BY-LAWS
OF
KIMBERLY-CLARK
CORPORATION
As
Amended Through April 30, 2009
1
CAPITAL
STOCK
1. CERTIFICATES
Every
stockholder shall be entitled to have a certificate in such form as the Board
shall from time to time approve, signed by the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, certifying the
number of shares owned by him. Any of or all the signatures on the certificate
and the corporate seal may be facsimiles. In case any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue. While the corporation is authorized to issue more than one class of
stock or more than one series of any class, there shall be set forth on the face
or back of each certificate issued a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof of the corporation and the qualifications,
limitations or restrictions of such preferences and/or rights.
2. RECORD
OWNERSHIP
The
name and address of the holder of each certificate, the number of shares
represented thereby, and the date of issuance thereof shall be recorded in the
corporation's books and records. The corporation shall be entitled to treat the
holder of record of any share of stock as the holder in fact thereof, and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in any share on the part of any other person, whether or not it shall
have express or other notice thereof, except as required by law.
3. TRANSFER
Transfer
of stock shall be made on the books of the corporation only by direction of the
person named in the certificate or his attorney, lawfully constituted in
writing, and only upon the surrender for cancellation of the certificate
therefor and a written assignment of the shares evidenced thereby.
4. LOST
CERTIFICATES
Any
person claiming a stock certificate in lieu of one lost or destroyed shall give
the corporation an affidavit as to his ownership of the certificate and of the
facts which go to prove its loss or destruction. He shall also, if required by
the Board, give the corporation a bond or other indemnification, in such form as
may be approved by the Board, sufficient to indemnify the corporation against
any claim that may be made against it on account of the alleged loss of the
certificate or the issuance of a new certificate.
5. TRANSFER
AGENT; REGISTRAR
The
corporation shall maintain one or more transfer offices
or
agencies, each in charge of a transfer agent designated by the Board, where the
shares of stock of the corporation shall be transferable. The corporation shall
also maintain one or more registry offices, each in charge of a registrar
designated by the Board, where such shares of stock shall be registered. The
same entity may be both transfer agent and registrar.
|
1
For
convenience, the masculine has been used in these By-Laws with the
intention that it include the feminine as well.
|
6. RECORD
DATE; CLOSING TRANSFER BOOKS
So
that the corporation 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 rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of capital stock, or for the purpose of any other lawful action (except as
otherwise expressly provided in these By-Laws), the Board 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 and which record date, (1) in the case
of the determination of stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, unless otherwise required by law, shall not
be more than sixty days nor less than ten days before the date of such meeting,
and (2) in the case of any other action, not more than sixty days before such
other action, and only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice of and to vote at such
meeting, or to receive such dividend or other distribution or allotment of
rights, or to exercise such rights, or to take such other lawful action, as the
case may be, notwithstanding any transfer of any stock on the books of the
corporation after any such record date fixed as aforesaid. If no
record date is fixed: (i) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; and (ii) the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
MEETINGS
OF STOCKHOLDERS
7. ANNUAL
The
annual meeting of stockholders for the election of directors and the transaction
of such other business as may properly be brought before the meeting shall be
held on the third Thursday in April in each year, or on such other day, which
shall not be a legal holiday, as shall be determined by the Board. The annual
meeting shall be held at such place and hour, within or without the State of
Delaware, as shall be determined by the Board. The day, place and hour of each
annual meeting shall be specified in the notice of the annual meeting. In
accordance with the provisions of applicable law, the Board acting by resolution
may postpone and reschedule any previously scheduled annual meeting of
stockholders.
8. SPECIAL
Special
meetings of stockholders, unless otherwise provided by law, may be called at any
time as specified in Section (3) of Article VI of the Certificate of
Incorporation. Any such call must specify the matter or matters to be
acted upon at such meeting, each of which must be a proper subject for
stockholder action under applicable law. Any stockholder of record
seeking to request the calling of a special meeting of stockholders shall first
deliver to the Secretary a notice and request to fix a record date for purposes
of determining stockholders entitled to request such meeting in writing, and the
Board shall promptly but in all events within ten days after the date on which
such a request is received, adopt a resolution fixing the record date, which
record date shall be fixed in accordance with these By-Laws and applicable law;
provided that, if no record date is set by the Board within ten days of the date
on which such notice and request is delivered to the Secretary, the record date
for determining stockholders entitled to request such special meeting shall be
deemed to be the first date on which such notice and request to fix a record
date for purposes of determining stockholders entitled to request such special
meeting was delivered to the Secretary.
In
order for a special meeting of stockholders to be called by the Chairman of the
Board or the Secretary pursuant to Section (3)(iv) of Article VI of the
Certificate of Incorporation, one or more written requests for a special meeting
of stockholders must be signed by the holder or holders of not less than 25% in
voting power of the issued and outstanding shares of capital stock as of the
record date fixed in accordance with the immediately preceding
paragraph. The requests shall be delivered to the Secretary at the
principal executive offices of the corporation by registered mail, return
receipt requested. Each request shall set forth: (a) as to the
stockholder(s) requesting the special meeting of stockholders (1) the name and
address of the stockholder and the beneficial owner, if any, on whose behalf the
request is being made; (2) the class or series and number of shares of stock of
the corporation which are held of record by such stockholder and such beneficial
owner, if any; (3) a representation that the stockholder is a holder of stock of
the corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to present such nominations or other business; (4)
any derivative positions held or beneficially held by the stockholder and the
beneficial owner, if any, and the extent to which any hedging or other
transaction or series of transactions has been entered into by or on behalf of,
or any other agreement, arrangement or understanding has been made, the effect
or intent of which is to increase or decrease the voting power of, such
stockholder and the beneficial owner, if any; (5) any rights to dividends on the
shares of stock
of
the corporation directly or indirectly owned by such stockholder and the
beneficial owner, if any, that are separated or separable from the underlying
shares of stock of the corporation; (6) any performance-related fees (other than
an asset-based fee) that such stockholder and the beneficial owner, if any, are
entitled to based on any increase or decrease in the value of shares of the
corporation or any derivative position, if any, as of the date of such notice,
including without limitation any such interests held by members of immediate
family sharing the same household (which information shall be supplemented by
such stockholder, if any, not later than 10 days after the record date for the
meeting to disclose such ownership as of the record date); (7) any other
information relating to such stockholder and beneficial owner, if any, that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of directors in a contested election pursuant
to Section 14 of the Securities Exchange Act of 1934 (the "Exchange Act") and
the rules and regulations promulgated thereunder; (8) a representation whether
the stockholder or the beneficial owner, if any, intends or is part of a group
which intends (x) to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the corporation’s outstanding capital stock
required to approve or adopt the proposal or elect the nominee and/or (y)
otherwise to solicit proxies from stockholders in support of such proposal or
nomination; (9) any material interest of the stockholder or any such beneficial
owner in the election of directors or business proposed to be conducted at the
special meeting; and (10) the reasons for conducting such election of directors
or business at a special meeting of stockholders; (b) as to each
person whom the stockholder proposes to nominate for election as a director (1)
the name, age, business and residence addresses, and principal occupation or
employment of each nominee; (2) a description of all arrangements or
understandings between the stockholder and the beneficial owner, if any, and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (3) 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 and in accordance
with Section 14(a) of the Exchange Act and the rules and regulations promulgated
thereunder; (4) a description of all direct and indirect compensation and other
material monetary agreements, arrangements and understandings (whether written
or oral) during the past three years, and any other material relationships,
between or among such stockholder and the beneficial owner, if any, and their
respective affiliates and associates, or others acting in concert therewith, on
the one hand, and each proposed nominee, and his respective affiliates and
associates, or others acting in concert therewith, on the other hand, including,
without limitation all information that would be required to be disclosed
pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making
the nomination and any beneficial owner on whose behalf the nomination is made,
if any, or any affiliate or associate thereof or person acting in concert
therewith, were the “registrant” for purposes of such rule and the nominee were
a director or executive officer of such registrant; and (5) such nominee’s
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected; and, (c) as to any other business proposal
contained in the stockholder's request for a special meeting (1) a brief
description of the business desired to be brought before the special meeting of
stockholders; (2) the text of the proposal or business (including the text of
any resolutions proposed for consideration and in the event that such business
includes a proposal to amend the By-Laws of the corporation, the language of the
proposed amendment); and (3) and the reasons for conducting such business at the
special meeting.
