Exhibit 3
BY-LAWS
OF
ECOLAB INC.
(A Delaware corporation)
AS AMENDED THROUGH
FEBRUARY
26, 2010
ARTICLE I
OFFICES
Section 1. Registered
Office
. The registered office of the
Corporation in the State of Delaware shall be at 1209 Orange Street, City of Wilmington,
County of New Castle, Delaware. The name
of the resident agent in charge thereof shall be The Corporation Trust Company.
Section 2. Other Offices
. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of
Meetings
. Meetings of
stockholders may be held at such place, within or without the State of
Delaware, as the Board of Directors or the officer calling the same shall
designate.
Section 2. Annual Meeting
. An annual meeting of the stockholders of the
Corporation for the election of directors by written ballot and for the
transaction of such other business as may properly come before the meeting
shall be held at such time and on such day of each year as shall be designated
by the Board of Directors, the Chairman of the Board, the President or the
Secretary.
Section 3. Notice of Stockholder
Nominations of Directors
. Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as may be
otherwise provided in the Restated Certificate of Incorporation of the
Corporation. Nominations of persons for
election to the Board of Directors may be made at any annual meeting of
stockholders (a) by or at the direction of the Board of Directors (or any
duly authorized Committee thereof) or (b) by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 3 and on the record date for
the determination of stockholders entitled to vote at such annual meeting and (ii) who
complies with the notice procedures set forth in this Section 3.
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In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder’s notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
(a) in the case of an Annual Meeting, not less than one hundred twenty
(120) days nor more than one hundred fifty (150) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders;
provided,
however
, that in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such an anniversary date,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10
th
) day following the day on which such notice of the
date of the annual meeting was mailed or public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b) in the case of a
Special Meeting called for the purpose of electing directors, not later than
the close of business on the tenth (10
th
) day following the day on which notice of the date
of the Special Meeting was mailed or public disclosure of the date of the
Special Meeting was made, whichever first occurs. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder’s notice as described above.
To be in proper written form, a stockholder’s notice to the Secretary
must set forth as to each person whom the stockholder proposes to nominate for
election as a director and as to the stockholder giving the notice and any
Stockholder Associated Person (as defined below) (i) the name, age,
business address, residence address and record address of such person, (ii) the
principal occupation or employment of such person, (iii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such person, (iv) any information relating to
such person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations promulgated thereunder, (v) the
nominee holder for, and number of, shares owned beneficially but not of record
by such person, (vi) whether and the extent to which any hedging or other
transaction or series of transactions has been entered into by or on behalf of,
or any other agreement, arrangement or understanding (including any derivative
or short positions, profit interests, options or borrowed or loaned shares) has
been made, the effect or intent of which is to mitigate loss to or manage risk
or benefit of share price changes for, or to increase or decrease the voting
power of, such person with respect to any share of stock of the Corporation, (vii) to
the extent known by the stockholder giving the notice, the name and address of
any other stockholder supporting the nominee for election or reelection as a
director on the date of such stockholder’s notice, (viii) a description of
all arrangements or understandings between or among such persons pursuant to
which the nomination(s) are to be made by the stockholder and (ix) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice. Any ownership information shall be
supplemented by the stockholder giving the notice not later than ten (10) days
after the record date for the
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meeting as of the record date.
Such notice must be accompanied by a written consent of each proposed
nominee to being named as a nominee and to serve as a director if elected. The Corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee to serve as
an independent director of the Corporation or that could be material to a
reasonable stockholder’s understanding of the independence, or lack thereof, of
such nominee.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 3. If the Chairman of
the meeting determines that a nomination was not made in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be disregarded.
Notwithstanding anything in the third paragraph of this Section 3
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
disclosure by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least one hundred
(100) 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 tenth (10
th
) day following the day on which such public disclosure is first made
by the Corporation.
Section 4. Notice of
Stockholder Proposals of Business
. No business may be transacted at an annual
meeting of stockholders, other than business that is either: (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee thereof),
(b) otherwise properly brought before the annual meeting by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (c) otherwise properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 4 and on the
record date for the determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth
in this Section 4.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary
of the Corporation.
