EXHIBIT 3(ii)
BY-LAWS
OF
CROMPTON CORPORATION
Incorporated under the Laws of the State of Delaware
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1. Delaware Office. The principal office
of the Corporation in the State of Delaware shall be
located in the City of Wilmington, County of New
Castle, and the name and address of its registered
agent is Corporation Service Company, 2711
Centerville Road, Suite 400, Wilmington, Delaware
19808.
SECTION 1.2. Other Offices. The Corporation may
have such other offices, either within or without the
State of Delaware, as the Board of Directors may
designate or as the business of the Corporation may
from time to time require.
SECTION 1.3. Books and Records. The books and
records of the Corporation may be kept outside the
State of Delaware at such place or places as may from
time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
SECTION 2.1. Annual Meeting. Annual meetings of
stockholders shall be held on the last Tuesday in
April, if not a legal holiday, and if a legal
holiday, then on the next business day following, at
2:00 p.m., or at such other date and time as shall be
designated from time to time by the Board of
Directors and stated in the notice of the meeting.
SECTION 2.2. Special Meeting. Subject to the
rights of the holders of any series of stock having a
preference over the Common Stock of the Corporation
as to dividends or upon liquidation ("Preferred
Stock") with respect to such series of Preferred
Stock, special meetings of the stockholders may be
called only by the Chairman of the Board or by the
Board of Directors pursuant to a resolution adopted
by a majority of the total number of directors which
the Corporation would have if there were no vacancies
(the "Whole Board").
SECTION 2.3. Place of Meeting. The Board of
Directors or the Chairman of the Board, as the case
may be, may designate the place of meeting for any
annual meeting or for any special meeting of the
stockholders called by the Board of Directors or the
Chairman of the Board. If no designation is so
made, the place of meeting shall be the principal
office of the Corporation.
SECTION 2.4. Notice of Meeting. Written or
printed notice, stating the place, day and hour of
the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the
Corporation not less than ten (10) days nor more than
sixty (60) days before the date of the meeting,
either personally or by mail, to each stockholder of
record entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered when
deposited in the United States mail with postage
thereon prepaid, addressed to the stockholder at his
address as it appears on the stock transfer books of
the Corporation. Such further notice shall be given
as may be required by law. Only such business shall
be conducted at a special meeting of stockholders as
shall have been brought before the meeting pursuant
to the Corporation's notice of meeting. Any
previously scheduled meeting of the stockholders may
be postponed, and (unless the Certificate of
Incorporation otherwise provides) any special meeting
of the stockholders may be cancelled, by resolution
of the Board of Directors upon public notice given
prior to the date previously scheduled for such
meeting of stockholders.
SECTION 2.5. Quorum and Adjournment. Except as
otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the
outstanding shares of the Corporation entitled to
vote generally in the election of directors (the
"Voting Stock"), represented in person or by proxy,
shall constitute a quorum at a meeting of
stockholders, except that when specified business is
to be voted on by a class or series of stock voting
as a class, the holders of a majority of the shares
of such class or series shall constitute a quorum of
such class or series for the transaction of such
business. The Chairman of the meeting or a majority
of the shares so represented may adjourn the meeting
from time to time, whether or not there is such a
quorum. No notice of the time and place of adjourned
meetings need be given except as required by law.
The stockholders present at a duly called meeting at
which a quorum is present may continue to transact
business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than
a quorum.
SECTION 2.6. Proxies. At all meetings of
stockholders, a stockholder may vote by proxy
executed in writing (or in such manner prescribed by
the General Corporation Law of the State of Delaware)
by the stockholder, or by his duly authorized
attorney in fact.
SECTION 2.7. 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, (b)
by or at the direction of the Board of Directors or
(c) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of
notice provided for in this By-Law, who is entitled
to vote at the meeting and who complies with the
notice procedures set forth in this By-Law.
(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 and such other
business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the
principal executive offices of the Corporation at
least 90 days prior to the first anniversary of the
preceding year's annual meeting or not later than
ten days after notice or public disclosure of the
date of the annual meeting, whichever is earlier.
