1
EXHIBIT 3.2
BYLAWS
OF
FEDERAL-MOGUL CORPORATION
2
BYLAWS
OF
FEDERAL-MOGUL CORPORATION
INDEX
PAGE
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ARTICLE I - SHAREHOLDERS 1
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(1)
Section 1 - Annual Meeting 1
(2)
Section 2 - Special Meeting 1
Section 3 - Place of Meeting 2
Section 4 - Notice of Meeting 2
(3)
Section 5 - Adjourned Meetings 2
Section 6 - Voting Lists 2
Section 7 - Quorum 3
Section 8 - Manner of Acting 3
(4)
Section 9 - Postponement of Annual or Special Meeting 3
(5)
Section 10 - Nomination and Shareholder Business Bylaw 3
ARTICLE II - DIRECTORS 6
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Section 1 - General Powers 6
(6)
Section 2 - Number, Tenure, Qualifications, & Removal 6
Section 3 - Annual Meetings 7
Section 4 - Regular Meetings 7
Section 5 - Special Meetings 7
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(1) Amended 5/21/85, 7/25/90
(2) Amended 11/03/88
(3) Amended 7/25/90
(4) Amended 7/25/90
(5) Amended 7/25/90
(6) Amended 8/01/84, 2/04/88, 2/08/89, 9/28/89, 7/24/91, 4/26/95, 2/04/98
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PAGE
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(7)
Section 6 - Notice 8
Section 7 - Quorum 8
Section 8 - Manner of Acting 9
Section 9 - Vacancies 9
Section 10 - Compensation 9
Section 11 - Committees 9
ARTICLE III - OFFICERS 9
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Section 1 - Number 9
Section 2 - Election and Term of Office 10
Section 3 - Removal and Resignations 10
Section 4 - Vacancies 10
Section 5 - The Chief Executive Officer 10
Section 6 - Authority of Officers, Agents and Employees,
Generally 11
Section 7 - The Chairman of the Board, The Vice Chairman
of the Board and The President 12
(8)
Section 8 - The Secretary 12
Section 9 - The Treasurer 13
Section 10 - Assistant Secretaries and Assistant Treasurers 13
Section 11 - Remuneration 13
(9)
ARTICLE IV - INDEMNIFICATION OF DIRECTORS, OFFICERS,
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EMPLOYEES AND AGENTS 14
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Section 1 - Non-Derivative Actions 14
Section 2 - Derivative Actions 14
Section 3 - Expenses or Successful Defense 15
Section 4 - Definition 15
Section 5 - Contract Right; Limitation on Indemnity 16
Section 6 - Right of Claimant to Bring Suit 16
Section 7 - Proportionate Indemnity 17
Section 8 - Expense Advance 17
Section 9 - Non-Exclusivity of Rights 17
Section 10 - Indemnification of Employees and Agents of
the Corporation 18
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(7) Amended 7/25/90
(8) Amended 8/01/84
(9) Amended 11/03/88
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Page
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Section 11 - Insurance 18
Section 12 - No Liability if Determination Made in Good Faith 18
Section 13 - Scope of Indemnity; Changes in Michigan Law 18
Section 14 - Severability 19
ARTICLE V - FIXING RECORD DATE 19
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ARTICLE VI - LOANS, CHECKS, DEPOSITS, ETC. 20
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Section 1 - Loans 20
Section 2 - Checks, Drafts, etc. 20
Section 3 - Deposits 20
ARTICLE VII - CERTIFICATES FOR SHARES 21
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(10)
Section 1 - Certificates for Shares 21
Section 2 - Lost Certificates 21
Section 3 - Transfer of Shares 21
Section 4 - Regulations 22
Section 5 - Elimination of Certificates for Stock 22
ARTICLE VIII - FISCAL YEAR 22
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ARTICLE IX - SEAL 22
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(11)
ARTICLE X - EMERGENCY PROVISIONS 22
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Section 1 - General 22
Section 2 - Unavailable Directors 23
Section 3 - Authorized Number of Directors 23
Section 4 - Quorum 23
Section 5 - Creation of Emergency Committee 23
Section 6 - Constitution of Emergency Committee 24
Section 7 - Powers of Emergency Committee 24
Section 8 - Directors Becoming Available 25
Section 9 - Election of Board of Directors 25
Section 10 - Termination of Emergency Committee 25
ARTICLE XI - AMENDMENTS 25
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(10) Amended 7/28/90
(11) Amended 8/01/84
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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.
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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 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 and
place of the meeting, shall be subject to the inspection by any shareholder
during the whole time of the meeting, and shall be
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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 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.
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(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 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
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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) 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 and 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 meeting 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.
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(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.
(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 May 20, 1998, shall be ten 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
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have requested that he continue to hold office following such 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.
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
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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.
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
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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.
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,
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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 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
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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, 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 the following powers and duties subject to the direction
and under the supervision of the Board of Directors. The Chairman
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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.
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
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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 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
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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
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
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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 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, 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
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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 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.
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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 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.
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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 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
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such amendment), against all 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 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
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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 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
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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 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.
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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.
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
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are unwilling to perform their duties or whose whereabouts are unknown shall
automatically cease to be directors, 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 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
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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 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
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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.
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