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| 8-K - FORM 8-K - DANA INC | l41390e8vk.htm |
Exhibit 3.2
DANA HOLDING CORPORATION
BYLAWS
As restated effective
as of December 16, 2010
as of December 16, 2010
TABLE OF CONTENTS
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STOCKHOLDERS MEETINGS |
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1. Time and Place of Meetings |
1 | |||
2. Annual Meetings |
1 | |||
3. Special Meetings |
1 | |||
4. Notice of Meetings |
2 | |||
5. Inspectors |
2 | |||
6. Quorum |
2 | |||
7. Voting; Proxies |
2 | |||
8. Order of Business/Notice of Stockholder Business and Nominations |
3 | |||
9. Record Dates |
6 | |||
10. List of Stockholders Entitled to Vote |
6 | |||
DIRECTORS |
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11. Function |
6 | |||
12. Number |
6 | |||
13. Vacancies and Newly Created Directorships |
6 | |||
14. Removal |
6 | |||
15. Intentionally Omitted |
6 | |||
16. Resignation |
6 | |||
17. Regular Meetings |
7 | |||
18. Special Meetings |
7 | |||
19. Quorum |
7 | |||
20. Participation in Meetings by Remote Communications |
7 | |||
21. Board Action Without Meeting |
7 | |||
22. Lead Independent Director |
7 | |||
23. Committees |
7 | |||
24. Compensation |
8 | |||
25. Rules |
8 | |||
NOTICES |
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26. Generally |
8 | |||
27. Waivers |
9 | |||
OFFICERS |
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28. Generally |
9 | |||
29. Compensation |
9 | |||
30. Succession |
9 | |||
31. Authority and Duties |
9 | |||
32. Certificates |
9 | |||
33. Classes of Stock |
9 | |||
TABLE OF CONTENTS
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GENERAL |
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34. Lost, Stolen or Destroyed Certificates |
10 | |||
35. Fiscal Year |
10 | |||
36. Reliance Upon Books, Reports and Records |
10 | |||
37. Amendments |
10 | |||
38. Certain Defined Terms |
10 | |||
STOCKHOLDERS MEETINGS
1. Time and Place of Meetings. All meetings of stockholders will be held at such time
and place, within or without the State of Delaware, as may be designated by the Board of Directors
of the Company (the “Board”) from time to time or, in the absence of a designation by the Board,
the Chairman of the Board (the “Chairman”), the Chief Executive Officer, the President or the
Secretary, and stated in the notice of the meeting. Notwithstanding the foregoing, the Board may,
in its sole discretion, determine that a meeting of stockholders will not be held at any place, but
may instead be held by means of remote communications, subject to such guidelines and procedures as
the Board may adopt from time to time. The Board may postpone and reschedule any previously
scheduled annual or special meeting of stockholders.
2. Annual Meetings. At each annual meeting of stockholders, the stockholders will
elect directors of the Company (“Directors”) by a plurality of the votes of the shares present in
person or represented by proxy at such meeting and entitled to vote on the election of Directors
and will transact such other business as may properly be brought before the meeting in accordance
with Bylaw 8.
Any nominee for Director in an uncontested election (i.e., an election where the number of nominees
does not exceed the number of Directors to be elected) who receives a greater number of votes
“withheld” from his or her election than votes “for” such election shall, promptly following
certification of the shareholder vote, offer his or her resignation to the Board. The Nominating
and Corporate Governance Committee of the Board shall make a recommendation to the Board as to
whether to accept or reject the tendered resignation, or whether other actions should be taken. The
Board shall act on the tendered resignation, taking into account the Nominating and Corporate
Governance Committee’s recommendation, and publicly disclose (by a press release, a filing with the
Securities and Exchange Commission or other broadly disseminated means of communication) its
decision regarding the tendered resignation and the rationale behind the decision within 90 days
from the date of the certification of the election results. The Nominating and Corporate Governance
Committee in making its recommendation, and the Board in making its decision, may each consider any
factors or other information that it deems appropriate and relevant, including, without limitation,
the Director’s length of service, particular qualifications and contributions to the Company, the
reasons underlying the voting results, if known, and whether the underlying reasons are curable, as
well as the Company’s other corporate governance practices. In making its recommendation to the
Board, the Nominating and Corporate Governance Committee may consider possible remedies in addition
to acceptance of the resignation. A Director who is required to offer his or her resignation in
accordance with the foregoing shall not participate in the recommendation of the Nominating and
Corporate Governance Committee or the decision of the Board with respect to his or her resignation.
