Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
BORGWARNER INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE.--The registered office of the
Corporation shall be established and maintained at the office of The Corporation
Trust Company, at 1209 West Orange Street in the City of Wilmington, County of
New Castle, State of Delaware, and said corporation shall be the registered
agent of this Corporation in charge thereof.
SECTION 2. OTHER OFFICES.--The Corporation may have other
offices, either within or without the State of Delaware, at such place or places
as the Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS.--Annual meetings of stockholders
for the election of directors, and for such other business as may be stated in
the notice of the meeting, shall be held at such place, either within or without
the State of Delaware, and at such time and date as the Board of Directors, by
resolution, shall determine and as set forth in the notice of the meeting. If
the date of the annual meeting shall fall upon a legal holiday, the meeting
shall be held on the next succeeding business day. At each annual meeting, the
stockholders entitled to vote shall elect a Board of Directors and they may
transact such other corporate business as shall be stated in the notice of the
meeting.
SECTION 2. OTHER MEETINGS.--Meetings of stockholders for any
purpose other than the election of directors may be held at such time and place,
within or without the State of Delaware, as shall be stated in the notice of the
meeting.
SECTION 3. SPECIAL MEETINGS.--Subject to the rights of the
holders of any series of Preferred Stock, special meetings of the stockholders
for any purpose or purposes may be called only by the Chairman of the Board of
Directors or the Board of Directors pursuant to a resolution approved by a
majority of the total number of directors or by any person or committee
expressly so authorized by the Board of Directors pursuant to a resolution
approved by a majority of the total number of directors.
SECTION 4. VOTING.--Each stockholder shall be entitled to vote
in accordance with the terms of the Certificate of Incorporation and in
accordance with the provisions of these By-Laws, in person or by proxy, but no
proxy shall be voted after three years from its date unless such proxy provides
for a longer period.
A complete list of the stockholders entitled to vote at the
ensuing election, arranged in alphabetical order, with the address of each, and
the number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be 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. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 5. QUORUM.--Except as otherwise required by law, by
the Certificate of Incorporation or by these By-Laws, the presence, in person or
by proxy, of stockholders holding a majority of the stock of the Corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be present.
When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place are announced
at the meeting at which the adjournment is taken; provided, however, that if the
date of any adjourned meeting is more than thirty days after the date for which
the meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, notice of the place, if any, date, and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
SECTION 6. NOTICE OF MEETINGS.--Written notice, stating the
place, date and time of the meeting, and the nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the Corporation, not less than ten nor
more than sixty days before the date of the meeting, except as otherwise
provided herein or required by law. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders
may be given by electronic transmission in the manner provided in Section 232 of
the General Corporation Law of the State of Delaware. No business other than
that stated in the notice shall be transacted at any meeting without the
unanimous consent of all the stockholders entitled to vote thereat.
SECTION 7. NOTICE OF STOCKHOLDER BUSINESS AND
NOMINATIONS.--(A) Annual Meetings of Stockholders. (1) Nominations of persons
for election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation's notice of meeting delivered
pursuant to Section 6 of this Article II (b) by or at the direction of the
Chairman or the Board of Directors or (c) by any stockholder of the Corporation
who is entitled to vote at the meeting, who complied with the notice procedures
set
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forth in clauses (2) and (3) of this paragraph (A) and this By-Law and who was a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this By-Law, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than ninety days nor more than one
hundred and twenty 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 thirty days, or delayed by more than sixty
days, from such anniversary date, notice by the stockholder to be timely must be
so delivered not earlier than the one hundred and twentieth day prior to such
annual meeting and not later than the close of business on the later of the
ninetieth day prior to such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
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 stockholder 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 stockholder and the beneficial owner, if any,
on whose behalf the proposal is made; and (c) as to the stockholder 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 stockholder, as they appear on
the Corporation's books, and of such beneficial owner, (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, and (iii) whether either such stockholder
or beneficial owner intends to deliver a proxy statement and form of proxy to
holders of, in the case of a proposal, at least the percentage of the
Corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the Corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation Notice").
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-Law 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 seventy days prior to the first anniversary of the
preceding year's annual meeting, a stockholders notice required by this By-Law
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the corporation.
(B) Special meetings of Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to
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the Corporation's notice of meeting pursuant to Section 7 of this Article II.
Nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders 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 stockholder of the Corporation who is entitled to vote
at the meeting, who complies with the notice procedures set forth in this By-Law
and who is a stockholder of record at the time such notice is delivered to the
Secretary of the Corporation. Nominations by stockholders of persons for
election to the Board of Directors may be made at such a special meeting of
stockholders if the stockholder's notice as required by paragraph (A) (2) of
this By-Law shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the one hundred and twentieth day
prior to such special meeting and not later than the close of business on the
later of the ninetieth day prior to such special meeting or the tenth 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 persons who are nominated in
accordance with the procedures set forth in this By-Law shall be eligible to
serve as director and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-Law. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, 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 By-Law and, if any proposed nomination or business
is not in compliance with this By-Law, to declare that such defective proposal
or nomination shall be disregarded.
(2) For purposes of this By-Law, "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.
(3) Notwithstanding the foregoing provisions of this
By-Law, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 8. PROCEDURE FOR ELECTION OF DIRECTORS; VOTE
REQUIRED.--Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by written ballot, and, except as otherwise
set forth in the Certificate of Incorporation with respect to the right of the
holders of any series of Preferred Stock or any other series or class of stock
to elect directors under specified circumstances, a plurality of the votes cast
thereat shall elect.
Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all matters other than the election of directors
submitted to the stockholders at any meeting shall be decided by a majority of
the votes cast affirmatively or negatively with respect thereto.
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SECTION 9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE
POLLS.--(A) The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act at the meeting
and make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act, or if all inspectors or alternates who
have been appointed are unable to act, at a meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by the General Corporation Law of the State of
Delaware.
(B) The chairman of the meeting 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 stockholders will vote at a meeting.
SECTION 10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT.--Subject
to the rights of the holders of any series of Preferred Stock or any other
series or class of stock as set forth in the Certificate of Incorporation to
elect directors under specific circumstances, any action required or permitted
to be taken by the stockholders of the Corporation must be effected at an annual
or special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS.--The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these By-Laws expressly
conferred upon them, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation or by these By-Laws required to be exercised or
done by the stockholders.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS.--Subject to the
rights of the holders of any series of Preferred Stock, or any other series or
class of stock as set forth in the Certificate of Incorporation, to elect
directors under specified circumstances, the number of directors shall be fixed
from time to time exclusively 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"), but shall consist of not more than seventeen nor
less than three directors. The directors, other than those who may be elected by
the holders of any series of Preferred Stock, or any other series or class of
stock as set forth in the Certificate of Incorporation, shall be divided, with
respect to the time for which they severally hold office, into three classes, as
nearly equal in number as possible, with the term of office of the first class
to expire at the 1994 annual meeting of stockholders, the term of office of the
second class to expire at the 1995 annual meeting of stockholders and the term
of office of the third class to expire at
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the 1996 annual meeting of stockholders. Each director shall hold office until
his or her successor shall have been duly elected and qualified. At each annual
meeting of stockholders, commencing with the 1994 annual meeting, (i) directors
elected to succeed those directors whose terms then expire shall be elected for
a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified, and (ii) if
authorized by a resolution of the Board of Directors, directors may be elected
to fill any vacancy on the Board of Directors, regardless of how such vacancy
shall have been created.
SECTION 3. REGULAR MEETINGS.--A regular meeting of the Board
of Directors shall be held without other notice than this By-Law immediately
after, and at the same place as, each annual meeting of stockholders. The Board
of Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
Unless otherwise restricted by the Certificate of
Incorporation of the Corporation or these By-Laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in any meeting of the Board of Directors or any committee thereof by
means of a 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 the meeting.
SECTION 4. SPECIAL MEETINGS.--Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board, the
President or any three members of the Board of Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
and time of the meetings.
SECTION 5. NOTICE.--Notice of any special meeting shall be
given to each director at his business or residence in writing or by telegram,
facsimile or similar means of electronic communication or by telephone. If
mailed, such notice shall be deemed adequately delivered when deposited in the
United States mails so addressed, with postage thereon prepaid, at least five
days before such meeting. If by telegram, such notice shall be deemed adequately
delivered when the telegram is delivered to the telegraph company at least
twenty-four hours before such meeting. If by facsimile transmission or similar
means of electronic communication, such notice shall be transmitted at least
twenty-four hours before such meeting. If by telephone, the notice shall be
given at least twelve hours prior to the time set for the 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 of such meeting,
except for amendments to these ByLaws as provided under Article VII hereof. A
meeting may be held at any time without notice if all the directors are present
or if those not present waive notice of the meeting in writing, either before or
after such meeting.
SECTION 6. QUORUM.--A majority of the directors shall
constitute a quorum for the transaction of business. If at any meeting of the
Board of Directors there shall be less than a quorum present, a majority of the
directors present may adjourn the meeting from time to time until a quorum is
obtained, and no further notice thereof need be given other than by announcement
at the meeting which shall be so adjourned. The act of the majority of the
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directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors, unless the Certificate of Incorporation or these By-Laws
require the vote of a greater number.