In no event shall the public announcement of an
adjournment of an annual meeting commence a new time
period for the giving of a stockholder's notice as
described above. 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 in
an election contest, or is otherwise required, in
each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14a-11 thereunder (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; (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 and (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 (d) a
representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote
at such meeting having a market value of at least one
thousand dollars and intends to appear in person or
by proxy at the meeting to propose such item of
business.
(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 by
the Corporation naming all of the nominees for
director or specifying the size of the increased
Board of Directors at least 70 days prior to the
first anniversary of the preceding year's annual
meeting, a stockholder's 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 10th 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 the
Corporation's notice of meeting. 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) provided
that the Board of Directors has determined that
directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder
of record at the time of giving of notice provided
for in this ByLaw, who shall be entitled to vote at
the meeting and who complies with the notice
procedures set forth in this By-Law. In the event
the Corporation calls a special meeting of
stockholders for the purpose of electing one or more
directors to the Board of Directors, any such
stockholder may nominate a person or persons (as the
case may be), for election to such position(s) as
specified in the Corporation's notice of meeting, if
the stockholder's notice 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 close of business on 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. In no event shall the
public announcement of an adjournment of a special
meeting commence a new time period for the giving of
a stockholder's notice as described above.
(C) General. (1) Only such persons who are
nominated in accordance with the procedures set forth
in this By-Law shall be eligible to serve as
directors and only such business shall be conducted
at a meeting of stockholders as shall have been
brought before the meeting in accordance with the
procedures set forth in this By-Law. 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 or proposed, as
the case may be, 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 (i) of
stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (ii) of the holders of any
series of Preferred Stock to elect directors under
specified circumstances.
SECTION 2.8. Procedure for Election of Directors;
Required Vote. Election of directors at all meetings
of the stockholders at which directors are to be
elected shall be by ballot, and, subject to the
rights of the holders of any series of Preferred
Stock to elect directors under specified
circumstances, a plurality of the votes cast thereat
shall elect directors. Except as otherwise provided
by law, the Certificate of Incorporation, or these By-
Laws, in all matters other than the election of
directors, the affirmative vote of a majority of the
shares present in person or represented by proxy at
the meeting and entitled to vote on the matter shall
be the act of the stockholders.
SECTION 2.9. Inspectors of Elections; Opening and
Closing the Polls. 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, to act at the
meetings of stockholders 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 is able to act at a meeting of
stockholders, the Chairman of the meeting shall
appoint one or more inspectors to act at the meeting.
Each inspector, before 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 law.
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 2.10. No Stockholder Action by Written Consent.
Subject to the rights of the holders of any series of
Preferred Stock with respect to such series of Preferred
Stock, 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
BOARD OF DIRECTORS
SECTION 3.1. General Powers. The business and
affairs of the Corporation shall be managed under the
direction of the Board of Directors. In addition to
the powers and authorities by these ByLaws 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 statute
or by the Certificate of Incorporation or by these By-
Laws required to be exercised or done by the
stockholders.
SECTION 3.2. Number, Tenure and Qualifications.
The number of Directors of the Corporation shall be
not less than eight or more than 15 persons. The
exact number of directors within the minimum and
maximum limitations specified in the preceding
sentence shall be fixed from time to time by the
Board of Directors pursuant to a resolution adopted
by a majority of the entire Board of Directors. At
the 2000 annual meeting of stockholders, the
directors shall be divided into three classes, as
nearly equal in number as possible, with the term of
office of the first class to expire at the 2001
annual meeting of stockholders, the term of office of
the second class to expire at the 2002 annual meeting
of stockholders and the term of office of the third
class to expire at the 2003 annual meeting of
stockholders. At each annual meeting of stockholders
following such initial classification and election,
directors elected to succeed those directors whose
terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of
stockholders after their election. Subject to the
rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships
resulting from any increase in the authorized number
of directors or any vacancies in the Board of
Directors resulting from death, resignation,
retirement, disqualification, removal from office or
other cause shall be filled by a majority vote of the
directors then in office, although less than a
quorum, and directors so chosen shall hold office for
a term expiring at the annual meeting of stockholders
at which the term of the class to which they have
been elected expires. If the number of directors is
changed any increase or decrease shall be apportioned
among the classes so as to maintain the number of
directors in each class as nearly equal as possible.