A
stockholder may revoke a request for a special meeting at any time by written
revocation, and if, following such revocation, there are un-revoked requests
from stockholders holding in the aggregate less than the requisite number of
shares of stock entitling the stockholders to request the calling of a special
meeting, the Board, in its discretion, may cancel the special meeting. For
purposes of this By-Law 8, written revocation shall mean delivering a notice of
revocation to the Secretary or a Public Announcement (as hereinafter defined)
that the stockholders who submitted the request for a special meeting hold in
the aggregate less than the requisite number of shares of stock entitling the
stockholders to request the calling of a special meeting.
A
special meeting requested by stockholders shall not be held if (1) the
stockholder request to call a special meeting relates to an item of business
that is not a proper subject for stockholder action under applicable law; (2)
the Board has called or calls for a meeting of stockholders and the purpose or
purposes of such meeting include (among any other matters properly brought
before the meeting) the purpose or purposes specified in the request; (3) the
request is received by the corporation during the period commencing 90 days
prior to the first anniversary of the date of the immediately preceding annual
meeting and ending on the date of the next annual meeting; (4) an identical or
substantially similar item was presented at any meeting of stockholders held
within 120 days prior to receipt by the corporation of such request; or (5) an
annual or special meeting was held not more than 12 months before the request to
call the special meeting was received by the corporation which included the
purpose or purposes specified in the request.
The
Secretary shall determine in good faith whether the requirements set forth in
this By-Law 8 have been satisfied. Any such determination shall be binding on
the corporation and its stockholders.
The
business conducted at a special meeting shall be limited to the purpose or
purposes set forth in the notice of such meeting, provided that the Board may
submit its own proposal or proposals for consideration at a stockholder-called
special meeting. The
Board
shall determine the place, date and time of any stockholder-called special
meeting. Special meetings shall be held at such place, within or
without the State of Delaware, as may from time to time be fixed by resolution
of the Board and set forth in the notice of meeting. In the event no such place
has been fixed, special meetings shall be held at the offices of the corporation
located in Dallas County, Texas. In accordance with the provisions of applicable
law, the Board acting by resolution may postpone and reschedule any previously
scheduled special meeting of stockholders.
9. NOTICE
Written
notice (or notice by means of electronic transmission to the extent permitted by
law) of every meeting of stockholders, stating the place, day, hour and, for
special meetings of stockholders, the purpose or purposes thereof, shall, except
when otherwise required by law, be mailed at least ten, but not more than sixty
days before such meeting to each stockholder of record entitled to vote
thereat.
10. QUORUM
The
holders of a majority of the voting power of the issued and outstanding shares
of capital stock of the corporation entitled to vote, present in person or
represented by proxy, shall constitute a quorum at any meeting of stockholders,
except as otherwise required by law. In the event of lack of a quorum, the
chairman of the meeting or a majority of the voting power of the shares of
capital stock present in person or represented by proxy may adjourn the meeting
from time to time without notice other than announcement at the meeting until a
quorum shall be obtained. At any adjourned meeting at which there is a quorum,
any business may be transacted which might have been properly transacted at the
meeting originally called. The stockholders present at a duly called meeting at
which a quorum is present may continue to transact business properly brought
before the meeting until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
11. CONDUCT
OF MEETINGS; NOTICE OF STOCKHOLDER BUSINESS
(a) The
Chief Executive Officer, or in his absence such other officer as may be
designated by the Board, shall be the chairman of the meeting at stockholders'
meetings. The Secretary of the corporation shall be the secretary at
stockholders' meetings but in his absence the chairman of the meeting may
appoint a secretary for the meeting. The opening and closing of the polls for
matters upon which the stockholders will vote at a meeting shall be announced at
the meeting by the chairman of the meeting. The Board may, to the extent not
prohibited by law, adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the Board,
the chairman of any meeting of stockholders shall have the right and authority
to prescribe such rules, regulations or procedures and to do all acts as, in the
judgment of the chairman, are appropriate for the proper conduct of the meeting.
Such rules, regulations or procedures, whether adopted by the Board or
prescribed by the chairman of the meeting, may to the extent not prohibited by
law include, without limitation, the following: (1) the establishment of an
agenda or order of business for the meeting; (2) rules and procedures for
maintaining order at the meeting and the safety of those present; (3)
limitations on attendance at or participation in the meeting to stockholders of
record of the corporation, their duly authorized and constituted proxies (which
shall be reasonable in number) or such other persons as the chairman of the
meeting shall determine; (4) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (5) limitations on the time allotted to
questions or comments by participants. Any meeting of stockholders
may be adjourned by the chairman of the meeting. At any adjourned
meeting, the corporation may transact any business which might have been
properly transacted at the original meeting.
(b) At
any annual or special meeting of the stockholders, only such nominations of
persons for election to the Board and other business shall be conducted as shall
have been properly brought before the meeting in accordance with these By-Laws.
To be properly brought before an annual or special meeting, such nominations and
other business must (1) be specified in the notice of the meeting (or any
supplement thereto) given by or at the direction of the Board, (2) otherwise
properly be brought before the meeting by or at the direction of the Board or
any committee thereof, or (3) otherwise properly be brought before the meeting
by a stockholder of the corporation who was a stockholder of record at the time
the notice provided for in this By-Law 11 is delivered to the Secretary, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-Law 11.