To be timely, a stockholder’s notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
not less than one hundred twenty (120) days nor more than one hundred fifty
(150) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders;
provided, however
, that in the event that the
annual meeting is called for a date that is not within thirty (30) days before
or after such anniversary date, notice by the stockholder in order to be timely
must be so received not later than the close of business on the tenth (10
th
) day
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following the day on which such notice of the date of the annual
meeting was mailed or public disclosure of the date of the annual meeting was
made, whichever first occurs. In no
event shall the public disclosure of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder’s notice as
described above.
To be in proper written form, a stockholder’s notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting and as to the stockholder giving the notice and any Stockholder
Associated Person (i) the name and record address of such person, (ii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such person, (iii) the nominee
holder for, and number of, shares owned beneficially but not of record by such
person, (iv) whether and the extent to which any hedging or other
transaction or series of transactions has been entered into by or on behalf of,
or any other agreement, arrangement or understanding (including any derivative
or short positions, profit interests, options or borrowed or loaned shares) has
been made, the effect or intent of which is to mitigate loss to or manage risk
or benefit of share price changes for, or to increase or decrease the voting
power of, such person with respect to any share of stock of the Corporation, (v) to
the extent known by the stockholder giving the notice, the name and address of
any other stockholder supporting the proposal of other business on the date of
such stockholder’s notice, (vi) a description of all arrangements or
understandings between or among such persons in connection with the proposal of
such business by such stockholder and any material interest in such business
and (vii) a representation that the stockholder giving the notice intends
to appear in person or by proxy at the annual meeting to bring such business
before the meeting. Any ownership
information shall be supplemented by the stockholder giving the notice not
later than ten (10) days after the record date for the meeting as of the
record date.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 4;
provided, however
, that,
once business has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section 4 shall be deemed to
preclude discussion by any stockholder of any such business. If the Chairman of an annual meeting determines
that business was not properly brought before the annual meeting in accordance
with the foregoing procedures, the Chairman shall declare to the meeting that
the business was not properly brought before the meeting and such business
shall not be transacted.
Section 5. Definitions
. For purposes of Sections 3 and 4 of Article II
of these By-Laws:
“Public disclosure” 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.”
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“Stockholder Associated Person” of any
stockholder shall mean (i) any person acting in concert, directly or
indirectly, with such stockholder and (ii) any person controlling,
controlled by or under common control with such stockholder or any Stockholder
Associated Person.
Section 6. Special Meetings
.
(a)
Special
meetings of the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute, may be called at any time by the Board of Directors or
by the Chairman of the Board, and shall be called by the Chairman of the Board,
the President or the Secretary at the written request of the majority of the
Board of Directors or at the written request, in accordance with this Section 6,
of stockholders owning capital stock having twenty-five percent (25%) of the
voting power of the entire issued and outstanding capital stock of the
Corporation. Such request shall state
the purpose or purposes of the proposed meeting. No business shall be transacted at any
special meeting of the stockholders except that stated in the notice of the
meeting.
(b)
In order that
the Corporation may determine the stockholders entitled to demand a special
meeting, the Board of Directors may fix a record date to determine the
stockholders entitled to make such a demand (the “Demand Record Date”). The
Demand Record Date shall not precede the date upon which the resolution fixing
the Demand Record Date is adopted by the Board of Directors and shall not be
more than ten (10) days after the date upon which the resolution fixing
the Demand Record Date is adopted by the Board of Directors. Any stockholder of
record seeking to have stockholders demand a special meeting shall, by sending
written notice to the Secretary of the Corporation by hand or by certified or
registered mail, return receipt requested, request the Board of Directors to
fix a Demand Record Date. The Board of Directors shall promptly, but in all
events within ten (10) days after the date on which a valid request to fix
a Demand Record Date is received, adopt a resolution fixing the Demand Record
Date and shall make a public announcement of such Demand Record Date. If no
Demand Record Date has been fixed by the Board of Directors within ten (10) days
after the date on which such request is received by the Secretary, the Demand
Record Date shall be the tenth (10
th
) day after the first date on which a valid written
request to set a Demand Record Date is received by the Secretary. To be valid,
such written request shall set forth the purpose or purposes for which the
special meeting is to be held, shall be signed by one or more stockholders of
record (or their duly authorized proxies or other representatives), shall bear
the date of signature of each such stockholder (or proxy or other
representative) and shall set forth all information about each such stockholder
and about the beneficial owner or owners, if any, on whose behalf the request
is made that would be required to be set forth in a stockholder’s notice
described in Section 3 of Article II of these By-Laws.
