chairman should so determine, the
chairman shall so declare to the meeting, and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-Law.
9. LIST OF STOCKHOLDERS
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(a) Not less than ten (10) days prior to the date of any
meeting of stockholders, the Secretary of the Company shall prepare a
complete list of stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the
number of shares registered in the name of such stockholder; provided, that
the Company shall not be required to include electronic mail addresses or
other electronic contact information on such list. For a period of not less
than ten (10) days prior to the meeting, the list shall be available during
ordinary business hours for inspection by any stockholder for any purpose
germane to the meeting. During this period, the list shall be kept either
(1) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice
of the meeting or (2) during ordinary business hours, at the principal place
of business of the Company. If the Company determines to make the list
available on an electronic network, the Company may take reasonable steps to
ensure that such information is available only to stockholders of the
Company. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the
meeting is to be held solely by means of remote communication, then the list
shall also be open to the examination of any stockholder during the whole
time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice
of the meeting.
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(b) The stock ledger of the Company shall be the only
evidence as to the identity of the stockholders entitled (i) to vote in
person or by proxy at any meeting of stockholders, or (ii) to exercise the
rights in accordance with Delaware law to examine the stock ledger, the list
required by this By-Law or the books and records of the Company, or for any
other purpose permitted under Delaware law.
10. QUORUM; ADJOURNMENT
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The holders of a majority of the voting power of the
shares of capital stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum for the
transaction of any business at all meetings of the stockholders, except as
otherwise provided by the law of Delaware, by the Certificate of
Incorporation or by these By-Laws. The stockholders present at any duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of sufficient stockholders to render the
remaining stockholders less than a quorum. Whether or not a quorum is
present, either the chairman of the meeting or the holders of a majority of
the voting power of the shares of capital stock entitled to vote thereat,
present in person or by proxy, shall have power to adjourn the meeting from
time to time to another time or place or means of remote communications,
without notice other than announcement at the meeting of the time and place,
if any, and the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person and
vote at such adjourned meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. At such adjourned
meeting at which the requisite amount of voting stock shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally noticed.
11. VOTING AND REQUIRED VOTE
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(a) Subject to the provisions of the Certificate of
Incorporation, each stockholder shall, at every meeting of stockholders, be
entitled to one vote for each share of capital stock held by such
stockholder. Subject to the provisions of the Certificate of Incorporation
and Delaware law, Directors shall be chosen by the vote of a plurality of
the shares present in person or represented by proxy at the meeting; and all
other questions shall be determined by the affirmative vote of the holders
of a majority of the shares present in person or represented by proxy at the
meeting. In all matters, votes cast in accordance with any method adopted by
the Company shall be valid so long as such method is permitted under
Delaware law.
(b) Any stockholder entitled to vote on any matter may
vote part of the shares in favor of the proposal and refrain from voting the
remaining shares or, except when the matter is the election of directors,
may vote the remaining shares against the proposal; but if the stockholder
fails to specify the number of shares which the stockholder is voting
affirmatively or otherwise indicate how the number of shares to be voted
affirmatively is to be determined, it will be conclusively presumed that the
stockholder's approving vote is with respect to all shares which the
stockholder is entitled to vote.
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(c) Voting need not be by ballot unless requested by a
stockholder at the meeting or ordered by the chairman of the meeting;
however, all elections of directors shall be by written ballot, unless
otherwise provided in the Certificate of Incorporation; provided, that if
authorized by the Board, a written ballot may be submitted by electronic
transmission, provided that any such electronic transmission must either set
forth or be submitted with information from which it can be determined that
the electronic transmission was authorized by the stockholder or
proxyholder.
12. PROXIES
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(a) Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for such
stockholder by proxy, in any manner permitted by law, including, without
limitation, in the form of a telegram, cablegram or other means of
electronic transmission which sets forth or is submitted with information
from which it can be determined that the telegram, cablegram or other means
of electronic transmission was authorized by the stockholder. No proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed proxy shall be irrevocable if
it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. The
revocability of a proxy that states on its face that it is irrevocable shall
be governed by the provisions of Section 212(e) of the General Corporation
Law of Delaware. 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 another duly executed proxy bearing
a later date with the Secretary of the Company.
(b) A proxy is not revoked by the death or incapacity of
the maker unless, before the vote is counted, written notice of such death
or incapacity is received by the Secretary of the Company.