If such Director’s resignation is not accepted by the Board, such Director shall continue to serve
until the next annual meeting and until his or her successor is duly elected, or his or her earlier
resignation or removal. If a Director’s resignation is accepted by the Board, then the Board, in
its sole discretion, may fill any resulting vacancy or may decrease the size of the Board pursuant
to these Bylaws or the Company’s Certificate of Incorporation (the “Certificate of Incorporation”).
3. Special Meetings. A special meeting of stockholders may be called only by (i) the
Chairman, (ii) the President, or (iii) the Secretary within ten calendar days after receipt by the
Chairman and the Secretary of the written request of (A) a majority of the Directors then in office
or (B) the holders of at least 20% of the voting power of the outstanding Voting Stock, voting
together as a
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single class, in each case to transact only such business as is properly brought before the meeting
in accordance with Bylaw 8 and specified in the notice of the meeting. For the purposes of
these Bylaws, “Voting Stock” means capital stock of the Company of any class or series entitled to
vote generally in the election of Directors. Special meetings of holders of the outstanding
Preferred Stock, if any, may be called in the manner and for the purposes provided in the
applicable Preferred Stock Designation.
4. Notice of Meetings. Notice of every meeting of stockholders, stating the place, if
any, date and time thereof, the means of remote communications, if any, by which stockholders and
proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called, will be given, in a form
permitted by Bylaw 26 or by the General Corporation Law of the State of Delaware, as
amended (the “DGCL”), not less than ten nor more than 60 calendar days before the date of the
meeting to each stockholder of record entitled to vote at such meeting, except as otherwise
provided by law. When a meeting is adjourned to another place, date, or time, notice need not be
given of the adjourned meeting if the place, if any, date and time thereof, and the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such adjourned meeting are announced at the meeting at which the adjournment is
taken; provided, however, that if the adjournment is for more than 30 calendar
days, or if after the adjournment a new record date is fixed for the adjourned meeting, written
notice of the place, if any, date and time thereof, and the means of remote communications, if any,
by which stockholders and proxy holders may be deemed to be present in person and vote at such
adjourned meeting must be given in conformity herewith. At any adjourned meeting, any business may
be transacted which properly could have been transacted at the original meeting.
5. Inspectors. If required by law, the Board will, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a written report
thereof. The Board may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer of the meeting will appoint one or more inspectors to act at
the meeting. The inspector(s) shall have such powers and duties as provided in Section 231 of the
DGCL, or any successor provision.
6. Quorum. Except as otherwise provided by law or in a Preferred Stock Designation,
the holders of a majority of the voting power of the outstanding Voting Stock entitled to vote
thereat, present in person or represented by proxy, will constitute a quorum at a meeting of
stockholders for the transaction of business thereat. If, however, such quorum is not present or
represented at any meeting of stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, by the affirmative vote of the holders of a majority of the voting
power thereof, will have the power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present or represented.
7. Voting; Proxies. Except as otherwise provided by law, by the Company’s Certificate
of Incorporation, or in a Preferred Stock Designation, each stockholder will be entitled at every
meeting of the stockholders to one vote for each share of stock having voting power standing in the
name of such stockholder on the books of the Company on the record date for the meeting and such
votes may be cast either in person or by proxy. Every proxy must be authorized in a manner
permitted by Section 212 of the DGCL, or any successor provision. When a quorum is present at any
meeting of stockholders, the affirmative vote of the holders of a majority of the voting power of
the outstanding Voting Stock present in person or represented by proxy at the meeting and
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entitled to vote on the subject matter will be the act of the stockholders in all matters other
than the election of Directors, or as otherwise provided in these Bylaws, the Certificate of
Incorporation, a Preferred Stock Designation, the rules of any stock exchange or quotation system
on which the Company’s securities may be listed, quoted or traded, or by law or pursuant to any
regulation applicable to the Company’s securities.