No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any
incumbent director.
SECTION 3.3. 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, the 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.
SECTION 3.4. Special Meetings. Special meetings
of the Board of Directors shall be called at the
request of the Chairman of the Board, the President
or a majority of the Board of Directors then in
office. The person or persons authorized to call
special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.5. Notice. Notice of any special
meeting of directors shall be given to each director
at his business or residence in writing by hand
delivery, first-class or overnight mail or courier
service, telegram or facsimile transmission, or
orally by telephone. If mailed by first-class mail,
such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed,
with postage thereon prepaid, at least five (5) days
before such meeting. If by telegram, overnight mail
or courier service, such notice shall be deemed
adequately delivered when the telegram is delivered
to the telegraph company or the notice is delivered
to the overnight mail or courier service company at
least twenty-four (24) hours before such meeting. If
by facsimile transmission, such notice shall be
deemed adequately delivered when the notice is
transmitted at least twelve (12) hours before such
meeting. If by telephone or by hand delivery, the
notice shall be given at least twelve (12) 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 Section 8.1. 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
accordance with Section 6.4 of these By-Laws.
SECTION 3.6. Action by Consent of Board of
Directors. 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 all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings
of the Board or committee.
SECTION 3.7. Conference Telephone Meetings.
Members of the Board of Directors, or any committee
thereof, may participate in a meeting of the Board of
Directors or such committee by means of conference
telephone or similar communications equipment by
means of which all persons participating in the
meeting can hear each other, and such participation
in a meeting shall constitute presence in person at
such meeting.
SECTION 3.8. Quorum. Subject to Section 3.9, a
whole number of directors equal to at least a
majority of the Whole Board shall constitute a quorum
for the transaction of business, but 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
without further notice. The act of the majority of
the directors present at a meeting at which a quorum
is present shall be the act of the Board of
Directors. The directors present at a duly organized
meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough
directors to leave less than a quorum.
SECTION 3.9. Vacancies. Subject to applicable
law and the rights of the holders of any series of
Preferred Stock with respect to such series of
Preferred Stock, 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, may 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 directors 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 they have 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 3.10. Executive and Other Committees. The
Board of Directors may, by resolution adopted by a
majority of the Whole Board, designate one or more
committees, each to consist of two or more 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. Any such committee may
to the extent permitted by law exercise such powers
and shall have such responsibilities as shall be
specified in the designating resolution. 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 constituting a quorum,
may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent
or disqualified member. Each committee shall keep
written minutes of its proceedings and shall report
such proceedings to the Board when required.
A majority of any committee may determine
its action and fix the time and place of its
meetings, unless the Board of Directors shall
otherwise provide. Notice of such meetings shall be
given to each member of the committee in the manner
provided for in Section 3.5 of these By-Laws. The
Board of Directors shall have power at any time to
fill vacancies in, to change the membership of, or to
dissolve any such committee. Nothing herein shall be
deemed to prevent the Board of Directors from
appointing one or more committees consisting in whole
or in part of persons who are not directors of the
Corporation; provided, however, that no such
committee shall have or may exercise any authority of
the Board of Directors.
SECTION 3.11. Compensation of Directors. Unless
otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of
Directors shall have the authority to fix the
compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting
of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of
Directors and/or a stated annual sum as a director.
No such payment shall preclude any director from
serving the Corporation in any other capacity and
receiving compensation therefor. Members of special
or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 3.12. Removal. Subject to the rights of
the holders of any series of Preferred Stock with
respect to such series of Preferred Stock, any
director, or the entire Board of Directors, may be
removed from office at any time, but only for cause
and only by the affirmative vote of the holders of at
least 80 percent of the voting power of all of the
then-outstanding shares of Voting Stock, voting
together as a single class.
