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EXHIBIT 3.2
BYLAWS
OF
FEDERAL-MOGUL CORPORATION
ARTICLE I
Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders
shall be held on the fourth Wednesday in May of each year or at
such other date as the Board of Directors in its discretion shall
determine at the time stated in the notice of meeting, for the
purpose of electing directors and for the transaction of such other
business as may be determined by the Board of Directors or as
otherwise properly may come before the meeting. If the day fixed
for the annual meeting shall be a legal holiday at the place of
meeting, such meeting shall be held on the next succeeding business
day.
Section 2. Special Meetings. Special meetings of the shareholders
may be called by the Chairman of the Board, or by the President, or
pursuant to resolution of the Board of Directors. 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 the meeting.
Section 3. Place of Meeting. The Board of Directors may designate
any place either within or without the State of Michigan as the
place of meeting for any annual or special meeting of shareholders
called by the Board of Directors. If no designation is made or if
a special meeting be called otherwise than by the Board of
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Directors, the place of meeting shall be the registered office of
the Corporation in the State of Michigan.
Section 4. Notice of Meetings. Written or printed notice stating
the time, place and purposes of a meeting of shareholders shall be
given not less than ten nor more than sixty days before the date of
the meeting, by mail, by or at the direction of the Chairman of the
Board, the President, the Secretary, or the directors or persons
calling the meeting, to each shareholder of record entitled to vote
at such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail in a sealed envelope
addressed to the shareholder at his address as it appears on the
records of the Corporation, with postage thereon prepaid.
Section 5. Adjourned Meetings. Any annual or special meeting of
shareholders may be adjourned by the chairman of the meeting or
pursuant to resolution of the Board of Directors. Notice need not
be given of an adjourned meeting of shareholders if the time and
place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting only such business may be
transacted as might have been transacted at the original meeting.
If after the adjournment the Board of Directors fixes a new record
date for the adjourned meeting, a notice of the adjourned meeting
shall be given to each shareholder of record on the new record date
entitled to vote at the meeting.
Section 6. Voting Lists. It shall be the duty of the officer or
agent who shall have charge of the stock transfer books for shares
of the Corporation to make and certify a complete list of the
shareholders entitled to vote at a shareholder's meeting or any
adjournment thereof, arranged in alphabetical order within each
class and series, with the addresses of, and the number of shares
held by, each shareholder. Such list shall be produced at the time
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and place of the meeting, shall be subject to the inspection by any
shareholder during the whole time of the meeting, and shall be
prima facie evidence as to who are the shareholders entitled to
examine such list or to vote in person or by proxy at such meeting.
Section 7. Quorum. Unless a greater or lesser quorum is provided
by law, a majority of the outstanding shares of the Corporation
entitled to vote, represented in person or by proxy, shall
constitute a quorum at any meeting of shareholders. The
shareholders present in person or by proxy at such meeting may
continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
Whether or not a quorum is present, the meeting may be adjourned by
a vote of the shares present.
Section 8. Manner of Acting. The election of directors shall be
determined by a plurality of the votes cast by the holders of
shares entitled to vote thereon or their proxies. Except as
otherwise provided by law, or by the Articles of Incorporation, all
other matters shall be determined by a majority of the votes cast
by the holders of shares entitled to vote thereon or their proxies.
Section 9. Postponement of Annual or Special Meeting. The Board
of Directors acting by resolution may postpone and reschedule any
previously scheduled annual or special meeting of shareholders.
Section 10. Nomination and Shareholder Business Bylaw.
(A) Annual Meetings of Shareholders. (1) Nominations of persons
for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the shareholders may be
made at an annual meeting of shareholders (a) pursuant to the
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Corporation's notice of meeting, (b) by or at the direction of the
Board of Directors or (c) by any shareholder of the Corporation who
was a shareholder of record at the time of giving of notice
provided for in this Bylaw, who is entitled to vote at the meeting
and who complied with the notice procedures set forth in this
Bylaw.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (c) of
paragraph (A) (1) of this Bylaw, the shareholder must have given
timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of
the Corporation not less than 60 days nor more than 90 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 shareholder to be
timely must be so delivered not earlier than the 90th day prior to
such annual meeting and not later than the close of business on the
later of the 60th 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. Such shareholder's notice shall set forth
(a) as to each person whom the shareholder proposes to nominate for
election or reelection as a director, all information relating to
such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as
a nominee and to serving as a director if elected); (b) as to any
other business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be brought
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before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the
proposal is made; (c) as to the shareholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such shareholder, as
they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such shareholder and
such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A) (2) of this Bylaw to the contrary, in the event that
the number of directors to be elected to the Board of Directors of
the Corporation is increased and there is no public announcement
naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Corporation at least
70 days prior to the first anniversary of the preceding year's
annual meeting, a shareholder's notice required by this Bylaw shall
also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 10th
day following the day on which such public announcement is first
made by the Corporation.