8. Order of Business/Notice of Stockholder Business and Nominations. (a) The Chairman,
or such other officer of the Company designated from time to time by a majority of the total number
of Directors that the Company would have if there were no vacancies on the Board (the “Whole
Board”), will call meetings of stockholders to order and will act as presiding officer thereof and
may adjourn any meeting of stockholders from time to time. Unless otherwise determined by the Board
prior to the meeting, the presiding officer of the meeting of stockholders will also determine the
order of business and have the authority in his or her sole discretion to determine the rules of
procedure and regulate the conduct of any such meeting, including, without limitation, by imposing
restrictions on the persons (other than stockholders of the Company or their duly appointed proxy
holders) that may attend any such stockholders’ meeting, by ascertaining whether any stockholder or
his or her proxy holder may be excluded from any meeting of stockholders based upon any
determination by the presiding officer, in his or her sole discretion, that any such person has
disrupted or is likely to disrupt the proceedings thereat, by determining the circumstances in
which any person may make a statement or ask questions at any meeting of stockholders, by ruling on
all procedural questions that may arise during or in connection with the meeting, by determining
whether any nomination or business proposed to be brought before the meeting has been properly
brought before the meeting.
(b) Annual Meetings of Stockholders. (1) Nominations of persons for election to the
Board and the proposal of other business to be considered by the stockholders may be made at an
annual meeting of stockholders only (i) pursuant to the Company’s notice of meeting (or any
supplement thereto), (ii) by or at the direction of a majority of the Board or (iii) by any
stockholder of the Company who was a stockholder of record of the Company at the time the notice
provided for in this Bylaw 8 is delivered to the Secretary of the Company, who is entitled
to vote at the meeting and who complies with the notice procedures set forth in this Bylaw
8.
(2) For any nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to Bylaw 8(b)(1)(iii), the stockholder must have given timely notice
thereof in writing to the Secretary of the Company and any such proposed business (other than the
nominations of persons for election to the Board) must constitute 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 Company not later than the close of business on the 90th day, nor earlier
than the close of business on the 120th day, 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 more
than 30 days before or more than 70 days after such anniversary date, notice by the stockholder
must be so delivered not earlier than the close of business on the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day prior to such annual
meeting or the 10th day following the day on which public announcement of the date of such meeting
is first made by the Company). In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time period) for the
giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth: (i)
as to each person whom the stockholder proposes to nominate for election as a director (A) all
information relating to such person that is required to be disclosed in solicitations
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of proxies for election of directors in an election contest, or is otherwise required, in each case
pursuant to and in accordance with Section 14(a) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and the rules and regulations promulgated thereunder, and (B) such person’s
written consent to being named in the proxy statement as a nominee and to serving as a director if
elected; (ii) 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 text of the
proposal or business (including the text of any resolutions proposed for consideration and in the
event that such business includes a proposal to amend these Bylaws, the language of the proposed
amendment), 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 (iii) as to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (A) the name and address of such stockholder, as they
appear on the Company’s books, and of such beneficial owner, (B) the class or series and number of
shares of capital stock of the Company which are owned beneficially and of record by such
stockholder and such beneficial owner, (C) a description of any agreement, arrangement or
understanding with respect to the nomination or proposal between or among such stockholder and/or
such beneficial owner, any of their respective affiliates or associates, and any others acting in
concert with any of the foregoing, (D) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options, warrants, convertible
securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned
shares) that has been entered into as of the date of the stockholder’s notice by, or on behalf of,
such stockholder and such beneficial owners, the effect or intent of which is to mitigate loss to,
manage risk or benefit of share price changes for, or increase or decrease the voting power of,
such stockholder or such beneficial owner, whether or not such instrument or right shall be subject
to settlement in underlying shares of capital stock of the Corporation, with respect to shares of
stock of the Company, (E) a representation that the stockholder is a holder of record of stock of
the Company entitled to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination, (F) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends (1) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding
capital stock required to approve or adopt the proposal or elect the nominee and/or (2) otherwise
to solicit proxies from stockholders in support of such proposal or nomination, and (G) any other
information relating to such stockholder and beneficial owner, if any, required to be disclosed in
a proxy statement or other filings required to be made in connection with solicitations of proxies
for, as applicable, the proposal and/or for the election of directors in an election contest
pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations
promulgated thereunder. The foregoing notice requirements of this Bylaw 8(b) shall be
deemed satisfied by a stockholder with respect to business other than a nomination if the
stockholder has notified the Company of his, her or its intention to present a proposal at an
annual meeting in compliance with applicable rules and regulations promulgated under the Exchange
Act and such stockholder’s proposal has been included in a proxy statement that has been prepared
by the Company to solicit proxies for such annual meeting. The Company may require any proposed
nominee to furnish such other information as it may reasonably require to determine the eligibility
of such proposed nominee to serve as a director of the Company.
(3) Notwithstanding anything in the second sentence of Bylaw 8(b)(2) to the contrary,
in the event that the number of directors to be elected to the Board is increased effective at the
annual meeting and there is no public announcement by the Company naming the nominees for the
additional directorships at least 100 days prior to the first anniversary of the preceding year’s
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annual meeting, a stockholder’s notice required by this Bylaw 8 shall also be considered
timely, but only with respect to nominees for the additional directorships, if it shall be
delivered to the Secretary at the principal executive offices of the Company not later than the
close of business on the 10th day following the day on which such public announcement is first made
by the Company.
(c) 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
Company’s notice of meeting. Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected pursuant to the Company’s
notice of meeting (1) by or at the direction of a majority of the Board or the stockholders
pursuant to Bylaw 4 hereof or (2) provided that the Board or stockholders pursuant to
Bylaw 4 hereof has determined that directors shall be elected at such meeting, by any
stockholder of the Company who is a stockholder of record at the time the notice provided for in
this Bylaw 8 is delivered to the Secretary of the Company, who is entitled to vote at the
meeting and on such election and who complies with the notice procedures set forth in this
Bylaw 8. In the event the Company calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board, any such stockholder entitled to vote in such
election of directors may nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Company’s notice of meeting, if the stockholder’s notice required
by Bylaw 8(b)(2) shall be delivered to the Secretary at the principal executive offices of
the Company not earlier than the close of business on the 120th day prior to such special meeting
and not later than the close of business on the later of the 90th day prior to such special meeting
or the 10th day following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board to be elected at such meeting. In no
event shall the public announcement of an adjournment or postponement of a special meeting commence
a new time period (or extend any time period) for the giving of a stockholder’s notice as described
above.
(d) General. (1) Only such persons who are nominated in accordance with the procedures
set forth in this Bylaw 8 shall be eligible to be elected at an annual or special meeting
of stockholders of the Company 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 Bylaw 8. Except as otherwise provided by law, the chairman of
the meeting shall have the power and duty (i) 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 Bylaw 8 (including whether the stockholder or
beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part
of a group which solicited) or did not so solicit, as the case may be, proxies in support of such
stockholder’s nominee or proposal in compliance with such stockholder’s representation as required
by Bylaw 8(b)(2)(iii)(F)) and (ii) if any proposed nomination or business was not made or
proposed in compliance with this Bylaw 8, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing
provisions of this Bylaw 8, unless otherwise required by law, if the stockholder (or a
qualified representative of the stockholder) does not appear at the annual or special meeting of
stockholders of the Company to present a nomination or proposed business, such nomination shall be
disregarded and such proposed business shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the Company. For purposes of this Bylaw 8,
to be considered a qualified representative of the stockholder, a person must be a duly authorized
officer, manager or partner of such stockholder or must be authorized by a writing executed by such
stockholder or an electronic transmission delivered by such stockholder to act for such stockholder
as proxy at the meeting of stockholders and such person must produce
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such writing or electronic transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(2) For purposes of this Bylaw 8, “public announcement” shall include disclosure in a
press release reported by the Dow Jones News Service, Associated Press or other national news
service or in a document publicly filed by the Company with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated
thereunder.