SECTION 3.13. Records. The Board of Directors
shall cause to be kept a record containing the
minutes of the proceedings of the meetings of the
Board and of the stockholders, appropriate stock
books and registers and such books of records and
accounts as may be necessary for the proper conduct
of the business of the Corporation.
ARTICLE IV
OFFICERS
SECTION 4.1. Elected Officers. The elected
officers of the Corporation shall be chosen by the
Board of Directors and shall
include a Chairman of the Board of Directors, a
President, a Secretary, a Treasurer, and such other
officers as the Board of Directors from time to time
may deem proper. The Chairman of the Board shall be
chosen from among the directors. All officers
elected by the Board of Directors shall each have
such powers and duties as generally pertain to their
respective offices, subject to the specific
provisions of this ARTICLE IV. Such officers shall
also have such powers and duties as from time to time
may be conferred by the Board of Directors or by any
committee thereof. The Board or any committee
thereof may from time to time elect, or the Chairman
of the Board or President may appoint, such other
officers (including one or more Assistant Vice
Presidents, Assistant Secretaries, Assistant
Treasurers, and Assistant Controllers) and such
agents, as may be necessary or desirable for the
conduct of the business of the Corporation. Such
other officers and agents shall have such duties and
shall hold their offices for such terms as shall be
provided in these By-Laws or as may be prescribed by
the Board or such committee or by the Chairman of the
Board or President, as the case may be.
SECTION 4.2. Election and Term of Office. The
elected officers of the Corporation shall be elected
annually by the Board of Directors at the regular
meeting of the Board of Directors held after the
annual meeting of the stockholders. If the election
of officers shall not be held at such meeting, such
election shall be held as soon thereafter as
convenient. Each officer shall hold office until his
successor shall have been duly elected and shall have
qualified or until his death or until he shall
resign, but any officer may be removed from office at
any time by the affirmative vote of a majority of the
Whole Board or, except in the case of an officer or
agent elected by the Board, by the Chairman of the
Board or President. Such removal shall be without
prejudice to the contractual rights, if any, of the
person so removed.
SECTION 4.3. Chairman of the Board. The Chairman
of the Board shall preside at all meetings of the
Board of Directors. The Chairman of the Board shall
perform all duties incidental to his office which may
be required by law and all such other duties as are
properly required of him by the Board of Directors.
He shall make reports to the Board of Directors, and
shall see that all orders and resolutions of the
Board of Directors and of any committee thereof are
carried into effect. The Chairman of the Board may
also serve as President, if so elected by the Board.
SECTION 4.4. Chief Executive Officer. The Chief
Executive Officer of the Corporation shall be the
President, or such other officer as may from time to
time be designated by the Board of Directors. If no
such designation is made, the President shall be the
Chief Executive Officer. The Chief Executive Officer
shall, subject to the control of the Board of
Directors, have general charge and supervision of the
business of the Corporation and, except as the Board
of Directors shall otherwise determine, shall preside
at all meetings of the stockholders and of the
Executive Committee.
SECTION 4.5. Secretary. The Secretary shall keep
or cause to be kept in one or more books provided for
that purpose, the minutes of all meetings of the
Board, the committees of the Board and the
stockholders; he shall see that all notices are duly
given in accordance with the provisions of these By-
Laws and as required by law; he shall be custodian of
the records and the seal of the Corporation and affix
and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on
such certificates shall be a facsimile, as
hereinafter provided) and affix and attest the seal
to all other documents to be executed on behalf of
the Corporation under its seal; and he shall see that
the books, reports, statements, certificates and
other documents and records required by law to be
kept and filed are properly kept and filed; and in
general, he shall perform all the duties incident to
the office of Secretary and such other duties as from
time to time may be assigned to him by the Board, the
Chairman of the Board or the President.