(B) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of shareholders at which
directors are to be elected pursuant to the Corporation's notice of
meeting (a) by or at the direction of the Board of Directors or (b)
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by any shareholder of the Corporation who is a shareholder of
record at the time of giving of notice provided hereunder, who
shall be entitled to vote at the meeting nd who complies with the
notice procedures set forth in this Bylaw. Nominations by
shareholders of persons for election to the Board of Directors may
be made at such a special meeting of shareholders if this
shareholder's notice required by paragraph (A) (2) of this Bylaw
shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 90th day prior to
such special meeting and not later than the close of business on
the later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of
the date of the special meetings and of the nominees proposed by
the Board of Directors to be elected at such meeting.
(C) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Bylaw shall be
eligible to serve as directors and only such business shall be
conducted at a meeting of shareholders as shall have been brought
before the meeting in accordance with the procedure set forth in
this Bylaw. The Chairman of the meeting shall have the power and
duty to determine whether a nomination or any business proposed to
be brought before the meeting was made in accordance with the
procedures set forth in this Bylaw and, if any proposed nomination
or business is not in compliance with this Bylaw, to declare that
such defective proposal shall be disregarded.
(2) For purposes of this Bylaw, "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.
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(3) Notwithstanding the foregoing provisions of this Bylaw,
a shareholder 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 Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights of shareholders to
request inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
Directors
Section 1. General Powers. The business and affairs of the
Corporation shall be managed by its Board of Directors, except as
otherwise provided by law or by the Articles of Incorporation.
Section 2. Number, Tenure and Qualifications, and Removal. The
number of directors of the Corporation shall be as determined from
time to time by the Board of Directors but effective April 26,
1995, shall be seven members. Each director shall hold
office for the term for which he is named or elected and
until his successor shall have been elected and qualified, or until
his resignation or removal. The age limit for directors, including
directors who have served as Chief Executive Officer of the
Corporation, shall be age seventy, and for employee directors who
have not served as Chief Executive Officer of the Corporation shall
be age sixty-five. A director shall not be eligible for
re-election at the annual meeting of the shareholders next
following the date on which he attains the applicable age limit.
Notwithstanding the foregoing provisions of this Section 2, the
term of office of an employee director who has not served as Chief
Executive Officer of the Corporation shall expire upon termination
of his employment unless the Board of Directors shall theretofore
have requested that he continue to hold office following such
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termination of employment. Any director may be removed from office
as a director but only for cause and by the affirmative vote of the
holders of a majority of the shares entitled to vote at an election
of directors.
Section 3. Annual Meetings. The newly elected Board of Directors
shall meet immediately following the annual meeting of shareholders
at the place where such annual shareholders meeting is held for the
purpose of the organization of the Board, the election of officers,
and the transaction of such other business as may properly come
before the meeting, and no notice of such meeting shall be
necessary.
Section 4. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such times and at such
places, within or without the State of Michigan, as shall from time
to time be determined by the Board.
Section 5. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President
or a majority of the directors, and shall be called at the request
of any two directors. Such meetings, if called by the Chairman of
the Board, the President or by a majority of the directors may be
held at such place within or without the State of Michigan as the
Chairman of the Board, the President or as a majority of the Board
of Directors may from time to time determine. If any such special
meetings are called other than by the Chairman of the Board, the
President or a majority of the Board of Directors, they shall be
held at the registered office of the Corporation in the State of
Michigan unless otherwise consented to in writing by all of the
directors or unless previous nuclear attack prevents the holding of
a meeting at such place, in which case such meeting shall be held
as close to such registered office as possible.