(c)
(1) For business (other than the nomination or election of
directors) to be properly requested to be brought before an annual meeting of
stockholders by a stockholder, such stockholder must deliver written notice of
such stockholder's intent to bring the business before the annual meeting of
stockholders, either by personal delivery or by United States mail, postage
prepaid, to the Secretary. In the case of an annual meeting,
such notice must be
received by the Secretary not less than 75 days nor more than 100 days prior to
the first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is advanced by more than
30 days or delayed by more than 60 days from such anniversary date, notice by
the
stockholder
to be timely must be so delivered not earlier than the close of business on the
100th day prior to such annual meeting and not later than the close of business
on the later of the 75th day prior to such annual meeting or the 10th day
following the day on which Public Announcement of the date of such meeting is
first made. In no event shall the Public Announcement of an adjournment of an
annual meeting commence a new time period (or extend any time period) for the
giving of a stockholder notice as described above. "Public Announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service, or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Sections 13, 14, or 15(d) of the Exchange Act and the rules and regulations
promulgated thereunder.
(2) Notwithstanding anything to the contrary in this By-Law
11, only such business (other than the nomination or election of directors
properly brought in accordance with Section (e) of this By-Law 11) shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting.
(3) A stockholder’s notice to the Secretary required by
this By-Law 11 to properly bring business (other than the nomination or election
of directors) before an annual meeting shall set forth, (a) as to the
stockholder giving the notice and the Stockholder Associated Person (as defined
below), if any, (i) the name and address of the stockholder intending to propose
such business and any Stockholder Associated Person covered by Section (c) of
this By-Law 11; (ii) the class or series and number of shares of stock of the
corporation which are held of record or are beneficially owned by such
stockholder and by any Stockholder Associated Person with respect to the
corporation’s securities, and a representation that the stockholder, or the
Stockholder Associated Person, if any, is a holder of stock of the corporation
entitled to vote at such meeting and intends to appear in person or by proxy at
the meeting to present such proposal; (iii) any derivative positions held or
beneficially held by the stockholder and any Stockholder Associated Person and
whether and the extent to which any hedging or other transaction or series of
transactions has been entered into by or on behalf of, or any other agreement,
arrangement or understanding has been made, the effect or intent of which is to
increase or decrease the voting power of, such stockholder or any Stockholder
Associated Person with respect to the corporation’s securities; (iv) any rights
to dividends on the shares of stock of the corporation directly or indirectly
owned by such stockholder and any Stockholder Associated Person that are
separated or separable from the underlying shares of stock of the corporation;
(v) any performance-related fees (other than an asset-based fee) that such
stockholder or Stockholder Associated Person, if any, is entitled to based on
any increase or decrease in the value of shares of the corporation or any
derivative position, if any, as of the date of such notice, including without
limitation any such interests held by members of such stockholder’s or the
Stockholder Associated Person's, if any, immediate family sharing the same
household (which information shall be supplemented by such stockholder and the
Stockholder Associated Person, if any, not later than 10 days after the record
date for the meeting to disclose such ownership as of the record date); and (vi)
a representation whether the stockholder or the Stockholder Associated Person,
if any, intends or is part of a group which intends (A) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
corporation’s outstanding capital stock required to approve or adopt the
proposal and/or (B) otherwise to solicit proxies from stockholders in support of
such proposal; and, (b) as to the business that the stockholder proposes to
bring before the meeting, (i) a brief description of the business desired to be
brought before the meeting; (ii) the text of the proposal or business (including
the text of any resolutions proposed for consideration and, in the event that
such business includes a proposal to amend the By-Laws of the corporation, the
language of the proposed amendment); and (iii) any other information relating to
such stockholder and Stockholder Associated Person, if any, that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for the proposal pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. The foregoing notice requirements of this Section (c) shall be
deemed satisfied by a stockholder with respect to business other than the
nomination or election of directors if the stockholder has notified the
corporation of his intention to present a proposal at an annual meeting in
compliance with applicable rules and regulations promulgated under the Exchange
Act and such stockholder’s proposal has been included in a proxy statement that
has been prepared by the corporation to solicit proxies for such annual
meeting. No business shall be conducted at an annual meeting of
stockholders except in accordance with the procedures set forth in this By-Law
11. The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that the business was not properly brought before the
meeting in accordance with the provisions hereof and, if he should so determine,
he shall so declare to the meeting that any such business not properly brought
before the meeting shall not be transacted.
(d) For
nominations of persons for election to the Board to be properly brought before
an annual meeting of stockholders, such stockholder's notice must be
timely. To be timely such notice shall be given, either by personal
delivery or by United States mail, postage prepaid, to the Secretary, and
received by the corporation, not less than 75 days nor more than 100 days prior
to the meeting; provided, however, that in the event that less than 75 days'
notice or prior Public Announcement of the date of the meeting is given or made
to stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of meeting was mailed or such Public Announcement was made,
whichever first occurs. A stockholder’s notice to the Secretary
required by Section (4) of Article VIII of the Certificate
of
Incorporation and this By-Law 11 for nominations of persons for election to the
Board at an annual meeting shall set forth, (1) as to the stockholder giving the
notice and the Stockholder Associated Person, if any, on whose behalf the notice
is given (i) the name and address of the stockholder intending to propose such
nominations and any Stockholder Associated Person covered by Section (d) of this
By-Law 11; (ii) the class or series and number of shares of stock of the
corporation which are held of record or are beneficially owned by such
stockholder and by any Stockholder Associated Person with respect to the
corporation’s securities, and a representation that the stockholder is a holder
of stock of the corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to present such nominations; (iii)
any derivative positions held or beneficially held by the stockholder and any
Stockholder Associated Person and whether and the extent to which any hedging or
other transaction or series of transactions has been entered into by or on
behalf of, or any other agreement, arrangement or understanding has been made,
the effect or intent of which is to increase or decrease the voting power of,
such stockholder or any Stockholder Associated Person with respect to the
corporation’s securities; (iv) any rights to dividends on the shares of stock of
the corporation directly or indirectly owned by such stockholder or Stockholder
Associated Person, if any, that are separated or separable from the underlying
shares of stock of the corporation; (v) any performance-related fees (other than
an asset-based fee) that such stockholder or Stockholder Associated Person, if
any, is entitled to based on any increase or decrease in the value of shares of
the corporation or any derivative position, if any, as of the date of such
notice, including without limitation any such interests held by members of such
stockholder’s or Stockholder Associated Person's, if any, immediate family
sharing the same household (which information shall be supplemented by such
stockholder and the Stockholder Associated Person, if any, not later than 10
days after the record date for the meeting to disclose such ownership as of the
record date); (vi) any other information relating to such stockholder and
Stockholder Associated Person, if any, that would be required to be disclosed in
a proxy statement or other filings required to be made in connection with
solicitations of proxies for the election of directors in a contested election
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder; (vii) a representation whether the stockholder or the
Stockholder Associated Person, if any, intends or is part of a group which
intends (A) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the corporation’s outstanding capital stock required to
elect the nominee and/or (B) otherwise to solicit proxies from stockholders in
support of such nominations; and (2) as to each person, if any, whom the
stockholder proposes to nominate for election or reelection to the Board, (i) a
description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings (whether written or oral) during the
past three years, and any other material relationships, between or among such
stockholder and the Stockholder Associated Person, if any, and their respective
affiliates and associates, or others acting in concert therewith, on the one
hand, and each proposed nominee, and his respective affiliates and associates,
or others acting in concert therewith, on the other hand, including, without
limitation all information that would be required to be disclosed pursuant to
Rule 404 promulgated under Regulation S-K if the stockholder making the
nomination and any Stockholder Associated Person on whose behalf the nomination
is made, if any, or any affiliate or associate thereof or person acting in
concert therewith, were the “registrant” for purposes of such rule and the
nominee were a director or executive officer of such registrant; (ii) the name,
age, business and residence addresses, and principal occupation or employment of
each nominee; (iii) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (iv) all other information relating to such nominee
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 and in accordance with Section 14(a) of the Exchange Act and the
rules and regulations promulgated thereunder; and (v) such nominee's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected. The corporation may require any proposed nominee
to furnish such other information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a director of the corporation.