SECTION 4.6. Removal. Any officer elected, or
agent appointed, by the Board of Directors may be
removed by the affirmative vote of a majority of the
Whole Board. Any officer or agent appointed by the
Chairman of the Board or the President may be removed
by him whenever, in his judgment, the best interests
of the Corporation would be served thereby. No
elected officer shall have any contractual rights
against the Corporation for compensation by virtue of
such election beyond the date of the election of his
successor, his death, his resignation or his removal,
whichever event shall first occur, except as
otherwise provided in an employment contract or under
an employee deferred compensation plan.
SECTION 4.7. Vacancies. A newly created elected
office and a vacancy in any elected office because of
death, resignation, or removal may be filled by the
Board of Directors for the unexpired portion of the
term at any meeting of the Board of Directors.
Any vacancy in an office appointed by the Chairman of
the Board or the President because of death,
resignation, or removal may be filled by the Chairman
of the Board or the President.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.1. Stock Certificates and Transfers.
The interest of each stockholder of the Corporation
shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the
Corporation may from time to time prescribe. The
shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the
holder thereof in person or by his attorney, upon
surrender for cancellation of certificates for at
least the same number of shares, with an assignment
and power of transfer endorsed thereon or attached
thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or
its agents may reasonably require.
The certificates of stock shall be signed,
countersigned and registered in such manner as the
Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on
such certificates to be in facsimile. In case any
officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer
agent or registrar before such certificate is issued,
it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or
registrar at the date of issue.
SECTION 5.2. Lost, Stolen or Destroyed
Certificates. No certificate for shares of stock
in the Corporation shall be
issued in place of any certificate alleged to have
been lost, destroyed or stolen, except on
production of such evidence of such loss,
destruction or theft and on delivery to the
Corporation of a bond of indemnity in such amount,
upon such terms and secured by such surety, as the
Board of Directors or any financial officer may in
its or his discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. Fiscal Year. The fiscal year of the
Corporation shall be such period as shall be
determined from time to time by the Board of
Directors.
SECTION 6.2. Dividends. The Board of Directors
may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by
law and the Certificate of Incorporation.
SECTION 6.3. Seal. The corporate seal shall have
enscribed thereon the words "Corporate Seal", the
year of incorporation and around the margin thereof
the words "CK Witco Corporation Delaware."
SECTION 6.4. Waiver of Notice. Whenever any
notice is required to be given to any stockholder or
director of the Corporation under the provisions of
the General Corporation Law of the State of Delaware
or these By-Laws, a waiver thereof in writing, signed
by the person or persons entitled to such notice,
whether before or after the time stated therein,
shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at,
nor the purpose of, any annual or special meeting of
the stockholders or the Board of Directors or
committee thereof need be specified in any waiver of
notice of such meeting.
SECTION 6.5. Audits. The accounts, books and
records of the Corporation shall be audited upon the
conclusion of each fiscal year by an independent
certified public accountant selected by the Board of
Directors, and it shall be the duty of the Board of
Directors to cause such audit to be done annually.
SECTION 6.6. Resignations. Any director or any
officer, whether elected or appointed, may resign at
any time by giving written notice of such resignation
to the Chairman of the Board, the President, or the
Secretary, and such resignation shall be deemed to be
effective as of the close of business on the date
said notice is received by the Chairman of the Board,
the President, or the Secretary, or at such later
time as is specified therein. No formal action shall
be required of the Board of Directors or the
stockholders to make any such resignation effective.
SECTION 6.7. Indemnification and Insurance. (A)
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, 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. The right to
indemnification conferred in this By-Law 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
By-Law or otherwise.
(B) To obtain indemnification under this By-Law, 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 paragraph (B), 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 any employment agreement or
change of control agreement between the claimant and
the Corporation, 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.
(C) If a claim under paragraph (A) of this By-Law is
not paid in full by the Corporation within thirty
days after a written claim pursuant to paragraph (B)
of this By-Law 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.