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Section 6. Notice. Notice of any special meeting of directors
shall be given by or at the direction of the Chairman of the Board,
the President, the Secretary or the directors calling the meeting
by written notice delivered personally or mailed to each director
at his business address, or by telegram. If mailed, such notice
shall be given at least four days prior to the meeting and shall be
deemed to be given when deposited in the United States mail in a
sealed envelope so addressed, with postage thereon prepaid. If
notice be given by telegram, such notice shall be given at least
twenty-four hours prior to the meeting and shall be deemed to be
given when the telegram is delivered to the telegraph company. Any
director may waive notice of any meeting. The attendance of a
director at, or participation in, any meeting shall constitute a
waiver of notice of such meeting, unless the director, at the
beginning of the meeting, or upon his or her arrival, objects to
the meeting or the transacting of business at the meeting and does
not thereafter vote for or assent to any action taken at the
meeting. A director may participate in a meeting by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can communicate
with each other and such participation shall constitute attendance
at any meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of
Directors need be specified in the notice or waiver of notice of
such meeting.
Section 7. Quorum. A majority of the Board of Directors then in
office shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, but, if less than a majority
of the directors are present at said meeting, a majority of the
directors present may adjourn the meeting from time to time without
further notice.
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Section 8. Manner of Acting. The vote of the majority of
directors present at the meeting at which a quorum is present shall
be the act of the Board of Directors, unless a larger number is
required by law, the Articles of Incorporation or these Bylaws.
Section 9. Vacancies. Vacancies in the Board of Directors may be
filled by a majority of the remaining members of the Board though
less than a quorum. Such vacancies may be filled for a term of
office continuing only until the next election of Directors by the
Shareholders.
Section 10. Compensation. Directors as such shall not receive any
stated salaries for their services, but by resolution of the Board
of Directors, adopted by a majority of directors then in office, a
fixed sum and expenses of attendance, if any may be allowed for
attendance at each meeting of the Board of Directors; provided that
nothing herein contained shall be construed to preclude any
director from serving the Corporation in any capacity other than as
a director or officer and receiving compensation therefor.
Section 11. Committees. The Board of Directors may designate one
or more committees, each committee to consist of one or more
directors, and may designate one or more directors as alternate
members of a committee to replace an absent or disqualified member
at a committee meeting. In the absence or disqualification of a
member of a committee, the members thereof present at a meeting and
not disqualified from voting, whether or not they constitute a
quorum, may by unanimous vote appoint another director to act at
the meeting in the place of such absent or disqualified member.
Committees and each member thereof shall serve at the pleasure of
the Board.
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To the extent provided by the resolution of the Board of Directors
a committee shall have and may exercise all powers and authority of
the Board in the management of the business and affairs of the
Corporation.
ARTICLE III
Officers
Section 1. Number. The Board of Directors shall elect a Chairman
of the Board, a President, a Secretary and a Treasurer, (and shall
designate a Chief Executive Officer in accordance with Section 5 of
this Article III) and may elect a Vice Chairman of the Board, a
Controller, one or more Executive Vice Presidents, Vice Presidents,
Assistant Secretaries, Assistant Treasurers and such other officers
and agents as it may deem necessary for the transaction of the
business of the Corporation. No one of the said officers except
the Chairman of the Board, the Vice Chairman of the Board, and the
President need be a director. Two or more of the above offices
except those of President and Vice President may be held by the
same person, but no officer shall execute, acknowledge or verify
any instrument in more than one capacity if the instrument is
required by law or the Articles of Incorporation or these Bylaws to
be executed, acknowledged or verified by two or more officers.
Section 2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at
the first meeting of the Board of Directors held after each annual
meeting of shareholders subject to the power of the Board of
Directors to designate any office at any time and elect any person
thereto. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office for the term
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for which he is elected and until his successor is elected and
qualified or until his resignation or removal.
Section 3. Removal and Resignations. Any officer or agent may be
removed by the Board of Directors with or without cause. An
officer may resign by written notice to the Corporation. Such
resignations shall be effective upon receipt by the Corporation or
at a subsequent time specified in the notice of resignation.
Section 4. Vacancies. The Board of Directors shall have the power
to fill any vacancies in any office occurring from whatever
reason.