The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that the nomination was not properly brought before the meeting
in accordance with the provisions hereof and, if he should so determine, he
shall so declare to the meeting that any such business not properly brought
before the meeting shall not be transacted.
“Stockholder
Associated Person” of any stockholder means (A) any person controlling, directly
or indirectly, or acting in concert with, such stockholder, (B) any beneficial
owner of shares of stock of the corporation owned of record or beneficially by
such stockholder and (C) any person controlling, controlled by or under common
control with such Stockholder Associated Person.
(e) Nominations
of persons for election to the Board may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the corporation’s
notice of meeting (1) by or at the direction of the Board or any committee
thereof or stockholders pursuant to By-Law 8 hereof or (2) provided that the
Board or stockholders pursuant to By-Law 8 hereof has determined that directors
shall be elected at such meeting, by any stockholder of the corporation who is a
stockholder of record at the time the notice provided for in this By-Law is
delivered to the Secretary, who is entitled to vote at the meeting and upon such
election and who complies with the notice procedures set forth in this By-Law
11. In the event that a special meeting of stockholders is called for
the purpose of electing one or more directors to the Board, any such stockholder
entitled to vote in such election of directors may nominate a person or persons
(as the case may be) for election to such position(s) as specified in
the
corporation’s
notice of meeting, if the stockholder’s notice, containing the information set
forth in Section (d) of this By-Law 11, shall be delivered to the Secretary at
the principal executive offices of the corporation not less than 75 days nor
more than 100 days prior to the meeting; provided, however, that in the event
that less than 75 days' notice or prior Public Announcement of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of meeting was mailed or such
Public Announcement was made, whichever first occurs. In no event
shall the Public Announcement of an adjournment or postponement of a special
meeting commence a new time period (or extend any time period) for the giving of
a stockholder’s notice as described above.
(f) Notwithstanding
anything to the contrary contained in By-Law 8 or this By-Law 11, only such
persons who are nominated in accordance with both the procedures set forth in
Section (4) of Article VIII of the Certificate of Incorporation or Section (3)
of Article VI of the Certificate of Incorporation and this By-Law 11 or By-Law 8
shall be eligible to be elected at any annual or special meeting of stockholders
of the corporation to serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this By-Law 11 or By-Law
8. Notwithstanding the foregoing provisions of this By-Law 11, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations promulgated thereunder with respect to the matters set
forth in this By-Law 11; provided however, that any references in these By-Laws
to the Exchange Act or the rules and regulations promulgated thereunder are not
intended to and shall not limit any requirements applicable to nominations or
proposals as to any other business to be considered pursuant to these By-Laws,
and compliance with these By-Laws shall be the exclusive means for a stockholder
to make nominations or submit other business (other than matters brought
properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be
amended from time to time). Nothing in this By-Law 11 shall be deemed
to affect any rights (a) of stockholders to request inclusion of proposals in
the corporation’s proxy statement pursuant to applicable rules and regulations
promulgated under the Exchange Act or (b) of the holders of any series of
Preferred Stock to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
12. VOTING
Except
as otherwise provided in the Certificate of Incorporation, at each meeting of
the stockholders, each holder of shares of capital stock of the
corporation entitled to vote at such meeting shall, as to all matters in respect
of which such shares have voting rights, be entitled to one vote in person or by
written proxy for each share held of record by him. No vote upon any matter,
except the election of directors or the amendment of the Certificate of
Incorporation, is required to be by ballot unless demanded by the holders of at
least 10% of the voting power of the shares of capital stock represented in
person or by proxy and entitled to vote at the meeting. All motions to introduce
a matter for a vote by the stockholders at a meeting thereof, except for
nominations for election as directors recommended by the Nominating and
Corporate Governance Committee and approved by the Board, shall be seconded
prior to a vote thereon by the stockholders.
A
stockholder may authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telegram, cablegram, or other
means of electronic transmission to the person who will be the holder of the
proxy or to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram, cablegram or other
means of electronic transmission must either set forth or be submitted with
information from which it can be determined that the telegram, cablegram or
other electronic transmission was authorized by the stockholder.
The
date and time of the opening and closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxies or votes, nor any revocations thereof or changes thereto, shall
be accepted by the inspectors after the closing of the polls.
Except
as provided in Section (5) of Article VIII of the Certificate of Incorporation,
each director shall be elected by the vote of the majority of the votes cast
with respect to the director at any meeting for the election of directors at
which a quorum is present, provided that if the number of nominees exceeds the
number of directors to be elected, the directors shall be elected by
the vote of a plurality of the shares represented in person or by proxy at any
such meeting and entitled to vote on the election of directors. For
purposes of this By-Law 12, a majority of the votes cast means that the number
of shares voted "for" a director must exceed the number of votes cast "against"
that director. All elections and questions presented to the
stockholders (other than the election of directors) at a meeting at which a
quorum is present shall, unless otherwise provided by the Certificate of
Incorporation, these By-Laws, the rules or regulations of any stock exchange
applicable to the corporation, or applicable law or pursuant to any regulation
applicable to the corporation or its securities, be decided by the affirmative
vote of the holders of a majority in voting power of the shares of stock of the
corporation which are present in person or by proxy and entitled to vote
thereon.
13. INSPECTORS
OF ELECTION
The
Chief Executive Officer shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The Chief Executive Officer may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability.
The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the number of shares represented at a meeting and
the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors. The inspectors shall determine the validity of and count the
proxies and ballots in accordance with applicable law.