(c)
In order for a
stockholder or stockholders to demand a special meeting, a written demand or
demands for a special meeting by the holders of record as of the
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(d)
Demand Record
Date of not less than twenty-five percent (25%) of the voting power of the entire
issued and outstanding capital stock of the Corporation entitled to vote on the
matter proposed to be considered at the special meeting must be delivered to
the Corporation. To be valid, each written demand by a stockholder for a
special meeting shall set forth the specific purpose or purposes for which the
special meeting is to be held (which purpose or purposes shall be limited to
the purpose or purposes set forth in the written request to set a Demand Record
Date received by the Corporation pursuant to paragraph (b) of this Section 6),
shall be signed by one or more persons who as of the Demand Record Date are
stockholders of record (or their duly authorized proxies or other
representatives), shall bear the date of signature of each such stockholder (or
proxy or other representative), shall set forth the name and address, as they
appear in the Corporation’s books, of each stockholder signing such demand and
the class and number of shares of the Corporation which are owned of record and
beneficially by each such stockholder, shall be sent to the Secretary by hand
or by certified or registered mail, return receipt requested, and shall be
received by the Secretary within sixty (60) days after the Demand Record Date.
(e)
The Corporation
shall not be required to call a special meeting upon stockholder demand unless,
in addition to the documents required by paragraph (c) of this Section 6,
the Secretary receives a written agreement signed by each Soliciting
Stockholder (as defined below), pursuant to which each Soliciting Stockholder,
jointly and severally, agrees to pay the Corporation’s costs of holding the
special meeting, including the costs of preparing and mailing proxy materials
for the Corporation’s own solicitation, provided that if each of the resolutions
introduced by any Soliciting Stockholder at such meeting is adopted, and each
of the individuals nominated by or on behalf of any Soliciting Stockholder for
election as a director at such meeting is elected, then the Soliciting
Stockholders shall not be required to pay such costs. For purposes of this
paragraph (d), the following terms shall have the meanings set forth below:
(i)
“Affiliate” of
any Person (as defined herein) shall mean any Person controlling, controlled by
or under common control with such first Person.
(ii)
“Participant”
shall have the meaning assigned to such term in Instruction 3 of Item 4 of
Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”).
(iii)
“Person” shall
mean any individual, firm, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
(iv)
“Proxy” shall
have the meaning assigned to such term in Rule 14a-1 promulgated under the
Exchange Act.
(v)
“Solicitation”
shall have the meaning assigned to such term in Rule 14a-1 promulgated
under the Exchange Act.
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(vi)
“Soliciting Stockholder”
shall mean, with respect to any special meeting demanded by a stockholder or
stockholders, any of the following Persons: (A) if the number of
stockholders signing the demand or demands of meeting delivered to the
corporation pursuant to paragraph (c) of this Section 6 is 10 or
fewer, each stockholder signing any such demand; (B) if the number of
stockholders signing the demand or demands of meeting delivered to the
corporation pursuant to paragraph (c) of this Section 6 is more than
10, each Person who either (x) was a Participant in any Solicitation of
such demand or demands or (y) at the time of the delivery to the
Corporation of the documents described in paragraph (c) of this Section 6
had engaged or intended to engage in any Solicitation of Proxies for use at
such special meeting (other than a Solicitation of Proxies on behalf of the
Corporation); or (C) any Affiliate of a Soliciting Stockholder, if a
majority of the directors then in office determine, reasonably and in good
faith, that such Affiliate should be required to sign the written notice
described in paragraph (c) of this Section 6 and/or the written
agreement described in this paragraph (d) in order to prevent the purposes
of this Section 6 from being evaded.