13. INSPECTORS OF ELECTION; POLLS
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Before each meeting of stockholders, the Chairman of the
Board, the President or another officer of the Company designated by
resolution of the Board of Directors shall appoint one or more inspectors of
election for the meeting and may appoint one or more inspectors to replace
any inspector unable to act. If any of the inspectors appointed shall fail
to attend, or refuse or be unable to serve, substitutes shall be appointed
by the chairman of the meeting. Each inspector, who may be an employee of
the Company, shall have such duties as are provided by law, and shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such person's ability. The
chairman of the meeting shall fix and announce at the meeting the date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at the meeting.
14. ORGANIZATION
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(a) The Chairman of the Board of Directors, or in the
Chairman's absence, (i) the President, if a member of the Board of
Directors, (ii) one of the Vice Chairmen of the Board who is a member of the
Board of Directors, if any, in such order as may be designated by the
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Chairman of the Board, in that order, or (iii) in the absence of each of
them, a chairman chosen by a majority of the Directors present, shall act as
chairman of the meetings of the stockholders.
(b) The Board shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem
appropriate. Subject to such rules and regulations of the Board, if any, the
person presiding over the meeting shall have the right and authority to
convene and adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of the person
presiding over the meeting, are necessary, appropriate or convenient for the
proper conduct of the meeting, including, without limitation, establishing
an agenda or order of business for the meeting, rules and procedures for
maintaining order at the meeting and the safety of those present, limitations
on participation in such meeting to stockholders of record of the Company and
their duly authorized and constituted proxies and such other persons as the
person presiding over the meeting shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting and matters which are to be
voted on by ballot. The person presiding over the meeting, in addition to
making any other determinations that may be appropriate to the conduct of the
meeting, shall, if the facts warrant, determine and declare to the meeting that
a matter or business was not properly brought before the meeting and if the
person presiding over the meeting should so determine and declare, any such
matter or business shall not be transacted or considered.
(c) Without limiting the generality of the foregoing, if a
stockholder (or qualified representative) does not appear at the meeting of
stockholders of the Company to present a nomination or business pursuant to
Section 4 or Section 8 of these By-Laws, such nomination shall be disregarded
and such proposed business shall not be transacted, even though proxies in
respect of such vote may have been received by the Company.
15. STOCKHOLDER ACTION BY WRITTEN CONSENT
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(a) Until such time as Pharmacia Corporation and its
affiliates cease to beneficially own the Pharmacia Required Percentage, any
action required or permitted to be taken by the stockholders of the Company
may be effected, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted. A
telegram, cablegram or other electronic transmission consenting to an action
to be taken and transmitted by a stockholder or proxyholder, or a person or
persons authorized to act for a stockholder or proxyholder, shall be deemed
to be written, signed and dated for purposes of this By-Law, provided such
telegram, cablegram or other electronic transmission otherwise complies with
Section 228 of the General Corporation Law of Delaware.
(b) At such time as Pharmacia Corporation and its
affiliates cease to beneficially own the Pharmacia Required Percentage, any
action required or permitted to be taken by the stockholders of the Company
must be effected at a duly called annual or special meeting of stockholders
of the Company and may not be effected by any consent in writing in lieu of
a meeting of such stockholders.
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BOARD OF DIRECTORS
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16. GENERAL POWERS, NUMBER, TERM OF OFFICE
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(a) The business of the Company shall be managed under the
direction of its Board of Directors. Subject to the rights of the holders of
any series of preferred stock, par value $0.01 per share, of the Company
("Preferred Stock") to elect additional Directors under specified
circumstances, the number of Directors of the Company which shall constitute
the whole Board shall be not less than five nor more than 20. The exact
number of Directors within the minimum and maximum limitation specified in
the preceding sentence shall be fixed from time to time exclusively by
resolution of a majority of the whole Board. Subject to Section 16(b) of
these By-Laws, Directors shall be elected at each annual meeting of
stockholders and shall hold office until the next annual meeting of
stockholders and until the election and qualification of their respective
successors, subject to the provisions of these By-Laws.