14. LIST
OF STOCKHOLDERS
A
complete list of the stockholders entitled to vote at stockholders' meetings
(arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder) shall be
prepared by the Secretary and filed at least ten days prior to each meeting of
stockholders. Such list shall be open to the examination of any stockholder for
any purpose germane to the meeting for a period of at least ten days prior to
the meeting during ordinary business hours at the principal place of business of
the corporation. Such list shall be produced and kept at the time and
place of such meeting during the whole time thereof, and subject to the
inspection of any stockholder who may be present. Except as otherwise provided
by law, the stock ledger shall be the only evidence as to who are stockholders
entitled to inspect such list or to vote in person or by proxy at any meeting of
stockholders.
BOARD
OF DIRECTORS
15. RESIGNATION
A
director may resign at any time by giving written notice to the
corporation. Such notice shall be delivered to the Chief Executive
Officer or the Secretary. Such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein. Acceptance of a
resignation shall not be necessary to make it effective unless otherwise stated
in the notice.
If
an incumbent director who is nominated for re-election to the Board does not
receive sufficient votes “for” to be elected in accordance with By-Law 12, the
incumbent director shall promptly tender his resignation to the Board. The
Nominating and Corporate Governance Committee shall make a recommendation to the
Board as to whether to accept or reject the tendered resignation, or whether
other action should be taken. The Board shall act on the tendered resignation,
taking into account the Nominating and Corporate Governance Committee’s
recommendation, and publicly disclose (by a press release, a filing with the
Securities and Exchange Commission or other broadly disseminated means of
communication) its decision regarding the tendered resignation within 90 days
from the date of the certification of the election results. The Nominating and
Corporate Governance Committee in making its recommendation, and the Board in
making its decision, may each consider any factors or other information that it
considers appropriate and relevant. The director who tenders his resignation
shall not participate in the recommendation of the Nominating and Corporate
Governance Committee or the decision of the Board with respect to his
resignation. If such incumbent director’s resignation is not accepted by the
Board, such director shall continue to serve until the next annual meeting and
until his successor is duly elected, or his earlier resignation or
removal. If a director’s resignation is accepted by the Board
pursuant to this By-Law 15, or if a nominee for director is not elected and the
nominee is not an incumbent director, then the Board, in its sole discretion,
may fill any resulting vacancy pursuant to the provisions of Section (5) of
Article VIII of the Certificate of Incorporation or may decrease the size of the
Board pursuant to the provisions of Section (2) of Article VIII of the
Certificate of Incorporation.
16. ANNUAL
MEETING
A
meeting of the Board, to be known as the annual Board meeting, shall be held
without call or notice immediately after and at the same general place as the
annual meeting of the stockholders. The annual Board meeting shall be held for
the purpose of
organizing
the Board, electing officers, and transacting any other business that may
properly come before the meeting.
17. REGULAR
MEETINGS
Regular
meetings of the Board may be held without call or notice at such place and at
such time as shall be fixed by the Board.
18. SPECIAL
MEETINGS
Special
meetings of the Board may be called by the Chief Executive Officer, and shall be
called by the Secretary upon the request in writing of not less than two of the
directors then in office. Special meetings of the Board may be held at such
place and at such time as shall be designated in the call thereof. Notice of
special meetings of the Board shall either be mailed by the Chief Executive
Officer or the Secretary to each director at least three days before the
meeting, or served upon, or sent by electronic transmission by the Chief
Executive Officer or the Secretary to, each director at least one day before the
meeting, but during an emergency as defined in By-Law 20, notice may be given
only to such of the directors as it may be feasible to reach at the time and by
such means as may be feasible at the time, including publications or private or
public electronic means. Unless required by law, the notice need not state the
purpose or purposes of the meeting.
19. TELEPHONIC
MEETINGS
Members
of the Board or any committee designated by the Board may participate in a
meeting of such Board or committee by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
20. QUORUM
Except
during the existence of an emergency and except as otherwise provided in these
By-Laws or in the Certificate of Incorporation, one-third of the total number of
directors, as fixed pursuant to Section (2) of Article VIII of the Certificate
of Incorporation, shall constitute a quorum for the transaction of business.
During the existence of an emergency, three directors shall constitute a quorum
for the transaction of business. To the extent required to constitute a quorum
at any meeting of the Board during an emergency, the officers of the corporation
who are present shall be deemed, in order of rank and within the same rank in
order of seniority, directors for such meeting. Subject to the provisions of the
Certificate of Incorporation, the action of the majority of directors present at
a meeting at which a quorum is present shall be the act of the Board. In the
event of lack of a quorum, a majority of the directors present may adjourn the
meeting from time to time without notice other than announcement at the meeting
until a quorum shall be obtained. At any such adjourned meeting at which there
is a quorum, any business may be transacted which might have been properly
transacted at the meeting originally called.
An
"emergency" for the purpose of these By-Laws shall be any emergency resulting
from an attack on the United States or on a locality in which the corporation
conducts its business or customarily holds meetings of its Board or its
stockholders, or during any nuclear or atomic disaster, or during the existence
of any catastrophe, or other similar emergency condition, as a result of which a
quorum of the Board or a standing committee thereof cannot readily be convened
for action.
21. ACTION
WITHOUT MEETING
Any
action required or permitted to be taken at any meeting of the Board or 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, or by electronic
transmission, and such writing or writings or electronic transmissions are filed
with the minutes of the proceedings of the Board or committee.
22. ORGANIZATION
The
Chairman of the Board, or in his absence the Chief Executive Officer, or in his
absence a director chosen by the directors present, shall act as chairman at
meetings of the Board. The Secretary of the corporation shall act as secretary
at meetings of the Board but in his absence the chairman of the meeting may
appoint a secretary for the meeting.
23. COMPENSATION
The
compensation of directors for services as directors and as members of committees
of the Board shall be as fixed by the Board from time to time. The compensation,
if any, of the directors need not be uniform as between directors and
the
compensation,
if any, of the members of the committees of the Board need not be uniform either
as between members of a committee or as between committees. The Board shall
provide for reimbursing the directors for expenses incurred in attending
meetings of the Board or committees thereof.
Any
director may also serve the corporation in any other capacity and receive
compensation, including fees and expenses, for such service.
24. INDEPENDENT
DIRECTORS
The
nomination of an individual to serve as a member of the Board shall be such that
immediately after the election of such nominee to the Board a majority of all
directors holding office shall, in the determination of the Board, be
independent directors.
COMMITTEES
OF THE BOARD
25. STANDING
AND OTHER COMMITTEES
The
directors shall from time to time designate an Audit Committee, a Management
Development and Compensation Committee, an Executive Committee and a Nominating
and Corporate Governance Committee, each of which shall have and may exercise
the powers of the Board in the direction of the business and affairs of the
corporation in respect to the matters and to the extent hereinafter set forth,
subject to the power of the Board to assign from time to time to any such
committees or to any other committees such powers in respect to specific matters
as the Board may deem desirable. These four committees shall be the standing
committees of the corporation. The Board may designate such other committees as
it from time to time may deem appropriate; the powers of each such committee
shall be limited to those specified in the resolution designating the committee.