Section 5. The Chief Executive Officer. The Board of Directors
shall designate either the Chairman of the Board or the President
as the Chief Executive Officer. Subject to the direction and under
the supervision of the Board of Directors, the Chief Executive
Officer shall manage the business and affairs of the Corporation,
and shall be in charge of its property and have control over its
officers, agents and employees. Subject to the direction and under
the supervision of the Board of Directors, the Chief Executive
Officer may execute in the name of the Corporation all deeds,
bonds, mortgages, contracts and other documents except in cases
where the execution thereof shall be expressly and specifically
delegated by the Board of Directors or these Bylaws exclusively to
some other person or persons. If the office of Chairman of the
Board and Chief Executive Officer are combined, the President may
act as the Chief Executive Officer in the case of the Chairman's
sickness, disability or temporary absence from the Corporation's
Registered Office, and whether or not the Chairman is sick,
disabled or absent, the President may execute on behalf of the
Corporation any deed, bond, mortgage, contract or document which a
Chief Executive Officer is authorized hereinabove to execute,
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subject to the direction and supervision of the Board of Directors
and the Chief Executive Officer. If the offices of President and
Chief Executive Officer are combined, the Executive Vice President
with the greatest length of service in such capacity or, if there
be no Executive Vice President, the Chairman of the Board, may act
as the Chief Executive Officer in the case of the President's
sickness, disability or temporary absence from the Corporation's
Registered Office, and whether or not the President is sick,
disabled or absent, such Executive Vice President or Chairman of
the Board, as the case may be, may execute on behalf of the
Corporation any deed, bond, mortgage, contract or document which a
Chief Executive Officer is authorized hereinabove to execute,
subject to the direction and supervision of the Board of Directors
and the Chief Executive Officer.
Section 6. Authority of Officers, Agents and Employees,
Generally. Except as otherwise provided by law, the Articles of
Incorporation or these Bylaws, all officers, agents and employees
of the Corporation shall have such powers and perform such duties
as from time to time may be prescribed by the Board of Directors,
or the Chief Executive Officer. However, unless specifically
authorized by resolution of the Board of Directors, a person who is
not an officer of the Corporation shall have no authority to
execute on its behalf any (1) contract for the purchase or sale of
lands or buildings, (2) deed, (3) lease of lands or buildings, (4)
mortgage, (5) instrument creating any lien on the personal or real
property of the Corporation or (6) contract or other instrument not
entered into in the ordinary course of business.
Section 7. The Chairman of the Board, The Vice Chairman of the
Board and the President. In addition to the powers and duties
elsewhere herein conferred or provided for, the Chairman of the
Board, the Vice Chairman of the Board and the President shall have
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the following powers and duties subject to the direction and under
the supervision of the Board of Directors. The Chairman of the
Board shall preside at meetings of the Board of Directors and of
the shareholders. In the absence of the Chairman of the Board, the
Vice Chairman of the Board, if such office shall be created, shall
so preside. The President shall preside at meetings of the Board
of Directors and of the shareholders in the absence of the Chairman
of the Board and any Vice Chairman of the Board.
Section 8. The Secretary. In addition to the powers and duties
elsewhere herein conferred or provided for, the Secretary shall
have the following powers and duties subject to the direction and
under the supervision of the Board of Directors and the Chief
Executive Officer. He shall attend all meetings of the Board and
all meetings of the shareholders and act as clerk thereof and
record all votes and the minutes of all proceedings in a book to be
kept for that purpose. He shall perform like duties for all
directors' committees when required. He shall have custody of the
seal of the Corporation and shall have authority to cause such seal
to be affixed to or impressed or otherwise reproduced upon all
documents the execution of which on behalf of the Corporation shall
have been duly authorized. He shall cause to be kept records
containing the names and addresses of all shareholders of the
Corporation, the number, class and series of shares held by each
and the dates when they respectively became shareholders of record
thereof at the registered office of the Corporation or at the
office of its transfer agent within or without the State of
Michigan. In general, he shall perform the duties usually incident
to the office of Secretary. At any meeting of the shareholders or
Board of Directors at which the Secretary is not present a
Secretary Pro Tempore or Clerk of the meeting may be appointed by
the meeting.