(3) Notwithstanding the foregoing provisions of this Bylaw 8, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
promulgated thereunder with respect to the matters set forth in this Bylaw 8; provided
however, that any references in these Bylaws to the Exchange Act or the rules and regulations
promulgated thereunder are not intended to and shall not limit any requirements applicable to
nominations or proposals as to any other business to be considered pursuant to this Bylaw 8
(including paragraphs (b)(1)(iii) and (c) hereof), and compliance with paragraphs (b)(1)(iii) and
(c) of this Bylaw 8 shall be the exclusive means for a stockholder to make nominations or
submit other business (other than, as provided in the penultimate sentence of (b)(2), matters
brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended
from time to time). Nothing in this Bylaw 8 shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the Company’s proxy statement pursuant to
applicable rules and regulations promulgated under the Exchange Act or (ii) of the holders of any
series of Preferred Stock to elect directors pursuant to any applicable provisions of the
certificate of incorporation.
9. Record Dates. (a) In order that the Company may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may
fix a record date, which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and which record date shall not be more than 60 nor less
than ten calendar days before the date of such meeting. If no record date is fixed by the Board,
the record date for determining stockholders entitled to notice of or to vote at a meeting of
stockholders will be at the close of business on the calendar day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the calendar day next
preceding the day on which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of the stockholders will apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
(b) In order that the Company may determine the stockholders entitled to consent to corporate
action in writing without a meeting as provided in the Certificate of Incorporation, the Board may
fix a record date, which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and which record date shall not be more than ten days
after the date upon which the resolution fixing the record date is adopted by the Board. If no
record date has been fixed by the Board, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action by the Board is
required by the DGCL, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Company by delivery to its registered
office in the State of Delaware, its principal place of business or an officer or agent of the
Company having custody of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Company’s registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board and prior action by
the Board is required
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by the DGCL, the record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on which the Board adopts
the resolution taking such prior action.
(c) In order that the Company may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders 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 may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the Board, and which record
date shall not be more than 60 calendar days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose will be at the close of business on
the calendar day on which the Board adopts the resolution relating thereto.
(d) The Company will be entitled to treat the person in whose name any share of its stock is
registered as the owner thereof for all purposes, and will not be bound to recognize any equitable
or other claim to, or interest in, such share on the part of any other person, whether or not the
Company has notice thereof, except as expressly provided by applicable law.
10. List of Stockholders Entitled to Vote. The officer who has charge of the Company’s
stock ledger shall prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting at least ten days prior to the meeting (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is provided with the
notice of meeting or (ii) during ordinary business hours at the principal place of business of the
Company. The list of stockholders must also be open to examination at the meeting as required by
applicable law.
DIRECTORS
11. Function. The business and affairs of the Company will be managed under the
direction of the Board.
12. Number. Subject to (i) the rights, if any, of any series of Preferred Stock to
elect additional Directors under circumstances specified in a Preferred Stock Designation,
including without limitation Section 6(c) of the Certificate of Designations for the Series A
Preferred Stock and the Series B Preferred Stock, and (ii) the minimum and maximum number of
authorized Directors provided in the Certificate of Incorporation, the authorized number of
Directors may be determined from time to time only by a vote of a majority of the Whole Board.
