EXHIBIT 3
AMENDED BY-LAWS
OF
ARVINMERITOR, INC.
(As of July 16, 2003)
ARTICLE I
OFFICE
SECTION 1.1. Registered Office. The registered office of ArvinMeritor,
Inc. (the "Corporation") in the State of Indiana shall be in the City of
Indianapolis, County of Marion.
SECTION 1.2. Principal Business Office. The principal business office
of the Corporation shall be in the City of Troy, County of Oakland, in the State
of Michigan.
SECTION 1.3. Other Offices. The Corporation may also have an office or
offices at such other place or places either in or outside the State of Indiana
as the Board of Directors may from time to time determine or the business of the
Corporation requires.
ARTICLE 2
MEETING OF SHAREHOLDERS
SECTION 2.1. Place of Meetings. Each meeting of shareholders of the
Corporation shall be held at such place, in or outside of the State of Indiana,
as the Board of Directors may designate in the notice of such meeting, but if no
such designation is made, then at the principal business office of the
Corporation.
SECTION 2.2. Annual Meetings. An annual meeting of shareholders for the
purpose of electing directors and transacting such other business as may
properly be brought before the meeting, notice of which was given in the notice
of meeting, shall be held on a date and time as the Board of Directors may
determine.
If for any reason any annual meeting shall not be held at the time
herein provided, the same may be held at any time thereafter, upon notice as
hereinafter provided, or the business thereof may be transacted at any special
meeting of shareholders called for that purpose.
The Board of Directors may, upon public notice given prior to the
scheduled meeting date, postpone, for as long as and to the extent permitted by
the Indiana Business Corporation Law, as amended (the "Act"), any previously
scheduled annual or special meeting of shareholders.
SECTION 2.3. Special Meetings. Special meetings of shareholders, unless
otherwise required by statute and subject to the rights of holders of any class
of Preferred Stock of the Corporation, may be called only by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
directors which the Corporation would have if there were no vacancies (the
"Whole Board"). Business transacted at any special meeting shall be confined to
the purpose or purposes stated in the notice of such special meeting. Meetings
may be held without notice if all shareholders entitled to vote are present or
if notice is waived by those not present.
SECTION 2.4. Notice of Shareholders' Meetings. Notice of each meeting
of shareholders, whether annual or special, stating the date, time and place,
and, in the case of special meetings, the purpose or purposes for which such
meeting is called, shall be mailed, postage prepaid, to each shareholder
entitled to vote thereat, at the shareholder's address as it appears on the
records of the Corporation, not less than 10 nor more than 60 days before the
date of the meeting unless otherwise prescribed by statute. Notice of any
adjourned meeting of shareholders shall not be required to be given, except when
expressly required by law.
SECTION 2.5. Record Dates.
(a) In order that the Corporation may 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 entitled to exercise any rights in
respect of any change, conversion or exchange of shares or for the purpose of
any other lawful action, the Board of Directors may designate a date as the
record date which, for purposes of a meeting of shareholders or other event
requiring shareholder action, shall not be more than 70 nor less than 10 days
before the date of such meeting or event.
(b) If a record date has not been fixed as provided in the preceding
paragraph (a), then:
(i) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders of the Corporation 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 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.
(c) Only those who shall be shareholders of record on the record date
so fixed as aforesaid shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend or
other distribution, or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding the transfer of any shares on the
books of the Corporation after the
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applicable record date, provided, however, the Board of Directors may fix a
new record date for any adjourned meeting and shall fix a new record date if a
meeting is adjourned to a date more than 120 days after the date originally
fixed for the meeting.
SECTION 2.6. List of Shareholders. The Secretary of the Corporation
shall, from information obtained from the transfer agent, prepare and make,
before each meeting of shareholders, an alphabetical list of shareholders
entitled to vote thereat, arranged by voting group, showing the address and
number of shares registered in the name of each shareholder. Such list shall be
open to the examination of any such shareholder or such shareholder's agent or
attorney authorized in writing ("shareholder agent"), for any purpose germane to
the meeting, during ordinary business hours, for a period of at least 5 days
prior to the meeting for which the list was prepared and continuing through the
meeting, either at a place in the city where the meeting is being held, which
place shall be specified in the notice of the meeting, or, if not so specified,
at the place where the meeting is to be held. Such list shall be produced and
kept at the time and place of meeting during the whole time thereof for
inspection by any such shareholder or shareholder agent who is present. The
stock ledger shall be the only evidence as to who are the shareholders entitled
to examine the stock ledger, the list referred to in this section or the books
of the Corporation, or to vote in person or by proxy at any meeting of
shareholders.
SECTION 2.7. Quorum and Adjournments. At each meeting of shareholders,
the holders of a majority of the voting power of the shares of the Corporation
entitled to vote, present in person or by proxy, shall constitute a quorum of
shareholders for all purposes unless the presence of a larger proportion is
required by statute or by the Corporation's Articles of Incorporation (the
"Articles of Incorporation"), and, in such cases, the presence of the proportion
so required shall constitute a quorum. Whether or not there is such a quorum,
the Chairman of the meeting or the shareholders present in person or by proxy
constituting a majority of the shares present may adjourn the meeting from time
to time without notice other than an announcement at the meeting. At any such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the original meeting, and only
those shareholders entitled to vote at the meeting as originally called shall be
entitled to vote at any adjournment or adjournments thereof. The absence from
any meeting of the number of shareholders required by law or by the Articles of
Incorporation or by these By-Laws for action upon any given matter shall not
prevent action at such meeting upon any other matter or matters which may
properly come before the meeting, if the number of shareholders required in
respect of such other matter or matters shall be present.
SECTION 2.8. Voting by Shareholders; Proxies. Except as otherwise
provided by law, the Articles of Incorporation or these By-Laws, each
shareholder entitled to vote shall at every meeting of the shareholders have one
vote for each share entitled to vote held by such shareholder. Any vote on
shares may be given by the shareholder entitled thereto in person or by proxy
appointed by an instrument in writing, subscribed (or transmitted by electronic
means and authenticated as provided by law) by such shareholder or by the
shareholder's attorney thereunto authorized, and delivered to the
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Secretary; provided, however, that no proxy shall be voted after 11 months from
its date unless the proxy provides for a shorter or longer period. Except as
otherwise set forth in the Articles of Incorporation with respect to the right
of the holders of any class or series of Preferred Stock to elect additional
directors under specified circumstances, election of directors at all meetings
of shareholders at which directors are to be elected shall be by a plurality of
the votes cast for the election of directors at the meeting. If a quorum exists,
action on a matter (other than the election of directors) submitted to
shareholders entitled to vote thereon at any meeting shall be approved if the
votes cast favoring the action exceed the votes cast opposing the action, unless
a greater number of affirmative votes is required by law, the Articles of
Incorporation or these By-Laws.