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Section 9. The Treasurer. In addition to the powers and duties
elsewhere herein conferred or provided for, the Treasurer shall
have the following powers and duties subject to the direction and
under the control of the Board of Directors and the Chief Executive
Officer. He shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation. He shall
deposit all moneys and other valuable effects in the name of and to
the credit of the Corporation, in such depositaries as may be
designated by the Board of Directors, and, in general, he shall
perform the duties usually incident to the office of Treasurer. If
required by the Board of Directors, the Treasurer shall furnish the
corporation with a proper bond, in a sum and with one or more
sureties satisfactory to the Board of Directors, for the faithful
performance of the duties of his office, and for the restoration to
the Corporation in case of his death, resignation, retirement or
removal from office of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control
and belonging to the Corporation.
Section 10. Assistant Secretaries and Assistant Treasurers. In
addition to the powers and duties elsewhere herein conferred or
provided for, Assistant Secretaries and Assistant Treasurers shall
have the following powers and duties subject to the direction and
under the supervision of the Board of Directors and the Chief
Executive Officer. Any Assistant Secretary or Assistant Treasurer
may act as the Secretary or Treasurer, respectively, in the case of
the sickness, disability or temporary absence from the Registered
Office of the Corporation of the Secretary or Treasurer, as the
case may be. In addition, any Assistant Secretary shall have the
authority to cause the seal of the Corporation to be affixed to or
impressed or otherwise reproduced upon all documents the execution
of which on behalf of the Corporation shall have been duly
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authorized whether or not the Secretary is sick, disabled or
absent.
Section 11. Remuneration. The Board of Directors shall set from
time to time the remuneration of the officers of the Corporation
after reviewing the recommendation of the Chief Executive Officer
and as appropriate the report or recommendation of a committee of
the Board consisting of one or more directors who are not also
salaried employees of the Corporation.
ARTICLE IV
Indemnification of
Directors, Officers, Employees and Agents
Section 1. Non-Derivative Actions. Subject to all of the other
provisions of this Article IV, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to
or called as a witness in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative
or investigative (whether formal or informal) and any appeal
thereof (other than an action by or in the right of the
Corporation) by reason of the fact that the person is, was or
agreed to become a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise, whether for profit or not, against expenses (including
attorneys' fees), judgments, penalties, fines, and amounts paid in
settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if the person acted
in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the Corporation or its
shareholders, and with respect to any criminal action or
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proceeding, if the person had no reasonable cause to believe his or
her 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 the person reasonably believed to be in or not
opposed to the best interests of the Corporation or its
shareholders, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
Section 2. Derivative Actions. Subject to all of the provisions
of this Article IV, the Corporation shall indemnify any person who
was or is a party to or is threatened to be made a party to, or
called as a witness in any threatened, pending or completed action
or suit and any appeal thereof by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director of officer of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, whether for profit or not,
against expenses (including actual and reasonable attorneys' fees)
and amounts paid in settlement incurred by the person in connection
with such action or suit if the person acted in good faith and in
a manner the person reasonably believed to be in or not opposed to
the best interests of the Corporation or its shareholders.
However, indemnification shall not be made for any claim, issue or
matter in which such person has been found liable to the
Corporation unless and only to the extent that the court in which
such action or suit was brought has determined upon application
that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably
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entitled to indemnification for the expenses which the court
considers proper.
Section 3. Expenses or Successful Defense. To the extent that a
person has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 1, 2, 8 or 13
of these Bylaws, or in defense of any claim, issue or matter in the
action, suit or proceeding, the person shall be indemnified against
expenses (including actual and reasonable attorneys' fees) incurred
by such person in connection with the action, suit or proceeding
and any action, suit or proceeding brought to enforce the mandatory
indemnification provided by this Section 3.
Section 4. Definition. For the purposes of Sections 1, 2 and 13,
"other enterprises" shall include employee benefit plans; "fines"
shall include any excise taxes assessed on a person with respect to
an employee benefit plan; and "serving at the request of the
Corporation" shall include any service as a director, officer,
employee, or agent of the Corporation which imposes duties on, or
involves services by, the director or officer with respect to an
employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner the person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be considered to
have acted in a manner "not opposed to the best interests of the
Corporation or its shareholders" as referred to in Sections 1 and
2.