The corporation elects to be governed by Section 141(c)(2) of the General
Corporation Law of the State of Delaware.
26. PROCEDURE
AND COMMITTEE CHARTERS
Each
committee shall fix its own rules of procedure and shall meet where and as
provided by such rules, but the presence of a majority shall be necessary to
constitute a quorum, unless otherwise provided by these By-Laws. Each
committee shall keep minutes of its meetings. Any action required or permitted
to be taken at any meeting of any committee may be taken without a meeting if
all the members consent thereto in writing and such written consent is filed
with the minutes of the proceedings of such committee. All action by each
committee shall be reported to the Board. The Audit, Compensation, and
Nominating and Corporate Governance Committees shall each adopt, subject to the
approval of the Board, a committee charter that identifies the responsibilities
and processes of such committee.
27. AUDIT
COMMITTEE
The
Audit Committee shall consist of three or more members. The Board shall select
the members of the Audit Committee from among the directors who are not officers
or employees of the corporation and shall designate the Chairman of the
Committee. The members of the Audit Committee shall meet the independence and
experience requirements of the New York Stock Exchange, the Exchange Act, and
the rules and regulations of the Securities and Exchange Commission. All Audit
Committee members shall be financially literate, and at least one member shall
be a financial expert, as defined by the rules and regulations of the Securities
and Exchange Commission and the New York Stock Exchange. The Audit Committee
shall, with respect to the corporation and the other entities as to which the
corporation has power to select and engage auditors, select and engage
independent public accountants to audit books, records and accounts, determine
the scope of audits to be made by the auditors and establish policy in
connection with internal audit programs and the scope thereof, and shall perform
such other duties as the Board may from time to time prescribe, including those
set forth in the Audit Committee charter.
28. MANAGEMENT
DEVELOPMENT AND COMPENSATION COMMITTEE
The
Management Development and Compensation Committee shall consist of three or more
members. The Board shall select the members of the Management Development and
Compensation Committee from among the independent directors and shall designate
the Chairman of the Committee. The Management Development and Compensation
Committee shall constitute the Stock Option Committee provided for under any
stock option plan of the corporation. It shall from time to time fix the
compensation of employees who are directors of the corporation and, in
consultation with the Chief Executive Officer, the compensation of officers of
the corporation who are elected by the Board. The Management Development and
Compensation Committee shall perform such
other
duties as the Board may from time to time prescribe, including those set forth
in the Management Development and Compensation Committee charter.
29. EXECUTIVE
COMMITTEE
The
Executive Committee shall consist of three or more members including, by virtue
of his office, the Chief Executive Officer. The Board shall select the other
members of the Committee from among the directors and shall designate the
Chairman thereof.
The
Executive Committee, when the Board is not in session, shall have and may
exercise all of the powers of the Board to direct the business and the affairs
of the corporation, including but not limited to the power to declare dividends
and to authorize the issuance of stock, except the powers hereinafter in these
By-Laws assigned to any other standing committee and except to the extent, if
any, that the authority of the Committee may be limited in any respect by law,
by the Certificate of Incorporation or by these By-Laws.
30. NOMINATING
AND CORPORATE GOVERNANCE COMMITTEE
The
Nominating and Corporate Governance Committee shall consist of three or more
members. The Board shall select the members of the Nominating and Corporate
Governance Committee from among the independent directors. The Nominating and
Corporate Governance Committee shall have the power to: (i) propose and consider
suggestions as to candidates for membership on the Board; (ii) periodically
recommend to the Board candidates for vacancies on the Board due to resignations
or retirements or due to such standards for composition of Board membership as
may from time to time legally prevail; (iii) pursuant to By-Law 15 make a
recommendation to the Board as to whether to accept or reject a tendered
resignation of an incumbent director who was nominated for re-election and was
not re-elected at a meeting of stockholders (and no successor was elected) or
whether other action should be taken; (iv) review and recommend to the Board
such modifications to the prevailing Board of Directors retirement policy as may
be deemed appropriate in light of contemporary standards; (v) propose to the
Board on or before March 1 of each year a slate of directors for submission to
the stockholders at the annual meeting; (vi) oversee matters of corporate
governance, including advising the Board on board organization, membership and
function, committee structure and membership, and succession planning for
executive management of the corporation; (vii) review and make recommendations
to the Board from time to time with respect to the compensation of directors
pursuant to By-Law 23; and (viii) such other duties as the Board may from time
to time prescribe, including those set forth in the Nominating and Corporate
Governance Committee charter.
31. ALTERNATES;
VACANCIES IN COMMITTEES
The
Board may designate one or more directors as alternate members of any committee.
Alternate members shall serve, in the order in which the Board shall determine,
when one or more members of the committee shall be absent or disqualified.
Alternate members may attend committee meetings as observers, without the right
to vote when all members are present; when fewer than all are present, only an
alternate member serving in the place of an absent or disqualified member shall
have the right to vote. If no alternate is available, the committee member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in place of any absent or disqualified member.
All members of all committees (including Chairmen) shall serve at the pleasure
of the Board. In the absence or disqualification of a member of the committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he, she or they constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in place of any such
absent or disqualified member.
OFFICERS
32. DESIGNATION;
ELECTION; QUALIFICATION; TERM
Each
year at the annual Board meeting the directors shall elect a Chairman of the
Board, a Chief Executive Officer, a Secretary and a Treasurer. From time to time
the Board may also elect or appoint a Vice Chairman of the Board or Vice
Chairmen of the Board, a President, such Executive, Senior or other Vice
Presidents as it may deem appropriate, a Chief Financial Officer, and such other
officers, including a Controller, Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers and Assistant Controllers, as it may deem
appropriate. The Chief Executive Officer may appoint any officers of the
corporation not required to be elected by the Board, as he may deem appropriate.
The Chairman of the Board, the Chief Executive Officer, and any Vice Chairman of
the Board must be directors; no other officer need be a director. Any number of
offices may be held by the same person. The term of each officer, whenever
elected or appointed, shall be until the election or appointment (as the case
may be)
and
qualification of his successor or until his earlier resignation or
removal.
33. DUTIES
The
officers shall have such powers and perform such duties as are prescribed in
these By-Laws, or, in the case of an officer whose powers and duties are not so
prescribed, as may be assigned by the Board or delegated by or through the Chief
Executive Officer.
34. RESIGNATION;
REMOVAL; VACANCIES
Any
officer may resign at any time by giving notice in writing to the corporation
addressed to the Chief Executive Officer or the Secretary. Such resignation
shall take effect at the date of the receipt of such notice or at any later time
specified therein. Acceptance of a resignation shall not be necessary to make it
effective unless otherwise stated in the notice. Any officer may be removed by
the Board at any time with or without cause. Any appointed officer may be
removed by the Chief Executive Officer at any time with or without cause. A
vacancy in any office may be filled by the Board, and a vacancy in any appointed
office may be filled by the Chief Executive Officer, for the unexpired portion
of the term.