SECTION 2.8A. Participation in Meetings by Means of Conference or
Similar Communications. Any shareholder may participate in an annual or special
meeting of shareholders by or through use of any means of communications by
which all shareholders participating may simultaneously hear each other during
the meeting. A shareholder participating in such a meeting by this means is
deemed to be present at the meeting.
SECTION 2.9. Conduct of Business.
(a) Presiding Officer. The Chairman of the Board of Directors shall
preside as Chairman of shareholder meetings and shall determine the order and
conduct of business and all matters of procedure at such meetings. The Chairman
shall fix and announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the shareholders will vote at
the meeting. In the absence of the Chairman, the Vice Chairman of the Board of
Directors (the "Vice Chairman"), or if the Vice Chairman is also absent, the
President, shall assume the duties of the Chairman specified in this paragraph
(a) of Section 2.9. If each of the Chairman, the Vice Chairman and the President
is absent, a director or an officer of the Corporation chosen by the Board of
Directors shall assume the duties of the Chairman specified in this paragraph
(a) of Section 2.9.
(b) Secretary. The Secretary, or, in his or her absence, an Assistant
Secretary, shall act as Secretary at all meetings of the shareholders. In the
absence from any such meeting of the Secretary and the Assistant Secretaries,
the Chairman may appoint any person to act as Secretary of the meeting.
(c) Annual Meetings of Shareholders.
(i) 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 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 Section 2.9, who
is entitled to vote at the meeting and who complies with the notice procedures
set forth in this Section 2.9.
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(ii) For nominations or other business to be properly brought
before any annual meeting by a shareholder pursuant to clause (C) of paragraph
(c)(i) of this Section 2.9, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for shareholder action. To be timely, a
shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 90 days nor more than 120
days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the case of the annual meeting to be held in 2001 or
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 120th day
prior to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made by
the Corporation. In no event shall the public announcement of an adjournment of
an annual meeting commence a new time period for the giving of a shareholder's
notice as described above. 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 in an election
contest, 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 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 (x) the name and address
of such shareholder, as they appear on the Corporation's books, and of such
beneficial owner and (y) the class and number of shares of the Corporation which
are owned beneficially and of record by such shareholder and such beneficial
owner.
(iii) Notwithstanding anything in the second sentence of
paragraph (c)(ii) of this Section 2.9 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 by the Corporation naming all
of the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a shareholder's notice required by this Section 2.9 shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it is 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 public announcement is first
made by the Corporation.
(iv) Notwithstanding anything in the second sentence of
paragraph (c)(ii) of this Section 2.9 to the contrary, in the event that any
person nominated by the
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Board of Directors for election as a director (other than a person nominated to
fill a vacancy created by the death of a director) was not a director or nominee
named (A) in the Corporation's proxy statement for the preceding annual meeting
or (B) in a public announcement made by the Corporation at least 70 days prior
to the first anniversary of the preceding year's annual meeting (a "New
Nominee"), a shareholder's notice required by this Section 2.9 shall also be
considered timely if it is 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 public announcement is first made by the Corporation
of the election or nomination of such New Nominee to the Board of Directors.
(d) 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) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this Section 2.9, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section 2.9.
Nominations by shareholders of persons for election to the Board of Directors
may be made at such a special meeting of shareholders if the shareholder's
notice required by paragraph (c)(ii) of this Section 2.9 shall be delivered to
the Secretary at the principal executive offices of the Corporation not earlier
than the 120th day prior to such special meeting and not later than the close of
business on the later of the 90th day prior to such special meeting or the 10th
day following the date on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
shareholder's notice as described above.
(e) General.
(i) Except where the terms of any class or series of Preferred
Stock of the Corporation require the election of one or more directors by the
holders of such Preferred Stock voting as a single class and except as provided
in Section 3.2 of these By-Laws, only such persons who are nominated in
accordance with the procedures set forth in this Section 2.9 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 procedures set forth in this Section 2.9. Except as otherwise provided by
law, the Articles of Incorporation of these By-Laws, the person presiding at 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 or proposed in
accordance with the procedures set forth in this Section 2.9 and, if any
nomination or business
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proposed is not in compliance with this Section 2.9, to declare that such
defective nomination or proposal shall be disregarded.
(ii) For purposes of this Section 2.9, "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
Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section
2.9, 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 Section 2.9. Nothing in this Section 2.9 shall be
deemed to affect any rights of (x) shareholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (y) holders of any series of Preferred Stock to elect directors
under specified circumstances.
SECTION 2.10. Inspectors. There shall be appointed by the Board of
Directors, before each meeting of shareholders, two inspectors of the vote. Such
inspectors shall first take and subscribe an oath or affirmation faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of their ability. If two inspectors are not appointed in
advance of any such meeting by the Board of Directors or one or both appointed
inspectors fail or refuse to act, then one or both inspectors, as the case may
be, shall be appointed for the meeting by the person presiding thereat. Such
inspectors shall be responsible for tallying and certifying the vote taken on
any matter at each meeting which is required to be tallied and certified by them
in the resolution of the Board of Directors appointing them or the appointment
of the person presiding at such meeting as the case may be. Except as otherwise
provided by these By-Laws or the laws of the State of Indiana, such inspectors
shall also decide all questions touching upon the qualification of voters, the
validity of proxies and ballots, and the acceptance and rejection of votes. In
the case of a tie vote by the inspectors on any question, the person presiding
at the meeting shall decide such question. The Board of Directors shall have the
authority to make rules establishing presumptions as to the validity and
sufficiency of proxies.
ARTICLE 3
DIRECTORS
SECTION 3.1. Number. Subject to the rights of the holders of any class
or series of Preferred Stock to elect additional directors under specified
circumstances, the number of directors shall be set, and from time to time may
be increased or decreased to the extent provided for in the Articles of
Incorporation, exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the Whole Board. A director need not be a shareholder.
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SECTION 3.2. Vacancies. Except where the terms of any class or series
of Preferred Stock of the Corporation require the election of one or more
directors by the holders of such Preferred Stock voting as a single class and
except to the extent the Board of Directors determines otherwise, vacancies
occurring on the Board of Directors and newly-created directorships resulting
from any increase in the number of directors may be filled only by the
affirmative vote of a majority of the directors then in office, although less
than a quorum, or by a sole remaining director, and any director so chosen shall
hold office for a term expiring at the annual meeting of shareholders at which
the term of office of the class of directors to which such director has been
elected expires and until his or her successor is duly elected and qualified or
until the earlier of his or her death, resignation or removal in a manner
permitted by statute or these By-Laws. No decrease in the number of authorized
directors constituting the Whole Board shall shorten the term of any incumbent
director.