(f)
Except as
provided in the following sentence, any special meeting shall be held at such
hour and day as may be designated by whichever of the Chairman of the Board,
President or Secretary shall have called such meeting. In the case of any
special meeting called by the Chairman of the Board, President or Secretary
upon the demand of stockholders (a “Demand Special Meeting”), such meeting
shall be held at such hour and day as may be designated by the Chairman of the
Board, President or Secretary; provided, however, that the date of any Demand
Special Meeting shall be not more than sixty (60) days after the Record Date
(determined pursuant to Section 5 of Article VI of these By-Laws);
and provided further that in the event that the directors then in office fail
to designate an hour and date for a Demand Special Meeting within ten (10) days
after the date that valid written demands for such meeting by the holders of
record as of the Demand Record Date of shares representing not less than
twenty-five percent (25%) of the voting power of the entire issued and
outstanding capital stock of the Corporation entitled to vote on the matter
proposed to be considered at the special meeting are delivered to the
Corporation (the “Delivery Date”), then such meeting shall be held at 2:00 P.M.
Central Time on the 90th day after the Delivery Date or, if such 90th day is
not a Business Day (as defined below), on the first preceding Business Day. In
fixing a meeting date for any special meeting, the Chairman of the Board,
President or Secretary may consider such factors as he deems relevant within
the good faith exercise of his business judgment, including, without
limitation, the nature of the action proposed to be taken, the facts and
circumstances surrounding any demand for such meeting, and any plan of the
Board of Directors to call an annual meeting or a special meeting for the
conduct of related business.
(g)
The Corporation
may engage independent inspectors of elections to act as an agent of the
Corporation for the purpose of promptly performing a ministerial
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review of the validity of
any purported written demand or demands for a special meeting received by the
Secretary. For the purpose of permitting the inspectors to perform such review,
no purported demand shall be deemed to have been delivered to the Corporation
until such date as the independent inspectors certify to the Corporation that
the valid demands received by the Secretary represent not less than twenty-five
percent (25%) of the voting power of the entire issued and outstanding capital
stock of the Corporation entitled to vote on the matter proposed to be
considered at the special meeting. Nothing contained in this paragraph (f) shall
in any way be construed to suggest or imply that the Board of Directors or any
stockholder shall not be entitled to contest the validity of any demand,
whether during or after such five (5) Business Day period, or to take any
other action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto).
(h)
For purposes of
these By-Laws, “Business Day” shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in the State of Minnesota are
authorized or obligated by law or executive order to close.
(i)
Notwithstanding
anything in these By-Laws to the contrary, if the Board of Directors shall
determine that any request to fix a Demand Record Date or demand a special
meeting was not properly made in accordance with this Section 6, or the
stockholder or stockholders seeking to take such action do not otherwise comply
with this Section 6, then the Board of Directors shall not be required to
fix a Demand Record Date or call a special meeting.
Section 7. Notice of
Meetings
. Written
notice stating the place, date and hour of each annual and special meeting of
the stockholders and, in the case of a special meeting, the purpose or purposes
thereof, shall be given not less than ten (10) nor more than sixty (60)
days before the date of such meeting to each stockholder entitled to vote at
such meeting, unless otherwise required by applicable law. If mailed, notice shall be deemed given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such address as appears on the records of the Corporation. Notice of any meeting of stockholders shall
not be required to be given to any stockholder who shall attend such meeting in
person or by proxy and shall not, at the beginning of such meeting, object to
the transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice.
Section 8. Quorum
. At all meetings of the stockholders, the
holders of a majority of the shares of stock of the Corporation issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall be requisite to constitute a quorum for the transaction of
business, except as otherwise provided by statute or in the Restated
Certificate of Incorporation. A quorum, once established, shall not be broken
by the withdrawal of enough votes to leave less than a quorum. In the absence
of a quorum, the holders of a majority of the shares of stock present in person
or by proxy and entitled to vote may adjourn the meeting until the requisite
amount of stock shall be present.