(b) At the first annual meeting of stockholders (the
"First Meeting") following the time, if any, when Pharmacia Corporation and
its affiliates cease to beneficially own the Pharmacia Required Percentage,
the Directors, other than those who may be elected by the holders of any
outstanding series of Preferred Stock or any other series or class of stock
as set forth in the Certificate of Incorporation, shall be divided into
three classes, as nearly equal in number as possible and designated Class I,
Class II and Class III. Class I shall be initially elected for a term
expiring at the first annual meeting of stockholders following the First
Meeting, Class II shall be initially elected for a term expiring at the
second annual meeting of stockholders following the First Meeting, and Class
III shall be initially elected for a term expiring at the third annual
meeting of stockholders following the First Meeting. Members of each class
shall hold office until their successors are elected and qualified. At each
succeeding annual meeting of the stockholders of the Company, the successors
of the class of Directors whose term expires at that meeting shall be
elected for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election. In case of any increase
or decrease, from time to time, in the number of Directors, other than those
who may be elected by the holders of any outstanding series of Preferred
Stock or any other series or class of stock as set forth in the Certificate
of Incorporation, the number of Directors in each class shall be apportioned
as nearly equal as possible.
(c) Directors need not be stockholders of the Company or
residents of the State of Delaware.
17. VACANCIES
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Subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock, newly created directorships resulting
from any increase in the authorized number of Directors or any vacancies in
the Board resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled solely by the affirmative
vote of a majority of the remaining Directors then in office, even though
less than a quorum of the Board. Any Director so chosen shall hold office
until his or her successor shall be elected and qualified and, if the Board
at such time is classified, until the next election of the class for which
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such Directors shall have been chosen. No decrease in the number of
Directors shall shorten the term of any incumbent Director.
18. REGULAR MEETINGS
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The Board of Directors by resolution may provide for the
holding of regular meetings and may fix the times and places at which such
meetings shall be held. Notice of regular meetings shall not be required,
provided that whenever the time or place of regular meetings shall be fixed
or changed, notice of such action shall be given promptly to each Director,
as provided in Section 19 below, who was not present at the meeting at which
such action was taken.
19. SPECIAL MEETINGS
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Special meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board of Directors or the President,
or in the absence of each of them, by any Vice Chairman of the Board, or by
the Secretary at the written request of a majority of the Directors.
20. NOTICES
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Notice of any special meeting of the Board of Directors
shall be addressed to each Director at such Director's residence or business
address and shall be sent to such Director by mail, electronic mail,
telecopier, telegram or telex or telephoned or delivered to such Director
personally. If such notice is sent by mail, it shall be sent not later than
three days before the day on which the meeting is to be held. If such notice
is sent by electronic mail, telecopier, telegram or telex, it shall be sent
not later than 12 hours before the time at which the meeting is to be held.
If such notice is telephoned or delivered personally, it shall be received
not later than 12 hours before the time at which the meeting is to be held.
Such notice shall state the time, place and purpose or purposes of the
meeting. Any oral notice given personally or by telephone may be
communicated either to the Director or to a person at the office of the
Director who the person giving the notice has reason to believe will
promptly communicate it to the Director.
21. QUORUM
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One-third of the total number of Directors constituting
the whole Board, but not less than two, shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if
less than such required number of Directors for a quorum is present at a
meeting, a majority of the Directors present may adjourn the meeting from
time to time without further notice. Except as otherwise specifically
provided by the law of Delaware, the Certificate of Incorporation or these
By-Laws, the act of a majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
22. SUPERMAJORITY APPROVAL
----------------------
Until such time as Pharmacia Corporation and its
affiliates cease to beneficially own the Pharmacia Required Percentage, the
unanimous written consent, or the affirmative vote of Directors constituting
at least 80 percent of the total number of Directors constituting the
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whole Board shall be required to authorize the following matters: (i)
transactions, capital expenditures, additional debt or other non-ordinary
course financial commitments including litigation settlements by the
Company, valued at $100 million or more, other than as specifically approved
as part of the Company's annual operating or capital budgets; (ii) any
issuance or repurchase of equity securities or other equity interests of the
Company, except pursuant to the exercise of employee stock options or stock
appreciation rights or under compensation plans approved by the Company's
Board of Directors, unless, after giving effect to such proposed issuance or
repurchase, the aggregate amount of equity securities or other equity
interests issued or repurchased, respectively, since the initial public
offering of the Company's common stock without the approval required by this
By-Law would not exceed one percent of the Company's common stock
outstanding on the date of such proposed issuance or repurchase; (iii)
approval of the Company's annual operating and capital budgets and annual
strategic plan; (iv) selection, compensation and removal of the Company's
Chief Executive Officer; and (v) any change in the size of the Company's
Board of Directors.