Section 5. Contract Right; Limitation on Indemnity. This Article
IV shall be applicable to all proceedings commenced or continuing
after its adoption, whether such arise out of events, acts or
omissions which occurred prior or subsequent to such adoption, and
shall continue as to a person who has ceased to be a director,
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officer or a person serving at the request of the Corporation as a
director, trustee, fiduciary, employee, agent or officer of another
corporation, partnership, joint venture, trust or other person.
This article IV shall be deemed to be a contract between the
Corporation and each person who, at any time that this Article IV
is in effect, serves or agrees to serve in any capacity which
entitles him or her to indemnification hereunder and any repeal or
other modification of this Article IV or any repeal or modification
of the Michigan Business Corporation Act or any other applicable
law shall not limit any rights of indemnification for proceedings
then existing or later arising out of events, acts or omissions
occurring prior to such repeal or modification for proceedings
commenced after such repeal or modification to enforce this Article
IV with regard to proceedings arising out of acts, omissions or
events occurring prior to such repeal or modification. The right
to indemnification conferred in this Article IV shall apply to
services of a director or officer as an employee or agent of the
Corporation as well as in such person's capacity as a director or
officer. Except as provided in Sections 3 and 6 of these Bylaws,
the Corporation shall have no obligations under this Article IV to
indemnify any person in connection with any proceeding, or part
thereof, initiated by such person without authorization by the
Board of Directors.
Section 6. Right of Claimant to Bring Suit. If a claim under
Sections 1, 2, 8 or 13 of this Article is not paid in full by the
Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses
20
incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that indemnification of the
claimant is prohibited by applicable law, but the burden of proving
such defense shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors, independent
legal counsel, its General Counsel or its shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances, nor
an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, its General Counsel or its
shareholders) that indemnification of the claimant is prohibited by
applicable law, shall be a defense to the action or create a
presumption that indemnification of the claimant is prohibited by
applicable law.
Section 7. Proportionate Indemnity. If a person is entitled to
indemnification under Sections 1, 2 or 13 of these Bylaws for a
portion of expenses, including attorneys' fees, judgments,
penalties, fines, and amounts paid in settlements, but not for the
total amount thereof, the Corporation shall indemnify the person
for the portion of the expenses, judgments, penalties, fines, or
amounts paid in settlement for which the person is entitled to be
indemnified.
Section 8. Expense Advance. Expenses incurred in defending a
civil or criminal action, suit or proceeding and any appeal thereof
described in Sections 1, 2 or 13 of these Bylaws shall be paid by
the Corporation in advance of the final disposition of such action,
suit or proceeding; provided, however, that if required by the
Michigan Business Corporation Act, such expenses shall not be paid
by the Corporation unless the Corporation receives an undertaking
by or on behalf of the person involved to repay the expenses if it
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is ultimately determined that the person is not entitled to be
indemnified by the Corporation.
Section 9. Non-Exclusivity of Rights. The indemnification or
advancement of expenses provided under this Article IV is not
exclusive of other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any statute,
provision of the Corporation's Articles of Incorporation,
contractual arrangement, vote of the shareholders or disinterested
directors or otherwise. However, the total amount of expenses
advanced or indemnified from all sources combined shall not exceed
the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses.
Section 10. Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from
time to time by the Board of Directors, or by written opinion of
the General Counsel with respect to agents and employees of the
Corporation not serving on its Executive Council or Advisory Board
or their equivalents, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article IV with
respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
Section 11. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, partner,
trustee, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against the person and incurred by him or her in any such
capacity or arising out of his or her status as such, whether or
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not the Corporation would have power to indemnify the person
against such liability under these Bylaws of the State of Michigan.
Section 12. No Liability if Determination Made in Good Faith.
Neither the Corporation nor its directors or officers nor any
person acting on its behalf shall be liable to anyone for any
determination as to the existence or absence of conduct which would
provide a basis for making or refusing to make any payment under
this Article IV or for taking or omitting to take any other action
under this Article, in reliance upon the advice of counsel.
Section 13. Scope of Indemnity; Changes in Michigan Law.