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Section 9. Organization and
Order of Business
. At each
meeting of the stockholders, the Chairman of the Board, or in his absence, the
President, or in his absence any other person selected by the Board of
Directors, shall act as Chairman of the meeting. The Secretary, or in his
absence an Assistant Secretary, or any person appointed by the Chairman of the
meeting, shall act as Secretary of the meeting and keep the minutes thereof. The Board of Directors may adopt by
resolution such rules and regulations for the conduct of any meeting of
the stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the Chairman of any meeting of the
stockholders shall have the right and the authority to prescribe such rules,
regulations and procedures and to do all such acts, as in the judgment of such
Chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the Chairman of the
meeting, may include, without limitation, the following: (i) the establishment of an agenda or
order of business for the meeting; (ii) the determination of when the
polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and
procedures for maintaining order at the meeting and the safety of those
present; (iv) limitations on attendance at or participation in the meeting
to stockholders of record of the Corporation, their duly authorized and
constituted proxies or such other persons as the Chairman of the meeting shall
determine; (v) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (vi) limitations on the time allotted to
questions or comments by participants
Section 10. Voting
. Except as otherwise provided by statute or by
the Restated Certificate of Incorporation, at each meeting of the stockholders
each stockholder having the right to vote thereat shall be entitled to (i) one
vote for each share of common stock of the Corporation standing in his name on
the record of stockholders of the Corporation, and (ii) such voting
rights, if any, as are provided in the applicable Certificate of Designation,
Preferences and Rights with respect to any series of preferred stock of the
Corporation standing in his name on the record of stockholders of the
Corporation, in all such instances on the date fixed by the Board of Directors
as the record date for the determination of the stockholders who shall be
entitled to notice of and vote at such meeting; or if no record date shall have
been fixed, then at the close of business on the day next preceding the day on
which notice thereof shall be given.
Each stockholder entitled to vote at any meeting of stockholders may
authorize another person or persons to act for him by a proxy signed or
otherwise authorized in accordance with Section 212 of the General
Corporation Law of Delaware by such stockholder or his attorney-in-fact. No proxy shall be valid after the expiration
of three (3) years from the date thereof, unless otherwise provided in the
proxy. Except as otherwise provided by
statute, these By-Laws or the Restated Certificate of Incorporation, any
corporate action to be taken by vote of the stockholders shall be authorized by
a majority of the total votes cast at a meeting of stockholders by the holders
of shares present in person or represented by proxy and entitled to vote on
such action. Unless required by statute,
or determined by the chairman of the meeting to be advisable, the vote on any
question other than elections need not be by written ballot. On a vote by written ballot, each ballot
shall be signed by the stockholder, his
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attorney-in-fact, or his proxy if there be such proxy, and shall state
the stockholder’s name and the number of shares voted.
Section 11. Stockholder
List
. The Secretary shall prepare
and make, at least ten (10) 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, during ordinary
business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. This list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 12. Inspectors
. The Board of Directors may, in advance of any
meeting of stockholders, appoint or provide for the appointment of one or more
inspectors to act at such meeting or any adjournments thereof. If the inspector or inspectors shall not be
appointed, or if any of them shall fail to appear or act, the Chairman of the
meeting may, and on the request of any stockholder entitled to vote thereat
shall, appoint one or more inspectors.
Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his ability. On request of the Chairman of the meeting or
any stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for the office of director
shall act as inspector of any election of directors. Inspectors need not be stockholders of the
Corporation.
Section 13. Adjourned
Meetings
. A meeting
of stockholders may be adjourned to another time and to another place by either
the chairman of the meeting or by the stockholders and proxies present. When a meeting is adjourned to another time
or place, notice of such adjourned meeting need not be given if the time and
place to which the meeting shall be adjourned are announced at the meeting at
which the adjournment is taken. At the
adjourned meeting, if a quorum is present any business may be transacted which
might have been transacted at the original meeting. If the adjournment is for more than thirty
(30) days or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 14. Consent of Stockholders
.