23. ORGANIZATION
------------
At each meeting of the Board of Directors, the Chairman of
the Board or, in the Chairman's absence, (i) the President, if a member of
the Board of Directors, (ii) one of the Vice Chairmen of the Board who is a
member of the Board of Directors, if any, in such order as may be designated
by the Chairman of the Board, in that order, or (iii) in the absence of each
of them, a chairman chosen by a majority of the Directors present, shall act
as chairman of the meeting, and the Secretary or, in the Secretary's
absence, an Assistant Secretary or any employee of the Company appointed by
the chairman of the meeting, shall act as secretary of the meeting.
24. RESIGNATIONS
------------
Any Director may resign at any time by giving notice in
writing or by electronic transmission to the Chairman of the Board, the
President or the Secretary of the Company. Such resignation shall take
effect upon receipt thereof or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
25. REMOVAL
-------
Subject to the rights of the holders of any outstanding
series of Preferred Stock or any other series or class of stock as set forth
in the Certificate of Incorporation to elect additional Directors under
specified circumstances, any Director or the entire Board may be removed
from office at any time with or without cause, but only by the affirmative
vote of the holders of at least 70 percent of the voting power of the stock
of the Company entitled to vote, voting together as a single class;
provided, however, that at such time as Pharmacia Corporation and its
- -------- -------
affiliates cease to beneficially own the Pharmacia Required Percentage, a
Director may be removed from office only for cause and only by the
affirmative vote of the holders of at least 70 percent of the voting power
of the outstanding stock of the Company entitled to vote, voting together as
a single class.
-11-
26. ACTION WITHOUT A MEETING
------------------------
Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or committee.
27. LOCATION OF BOOKS
-----------------
Except as otherwise provided by resolution of the Board of
Directors and subject to the law of Delaware, the books of the Company may
be kept at the General Offices of the Company and at such other places as
may be necessary or convenient for the business of the Company.
28. DIVIDENDS
---------
Subject to the provisions of the Certificate of
Incorporation and the law of Delaware, dividends upon the capital stock of
the Company may be declared by the Board of Directors at any regular or
special meeting. Dividends may be paid in cash, in property, or in shares of
the Company's capital stock.
29. COMPENSATION OF DIRECTORS
-------------------------
Directors shall receive such compensation and benefits as
may be determined by resolution of the Board for their services as members
of the Board and committees. Directors shall also be reimbursed for their
expenses of attending Board and committee meetings. Nothing contained herein
shall preclude any Director from serving the Company in any other capacity
and receiving compensation therefor.
30. ADDITIONAL POWERS
-----------------
In addition to the powers and authorities by these By-Laws
expressly conferred upon it, the Board of Directors may exercise all such
powers of the Company and do all such lawful acts and things as are not by
statute or by the Amended and Restated Certificate of Incorporation or by
these By-Laws directed or required to be exercised or done by the
stockholders.
COMMITTEES OF DIRECTORS
-----------------------
31. DESIGNATION, POWER, ALTERNATE MEMBERS
-------------------------------------
The Board of Directors may, by resolution or resolutions
passed by a majority of the whole Board, designate an Executive Committee
and one or more additional committees, each committee to consist of two or
more of the Directors of the Company. Any such committee, to the extent
provided in said resolution or resolutions and subject to any limitations
provided by law, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the Company. The
Board of Directors may designate
-12-
one or more Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. The term
of office of the members of each committee shall be as fixed from time to
time by the Board; provided, however, that any committee member who ceases
-------- -------
to be a member of the Board shall automatically cease to be a committee
member.
32. QUORUM, MANNER OF ACTING
------------------------
At any meeting of a committee, the presence of one-third,
but not less than two, of its members then in office shall constitute a
quorum for the transaction of business; and the act of a majority of the
members present at a meeting at which a quorum is present shall be the act
of the committee; provided, however, that in the event that any member or
-------- -------
members of the committee is or are in any way interested in or connected
with any other party to a contract or transaction being approved at such
meeting, or are themselves parties to such contract or transaction, the act
of a majority of the members present who are not so interested or connected,
or are not such parties, shall be the act of the committee. Each committee
may provide for the holding of regular meetings, make provision for the
calling of special meetings and, except as otherwise provided in these
By-Laws or by resolution of the Board of Directors, make rules for the
conduct of its business.
33. MINUTES
-------
The committees shall keep minutes of their proceedings and
report the same to the Board of Directors when required; but failure to keep
such minutes shall not affect the validity of any acts of the committee or
committees.