Notwithstanding any of the other provisions in this Article IV,
each person who was or is a party or is threatened to be made a
party to or called as a witness in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (whether formal or informal) and
any appeal thereof (hereinafter a "proceeding"), by reason of the
fact that the person is, was or agreed to become a director or
officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, partner, trustee, employee
or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, whether for profit or
not, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee, trustee, or
agent or in any other capacity while serving as a director,
officer, employee, trustee, or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Michigan Business Corporation Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all
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expenses (including attorneys' fees and other expenses of
litigation), judgments, fines, penalties and amounts paid in
settlement actually and reasonably incurred by such person in
connection therewith and such indemnification shall continue as to
a person who has ceased to be a director, officer, employee,
trustee, or agent and shall inure to the benefit of his or her
heirs, executors and administrators: provided, however, that,
except as provided in Sections 3 and 6 hereof, the Corporation shall
indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
Section 14. Severability. If any portion of this Article IV shall
be invalidated or held to be unenforceable on any ground by any
court of competent jurisdiction, the decision of which shall not
have been reversed on appeal, such invalidity or unenforceability
shall not affect the other provisions hereof, and this Article
shall be construed in all respects as if such invalid or
unenforceable provisions had been omitted therefrom.
ARTICLE V
Fixing Record Date
In order to determine the shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution
or allotment of any rights, or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date,
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. If no record date is fixed, the record date for
determining shareholders entitled to notice of or to vote at a
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meeting of shareholders 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 the record date for
determining shareholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts
the resolution relating thereto. A determination of shareholders
of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
ARTICLE VI
Loans, Checks, Deposits, etc.
Section 1. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors.
Such authority may be general or confined to specific instances.
Section 2. Checks, Drafts, etc. All checks, drafts, or other
orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation shall be signed
by such officers, employees, or agents of the Corporation and in
such manner as shall from time to time be determined by or pursuant
to and in accordance with general or specific resolutions of the
Board of Directors.
Section 3. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositaries as
the Board of Directors may select. Such selection shall be by or
25
pursuant to and in accordance with a general or specific resolution
of the Board of Directors.
ARTICLE VII
Certificates for Shares
Section 1. Certificates for Shares. Certificates representing
shares of the Corporation shall be in such form conforming to
applicable laws as may be determined by the Board of Directors and
shall be signed by or in the name of the Corporation by the
Chairman of the Board, the Vice Chairman of the Board, the
President or a Vice President and may also be signed by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Corporation, certifying the number, and class and
series of shares represented by such certificate. The signatures
of the officers may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar
other than the Corporation or its employee. In case any officer
has signed or whose facsimile signature has been placed upon a
certificate ceases to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as
if he were such officer at the date of issue.
Section 2. Lost Certificates. If a certificate of stock be lost
or destroyed, a new certificate of the identical tenor of the one
alleged to be lost or destroyed may be issued upon satisfactory
proof of such loss or destruction, and the giving of a bond
sufficient to indemnify the Corporation against any claim that may
be made against the Corporation on account of the alleged lost or
destroyed certificate or the issuance of such a new certificate.
Section 3. Transfer of Shares. Transfers of shares of the
Corporation shall be made only on the books of the Corporation by
26
the registered holder thereof or by his attorney thereunto
authorized by power of attorney duly executed and filed with the
Secretary or transfer agent of the Corporation, and on surrender
for cancellation of the certificate for such shares. The person in
whose name shares stand on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the
Corporation.
Section 4. Regulations. The Board of Directors may make such
rules and regulations as it may deem expedient concerning the
issue, transfer and registration of the certificates for shares.
It may appoint one or more transfer agents or registrars or both,
and may require all certificates to bear the signature of either or
both.
Section 5. Elimination of Certificates for Stock. The Corporation
may by resolution of the Board of Directors eliminate certificates
representing shares of the Corporation and provide for such other
methods of recording, noticing ownership and disclosure as may be
provided by the rules of any national securities exchange on which
such shares are listed.
ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of
January in each year and end on the thirty-first day of December in
each year.
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ARTICLE IX
Seal
The following shall be the design for the corporate seal of the
Corporation: two concentric rings with the words "Federal-Mogul
Corporation, Michigan" between the circles and the words "Corporate
Seal" in the center.
ARTICLE X
Emergency Provisions
Section 1. General. The provisions of this Article shall be
operative only during a national emergency declared by the
President of the United States or the person performing the
President's functions, or in the event of a nuclear, atomic or
other attack on the United States or a disaster making it
impossible or impracticable for the Corporation to conduct its
business without recourse to the provisions of this Article. Said
provisions in such event shall override all other Bylaws of the
Corporation in conflict with any provisions of this Article, and
shall remain operative so long as it remains impossible or
impracticable to continue the business of the Corporation
otherwise, but thereafter shall be inoperative; provided that all
actions taken in good faith pursuant to such provisions shall
thereafter remain in full force and effect unless and until revoked
by action taken pursuant to the provisions of the Bylaws other than
those contained in this Article.