SECTION 3.3. Powers. The property, affairs and business of the
Corporation shall be managed by the Board of Directors which may exercise all
powers of the Corporation and do all lawful acts and things not by statute or by
the Articles of Incorporation or these By-Laws directed or required to be
exercised or done by the shareholders.
SECTION 3.4. Place of Meetings. The place of any meeting of the Board
of Directors may be either in or outside the State of Indiana as the Board may
from time to time determine or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
SECTION 3.5. Annual Meetings. Annual meetings of the Board of Directors
shall be held each year on the same day as the shareholder's annual meeting for
such year, at the time and place determined by the Board of Directors. Notice of
such meeting need not be given. Such meeting may be held at any other time or
place which shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors.
SECTION 3.6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at the dates, times and places designated by the Board
of Directors from time to time. If any day fixed for a regular meeting shall be
a legal holiday at the place where the meeting is to be held, then the meeting
which would otherwise be held on that day shall be held at the same hour on the
next succeeding business day not a legal holiday. Notice of regular meetings
need not be given.
SECTION 3.7. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman; and shall be called by the Chairman or
the Secretary upon the written request of three directors of the Corporation.
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SECTION 3.8. Notice of Special Meetings. Notice of each special meeting
of the Board of Directors shall be given to each director. The notice shall
state the principal purpose or purposes of the meeting.
SECTION 3.9. Quorum. Except as provided in Section 3.2, a whole number
of directors equal to at least a majority of the Whole Board shall constitute a
quorum for the transaction of business at all meetings of the Board of
Directors, and the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors unless
otherwise provided by law, the Articles of Incorporation or these By-Laws. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is present. Notice of any
adjourned meeting need not be given. The directors shall act only as a board and
the individual directors shall have no power as such.
SECTION 3.10. Informal Action. Unless otherwise restricted by statute,
the Articles of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if a written consent thereto is signed by all
directors or by all members of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the Board of
Directors or of such committee.
SECTION 3.11. Attendance by Conference Telephone. Members of the Board
of Directors or any committee designated by the Board of Directors may
participate in a meeting of such Board of Directors or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
SECTION 3.12. Order of Business. At all meetings of the Board of
Directors, business shall be transacted in the order determined by the Board.
SECTION 3.13. Resignations. Any director of the Corporation may resign
at any time by giving written notice to the Chairman of the Board or the
Secretary of the Corporation. The resignation of any director shall take effect
at the time of the receipt of such notice or at any later time specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.14. Committees.
(a) The Board of Directors may from time to time, in its discretion, by
resolution passed by a majority of the Whole Board, designate, and appoint, from
the directors, committees of one or more persons which shall have and may
exercise such lawfully delegable powers and duties conferred or authorized by
the resolutions of designation and appointment.
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(b) Each member of a committee shall continue in office until a
director to succeed him or her shall have been elected and shall have qualified,
or until he or she ceases to be a director or until he or she shall have
resigned or shall have been removed in the manner hereinafter provided. Any
vacancy in a committee shall be filled by the vote of a majority of the Whole
Board at any regular or special meeting thereof.
(c) The Board of Directors may, by resolution passed by a majority of
the Whole Board, designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee.
(d) Unless otherwise provided by the Board of Directors, each committee
shall appoint a chairman. Each committee shall keep a record of its acts and
proceedings and report the same from time to time to the Board of Directors.
(e) Any regular or alternate member of a committee may resign at any
time by giving written notice to the Chairman of the Board or the Secretary of
the Corporation. Such resignation shall take effect at the time of the receipt
of such notice or at any later time specified therein, and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
(f) Any regular or alternate member of a committee may be removed with
or without cause at any time by resolution passed by a majority of the Whole
Board at any regular or special meeting.
(g) Regular meetings of each committee, of which no notice shall be
necessary, shall be held on such days and at such places as the chairman of the
committee shall determine or as shall be fixed by a resolution passed by a
majority of all the members of such committee. Special meetings of each
committee will be called by the Secretary at the request of any two members of
such committee (or the sole member, if a committee of one), or in such other
manner as may be determined by the committee. Notice of each special meeting of
a committee shall be mailed to each member thereof at least two days before the
meeting or shall be given personally or by telephone or other electronic
transmission at least one day before the meeting. Every such notice shall state
the time and place, but need not state the purposes of the meeting. No notice of
any meeting of a committee shall be required to be given to any alternate.
(h) Unless the Board of Directors shall provide otherwise, the presence
of a majority of the total membership of any committee of the Board of Directors
shall constitute a quorum for the transaction of business at any meeting of such
committee and the act of a majority of those present shall be necessary and
sufficient for the taking of any action thereat.
SECTION 3.16. Compensation of Directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and at each meeting of a committee of the Board of Directors of which they are
members. Unless otherwise provided in these By-Laws, the Board of Directors
shall have the authority to
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fix compensation of all directors for their services to the Corporation as
directors and for their services to the Corporation as regular or alternate
members of committees of the Board of Directors.
SECTION 3.17. Removal. Subject to the rights of the holders of any
class or series of Preferred Stock, any director or the entire Board of
Directors may be removed from office at any time, but only for cause and only by
the affirmative vote by the holders of at least 80 percent of the voting power
of all of the then outstanding shares of capital stock of the Corporation
entitled to vote at an election of directors, voting together as a single class.
ARTICLE 4
NOTICES
SECTION 4.1. Notices. Notices to directors and shareholders shall be in
writing and delivered personally or mailed to their addresses appearing on the
records of the Corporation or, if to directors, by telegram, cable, telephone,
telecopy, facsimile, other electronic transmission, wireless or a nationally
recognized overnight delivery service or personally. Notice to directors by mail
shall be given at least five days before the meeting. Notice to directors by
telegram, cable, telephone, telecopy, facsimile, other electronic transmission,
wireless or personal delivery, shall be given a reasonable time before the
meeting, but in no event less than two days before the meeting. Notice by mail
shall be deemed to be given when mailed to the director at his or her address
appearing on the records of the Corporation. Notice by telegram or cable shall
be deemed to be given when the telegram or cable addressed to the director at
his or her address appearing on the records of the Corporation is delivered to
the telegraph company. Notice by telephone, telecopy, facsimile, other
electronic transmission or wireless shall be deemed to be given when transmitted
by telephone, telecopy, facsimile, other electronic transmission or wireless to
the number, electronic address or wireless call designation appearing on the
records of the Corporation for the director (regardless of whether the director
shall have personally received such telephone call or wireless message),
provided confirmation of transmission shall be made promptly by telegram or
cable in the manner specified above.