ADVISORY DIRECTORS
------------------
34. ADVISORY DIRECTORS
------------------
The Board of Directors may, by resolution adopted by a
majority of the whole Board, appoint such number of senior executives of the
Company as Advisory Directors as the Board may from time to time determine.
The Advisory Directors shall have such advisory responsibilities as the
Chairman of the Board may designate and the term of office of such Advisory
Directors shall be as fixed by the Board.
OFFICERS
--------
35. DESIGNATION
-----------
The officers of the Company shall be a Chairman of the
Board, a Chief Executive Officer, a President, a Chief Financial Officer,
one or more Vice Presidents, a Secretary, a Treasurer and a Controller. The
Board of Directors may also elect one or more Vice Chairmen of the Board,
one or more Vice Chairmen of the Company, one or more Executive Vice
Presidents, Senior Vice Presidents, Group Vice Presidents, Deputy and
Assistant Secretaries, Deputy and Assistant Treasurers, Deputy and Assistant
Controllers and such other officers as it shall deem necessary. Any number
of offices may be held by the same person. The Chairman of the Board of
Directors shall be chosen from among the Directors.
-13-
36. ELECTION AND TERM
-----------------
At least annually, the Board of Directors of the Company
shall elect the officers of the Company and at any time thereafter the Board
may elect additional officers of the Company and each such officer shall
hold office until the officer's successor is elected and qualified or until
the officer's earlier death, resignation, termination of employment or
removal.
37. REMOVAL
-------
Any officer shall be subject to removal or suspension at
any time, for or without cause, by the affirmative vote of a majority of the
whole Board of Directors.
38. RESIGNATIONS
------------
Any officer may resign at any time by giving written
notice to the Chairman of the Board, the President or to the Secretary. Such
resignation shall take effect upon receipt thereof or at any later time
specified therein; and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
39. VACANCIES
---------
A vacancy in any office because of death, resignation,
removal or any other cause may be filled for the unexpired portion of the
term by the Board of Directors.
40. CHAIRMAN OF THE BOARD
---------------------
The Chairman of the Board shall preside at all meetings of
the stockholders and of the Board of Directors, except as may be otherwise
required under the law of Delaware. The Chairman shall act in an advisory
capacity with respect to matters of policy and other matters of importance
pertaining to the affairs of the Company. The Chairman, alone or with the
President, one or more of the Vice Chairmen of the Board, and/or the
Secretary shall sign and send out reports and other messages which are to be
sent to stockholders from time to time. The Chairman shall also perform such
other duties as may be assigned to the Chairman by these By-Laws or the
Board of Directors.
41. CHIEF EXECUTIVE OFFICER
-----------------------
The Chief Executive Officer shall have the general and
active management and supervision of the business of the Company. The Chief
Executive Officer shall see that all orders and resolutions of the Board of
Directors are carried into effect. The Chief Executive Officer shall also
perform such other duties as may be assigned to the Chief Executive Officer
by these By-Laws or the Board of Directors. The Chief Executive Officer
shall designate who shall perform the duties of the Chief Executive Officer
in the Chief Executive Officer's absence.
42. PRESIDENT
---------
The President, if a member of the Board of Directors,
shall, in the absence of the Chairman of the Board, preside at all meetings
of the stockholders and of the Board of Directors.
-14-
The President shall perform such other duties as may be assigned to the
President by these By-Laws, the Board of Directors or the Chief Executive
Officer.
43. VICE CHAIRMEN OF THE BOARD; VICE CHAIRMEN
-----------------------------------------
The Vice Chairmen of the Board, if a member of the Board
of Directors, shall, in the absence of the Chairman of the Board and the
President, and in such order as may be designated by the Chairman of the
Board, preside at all meetings of the stockholders and of the Board of
Directors. The Vice Chairmen of the Board and the Vice Chairmen shall
perform such other duties as may be assigned to them by these By-Laws, the
Board of Directors or the Chief Executive Officer.
44. CHIEF FINANCIAL OFFICER
-----------------------
The Chief Financial Officer shall act in an executive
financial capacity. The Chief Financial Officer shall assist the Chairman of
the Board and the President in the general supervision of the Company's
financial policies and affairs.
45. EXECUTIVE, SENIOR, GROUP AND OTHER VICE PRESIDENTS
--------------------------------------------------
Each Executive Vice President, Senior Vice President,
Group Vice President and each other Vice President shall perform the duties
and functions and exercise the powers assigned to such officer by the Board
of Directors or the Chief Executive Officer.