SECTION 7. VACANCIES.--Subject to the rights of the holders of
any series of Preferred Stock, or any other series or class of stock as set
forth in the Certificate of Incorporation, to elect directors under specified
circumstances, and unless the Board of Directors otherwise determines, vacancies
resulting from death, resignation, retirement, disqualification, removal from
office or other cause, and newly created directorships resulting from any
increase in the authorized number of directors, shall be filled only by the
affirmative vote of a majority of the remaining directors, though less than a
quorum of the Board of Directors, and any director so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which he or she has been elected expires and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of authorized directors constituting the Whole Board shall shorten
the term of any incumbent director.
SECTION 8. REMOVAL.--Subject to the rights of the holders of
any series of Preferred Stock, or any other series or class of stock as set
forth in the Certificate of Incorporation, to elect directors under specified
circumstances, 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 of
the holders of at least 80 percent of the voting power of the then outstanding
Voting Stock, voting together as a single class, at an annual meeting or a
special meeting called expressly for this purpose. For purposes of these
By-Laws, "Voting Stock" shall mean the shares of capital stock of the
Corporation entitled to vote generally in the election of directors.
SECTION 9. RESIGNATIONS.--Any director, member of a committee
or other officer may resign at any time. Such resignation shall be made in
writing, and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the President or Secretary. The
acceptance of a resignation shall not be necessary to make it effective.
SECTION 10. COMMITTEES.--The Board of Directors may, by
resolution or resolutions passed by a majority of the Whole Board, designate one
or more committees, each committee to consist of two or more of the directors of
the Corporation. The board may 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. In the absence or disqualification of any member
of such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
Any such committee, to the extent provided in the resolution
of the Board of Directors, or in these By-Laws, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as
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provided in subsection (a) of Section 151 of the General Corporation Law of the
State of Delaware, fix the designation and any of the preferences and any of the
rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or fix the number of shares of any
series of stock or authorize the increase or decrease of any shares of any
series), adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
By-Laws of the Corporation; and, unless the resolution, these By-Laws or the
Certificate of Incorporation expressly so provides, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Each committee may determine the procedural rules for meeting
and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third of the members shall constitute
a quorum unless the committee shall consist of one or two members, in which
event one member shall constitute a quorum; and all matters shall be determined
by a majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing or by
electronic transmission, and the writing or writings or electronic transmission
or transmissions are filed with the minutes of the proceedings of such
committee.
SECTION 11. COMPENSATION.--Directors shall not receive any
stated salary for their services as directors or as members of committees, but
by resolution of the board an annual retainer and a fixed fee and expenses of
attendance may be allowed for attendance at each meeting. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity as an officer, agent or otherwise, and
receiving compensation therefor.
SECTION 12. ACTION WITHOUT MEETING.--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 prior to such action a
written consent thereto is signed by all members of the board or of such
committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS.--The officers of the Corporation shall be
a Chief Executive Officer, a Chairman of the Board of Directors, a President, a
Treasurer, and a Secretary, all of whom shall be elected by the Board of
Directors and who shall hold office until their successors are elected and
qualified. In addition, the Board of Directors may elect one or more
Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as they
may deem proper. None of the officers of the Corporation need be directors. More
than two offices may be held by the same person.
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SECTION 2. OTHER OFFICERS AND AGENTS.--The Board of Directors
may appoint such other officers and agents as it may deem advisable, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN.--The Chairman of the Board of Directors
shall preside at all meetings of the Board of Directors and shall have and
perform such other duties as from time to time may be assigned to him or her by
the Board of Directors.
SECTION 4. CHIEF EXECUTIVE OFFICER.--The Chief Executive
Officer shall be the head of the Corporation and shall have the general powers
and duties of supervision and management usually vested in the office of Chief
Executive Officer of a corporation. He or she shall preside at all meetings of
the stockholders if present thereat, and in the absence or non-election of the
Chairman of the Board of Directors, at all meetings of the Board of Directors,
and shall have general supervision, direction and control of the business of the
Corporation. Except as the Board of Directors shall authorize the execution
thereof in some other manner, he or she shall execute bonds, mortgages and other
contracts in behalf of the Corporation, and shall cause the seal to be affixed
to any instrument requiring it and when so affixed the seal shall be attested by
the signature of the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer.
SECTION 5. PRESIDENT.--The President shall have such powers
and shall perform such duties as shall be assigned to him or her by the Board of
Directors and the Chief Executive Officer.