(a)
Unless
otherwise provided in the Restated Certificate of Incorporation, any action
required or permitted to be taken at any annual or special meeting of
stockholders of the Corporation, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock of the Corporation
having not less than the minimum number of votes that would be necessary to
authorize or
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take such action at a meeting
at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
(b)
In order that
the Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date (a “Consent Record Date”). The Consent Record Date shall not precede the
date upon which the resolution fixing the Consent Record Date is adopted by the
Board of Directors and shall not be more than ten (10) days after the date
upon which the resolution fixing the Consent Record Date is adopted by the
Board of Directors. Any stockholder of record seeking to consent to corporate
action in writing without a meeting shall, by sending written notice to the
Secretary of the Corporation by hand or by certified or registered mail, return
receipt requested, at the Corporation’s principal executive offices, request
the Board of Directors to fix a Consent Record Date. The Board of Directors
shall promptly, but in all events within ten (10) days after the date on
which a valid request to fix a Consent Record Date is received, adopt a
resolution fixing the Consent Record Date and shall make a public announcement
of such Consent Record Date. If no Consent Record Date has been fixed by the
Board of Directors within ten (10) days after the date on which such
request is received by the Secretary, the Consent Record Date shall be the
tenth (10
th
) day after the
first date on which a valid written request to set a Consent Record Date is
received by the Secretary. To be valid, such written request shall set forth
the purpose or purposes for which the written consent is sought to be used,
shall be signed by one or more stockholders of record (or their duly authorized
proxies or other representatives), shall bear the date of signature of each
such stockholder (or proxy or other representative) and shall set forth all
information about each such stockholder and about the beneficial owner or
owners, if any, on whose behalf the request is made that would be required to
be set forth in a stockholder’s notice described in Section 3 of Article II
of these By-Laws.
(c)
Every written
consent shall be signed by one or more persons who as of the Consent Record
Date are stockholders of record on the Consent Record Date (or their duly
authorized proxies or other representatives), shall bear the date of signature
of each such stockholder (or proxy or other representative), and shall set
forth the name and address, as they appear in the Corporation’s books, of each
stockholder signing such consent and the class and number of shares of the
Corporation which are owned of record and beneficially by each such stockholder
and shall be sent to the Secretary by hand or by certified or registered mail,
return receipt requested. No written consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days of the date
the earliest dated written consent was received in accordance with this
paragraph (c) of this Section 14, a written consent or consents
signed by a sufficient number of holders to take such action are delivered to
the Corporation.
(d)
In the event of
the delivery, in the manner provided by paragraph (c) of this Section 14,
to the Corporation of the requisite written consent or consents to
11
take corporate action and/or
any related revocation or revocations, the Corporation may engage independent
inspectors of elections for the purpose of performing a ministerial review of
the validity of the consents and revocations. For the purpose of permitting the
inspectors to perform such review, no action by written consent without a
meeting shall be effective until such date as the independent inspectors
certify to the Corporation that the consents represent at least the minimum
number of votes that would be necessary to take the corporate action. Nothing
contained in this paragraph (d) of Section 14 shall in any way be
construed to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any consent or revocation
thereof, whether before or after certification by the independent inspectors,
or to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto, and the seeking
of injunctive relief in such litigation).
(e)
Notwithstanding
anything in these By-Laws to the contrary, no action may be taken by the
stockholders by written consent except in accordance with this Section 14.
If the Board of Directors shall determine that any request to fix a Consent
Record Date or to take stockholder action by written consent was not properly
made in accordance with this Section 14, or the stockholder or
stockholders seeking to take such action do not otherwise comply with this Section 14,
then the Board of Directors shall not be required to fix a Consent Record Date
and any such purported action by written consent shall be null and void to the
fullest extent permitted by applicable law.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers
. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. The Board of Directors may exercise all such
authority and powers of the Corporation and do all such lawful acts and things
as are not by statute or the Restated Certificate of Incorporation or these
By-Laws directed or required to be exercised or done by the stockholders.
Section 2. Number and
Election of Directors. The number of
directors of the Corporation which shall constitute the entire Board of
Directors shall be such number as is fixed by the Board of Directors in
accordance with the provisions of the Restated Certificate of
Incorporation. Directors shall be
elected and shall hold office in accordance with the provisions of the Restated
Certificate of Incorporation. Directors
need not be stockholders of the Corporation.
Section 3. Required Vote
for Directors
.