(D) If a determination shall have been made pursuant
to paragraph (B) of this By-Law that the claimant is
entitled to indemnification, the Corporation shall be
bound by such determination in any judicial
proceeding commenced pursuant to paragraph (C) of
this By-Law.
(E) The Corporation shall be precluded from
asserting in any judicial proceeding commenced
pursuant to paragraph (C) of this By-Law that the
procedures and presumptions of this By-Law are not
valid, binding and enforceable and shall stipulate in
such proceeding that the Corporation is bound by all
the provisions of this By-Law.
(F) The right to indemnification and the payment of
expenses incurred in defending a proceeding in
advance of its final disposition conferred in this By-
Law 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,
and shall continue as to a person who has ceased to
be a director or officer of the Corporation and shall
inure to the benefit of the heirs, executors and
administrators of such person. No repeal or
modification of this By-Law 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.
(G) 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 paragraph (H) of this By-Law, 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.
(H) 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 of the Corporation to the
fullest extent of the provisions of this By-Law with
respect to the indemnification and advancement of
expenses of directors and officers of the
Corporation.
(I) If any provision or provisions of this By-Law
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 By-Law (including, without
limitation, each portion of any paragraph of this By-
Law 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
By-Law (including, without limitation, each such
portion of any paragraph of this By-Law 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.
(J) For purposes of this By-Law:
(1) "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.
(2) "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 By-Law.
(K) Any notice, request or other communication
required or permitted to be given to the Corporation
under this By-Law 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
CONTRACTS, PROXIES, ETC.
SECTION 7.1. Contracts. Except as otherwise
required by law, the Certificate of Incorporation or
these By-Laws, any contracts or other instruments may
be executed and delivered in the name and on the
behalf of the Corporation by such officer or officers
of the Corporation as the Board of Directors may from
time to time direct. Such authority may be general
or confined to specific instances as the Board may
determine. The Chairman of the Board, the President
or any Vice President may execute bonds, contracts,
deeds, leases and other instruments to be made or
executed for or on behalf of the Corporation.
Subject to any restrictions imposed by the Board of
Directors or the Chairman of the Board, the President
or any Vice President of the Corporation may delegate
contractual powers to others under his jurisdiction,
it being understood, however, that any such
delegation of power shall not relieve such officer of
responsibility with respect to the exercise of such
delegated power.
SECTION 7.2. Proxies. Unless otherwise provided
by resolution adopted by the Board of Directors, the
Chairman of the Board, the President or any Vice
President may from time to time appoint an attorney
or attorneys or agent or agents of the Corporation,
in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to
cast as the holder of stock or other securities in
any other corporation, any of whose stock or other
securities may be held by the Corporation, at
meetings of the holders of the stock or other
securities of such other corporation, or to consent
in writing, in the name of the Corporation as such
holder, to any action by such other corporation, and
may instruct the person or persons so appointed as to
the manner of casting such votes or giving such
consent, and may execute or cause to be executed in
the name and on behalf of the Corporation and under
its corporate seal or otherwise, all such written
proxies or other instruments as he may deem necessary
or proper in the premises.
ARTICLE VIII
AMENDMENTS
SECTION 8.1. Amendments. These By-Laws may be
altered, amended, repealed or new By-Laws may be
adopted at any meeting of the Board of Directors or
of the stockholders, provided notice of the proposed
change was given in the notice of the meeting and, in
the case of a meeting of the Board of Directors, in a
notice given not less than two days prior to the
meeting; provided, however, that, in the case of any
such actions by stockholders, notwithstanding any
other provisions of these By-Laws or any provision of
law which might otherwise permit a lesser vote or no
vote, but in addition to any affirmative vote of the
holders of any particular class or series of the
capital stock of the Corporation required by law, the
Certificate of Incorporation or these By-Laws, the
affirmative vote of the holders of at least 80
percent of the voting power of all the then
outstanding shares of the Voting Stock, voting
together as a single class, shall be required to
alter, amend or repeal any provision of these By-
Laws.