13. Vacancies and Newly Created Directorships. Subject to the rights, if any, of the
holders of any series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, newly created directorships resulting from any increase
in the authorized number of Directors and any vacancies on the Board resulting from resignation,
disqualification, removal, death or other cause may be filled only by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a quorum of the Board, or
by a sole remaining Director. Any Director elected in accordance with the preceding sentence will
hold office until the next annual meeting of stockholders and until such Director’s successor is
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duly elected and qualified or until such Director’s earlier resignation, disqualification, removal
or death. No decrease in the authorized number of Directors will shorten the term of any Director.
14. Removal. Subject to the rights, if any, of the holders of any series of Preferred
Stock specified in a Preferred Stock Designation, any Director may be removed from office by the
stockholders only in the manner provided in the Certificate of Incorporation.
15. Intentionally Omitted.
16. Resignation. Any Director may resign at any time upon notice given in writing or
by electronic transmission to the Chairman or the Secretary. Any resignation is effective when the
resignation is delivered to the Company unless the resignation specified a later effective date or
an effective date determined upon the happening of an event or events.
17. Regular Meetings. Regular meetings of the Board may be held immediately after the
annual meeting of the stockholders and at such other time and place either within or without the
State of Delaware as may from time to time be determined by the Board. Notice of regular meetings
of the Board need not be given.
18. Special Meetings. Special meetings of the Board may be called by the Chairman or
the President on one day’s notice to each Director by whom such notice is not waived, given in a
form permitted by Bylaw 26 or by the DGCL, and will be called by the Chairman or the
President, in like manner and on like notice, on the written request of a majority of at least two
(2) Directors. Special meetings of the Board may be held at such time and place either within or
without the State of Delaware as is determined by the Board or specified in the notice of any such
meeting.
19. Quorum. At all meetings of the Board, a majority of the Whole Board will
constitute a quorum for the transaction of business. Except for action to be taken by committees of
the Board as provided in Bylaw 23, and except for actions required by these Bylaws or the
Certificate of Incorporation to be taken by a majority of the Whole Board, the act of a majority of
the Directors present at any meeting at which there is a quorum will be the act of the Board. If a
quorum is not present at any meeting of the Board, the Directors, by the vote of a majority of the
Directors present at such meeting, may adjourn the meeting from time to time to another place,
time, or date, without notice other than announcement at the meeting, until a quorum is present.
20. Participation in Meetings by Remote Communications. Members of the Board or any
committee designated by the Board may participate in a meeting of the Board or any such committee,
as the case may be, by means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and such participation in a
meeting will constitute presence in person at the meeting.
21. Board Action Without Meeting. Any action required or permitted to be taken at any
meeting of the Board or any committee designated by the Board may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or transmissions are filed
with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
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22. Lead Independent Director. The Directors will elect from among the independent
Directors a Lead Independent Director of the Company (the “Lead Independent Director”) on an annual
basis. The Lead Independent Director may call meetings of the independent Directors from time to
time, and will have the following duties and responsibilities, in addition to those duties and
responsibilities set forth in the Company’s corporate governance guidelines: (i) to preside at all
meetings of the Board at which the Chairman is not present, including any executive sessions of the
independent Directors and (ii) to serve as the liaison between the Chairman and the independent
Directors.
23. Committees. (a) The Board may designate one or more committees, each committee to
consist of one or more of the Directors. 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 a member of a committee, the member or members
present at any meeting and not disqualified from voting, whether or not such member or members
constitute 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. Any such committee, to the extent provided in
the resolution of the Board, or in these Bylaws, will have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the Company, and may
authorize the seal of the Company to be affixed to all papers which may require it; but no such
committee will have the power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter (other than the election or
removal of Directors) expressly required by the DGCL to be submitted to stockholders for approval
or (ii) making, adopting, amending or repealing any provision of these Bylaws.