Section 2. Unavailable Directors. All directors of the
Corporation who are not available to perform their duties as
directors by reason of physical or mental incapacity or for any
other reason or who are unwilling to perform their duties or whose
whereabouts are unknown shall automatically cease to be directors,
28
with like effect as if such persons had resigned as directors, so
long as such unavailability continues.
Section 3. Authorized Number of Directors. The authorized number
of directors shall be the number of directors remaining after
eliminating those who have ceased to be directors pursuant to
Section 2 of this Article, or the minimum number required by law,
whichever number is greater.
Section 4. Quorum. The number of directors necessary to
constitute a quorum shall be one-third of the authorized number of
directors as specified in the foregoing Section, or such other
minimum number as, pursuant to the law or lawful decree then in
force, it is possible for the Bylaws of a corporation to specify.
Section 5. Creation of Emergency Committee. In the event the
number of directors remaining after eliminating those who have
ceased to be directors pursuant to Section 2 of this Article is
less than the minimum number of authorized directors required by
law, then until the appointment of additional directors to make up
such required minimum, all the powers and authorities which the
Board could by law delegate, including all powers and authorities
which the Board could delegate to a committee, shall be
automatically vested in an emergency committee, and the emergency
committee shall thereafter manage the affairs of the Corporation
pursuant to such powers and authorities and shall have all other
powers and authorities as may by law or lawful decree be conferred
on any person or body of persons during a period of emergency.
Section 6. Constitution of Emergency Committee. The emergency
committee shall consist of all the directors remaining after
eliminating those who have ceased to be directors pursuant to
Section 2 of this Article, provided that such remaining directors
29
are not less than three in number. In the event such remaining
directors are less than three in number, the emergency committee
shall consist of three persons, who shall be the remaining director
or directors and either one or two officers or employees of the
Corporation, as the remaining director or directors may in writing
designate. If there is no remaining director, the emergency
committee shall consist of the three most senior officers of the
Corporation who are available to serve, and if and to the extent
that officers are not available, the most senior employees of the
Corporation. Seniority shall be determined in accordance with any
designation of seniority in the minutes of the proceedings of the
Board, and in the absence of such designation, shall be determined
by rate of remuneration. In the event that there are no remaining
directors and no officers or employees of the Corporation
available, the emergency committee shall consist of three persons
designated in writing by the shareholder owning the largest number
of shares of record as of the date of the last record date.
Section 7. Powers of Emergency Committee. The emergency
committee, once appointed, shall govern its own procedures and
shall have power to increase the number of members thereof beyond
the original number, and in the event of a vacancy or vacancies
therein, arising at any time, the remaining member or members of
the emergency committee shall have the power to fill such vacancy
or vacancies. In the event at any time after its appointment all
members of the emergency committee shall die or resign or become
unavailable to act for any reason whatsoever, a new emergency
committee shall be appointed in accordance with the foregoing
provisions of this Article.
Section 8. Directors Becoming Available. Any person who has
ceased to be a director pursuant to the provisions of Section 2 of
this Article and who thereafter becomes available to serve as a
30
director shall automatically become a member of the emergency
committee.
Section 9. Election of Board of Directors. The emergency
committee shall, as soon after its appointment as is practicable,
take all requisite action to secure the election of a Board of
Directors, and upon such election all the powers and authorities of
the emergency committee shall cease.
Section 10. Termination of Emergency Committee. In the event,
after the appointment of an emergency committee, a sufficient
number of persons who ceased to be directors pursuant to Section 2
of this Article become available to serve as directors, so that if
they had not ceased to be directors as aforesaid, there would be
enough directors to constitute the minimum number of directors
required by law, then all such persons shall automatically be
deemed to be reappointed as directors and the powers and
authorities of the emergency committee shall be at an end.
ARTICLE XI
Amendments
These Bylaws may be altered or new Bylaws may be made and adopted
by the affirmative vote of a majority of the Board of Directors.