SECTION 4.2. Waiver of Notice. Whenever any notice is required, a
waiver thereof signed by the person entitled to such notice and filed with the
minutes or corporate records, whether before or after the time stated therein,
shall be deemed equivalent thereto. Attendance of any person at any meeting of
shareholders or directors shall constitute a waiver of notice of such meeting,
except when such person attends only for the express purpose of objecting, at
the beginning of the meeting (or in the case of a director's meeting, promptly
upon such director's arrival), to the transaction of any business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
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ARTICLE 5
OFFICERS
SECTION 5.1. Designation; Number; Election. The Board of Directors
shall elect the officers of the Corporation. Such officers shall be a chairman
of the Board of Directors, a vice chairman of the Board of Directors, a
president, one or more vice presidents as the Board of Directors shall determine
from time to time, a controller, a treasurer, and a secretary.
In addition to any officer elected by the Board of Directors, the Board
of Directors or the Chairman, at any time, may appoint and remove such
additional officers and agents as the Board of Directors or the Chairman may
determine from time to time. Such persons shall have such authority, and perform
such duties as provided in these By-Laws or as the Board of Directors or the
Chairman may from time to time prescribe. The Board of Directors or the Chairman
may from time to time authorize any officer to appoint and remove agents and
employees and to prescribe their powers and duties.
One person may hold more than one office at the same time provided the
duties of such officers as prescribed by these By-Laws may be properly and
consistently performed by one person.
SECTION 5.2. Term of Office; Removal; Resignations; Vacancies. The term
of each officer shall be for one year and continue until his or her successor is
chosen and qualified or until the earlier of his or her death, resignation or
removal, except that any such officer elected by the Board of Directors,
excluding the Chairman, the Vice Chairman and the President, at any time, may be
suspended by the Chairman, the Vice Chairman or the President until the Board of
Directors convenes, and any such officer, including the Chairman, the Vice
Chairman and the President, may be removed at any time by the affirmative vote
of a majority of the members of the Whole Board.
All appointed officers, agents and representatives of the Corporation
shall hold office only during the pleasure of the Board of Directors or the
officer appointing them.
Any officer elected by the Board of Directors may resign at any time by
giving written notice to the Chairman of the Board or the Secretary. Any other
officer may resign at any time by giving written notice to the Chairman of the
Board. Any such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
A vacancy in any office because of death, resignation, removal or
otherwise, shall be filled for the unexpired portion of the term in the manner
provided in these By-Laws for regular election or appointment to such office.
12
SECTION 5.3. Compensation of Officers. The Board of Directors or the
compensation committee of the Board of Directors shall have the authority to fix
compensation of all officers elected by the Board. The Chairman and/or such
officer as the Chairman may designate shall have the authority to fix
compensation of all other officers of the Corporation.
SECTION 5.4. Chairman of the Board of Directors. The Chairman of the
Board of Directors shall, subject to the Board of Directors, have general
management and oversight of the administration and operation of the
Corporation's business and general supervision of its policies and affairs. He
or she shall see that all orders and resolutions of the Board of Directors and
of any committee thereof are carried into effect.
He or she shall (a) preside at all meetings of the shareholders and of
the Board of Directors, and shall have plenary power to set the agenda,
determine the procedure and rules of order and make definitive rulings at
meetings of shareholders; (b) have power to appoint officers for any division
who, as such, shall not be officers of the Corporation; (c) subject to the Board
of Directors, be in general and active charge of the entire business and all the
affairs of the Corporation; and (d) have such other powers and perform such
other duties as may be prescribed by the Board of Directors or provided in these
By-Laws.
SECTION 5.5. Vice Chairman of the Board of Directors. The Vice Chairman
shall have the powers and duties prescribed in these By-Laws or assigned to him
or her by the Board of Directors. In the absence or disability of the Chairman,
the Vice Chairman shall preside at meetings of the Board of Directors and shall
perform such other duties of the Chairman as may be assigned to him or her by
the Board of Directors.
SECTION 5.6. President. The President shall have the powers and duties
prescribed in these By-Laws or assigned to him or her by the Board of Directors.
In the absence or disability of the Chairman and the Vice Chairman, the
President shall preside at meetings of the Board of Directors and shall perform
such other duties of the Chairman as may be assigned to him or her by the Board
of Directors. In the absence or disability of the Chairman, the Vice Chairman
and the President, on assembling for a regular or special meeting of the Board
of Directors, the directors shall choose another member of the Board of
Directors or another officer in attendance to preside at such meeting.
SECTION 5.7. Vice Presidents. Each Vice President shall have the powers
and duties prescribed in these By-Laws or assigned to him or her by the Board of
Directors, the Chairman or the President. The Board of Directors may designate
one or more of such Vice Presidents as executive, senior or assistant Vice
Presidents.
SECTION 5.8. Controller. Subject to control and supervision by the
Chairman, the President and the Board of Directors, the Controller shall be in
charge of the accounts of the Corporation and its subsidiaries; maintain
adequate records of all assets, liabilities and business transactions; and have
the other powers and duties prescribed by these By-
13
Laws or by the Board of Directors, the Chairman or the President, and the usual
powers and duties pertaining to his or her office.
SECTION 5.9. Assistant Controllers. The Assistant Controllers shall
have the powers and duties prescribed by these By-Laws or assigned by the
Controller. In the absence or disability of the Controller, they shall have all
his or her other powers and duties.
SECTION 5.10. Treasurer. Subject to control and supervision by the
Chairman, the President and the Board of Directors, the Treasurer shall have
charge of and shall be responsible for the receipt, disbursement and safekeeping
of all funds and securities of the Corporation (and shall deposit all such funds
in the name of the Corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of these
By-Laws), propose financial policies, negotiate loans, be responsible for the
maintenance of proper insurance coverages and from time to time and whenever
requested to do so, render statements of the condition of the finances of the
Corporation to the Board of Directors; and have the other powers and duties
prescribed by these By-Laws or by the Board of Directors, the Chairman or the
President, and the usual powers and duties pertaining to his or her office.
SECTION 5.11. Assistant Treasurers. The Assistant Treasurers shall have
the powers and duties prescribed by these By-Laws or assigned by the Treasurer.
In the absence of the Treasurer, they shall have all his or her other powers and
duties.
SECTION 5.12. Secretary. Subject to control and supervision by the
Board of Directors and the Chairman, the Secretary shall attend and record
proceedings of meetings of shareholders, the Board of Directors and any
committee of the Board of Directors, keep or cause to be kept in books provided
for such purpose such records of proceedings and have the other powers and
duties prescribed by these By-Laws or by the Board of Directors, the Chairman or
the President, and the usual powers and duties pertaining to his or her office,
including having custody of the corporate seal, if any, and affixing it to all
documents as required to attest the same.