(b) Beginning with the first meeting of stockholders to elect directors following the date
these Bylaws are first adopted and for as long as Article III of the Shareholders Agreement in the
form attached to the First Amendment to Investment Agreement, dated as of December 7, 2007, to be
executed by and among the Company, Centerbridge Capital Partners, L.P., a Delaware limited
partnership, Centerbridge Capital Partners Strategic, L.P., a Delaware limited partnership, and
Centerbridge Capital Partners SBS, L.P., a Delaware limited partnership, is in effect, there will
be a Series A Nominating Committee, which will be entitled to nominate one director for election by
holders of Voting Stock pursuant to Section 6(b)(ii) of the Certificate (a “Series A Nominee”);
provided, however, that, in order for such nomination to be effective, such
nomination by the Series A Nominating Committee must be made unanimously. To the extent the members
of the Series A Nominating Committee are unable to unanimously agree on the identity of a Series A
Nominee on or before the latest time at which the Company can reasonably meet its obligations with
respect to printing and mailing a proxy statement for an annual meeting of Company shareholders,
the Board will designate a Committee of all of the Independent Directors as defined in the
Shareholders Agreement, which Committee will, by a majority vote, select an individual to be
nominated for such Board seat. Each Series A Nominee must, at all times during his or her service
on the Board, be qualified to serve as a director of the Company under any applicable law, rule or
regulation imposing or creating standards or eligibility criteria for individuals serving as
directors of organizations such as the Company. If at any time, an individual Series A Nominee is
not so qualified, such Series A Nominee will be replaced pursuant to this Bylaw 23(b).
(c) Each elected Series A Nominee will serve until his successor is elected and qualified or
until his earlier resignation, retirement, disqualification, removal from office or death. If any
Series A Nominee ceases to be a director of the Company for any reason, the Company will promptly
use
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its best efforts to cause a person designated by the Series A Nominating Committee to replace such
director.
24. Compensation. The Board may establish the compensation of directors, including,
without limitation, compensation for membership on the Board and on committees of the Board,
attendance at meetings of the Board or committees of the Board, and for other services provided to
the Company or at the request of the Board.
25. Rules. The Board may adopt rules and regulations for the conduct of meetings and
the oversight of the management of the affairs of the Company.
NOTICES
26. Generally. (a) Except as otherwise provided by law, these Bylaws, or the
Certificate of Incorporation, whenever by law or under the provisions of the Certificate of
Incorporation or these Bylaws notice is required to be given to any Director or stockholder, it
will not be construed to require personal notice, but such notice may be given in writing, by mail
or courier service or, to the extent permitted by the DGCL, by electronic transmission, addressed
to such Director or stockholder. Any notice sent to stockholders by mail or courier service shall
be sent to the address of such stockholder as it appears on the records of the Company, with
postage thereon prepaid, and such notice will be deemed to be given at the time when the same is
deposited in the United States mail or with the courier service. Notices sent by electronic
transmission shall be deemed effective as set forth in Section 222 of the DGCL. For purposes of
this Bylaw 26, “electronic transmission” means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be retained, retrieved
and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process.
(b) Notices to Directors may be given by mail or courier service, telephone, electronic
transmission or as otherwise may be permitted by these Bylaws.
27. Waivers. Whenever any notice is required to be given by law or under the
provisions of the Certificate of Incorporation or these Bylaws, a waiver thereof in writing, signed
by the person entitled to such notice, or a waiver by electronic transmission by the person
entitled to such notice, whether before or after the time of the event for which notice is to be
given, will be deemed equivalent to such notice. Attendance of a person at a meeting will
constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
OFFICERS
28. Generally. The officers of the Company will be elected by the Board and will
consist of a Chairman, a Chief Executive Officer, a President (which offices of Chairman, Chief
Executive Officer and/or President may be held by the same person if the Board so specifies), a
Secretary and a Treasurer. The Board may also choose any or all of the following: one or more Vice
Chairmen, one or more Assistants to the Chairman, one or more Vice Presidents (who may be given
particular designations with respect to authority, function, or seniority), one or more Assistant
Secretaries, one or more Assistant Treasurers and such other officers as the Board may from time to
time determine. Notwithstanding the foregoing, the Board may authorize the Chairman to appoint any
person to any office other than Chairman, Chief Executive Officer, President, Secretary or
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Treasurer. Any number of offices may be held by the same person. Any of the offices may be left
vacant from time to time as the Board may determine. In the case of the absence or disability of
any officer of the Company or for any other reason deemed sufficient by a majority of the Board,
the Board may delegate the absent or disabled officer’s powers or duties to any other officer or to
any Director.