35. CHIEF
EXECUTIVE OFFICER
The
Chief Executive Officer of the corporation shall be elected by the Board.
Subject to the Board, he shall be in general and active charge, control and
supervision over the management and direction of the business, property and
affairs of the corporation. He shall keep the Board fully informed, and shall
freely consult it, concerning the business of the corporation in his
charge.
He
shall, subject to these By-Laws, have authority to:
(i) appoint
or approve the appointment of employees to various posts and positions in the
corporation bearing titles designated or approved by him and to prescribe their
authority and duties, which may include the authority to appoint subordinates to
various other posts and positions; and
(ii) remove
or approve the removal of employees so appointed; and
(iii) sign,
execute and acknowledge, on behalf of the corporation, all deeds, mortgages,
bonds, notes, debentures, stock certificates, contracts, including contracts of
guaranty and suretyship, leases, reports and other documents and instruments,
except where the signing or execution thereof by some other officer or employee
of the corporation shall be expressly authorized and directed by law, or by the
Board, or by these By-Laws. Unless otherwise provided by law, or by these
By-Laws, or by the Board, he may authorize in a writing filed with the
Secretary, any officer, employee, or agent of the corporation to sign, execute
and acknowledge, on behalf of the corporation and in his place and stead, any or
all such documents and instruments.
He
shall have such other authority and perform such other duties as are incident to
the office of Chief Executive Officer and as may be prescribed from time to time
by the Board and these By-Laws.
In
the absence or disability of the Chief Executive Officer, or in case of an
unfilled vacancy in that office, until such time as the Board shall elect his
successor, his duties shall be performed and his powers shall be exercised by
other elected officers of the corporation who are also directors (unless none
are directors) in the order in which such officers were listed in their
respective elections.
36. CHAIRMAN
OF THE BOARD, VICE CHAIRMAN OF THE BOARD AND PRESIDENT
The
Chairman of the Board, any Vice Chairman of the Board and the President, each
acting alone, shall have authority to sign, execute and acknowledge on behalf of
the corporation, all deeds, mortgages, bonds, notes, debentures, stock
certificates, contracts, including contracts of guaranty and suretyship, leases,
reports and other documents and instruments, except where the signing or
execution thereof by some other officer or employee shall be expressly
authorized and directed by law, or by the Board, or by the Chief Executive
Officer or by these By-Laws. Each shall have such additional powers and perform
such additional duties as may be assigned to him by the Board or as may be
delegated to him by the Chief Executive Officer.
37. VICE
PRESIDENTS
Each
Vice President shall have such powers and perform such duties as may be assigned
to him by the Board or as may be delegated to him by the Chief Executive
Officer.
Each
Executive Vice President shall have authority to sign, execute and acknowledge
on behalf of the corporation, all deeds, mortgages, bonds, notes, debentures,
contracts, including contracts of guaranty and suretyship, leases, reports and
other documents and instruments, except where the signing or execution thereof
by some other officer or employee shall be expressly authorized and directed by
law, or by the Board, or by the Chief Executive Officer, or by these
By-Laws.
38. CHIEF
FINANCIAL OFFICER
The
Chief Financial Officer shall:
(i) be
the principal financial officer of the corporation and have responsibility for
all financial affairs of the corporation; and
(ii) protect
the cash, securities, receivables and other financial resources of the
corporation, have responsibility for investment, receipt, custody and
disbursement of such resources, and establish policies for granting credit to
customers; and
(iii)
maintain the creditworthiness of the corporation; and
(iv) negotiate
and procure capital required by the corporation, including long-term debt and
equity, maintain adequate sources for the corporation's short-term financing
requirements and maintain banking relationships; and
(v) administer
the accounting policies of the corporation and the internal controls with
respect to its financial affairs; and
(vi) supervise
the corporation's books of account, and have access to all records, including
the Secretary's records; and
(vii) in
general, have such other powers and perform such other duties as may be assigned
from time to time by the Board or by or through the Chief Executive
Officer.
39. CONTROLLER
The
Controller shall:
(i) be
the principal accounting officer of the corporation; and
(ii) have
custody and charge of the corporation's books of account, and have access to all
records, including the Secretary's and the Treasurer's records, for purpose of
obtaining information necessary to verify or complete the records of the
Controller's office; and
(iii) implement
the internal controls with respect to the financial affairs of the corporation;
and
(iv) in
general, have such other powers and perform such other duties as may be assigned
from time to time by the Board or by or through the Chief Executive
Officer.
40. SECRETARY
The
Secretary shall:
(i) attend
and keep the minutes of all meetings of the stockholders, the Board, and of such
committees as the Board may direct; and
(ii) have
custody of the corporate seal and all corporate records (including transfer
books and stock ledgers), contracts, papers, instruments, documents and books of
the corporation except those required to be kept by other officers under these
By-Laws; and
(iii) sign
on behalf of the corporation such documents and instruments as require his
signature when approved in accordance with these By-Laws, and to such documents
he shall affix the corporate seal when necessary and may do so when he deems it
desirable; and
(iv) see
that notices are given and records and reports are properly kept and filed by
the corporation as required by these By-Laws or as required by law;
and
(v) in
general, have such other powers and perform such other duties as are incident to
the office of Secretary and as may be assigned to him from time to time by the
Board or by or through the Chief Executive Officer.
41. TREASURER
The
Treasurer shall:
(i) receive
and sign receipts for all moneys paid to the corporation and shall deposit the
same in the name and to the credit of the corporation in authorized banks or
depositories; and
(ii) when
necessary or desirable, endorse for collection on behalf of the corporation all
checks, drafts, notes and other obligations payable to it; and
(iii) disburse
the funds of the corporation only upon vouchers duly processed and under such
rules and regulations as the Board may from time to time adopt; and
(iv) keep
full and accurate accounts of the transactions of his office in books belonging
to the corporation; and
(v) render
as the Board may direct an account of the transactions of his office;
and
(vi) in
general, have such other powers and perform such other duties as are incident to
the office of Treasurer and as may be assigned to him from time to time by the
Board or by or through the Chief Executive Officer.
MISCELLANEOUS
42. OFFICES
Except
as otherwise provided in the Certificate of Incorporation, the registered office
of the corporation in the State of Delaware shall be located at 1209 Orange
Street, Wilmington, Delaware 19801 and the name of the registered agent in
charge thereof shall be The Corporation Trust Company. The corporation may have
such other offices as the Board may from time to time determine. The books of
the corporation may be kept outside the State of Delaware.
43. SEAL
The
corporation's seal shall be circular in form with "KIMBERLY-CLARK CORPORATION —
DELAWARE" around the periphery and "1928 — CORPORATE SEAL" within.
44. FISCAL
YEAR
The
fiscal year of the corporation shall begin on January 1 of each
year.