SECTION 5.13. Assistant Secretaries. The Assistant Secretaries shall
have the powers and duties prescribed by these By-Laws or assigned by the
Secretary. In the absence or disability of the Secretary, they shall have all
his or her powers and duties.
SECTION 5.14. Certain Agreements. The Board of Directors shall have
power to authorize or direct the proper officers of the Corporation, on behalf
of the Corporation, to enter into valid and binding agreements in respect of
employment, incentive or deferred compensation, stock options, and similar or
related matters, notwithstanding the fact that a person with whom the
Corporation so contracts may be a member of its Board of Directors. Any such
agreement may validly and lawfully bind the Corporation for a term of more than
one year, in accordance with its terms, notwithstanding the fact that one of the
elements of any such agreement may involve the employment by the Corporation of
an officer, as such, for such term.
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ARTICLE 6
CONDUCT OF BUSINESS
SECTION 6.1. Contracts; Loans. The Board of Directors, except as in
these By-Laws otherwise provided, may authorize any officer, employee or agent
of the Corporation to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
No loan shall be contracted on behalf of the Corporation and no
negotiable paper shall be issued in its name, unless authorized by the Board of
Directors.
SECTION 6.2. Checks. 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 officer or officers, employee or employees,
of the Corporation as shall from time to time be determined in accordance with
authorization of the Board of Directors.
SECTION 6.3. Banking. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositories as the Board of Directors may from time to time
designate, or as may be designated by any officer or officers of the Corporation
to whom such power may be delegated by the Board, and for the purpose of such
deposit the officers and employees who have been authorized to do so in
accordance with the determinations of the Board may endorse, assign and deliver
checks, drafts, and other orders for the payment of money which are payable to
the order of the Corporation.
SECTION 6.4. Voting of Stock. Except as otherwise provided in these
By-Laws or in the Articles of Incorporation, and unless otherwise provided by
resolution of the Board of Directors, the Chairman or any other officer elected
by the Board of Directors may from time to time appoint an attorney or attorneys
or agent or agents of the Corporation, in the name and on behalf of the
Corporation to cast the votes which the Corporation may be entitled to cast as a
shareholder or otherwise in any other corporation any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing to
any action by such other corporation, and may instruct the person or persons so
appointed as to the manner of casting such vote or giving such consent, and may
execute or cause to be executed in the name and on behalf of the Corporation and
under its corporate seal, or otherwise, all such written proxies or other
instruments as he may deem necessary or proper in the premises.
15
ARTICLE 7
SHARE CERTIFICATES AND THEIR TRANSFER
SECTION 7.1. Share Certificates. Certificates for shares of the
Corporation shall be in such form as shall be approved by the Board of Directors
and shall be signed by the Chairman, the Vice Chairman or the President, and by
the Secretary or any Assistant Secretary, and shall not be valid unless so
signed. Such certificates shall be appropriately numbered in order of issue, by
class and series, and contain the name of the registered holder, the number of
shares and the date of issue. If such certificates are countersigned (a) by a
transfer agent other than the Corporation or its employee, or (b) by a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he, she
or it were such officer, transfer agent, or registrar at the date of issue.
The Board of Directors may by resolution or resolutions provide that
some or all of any or all classes or series of the shares of stock of the
Corporation shall be uncertificated shares. Notwithstanding the preceding
sentence, every holder of uncertificated shares, upon request, shall be entitled
to receive from the Corporation a certificate representing the number of shares
registered in such shareholder's name on the books of the Corporation.
During any period when more than one class of shares of the Corporation
is authorized, there shall be set forth on the face or back of certificates
issued to represent each class or series of shares, a statement that the
Corporation will furnish without charge to each shareholder who so requests, the
designation, preferences and relative, participating, optional or other special
rights of each class of shares or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 7.2. Transfer of Shares. Upon surrender to the Corporation or a
transfer agent of the Corporation by the holder of record or by such person's
attorney or other duly constituted representative of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, as the Corporation may reasonably require, it shall be
the duty of the Corporation and such transfer agent to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction on the books of the Corporation. No certificate shall be issued in
exchange for any certificate until the former certificate for the same number of
shares of the same class and series shall have been surrendered and canceled,
except as provided in Section 7.4.
16
SECTION 7.3. Regulations. The Board of Directors shall have authority
to make rules and regulations concerning the issue, transfer and registration of
certificates for shares of the Corporation and concerning the registration of
pledges of uncertificated shares.
SECTION 7.4. Lost, Stolen and Destroyed Certificates. The Corporation
may issue a new certificate or certificates for shares or may register
uncertificated shares, if then authorized by the Board of Directors, in place of
any issued certificate alleged to have been lost, stolen or destroyed upon such
terms and conditions as the Board of Directors may prescribe.
SECTION 7.5. Record Ownership; Registered Shareholders. A record of the
name and address of each holder of the shares of the Corporation, the number of
shares held by such shareholder, the number or numbers of any share certificate
or certificates issued to such shareholder and the number of shares represented
thereby, and the date of issuance of the shares held by such shareholder shall
be made on the Corporation's books. The Corporation shall be entitled to treat
the holder of record (according to the books of the Corporation) of any share or
shares (including any holder registered in a book-entry or direct registration
system maintained by the Corporation or a transfer agent or a registrar
designated by the Board of Directors) as the holder in fact thereof and owner
for all purposes and shall not be bound to recognize any equitable or other
claim to, or interest in, such share or shares on the part of any other person,
whether or not the Corporation shall have express or other notice thereof,
except as expressly provided by applicable law.
SECTION 7.6. Transfer Agents and Registrars. The Board of Directors may
from time to time appoint a transfer agent and a registrar in one or more
cities, may require all certificates evidencing shares of the Corporation to
bear the signatures of a transfer agent and a registrar, may provide that such
certificates shall be transferable in more than one city, and may provide for
the functions of transfer agent and registrar to be combined in one agency.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1. Litigation Brought By Third Parties. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, formal or informal (other than
an action by or in the right of the Corporation) (an "Action") by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation (a "Corporate Person"), or is or was serving at the request of the
Corporation as a director, officer, employee, agent, partner, trustee or member
or in another authorized capacity (except in each of the foregoing situations to
the extent any agreement, arrangement or understanding of agency contains
provisions that supersede or abrogate indemnification under this Section 8.1)
(collectively, an
17
"Authorized Capacity") of or for another corporation, unincorporated
association, business trust, estate, partnership, joint venture, individual,
trust, employee benefit plan, or other legal entity, whether or not organized or
formed for profit (collectively, "Another Entity"), 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
("Expenses") if he or she acted in good faith and in a manner he or she
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 or her conduct was unlawful. The termination of
any Action 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 or she 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 his or her conduct was unlawful.