29. Compensation. The compensation of all officers and agents of the Company who are
also Directors of the Company will be fixed by the Board or by a committee of the Board. The Board
may fix, or delegate the power to fix, the compensation of other officers and agents of the Company
to an officer of the Company.
30. Succession. The officers of the Company will hold office until their successors
are duly elected and qualified or until such officer’s earlier resignation, disqualification,
removal or death. Any officer may be removed at any time by the affirmative vote of a majority of
the Whole Board. Any vacancy occurring in any office of the Company may be filled by the Board or
by the Chairman as provided in Bylaw 28.
31. Authority and Duties. Each of the officers of the Company will have such authority
and will perform such duties as are customarily incident to their respective offices or as may be
specified from time to time by the Board.
STOCK
32. Certificates. The shares of capital stock of the Company will be represented by
certificates unless the Board provides by resolution or resolutions that some or all of any or all
classes or series of stock will be uncertificated shares. Any such resolution will not apply to
shares represented by a certificate until such certificate is surrendered to the Company.
33. Classes of Stock. The powers, designations, preferences and relative,
participating, optional, or other special rights of each class or series of stock represented by
certificates, if any, and the qualifications, limitations or restrictions of such preferences
and/or rights will be set forth in full or summarized on the face or back of the certificates
representing such class or series of stock or, in lieu thereof, on the face or back of such
certificates will be a statement that the Company will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative, participating, optional, or
other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law,
the rights and obligations of the holders of uncertificated stock and the rights and obligations of
the holders of certificates representing stock of the same class and series shall be identical.
34. Lost, Stolen or Destroyed Certificates. The Secretary may direct a new certificate
or certificates or uncertificated shares to be issued in place of any certificate or certificates
theretofore issued by the Company alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate
of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new
certificate or certificates, the Secretary may require the owners of such lost, stolen or destroyed
certificate or certificates to give the Company a bond in such sum and with such surety or sureties
as the Secretary may direct as indemnity against any claims that may be made against the Company
with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of
the new certificate or uncertificated shares.
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GENERAL
35. Fiscal Year. The fiscal year of the Company will end on December 31st of each year
or such other date as may be fixed from time to time by the Board.
36. Reliance Upon Books, Reports and Records. Each Director, each member of a
committee designated by the Board, and each officer of the Company will, in the performance of his
or her duties, be fully protected in relying in good faith upon the records of the Company and upon
such information, opinions, reports, or statements presented to the Company by any of the Company’s
officers or employees, or committees of the Board, or by any other person or entity as to matters
the Director, committee member, or officer believes are within such other person’s professional or
expert competence and who has been selected with reasonable care by or on behalf of the Company.
37. Amendments. Except as otherwise provided by law or by the Certificate of
Incorporation or these Bylaws, these Bylaws or any of them may be amended in any respect or
repealed at any time, either (i) at any meeting of stockholders, provided that any amendment or
supplement proposed to be acted upon at any such meeting has been described or referred to in the
notice of such meeting, or (ii) by the Board. Notwithstanding the foregoing and anything contained
in these Bylaws to the contrary, Bylaws 3, 6, 8, 12,
13, 14, 15, 18, 19 and 37 may not be amended or
repealed by the stockholders, and no provision inconsistent therewith may be adopted by the
stockholders, without the affirmative vote of the holders of at least 80% of the Voting Stock,
voting together as a single class.
38. Certain Defined Terms. Capitalized terms used herein and not otherwise defined
have the meanings given to them in the Certificate of Incorporation.
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