SECTION 6. VICE-PRESIDENT.--Each Vice-President shall have
such powers and shall perform such duties as shall be assigned to him or her by
the Board of Directors.
SECTION 7. TREASURER.--The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. He or she
shall deposit all moneys and other valuables in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, the Chief Executive Officer or the
President, taking proper vouchers for such disbursements. He or she shall render
to the Chief Executive Officer, the President and Board of Directors at the
regular meetings of the Board of Directors, or whenever they may request it, an
account of all his transactions as Treasurer and of the financial condition of
the Corporation. If required by the Board of Directors, he or she shall give the
Corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the Board shall prescribe.
SECTION 8. SECRETARY.--The Secretary shall give, or cause to
be given, notice of all meetings of stockholders and directors, and all other
notices required by law or by these By-Laws, and in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the Chief Executive Officer, the President, or by the
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directors, or stockholders, upon whose requisition the meeting is called as
provided in these By-Laws. He or she shall record all the proceedings of the
meetings of the Corporation and of the Board of Directors in a book to be kept
for that purpose, and shall perform such other duties as may be assigned to him
or her by the Board of Directors or the President. He or she shall have custody
of the seal of the Corporation and shall affix the same to all instruments
requiring it, when authorized by the Board of Directors, the Chief Executive
Officer or the President, and attest the same.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT
SECRETARIES.--Assistant Treasurers and Assistant Secretaries, if any, shall be
elected and shall have such powers and shall perform such duties as shall be
assigned to them, respectively, by the Board of Directors.
SECTION 10. REMOVAL.--Any officer of the Corporation may be
removed at any time, with or without cause, by the Board of Directors.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK.--A certificate of stock,
signed by the Chief Executive Officer, or the President or a Vice-President, and
the Secretary or an Assistant Secretary, shall be issued to each stockholder
certifying the number and class or series of shares owned by him or her in the
Corporation. Any or all of the signatures may be facsimiles. Certificates of
stock of the Corporation shall be of such form and device as the Board of
Directors may from time to time determine.
SECTION 2. LOST CERTIFICATES.--A new certificate of stock may
be issued in the place of any certificate theretofore issued by the Corporation,
alleged to have been lost or destroyed, and the Board of Directors may, in its
discretion, require the owner of the lost or destroyed certificate, or such
owner's legal representatives, to give the Corporation a bond, in such sum as
they may direct, not exceeding double the value of the stock, to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss of any such certificate, or the issuance of any such new
certificate.
SECTION 3. TRANSFER OF SHARES.--The shares of Stock of the
Corporation shall be transferable only upon its books by the holders thereof in
person or by their duly authorized attorneys or legal representatives, and upon
such transfer the old certificates shall be surrendered to the Corporation by
the delivery thereof to the person in charge of the stock and transfer books and
ledgers, or to such other person as the directors may designate, by whom they
shall be cancelled, and new certificates shall thereupon be issued. A record
shall be made of each transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE.--In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing
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without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, 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 stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held, and the record date for determining stockholders 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
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 5. DIVIDENDS.--Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of funds legally
available therefor at any regular or special meeting, declare dividends upon the
capital stock of the Corporation as and when they deem expedient. Before
declaring any dividend there may be set apart, out of any funds of the
Corporation available for dividends, such sum or sums as the directors from time
to time in their discretion deem proper for working capital or as a reserve fund
to meet contingencies or for such other purposes as the directors shall deem
conducive to the interests of the Corporation.
SECTION 6. SEAL.--The corporate seal shall be circular in form
and shall contain the name of the Corporation, the year of its creation and the
words "CORPORATE SEAL DELAWARE." Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 7. FISCAL YEAR.--The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
SECTION 8. 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, agent or agents of
the Corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE.--Whenever any notice
is required by these By-Laws to be given to the stockholders of the Corporation,
personal notice is not meant unless expressly so stated, and any notice so
required shall be deemed to be sufficient if given by depositing the same in the
United States mail, postage prepaid, addressed to the person entitled thereto at
his address as it appears on the records of the Corporation, and such notice
shall be deemed to have been given on the day of such mailing. Stockholders not
entitled to vote shall not be entitled to receive notice of any meetings except
as otherwise provided by law.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the Corporation or these By-
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Laws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
SECTION 10. VOTING OF SHARES IN OTHER CORPORATION.--Shares in
other corporations which are held by the Corporation may be represented and
voted by the Chairman, the Chief Executive Officer, the President, a Vice
President or the Treasurer, by proxy or proxies appointed by one of then. The
Board of Directors may, however, appoint some other person to vote the shares.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
SECTION 1. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit, claim or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she or a person
of whom he or she is the legal representative is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans maintained or sponsored by the Corporation, whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the General Corporation Law
of the State of Delaware as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
Section 3 of this Article VI, 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. The right to indemnification conferred in
this Article VI shall be a contract right and shall include the right to be paid
by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition, such advances to be paid by the Corporation
within 20 days after the receipt by the Corporation of a statement or statements
from the claimant requesting such advance or advances from time to time;
provided, however, that if the General Corporation Law of the State of Delaware
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article VI or
otherwise.