SECTION 8.2. Litigation by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any Action by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a Corporate
Person, or is or was serving at the request of the Corporation in an Authorized
Capacity of or for Another Entity against Expenses actually and reasonably
incurred by him or her in connection with that defense or settlement of such
Action if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation,
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 for
negligence or willful misconduct in the performance of his or her duty to the
Corporation unless and only to the extent that a court of equity or the court in
which such Action was pending 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
such court of equity or other court shall deem proper.
SECTION 8.3. Successful Defense. To the extent that a person who is or
was a Corporate Person or serving at the request of the Corporation in an
Authorized Capacity of or for Another Entity has been successful on the merits
or otherwise in defense of any Action, referred to in Section 8.1 and 8.2 of
this Article, or in defense of any claim, issue or matter therein, he or she
shall be indemnified against Expenses actually and reasonably incurred by or on
behalf of him or her in connection therewith. If any such person is not wholly
successful in any such Action but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters therein, the
Corporation shall indemnify such person against all Expenses actually and
reasonably incurred by or on behalf of such person in connection with each
claim, issue or matter that is successfully resolved. For purposes of this
Section 8.3 and without limitation, the termination of any claim, issue or
matter by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
18
Notwithstanding any other provision of this section, to the extent any
person is a witness in, but not a party to, any Action, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a Corporate Person or serving at the request of the Corporation in an
Authorized Capacity of or for Another Entity, he or she shall be indemnified
against all Expenses actually and reasonably incurred by or on behalf of him or
her in connection therewith.
SECTION 8.4. Determination of Conduct.
(a) Any indemnification under Section 8.1 or 8.2 of this Article
(unless ordered by a court) shall be made by the Corporation only upon a
determination that indemnification of the person is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
Section 8.1 or 8.2. Such determination shall be made (1) if a Change of Control
(as hereinafter defined) shall not have occurred, (A) by the Board of Directors
by a majority vote of a quorum consisting of the Disinterested Directors (as
hereinafter defined) or, if such a quorum cannot be obtained, by majority vote
of a committee duly designated by the Board of Directors consisting solely of
two (2) or more Disinterested Directors or (B) if there are no Disinterested
Directors or, even if there are Disinterested Directors and a majority of such
Disinterested Directors so directs, by (i) Independent Counsel (as hereinafter
defined) in a written opinion to the Board of Directors, a copy of which shall
be delivered to the claimant, or (ii) the shareholders of the Corporation,
provided, however, that shares owned by or voted under the control of directors
who are at the time not Disinterested Directors may not be voted on the
determination; or (2) if a Change of Control shall have occurred, by Independent
Counsel in a written opinion to the Board of Directors, a copy of which shall be
delivered to the claimant, unless the claimant shall request that such
determination be made by or at the direction of the Board of Directors, in which
case it shall be made in accordance with clause (1) of this sentence. Any
claimant shall be entitled to be indemnified against the Expenses actually and
reasonably incurred by such claimant in cooperating with the person or entity
making the determination of entitlement to indemnification (irrespective of the
determination as to the claimant's entitlement to indemnification) and, to the
extent successful, in connection with any litigation or arbitration with respect
to such claim or the enforcement thereof.
(b) If a Change of Control shall not have occurred, or if a Change of
Control shall have occurred and a director, officer, employee or agent requests
pursuant to clause (2) of the second sentence in Section 8.4(a) that the
determination whether the claimant is entitled to indemnification be made by or
at the direction of the Board of Directors, the claimant shall be conclusively
presumed to have been determined pursuant to Section 8.4(a) to be entitled to
indemnification if (1)(a) within fifteen days after the next regularly scheduled
meeting of the Board of Directors following receipt by the Corporation of the
request therefor, the Board of Directors shall not have resolved by majority
vote of the Disinterested Directors to submit such determination to (i)
Independent Counsel for its determination or (ii) the shareholders for their
determination at the next annual meeting, or any special meeting that may be
held earlier, after such receipt, and (b) within sixty days after receipt by the
Corporation of the request therefor
19
(or within ninety days after such receipt if the Board of Directors in good
faith determines that additional time is required by it for the determination
and, prior to expiration of such sixty-day period, notifies the claimant
thereof), the Board of Directors shall not have made the determination by a
majority vote of the Disinterested Directors, or (2) after a resolution of the
Board of Directors, timely made pursuant to clause (1)(a)(ii) above, to submit
the determination to the shareholders, the shareholders meeting at which the
determination is to be made shall not have been held on or before the date
prescribed (or on or before a later date, not to exceed sixty days beyond the
original date, to which such meeting may have been postponed or adjourned on
good cause by the Board of Directors acting in good faith); provided, however,
that this sentence shall not apply if the claimant has misstated or failed to
state a material fact in connection with his or her request for indemnification.
Such presumed determination that a claimant is entitled to indemnification shall
be deemed to have been made (I) at the end of the sixty-day or ninety-day period
(as the case may be) referred to in clause (1)(b) of the immediately preceding
sentence or (II) if the Board of Directors has resolved on a timely basis to
submit the determination to the shareholders, on the last date within the period
prescribed by law for holding such shareholders meeting (or a postponement or
adjournment thereof as permitted above).
SECTION 8.5. Advance Payment. Expenses incurred in defending an Action
shall be paid by the Corporation in advance of the final disposition of such
Action to a director or officer, promptly after receipt of a request therefor
stating in reasonable detail the expenses incurred, and to an employee or agent
as authorized by the Board of Directors; provided that in each case (a) the
Corporation shall have received an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
hereunder, (b) the indemnitee furnishes the Corporation a written affirmation of
his or her good faith belief that he or she has satisfied the standard of
conduct in Section 8.1 or 8.2 and (c) a determination is made by those making
the decision pursuant to Section 8.4 that the facts then known would not
preclude indemnification under these By-Laws.
SECTION 8.6. Procedures for Determination. The Board of Directors shall
establish reasonable procedures for the submission of claims for indemnification
hereunder, determination of the entitlement of any person thereto and review of
any such determination. Such procedures shall be set forth in an appendix to
these By-Laws and shall be deemed for all purposes to be a part hereof.
SECTION 8.7. By-Law Not Exclusive. The indemnification provided by this
Article 8 shall not be deemed exclusive of any other rights to which any person
may be entitled under any by-law, agreement, vote of shareholders or
Disinterested Directors, or otherwise, both as to action in his or her 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, officer,
employee, agent or participant and shall inure to the benefit of the heirs,
executors and administrators of such a person. Notwithstanding any amendment,
alteration or repeal of this section or any of its provisions, or of any of the
procedures
20
established by the Board of Directors pursuant to Section 8.6, any person who is
or was a Corporate Person or is or was serving at the request of the Corporation
in an Authorized Capacity of or for Another Entity shall be entitled to
indemnification in accordance with the provisions hereof and thereof with
respect to any action taken or omitted prior to such amendment, alteration or
repeal except to the extent otherwise required by law.