46. SECRETARY
---------
The Secretary shall attend all meetings of the Board of
Directors and of the stockholders and record all votes and the minutes of
all proceedings in a book to be kept for that purpose. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors and, when appropriate, shall
cause the corporate seal to be affixed to any instruments executed on behalf
of the Company. The Secretary shall also perform all duties incident to the
office of Secretary and such other duties as may be assigned to the
Secretary by these By-Laws, the Board of Directors, the Chairman of the
Board or the Chief Executive Officer.
47. ASSISTANT SECRETARIES
---------------------
The Assistant Secretaries shall, during the absence of the
Secretary, perform the duties and functions and exercise the powers of the
Secretary. Each Assistant Secretary shall perform such other duties as may
be assigned to such Assistant Secretary by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or the Secretary.
48. TREASURER
---------
The Treasurer shall have the custody of the funds and
securities of the Company and shall deposit them in the name and to the
credit of the Company in such depositories as may be designated by the Board
of Directors or by any officer or officers authorized by the Board of
Directors to designate such depositories; disburse funds of the Company when
properly
-15-
authorized by vouchers prepared and approved by the Controller; and invest
funds of the Company when authorized by the Board of Directors or a
committee thereof. The Treasurer shall render to the Board of Directors, the
Chief Executive Officer, or the Chief Financial Officer, whenever requested,
an account of all transactions as Treasurer and shall also perform all
duties incident to the office of Treasurer and such other duties as may be
assigned to the Treasurer by these Amended and Restated By-Laws, the Board
of Directors, the Chief Executive Officer, or the Chief Financial Officer.
49. ASSISTANT TREASURERS
--------------------
The Assistant Treasurers shall, during the absence of the
Treasurer, perform the duties and functions and exercise the powers of the
Treasurer. Each Assistant Treasurer shall perform such other duties as may
be assigned to the Assistant Treasurer by the Board of Directors, the Chief
Executive Officer, the Chief Financial Officer or the Treasurer.
50. CONTROLLER
----------
The Controller shall serve as the principal accounting
officer of the Company and shall keep full and accurate account of receipts
and disbursements in books of the Company and render to the Board of
Directors, the Chief Executive Officer, or the Chief Financial Officer,
whenever requested, an account of all transactions as Controller and of the
financial condition of the Company. The Controller shall also perform all
duties incident to the office of Controller and such other duties as may be
assigned to the Controller by these By-Laws, the Board of Directors, the
Chief Executive Officer, or the Chief Financial Officer.
51. ASSISTANT CONTROLLERS
---------------------
The Assistant Controllers shall, during the absence of the
Controller, perform the duties and functions and exercise the powers of the
Controller. Each Assistant Controller shall perform such other duties as may
be assigned to such officer by the Board of Directors, the Chief Executive
Officer, the Chief Financial Officer or the Controller.
52. OTHER OFFICERS
--------------
The Board of Directors may appoint such other officers as
it shall deem necessary, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
COMPANY CHECKS, DRAFTS AND PROXIES
----------------------------------
53. CHECKS, DRAFTS
--------------
All checks, drafts or other orders for the payment of
money by the Company shall be signed by such person or persons as from time
to time may be designated by the Board of Directors or by any officer or
officers authorized by the Board of Directors to designate such signers; and
the Board of Directors or such officer or officers may determine that the
signature of any such authorized signer may be facsimile.
-16-
54. VOTING OF INTERESTS IN OTHER COMPANIES OR ENTITIES
--------------------------------------------------
Except as otherwise provided by resolution of the Board of
Directors, the Chairman of the Board, the President, any Vice Chairman of
the Board, the Chief Financial Officer, any Vice President, the Treasurer
and any Assistant Treasurer, the Controller and any Assistant Controller,
the Secretary and any Assistant Secretary of the Company, shall each have
full power and authority, on behalf of the Company, to vote, represent and
exercise any and all rights of the Company incident to its ownership of
shares or other interests in any other company or entity of any type,
foreign or domestic (including without limitation corporations, limited
liability companies and partnerships), including without limitation the
authority to vote at any meeting of shareholders, members or partners of
such other company or entity, to execute and deliver proxies, and to consent
in writing to action without a meeting.
CAPITAL STOCK
-------------
55. STOCK CERTIFICATES AND TRANSFERS
--------------------------------
The interest of each stockholder of the Company shall be
evidenced by certificates or by registration in book-entry accounts without
certificates for shares of stock in such form as the appropriate officers of
the Company may from time to time prescribe. The shares of the stock of the
Company shall be transferred on the books of the Company by the holder
thereof in person or by his attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such
proof of the authenticity of the transfer and payment of any applicable
transfer taxes as the Company or its agents may reasonably require or by
appropriate book-entry procedures.