45. ANNUAL
REPORT
At
least fifteen days in advance of the annual meeting of stockholders, but not
later than three months after the close of the fiscal year, the Board shall
publish and submit to the stockholders a consolidated balance sheet of the
corporation and its consolidated subsidiaries as of the end of the previous
fiscal year and the related consolidated income and cash flow statements of the
corporation and its consolidated subsidiaries for the previous fiscal
year.
46. INDEMNIFICATION
OF DIRECTORS AND OFFICERS
The
corporation shall:
(i)
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 a party or witness, or is threatened to be made a
party or witness, or is otherwise involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that he, or a person for whom he
is the legal representative, is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as
a director or officer of another corporation, partnership, joint venture,
trust or other enterprise (including service with respect to employee
benefit plans), against all liability, loss suffered and expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of
nolo contendere
or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful;
and
|
(ii)
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 a
party or witness, or is threatened to be made a party or witness, or
is otherwise involved in, any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason
of the fact that he is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
(including service with respect to employee benefit plans) against all
liability, loss suffered and expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action, suit or proceeding was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
The
corporation shall be required to indemnify an indemnitee under (i) and (ii)
above in connection with an action, suit or proceeding (or part thereof)
initiated by such indemnitee against the corporation or any of its directors,
officers or employees only if the initiation of such proceeding (or part
thereof) by the indemnitee was authorized by the Board. Notwithstanding the
foregoing, the corporation shall be required to indemnify an indemnitee in
connection with a proceeding seeking to enforce rights to indemnification
without the authorization of the Board to the extent that such proceeding is
successful on the merits. To the extent that a present or former director or
officer of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (i) and
(ii), or in defense of any claim, issue or matter therein, he shall be
indemnified, to the fullest extent not prohibited by applicable law, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Any
indemnification under subsections (i) and (ii) (unless ordered by a court) shall
be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director or officer
is proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (i) and (ii). Such determination shall be made,
with respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum; or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum; or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion; or (4)
by the stockholders.
Expenses
(including attorneys' fees) incurred by any current or former officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation, to the fullest
extent permitted by applicable law, in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this By-Law.
The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other paragraphs of this By-Law shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses shall
be entitled, or may hereafter acquire, under any statute, provision of the
Certificate of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit
of
the heirs, executors and administrators of such a person.
The
corporation's obligation, if any, to indemnify and advance expenses to any
person who was or is serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, enterprise or
nonprofit entity (including service with respect to employee benefit plans)
shall be reduced by any amount such person may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or nonprofit entity.
The
Board may authorize and direct that insurance be purchased and maintained on
behalf of any person who is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
(including service with respect to employee benefit plans) against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this
By-Law.
Any repeal or modification of the
provisions of this By-Law 46 shall not adversely affect any right or protection
hereunder of a director or officer of the corporation in respect of any action,
suit or proceeding (regardless of when such proceeding is first threatened,
commenced or completed) arising out of or relating to any acts or omissions
occurring prior to such repeal or modification, and
the rights to
indemnification and advancement of expenses pursuant to this By-Law 46 shall
vest at the time any such person becomes a director or officer of the
corporation
.
This By-Law 46 shall not limit the
right of the corporation, to the extent and in the manner permitted by law, to
indemnify and to advance expenses to persons other than directors and officers
of the corporation when and as authorized by appropriate corporate
action.
47. RELIANCE
ON RECORDS
Each
director, each member of any committee designated by the Board, and each
officer, shall, in the performance of his duties, be fully protected in relying
in good faith upon the records of the corporation and upon such information,
opinion, reports or statements presented to the corporation by any of the
corporation's officers or employees, or committees of the Board, or by any other
person as to matters the director, member or officer reasonably believes are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the corporation.
48. INSPECTION
OF BOOKS
The
directors shall determine from time to time whether, and, to what extent and at
what times and places and under what conditions and regulations the accounts and
other books and records of the corporation (except such as may by statute be
specifically open to inspection) or any of them, shall be open to the inspection
of the stockholders, and the stockholders' rights in this respect are and shall
be restricted and limited accordingly.
49. TRANSACTIONS
WITH THE CORPORATION
No
contract or transaction between the corporation and one or more of its directors
or officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if:
(i) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board or the committee, and the
Board or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(ii) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or
(iii) the
contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board, a committee thereof, or the
stockholders.
Common
or interested directors may be counted in determining the presence of a quorum
at a meeting of the Board or of a committee which authorizes the contract or
transaction.
No
other contract or transaction in which a director or officer has an interest and
which may, under law, be authorized, approved or ratified by the Board, a
committee thereof, or the stockholders shall be void or voidable if authorized,
approved or ratified by the body which under law may authorize, approve or
ratify such contract or transaction.
50. RATIFICATION
Any
transaction questioned in any stockholders' derivative suit on the ground of
lack of authority, defective or irregular execution, adverse interest of
director, officer or stockholder, nondisclosure, miscomputation, or the
application of improper principles or practices of accounting may be ratified
before or after judgment, by the Board or by the stockholders in case less than
a quorum of directors is qualified; and, if so ratified, to the fullest extent
permitted by law, shall have the same force and effect as if the questioned
transaction had been originally duly authorized, and said ratification shall be
binding upon the corporation and its stockholders and shall constitute a bar to
any claim or execution of any judgment in respect to such questioned
transaction.
51. VOTING
OF STOCKS
Unless
otherwise ordered by the Board, any one of the Chief Executive Officer, the
Chairman of the Board, the President, any Vice Chairman of the Board, any
Executive Vice President or any Senior Vice President shall have full power and
authority, on behalf of the corporation, to consent to or approve of any action
by, and to attend, act and vote at any meeting of stockholders or equity holders
of, any company in which the corporation may hold shares of stock or other
interests, and in giving such consent or approval or at any such meeting shall
possess and may exercise any and all rights and powers incident to the ownership
of such shares and which as the holder thereof, the corporation might possess
and exercise if personally present, and may exercise such power and authority
through the execution of proxies or may delegate such power and authority to any
other officer, agent or employee of the corporation.
52. NOTICE
Any
notice which the corporation is required to give under these By-Laws may be
given personally or it may be given in writing by depositing the notice in the
post office or letter box in a postpaid envelope directed to such address as
appears on the books of the corporation or by electronic transmission in
accordance with applicable law. Such notice, if mailed, shall be deemed to be
given at the time of mailing.
53. WAIVER
OF NOTICE
Whenever
any notice is required to be given, a waiver thereof in writing (or by
electronic transmission in accordance with applicable law) whether before or
after the time stated therein, shall be deemed equivalent thereto.
54. DISPENSING
WITH NOTICE
No
notice need be given to any person with whom communication is made unlawful by
any law of the United States or any rule, regulation, proclamation or executive
order issued under any such law.
55. AMENDMENTS
Subject
to the provisions of the Certificate of Incorporation, these By-Laws may be
altered, amended or repealed by the stockholders or by the Board.
****
17