SECTION 8.8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Corporate Person or is or was
serving at the request of the Corporation in an Authorized Capacity of or for
Another Entity against any liability asserted against him or her and incurred by
him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of this Article or the Business
Corporation Law of the State of Indiana.
SECTION 8.9. Effect of Invalidity. The invalidity or unenforceability
of any provision of this Article 8 shall not affect the validity or
enforceability of the remaining provisions of this Article 8.
SECTION 8.10. Definitions. For purposes of this Article 8:
(a) "Change of Control" means a change of control of the Corporation at
any time after the effective time of the merger of Arvin Industries, Inc. with
and into the Corporation of a nature that would be required to be reported in a
proxy statement pursuant to Section 14(a) of the Exchange Act or in a Form 8-K
pursuant to Section 13 of the Exchange Act (or in any similar form or schedule
under either of those provisions or any successor provision), whether or not the
Corporation is then subject to such reporting requirement; provided, however,
that, without limitation, a Change of Control shall be deemed to have occurred
if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 20% or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office immediately prior
to such person attaining such percentage interest; (ii) the Corporation is a
party to a merger, consolidation, sale of assets or other reorganization, or a
proxy contest, as a consequence of which members of the Board of Directors in
office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors immediately thereafter; or (iii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any director
whose election became effective prior to or at the time of the merger of Arvin
Industries, Inc. with and into the Corporation and any new director whose
election or nomination for election by the Corporation's shareholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
21
(b) "the Corporation" shall include, in addition to the surviving or
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify a
director, officer, employee or agent of such constituent corporation, or any
director, officer, employee or agent of such constituent corporation who is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of Another Entity shall stand in the same position
under the provisions of this Article 8 with respect to the surviving or
resulting corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
(c) "Disinterested Director" means a director of the Corporation who is
not and was not a party to an action, suit or proceeding in respect of which
indemnification is sought by a director, officer, employee or agent.
(d) "Independent Counsel" means a law firm, or a member of a law firm,
that (i) is experienced in matters of corporation law; (ii) neither presently
is, nor in the past five years has been, retained to represent the Corporation,
the director, officer, employee or agent claiming indemnification or any other
party to the Action giving rise to a claim for indemnification under this
section, in any matter material to the Corporation, the claimant or any such
other party; and (iii) would not, under applicable standards of professional
conduct then prevailing, have a conflict of interest in representing either the
Corporation or such director, officer, employee or agent in an action to
determine the Corporation's or such person's rights under this Article 8.
SECTION 8.11. Actions Against the Corporation. No indemnification shall
be payable to an officer, director, employee or agent pursuant to this Article 8
with respect to any action against the Corporation commenced by such officer,
director, employee or agent unless the Board of Directors shall have authorized
the commencement thereof or unless and to the extent that this Article 8 or the
procedures established pursuant to Section 8.6 shall specifically provide for
indemnification of expenses relating to the enforcement of rights under this
Article 8 and such procedures.
SECTION 8.12. Change in Law. Notwithstanding the foregoing provisions
of Article 8, the Corporation shall indemnify any person who is or was a
Corporate Person or is or was serving at the request of the Corporation in an
Authorized Capacity of or for Another Entity to the full extent permitted by the
Act or by any other applicable law, as may from time to time be in effect.
ARTICLE 9
GENERAL
SECTION 9.1. Dividends. Subject to any provisions of any applicable
statute or of the Articles of Incorporation, dividends may be declared upon the
capital stock of the
22
Corporation by the Board of Directors at any regular or special meeting thereof;
and such dividends may be paid in cash, property or shares of the Corporation.
SECTION 9.2. Fiscal Year. The fiscal year of the Corporation shall be
the fifty-two or fifty-three week period beginning on the Monday following the
Sunday closest to the last day of September of each year and ending on the
Sunday closest to the last day of September of the following year.
SECTION 9.3. Severability. If any provision of these By-Laws, or its
application thereof to any person or circumstances, is held invalid, the
remainder of these By- Laws and the application of such provision to other
persons or circumstances shall not be affected thereby.
SECTION 9.4. Amendments. These By-Laws may be amended, added to,
rescinded or repealed only by an affirmative vote of at least a majority of the
directors then in office at any meeting of the Board of Directors.
SECTION 9.5 Control Shares. Chapter 42 of the Indiana Business
Corporation Law (IBCL Section 23-1-42-1 et. seq.) shall not apply to the
acquisition of shares of voting stock of the Corporation.
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APPENDIX
PROCEDURES FOR SUBMISSION AND
DETERMINATION OF CLAIMS FOR INDEMNIFICATION
PURSUANT TO ARTICLE 8 OF THE BY-LAWS.
SECTION 1. Purpose. The Procedures for Submission and Determination of
Claims for Indemnification Pursuant to Article 8 of the By-Laws (the
"Procedures") are to implement the provisions of Article 8 of the By-Laws of the
Corporation (the "By-Laws") in compliance with the requirement of Section 8.6
thereof.
SECTION 2. Definitions. For purposes of these Procedures:
(A) All terms that are defined in Article 8 of the By-Laws
shall have the meanings ascribed to them therein when used in these
Procedures unless otherwise defined herein.
(B) "Expenses" include all reasonable attorneys' fees, court
costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in, a Proceeding;
and shall also include such retainers as counsel may reasonably require
in advance of undertaking the representation of an indemnitee in a
Proceeding.
(C) "Indemnitee" includes any person who was or is, or is
threatened to be made, a witness in or a party to any Proceeding by
reason of the fact that such person is or was a director, officer,
employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent
(except in each of the foregoing situations to the extent any
agreement, arrangement or understanding of agency contains provisions
that supersede or abrogate indemnification under Article 8 of the
By-Laws) of another corporation or of any partnership, joint venture,
trust, employee benefit plan or other enterprise.
(D) "Proceeding" includes any action, suit, arbitration,
alternative dispute resolution mechanism, investigation, administrative
hearing or any other proceeding, whether civil, criminal,
administrative or investigative, except one initiated by an Indemnitee
unless the Board of Directors shall have authorized the commencement
thereof.
SECTION 3. Submission and Determination of Claims.
(A) To obtain indemnification or advancement of Expenses under
Article 8 of the By-Laws, an Indemnitee shall submit to the Secretary
of the Corporation
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a written request therefor, including therein or therewith such
documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to permit a determination as to
whether and what extent the Indemnitee is entitled to indemnification
or advancement of Expenses, as the case may be. The Secretary shall,
promptly upon receipt of a request for indemnification, advise the
Board of Directors thereof in writing if a determination in accordance
with Section 8.4 of the By-Laws is required.