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SECTION 2. To obtain indemnification under this Article VI, a
claimant shall submit to the Corporation a written request, including therein or
therewith such documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what extent the
claimant is entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Section 2, a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the claimant,
by Independent Counsel (as hereinafter defined), or (2) if no request is made by
the claimant for a determination by Independent Counsel, (i) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the
stockholders of the Corporation. In the event the determination of entitlement
to indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors
unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceeding for which indemnification is
claimed a "Change of Control" as defined in the BorgWarner Inc. 1993 Stock
Incentive Plan, as amended (as such plan shall exist as of the date of adoption
of these Amended and Restated By-laws), in which case the Independent Counsel
shall be selected by the claimant unless the claimant shall request that such
selection be made by the Board of Directors. If it is so determined that the
claimant is entitled to indemnification, payment to the claimant shall be made
within 10 days after such determination.
SECTION 3. If a claim under Section 1 of this Article VI is
not paid in full by the Corporation within thirty days after a written claim
pursuant to Section 2 of this Article VI 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 the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
SECTION 4. If a determination shall have been made pursuant to
Section 2 of this Article VI that the claimant is entitled to indemnification,
the Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to Section 3 of this Article VI.
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SECTION 5. The Corporation shall be precluded from asserting
in any judicial proceeding commenced pursuant to Section 3 of this Article VI
that the procedures and presumptions of this Article VI are not valid, binding
and enforceable and shall stipulate in such proceeding that the Corporation is
bound by all the provisions of this Article VI.
SECTION 6. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article VI shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-Laws, agreement, vote of stockholders or
Disinterested Directors or otherwise. No repeal or modification of this Article
VI shall in any way diminish or adversely affect the rights of any director,
officer, employee or agent of the Corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
SECTION 7. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware. To
the extent that the Corporation maintains any policy or policies providing such
insurance, each such director or officer, and each such agent or employee to
which rights to indemnification have been granted as provided in Section 8 of
this Article VI, shall be covered by such policy or policies in accordance with
its or their terms to the maximum extent of the coverage thereunder for any such
director, officer, employee or agent.
SECTION 8. The Corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to indemnification, and
rights to be paid by the Corporation the expenses incurred in defending any
proceeding in advance of its final disposition, to any employee or agent or
class of employees or agents of the Corporation (including the heirs, executors,
administrators or estate of each such person) to the fullest extent of the
provisions of this Article VI with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
SECTION 9. If any provision or provisions of this Article VI
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(1) the validity, legality and enforceability of the remaining provisions of
this Article VI (including, without limitation, each portion of any paragraph of
this Article VI containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (2) to the fullest
extent possible, the provisions of this Article VI (including, without
limitation, each such portion of any paragraph of this Article VI containing any
such provision held to be invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
SECTION 10. For purposes of this Article VI:
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(a) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the
matter in respect of which indemnification is sought
by the claimant.
(b) "Independent Counsel" means a law firm, a member of a
law firm, or an independent practitioner, that is
experienced in matters of corporation law and shall
include any person who, under the applicable
standards of professional conduct then prevailing,
would not have a conflict of interest in representing
either the Corporation or the claimant in an action
to determine the claimant's rights under this Article
VI.
SECTION 11. Any notice, request or other communication
required or permitted to be given to the Corporation under this Article VI shall
be in writing and either delivered in person or sent by telecopy, telex,
telegram, overnight mail or courier service, or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary of the Corporation
and shall be effective only upon receipt by the Secretary.
ARTICLE VII
AMENDMENTS
These By-Laws may be altered or repealed, and any By-Laws may
be made, at any annual meeting of the stockholders or at any special meeting
thereof if notice of the proposed alteration or repeal of the By-Laws or of the
By-Laws to be made is contained in the notice of such meeting, by the
affirmative vote of the holders of at least 80% of the voting power of the then
outstanding Voting Stock, or by the affirmative vote of a majority of the total
number of directors, at any regular meeting of the Board of Directors, or at any
special meeting of the Board of Directors, if notice of the proposed alteration
or repeal, or of the By-Laws to be made, is contained in the notice of such
special meeting.
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