Certificates of stock shall be signed by, or in the name
of the Company by, the Chairman of the Board, the President, any Vice
Chairman of the Board, any Executive Vice President, any Senior Vice
President, any Group Vice President or any other Vice President, and by the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary, of the Company, certifying the number of shares owned by such
holder in the Company. Any of or all the signatures on the certificate may
be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Company with the same effect
as if such person were such officer, transfer agent or registrar at the date
of issue.
56. RECORD OWNERSHIP
----------------
The Company shall be entitled to treat the person in whose
name any share, right or option is registered as the owner thereof, for all
purposes, and shall not be bound to recognize any equitable or other claim
to or interest in such share, right or option on the part of any other
person, whether or not the Company shall have notice thereof, except as
otherwise provided by the law of Delaware.
-17-
57. RECORD DATES
------------
In order that the Company may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose
of any other lawful action, the Board of Directors may fix a record date,
which shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors and which shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action.
58. LOST, STOLEN OR DESTROYED CERTIFICATES
--------------------------------------
The Board of Directors may authorize a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Company alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of the fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or the owner's legal representative, to give
the Company a bond sufficient to indemnify it against any claim that may be
made against the Company on account of the alleged loss, theft or
destruction of such certificate or the issuance of such new certificate.
59. TERMS OF PREFERRED STOCK
------------------------
The provisions of these By-Laws, including those
pertaining to voting rights, election of Directors and calling of special
meetings of stockholders, are subject to the terms, preferences, rights and
privileges of any then outstanding class or series of Preferred Stock as set
forth in the Certificate of Incorporation and in any resolutions of the
Board of Directors providing for the issuance of such class or series of
Preferred Stock; provided, however, that the provisions of any such
-------- -------
Preferred Stock shall not affect or limit the authority of the Board of
Directors to fix, from time to time, the number of Directors which shall
constitute the whole Board as provided in Section 16 above, subject to the
right of the holders of any class or series of Preferred Stock to elect
additional Directors as and to the extent specifically provided by the
provisions of such Preferred Stock.
INDEMNIFICATION
---------------
60. INDEMNIFICATION
---------------
(a) The Company shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any claim, action, suit, or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that the person, or a person for whom he
or she is the legal representative, is or was a Director or officer of the
Company or is or was serving at the request of the Company as a director,
officer or fiduciary of another corporation or of a partnership, joint
venture, trust, non-profit entity, or other enterprise, including service
with respect to employee benefit plans, against
-18-
all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person. The right to
indemnification conferred in this By-Law shall be a contract right. Except
as provided in paragraph (c) of this By-Law with respect to proceedings
seeking to enforce rights to indemnification, the Company shall indemnify a
person in connection with a proceeding initiated by such person or a claim
made by such person against the Company only if such proceeding or claim was
authorized by the Board of Directors of the Company.
(b) The Company shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
--------
however, that if and to the extent required by law the payment of expenses
- -------
incurred by any person covered hereunder in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by or on
behalf of the affected person to repay all amounts advanced if it should
ultimately be determined that such person is not entitled to be indemnified
under this By-Law or otherwise.
(c) If a claim for indemnification or payment of expenses
under this By-Law is not paid in full within thirty days, or such other
period as might be provided pursuant to contract, after a written claim
therefor has been received by the Company, the claimant may file suit to
recover the unpaid amount of such claim or may seek whatever other remedy
might be provided pursuant to contract. In any such action the Company shall
have the burden of proving that the claimant was not entitled to the
requested indemnification or payment of expenses under applicable law. If
successful in whole or in part, claimant shall be entitled to be paid the
expense of prosecuting such claim. Neither the failure of the Company
(including its Directors, independent legal counsel or stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because the
claimant has met the applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware, nor an actual determination by the
Company (including its Directors, independent legal counsel or stockholders)
that the claimant has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that the claimant has not
met the applicable standard of conduct.
(d) Any determination regarding whether indemnification of
any person is proper in the circumstances because such person has met the
applicable standard of conduct set forth in the General Corporation Law of
the State of Delaware shall be made by independent legal counsel selected by
such person with the consent of the Company (which consent shall not
unreasonably be withheld).