(B) Upon written request by an Indemnitee for indemnification
pursuant to Section 3(A) hereof, a determination with respect to the
Indemnitee's entitlement thereto in the specific case, if required by
the By-Laws, shall be made in accordance with Section 8.4 of the
By-Laws, and, if it is so determined that the Indemnitee is entitled to
indemnification, payment to the Indemnitee shall be made within ten
days after such determination. The Indemnitee shall cooperate with the
person, persons or entity making such determination, with respect to
the Indemnitee's entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to the
Indemnitee and reasonably necessary to such determination.
(C) If entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8.4 of the By-Laws, the
Independent Counsel shall be selected as provided in this Section 3(C).
The Independent Counsel shall be selected by the Board of Directors by
majority vote of a quorum consisting of Disinterested Directors, or, if
such a quorum cannot be obtained, by majority vote of a committee duly
designated by the Board of Directors consisting solely of two or more
Disinterested Directors, or, if such a quorum cannot be obtained and
such a committee cannot be designated, by a majority vote of the full
Board of Directors (in which selection Directors who are not
Disinterested Directors may participate), and the Corporation shall
give written notice to the Indemnitee advising the Indemnitee of the
identity of the Independent Counsel so selected. The Indemnitee may,
within seven days after such written notice of selection shall have
been given, deliver to the Corporation a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Article 8 of the By-Laws, and the
objection shall set forth with particularity the factual basis of such
assertion. If such written objection is made, the Independent Counsel
so selected may not serve as Independent Counsel unless and until a
court has determined that such objection is without merit. If, within
twenty days after the next regularly scheduled Board of Directors
meeting following submission by the Indemnitee of a written request for
indemnification pursuant to Section 3(A) hereof, no Independent Counsel
shall have been selected and not objected to, either the Corporation or
the Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by the
Indemnitee to the selection of Independent Counsel and/or for the
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appointment as Independent Counsel of a person selected by the Court or
by such other person as the Court shall designate, and the person with
respect to whom an objection is favorably resolved or the person so
appointed shall act as Independent Counsel under Section 8.4 of the
By-Laws. The Corporation shall pay any and all reasonable fees and
expenses (including without limitation any advance retainers reasonably
required by counsel) of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 8.4
of the By-Laws, and the Corporation shall pay all reasonable fees and
expenses (including without limitation any advance retainers reasonably
required by counsel) incident to the procedures of Section 8.4 of the
By-Laws and this Section 3(C), regardless of the manner in which
Independent Counsel was selected or appointed. Upon the delivery of its
opinion pursuant to Article 8 of the By-Laws or, if earlier, the due
commencement of any judicial proceeding or arbitration pursuant to
Section 4(A)(3) of these Procedures, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then
prevailing).
(D) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification under the
By-Laws, the person, persons or entity making such determination shall
presume that an Indemnitee is entitled to indemnification under the
By-Laws if the Indemnitee has submitted a request for indemnification
in accordance with Section 3(A) hereof, and the Corporation shall have
the burden of proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination contrary
to that presumption.
SECTION 4. Review and Enforcement of Determination.
(A) In the event that (1) advancement of Expenses is not
timely made pursuant to Section 8.5 of the By-Laws, (2) payment of
indemnification is not made pursuant to Section 8.3 of the By-Laws
within ten days after receipt by the Corporation of written request
therefor, (3) a determination is made pursuant to Section 8.4 of the
By-Laws that an Indemnitee is not entitled to indemnification under the
By-Laws, (4) the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 8.4 of the By-Laws
and such determination shall not have been made and delivered in a
written opinion within ninety days after receipt by the Corporation of
the written request for indemnification, or (5) payment of
indemnification is not made within ten days after a determination has
been made pursuant to Section 8.4 of the By-Laws that an Indemnitee is
entitled to indemnification or within ten days after such determination
is deemed to have been made pursuant to Section 8.4 of the By-Laws, the
Indemnitee shall be entitled to an adjudication in an appropriate court
of the State of Indiana, or in any other court of competent
jurisdiction, of the Indemnitee's entitlement to such indemnification
or advancement of Expenses. Alternatively, the Indemnitee, at his or
her option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the rules of the
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American Arbitration Association. The Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within
one year following the date on which the Indemnitee first has the right
to commence such proceeding pursuant to this Section 4(A). The
Corporation shall not oppose the Indemnitee's right to seek any such
adjudication or award in arbitration.
(B) In the event that a determination shall have been made
pursuant to Section 8.4 of the By-Laws that an Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 4 shall be conducted in all respects
as a de novo trial, or arbitration, on the merits and the Indemnitee
shall not be prejudiced by reason of that adverse determination. If a
Change of Control shall have occurred, the Corporation shall have the
burden of proving in any judicial proceeding or arbitration commenced
pursuant to this Section 4 that the Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(C) If a determination shall have been made or deemed to have
been made pursuant to Section 8.4 of the By-Laws that an Indemnitee is
entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration commenced
pursuant to this Section 4, absent (1) a misstatement or omission of a
material fact in connection with the Indemnitee's request for
indemnification, or (2) a prohibition of such indemnification under
applicable law.
(D) The Corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 4
that the procedures and presumptions of these Procedures are not valid,
binding and enforceable, and shall stipulate in any such judicial
proceeding or arbitration that the Corporation is bound by all the
provisions of these Procedures.
(E) In the event that an Indemnitee, pursuant to this Section
4, seeks to enforce the Indemnitee's rights under, or to recover
damages for breach of, Article 8 of the By-Laws or these Procedures in
a judicial proceeding or arbitration, the Indemnitee shall be entitled
to recover from the Corporation, and shall be indemnified by the
Corporation against, any and all expenses (of the types described in
the definition of Expenses in Section 2 of these Procedures) actually
and reasonably incurred in such judicial proceeding or arbitration, but
only if the Indemnitee prevails therein. If it shall be determined in
such judicial proceeding or arbitration that the Indemnitee is entitled
to receive part but not all of the indemnification or advancement of
Expenses sought, the expenses incurred by the Indemnitee in connection
with such judicial proceeding or arbitration shall be appropriately
prorated.
SECTION 5. Amendments. These Procedures may be amended at any time and
from time to time in the same manner as any By-Law of the Corporation in
accordance with the Articles of Incorporation, the By-Laws and the Act;
provided, however, that notwithstanding any amendment, alteration or repeal of
these Procedures or any
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provision hereof, any Indemnitee shall be entitled to utilize these Procedures
with respect to any claim for indemnification arising out of any action taken or
omitted prior to such amendment, alteration or repeal except to the extent
otherwise required by law.
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