(e) The Company may, but shall not be required to,
indemnify and hold harmless, to the fullest extent permitted by applicable
law as it presently exists or may hereafter be amended, any person who was
or is made or is threatened to be made a party or is otherwise involved in
any claim, action, suit, or proceeding, whether civil, criminal, administrative
or investigative (a "proceeding") by reason of the fact that the person, or a
person for whom he or she is the legal representative, is or was an employee
or agent of the Company or is or was serving at the request of the Company as
an employee or agent of another corporation or of a partnership, joint venture,
trust, non-profit entity, or other enterprise, including service with respect
to employee benefit plans, against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in
-19-
settlement) reasonably incurred or suffered by such person.
(f) The rights conferred on any person by this By-Law
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(g) Any repeal or modification of the foregoing provisions
of this By-Law shall not adversely affect any right or protection hereunder
of any person with respect to any act or omission occurring prior to or at
the time of such repeal or modification.
MISCELLANEOUS
-------------
61. CORPORATE SEAL
--------------
The seal of the Company shall be circular in form,
containing the words "Monsanto Company" and the word "Delaware" on the
circumference surrounding the word "Seal." Said seal may be used by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
62. FISCAL YEAR
-----------
The fiscal year of the Company shall begin on the first
day of January in each year.
63. AUDITORS
--------
The Board of Directors shall select certified public
accountants to audit the books of account and other appropriate corporate
records of the Company annually and at such other times as the Board shall
determine by resolution.
64. WAIVER OF NOTICE
----------------
Whenever notice is required to be given pursuant to the
law of Delaware, the Certificate of Incorporation or these By-Laws, a
written waiver thereof, signed by the person entitled to notice, or a waiver
by electronic transmission by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting of stockholders or the Board of
Directors or a committee thereof shall constitute a waiver of notice of such
meeting, except when the stockholder or Director attends such meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders or the Board of Directors or
committee thereof need be specified in any written waiver of notice or any
waiver by electronic transmission unless so required by the Certificate of
Incorporation or by these By-Laws.
-20-
65. CONSTRUCTION; DEFINITIONS
-------------------------
Unless the context requires otherwise, the general
provisions, rules of construction, and definitions in the General
Corporation Law of Delaware shall govern the construction of these By-Laws.
Without limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, the term
"person" includes a natural person, a corporation or any other entity of any
type, and the masculine gender includes the feminine gender and vice versa.
66. PROVISIONS ADDITIONAL TO PROVISIONS OF LAW
------------------------------------------
All restrictions, limitations, requirements and other
provisions of these By-Laws shall be construed, insofar as possible, as
supplemental and additional to all provisions of law applicable to the
subject matter thereof and shall be fully complied with in addition to the
said provisions of law unless such compliance shall be illegal.
67. PROVISIONS CONTRARY TO PROVISIONS OF LAW
----------------------------------------
Any article, section, subsection, subdivision, sentence,
clause or phrase of these By-Laws which upon being construed in the manner
provided in Section 66 hereof, shall be contrary to or inconsistent with any
applicable provisions of law, shall not apply so long as said provisions of
law shall remain in effect, but such result shall not affect the validity or
applicability of any other portions of these By-Laws, it being hereby
declared that these By-Laws would have been adopted and each article,
section, subsection, subdivision, sentence, clause or phrase thereof,
irrespective of the fact that any one or more articles, sections,
subsections, subdivisions, sentences, clauses or phrases is or are illegal.
AMENDMENT TO BY-LAWS
--------------------
68. AMENDMENTS
----------
Notwithstanding any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of
the holders of any series of Preferred Stock of the Company required by law,
the Certificate of Incorporation or any Preferred Stock designation, the
affirmative vote of the holders of at least 70 percent of the voting power
of all of the then-outstanding shares of the Company's voting stock, voting
together as a single class, shall be required for the stockholders to amend
or repeal the By-Laws or to adopt new By-Laws. The By-Laws may also be
amended or repealed, and new By-Laws may be adopted, by (i) until such time
as Pharmacia Corporation and its affiliates cease to beneficially own the
Pharmacia Required Percentage, the affirmative vote of at least 80 percent
of the whole Board of Directors at any regular or special meeting of the
Board of Directors, or (ii) at such time as Pharmacia Corporation and its
affiliates cease to beneficially own the Pharmacia Required Percentage, the
affirmative vote of a majority of the whole Board of Directors at any
regular or special meeting of the Board of Directors.
-21-