A nominee for
director shall be elected to the Board of Directors by the vote of the majority
of the votes cast at any meeting for the election of directors at which a
quorum is present;
provided, however
, that directors shall be elected by
a plurality of the votes cast at any meeting of stockholders for which
12
(i) the
Secretary of the Corporation receives a notice that a stockholder has nominated
a person for election to the Board of Directors in compliance with the advance
notice requirements for stockholder nominees for directors set forth in Article II,
Section 3, of these By-Laws and (ii) such nomination has not been
withdrawn by such stockholder on or prior to the tenth (10
th
) day preceding the date the
Corporation first mails its notice of meeting for such meeting to the
stockholders. For purposes of this
By-Law, a majority of votes cast shall mean that the number of shares voted “for”
a nominee exceeds fifty percent (50%) of the number of votes cast with respect
to such nominee. Votes cast with respect
to a nominee shall include votes to withhold authority and exclude abstentions
with respect to such nominee.
Section 4. Place of Meeting
. The Board of Directors may hold meetings at
such place, within or without the State of Delaware, as the Board of Directors
or the officer calling the meeting may from time to time determine.
Section 5. Organization
Meeting
. Promptly following the
adjournment of the annual meeting of the stockholders, and without other notice
than this By-Law, the newly constituted Board of Directors shall meet for the
purpose of organization, the election of officers, and the transaction of other
business, with power to adjourn and re-adjourn.
Section 6. Meetings
. Regular meetings of the Board of Directors
shall be held at such time and place as the Board of Directors may from time to
time determine. Special meetings of the
Board of Directors may be called by the Chairman of the Board, the President or
any two (2) or more Directors.
Section 7. Notice of
Meetings
. Notice of
regular meetings of the Board of Directors need not be given except as
otherwise required by statute or these By-Laws.
Notice of the place, date and time of the holding of each special
meeting of the Board of Directors, and the purpose or purposes thereof, shall
be delivered to each director either personally or by mail, telephone,
telegraph, cable, or similar means, three (3) days before the day on which
such meeting is to be held, or on such shorter notice as the person or persons
calling such meeting deem appropriate in the circumstances. Such notice shall be deemed to be given at
the time it is dispatched by depositing it in the United States mail with
postage prepaid, by transmission by telephone, telegraph or cable, or by
personal delivery. Notice of any such
meeting need not be given to any director who shall, either before or after the
meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
Section 8. Quorum and
Manner of Acting
. Except as
otherwise provided by statute, the Restated Certificate of Incorporation or
these By-Laws, at all meetings of the Board of Directors a majority of the
directors then in office shall constitute a quorum for the transaction of
business; provided, however, that if by reason of catastrophe or emergency, a
majority of the entire Board is not available or capable of acting, one third
(1/3) of the entire Board of Directors, but in any event not less than two (2) directors,
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors. The act of a
majority of the directors present at any meeting at which there is a quorum, as
herein provided, shall be the act of the Board of Directors except as may
13
be otherwise specifically provided by statute, the Restated Certificate
of Incorporation or these By-Laws. In
the absence of a quorum at any meeting of the Board of Directors, a majority of
the directors present thereat, or if no director be present, the Secretary or
an Assistant Secretary, may adjourn such meeting to another time and place
until the quorum is had. Notice of any
adjourned meeting need not be given. At
any adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called.
Section 9. Organization and
Order of Business
. At each
meeting of the Board of Directors, the Chairman of the Board, or in his absence
the President, or in his absence, a member of the Board of Directors selected
by the directors in attendance, shall act as Chairman of the meeting. The Secretary, or in his absence, an
Assistant Secretary, or any person appointed by the Chairman of the meeting,
shall act as Secretary of the meeting and keep the minutes thereof. The order of business at all meetings of the
directors shall be as determined by the Chairman of the meeting.
Section 10. Action Without
Meeting
. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board
of Directors 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 the proceedings of the Board of
Directors or committee.
Section 11. Conference
Telephone
. Members of
the Board of Directors, or of any committee thereof, may participate in a
meeting of the Board of Directors or committee by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting in this
manner shall constitute presence in person at such meeting.
Section 12. Committees
. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of three (3) or more of the directors of the
Corporation. The Board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in
the resolution of the Board of Directors, shall have and may exercise all the
powers of the Board of Directors in the management of the business and affairs
of the Corporation which the Board of Directors may lawfully delegate, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it. Meetings of committees may
be called by the committee chairman, if any, or as provided in Section 6
of this Article III. Notice of such
meetings shall be given to each member of the committee in the manner set forth
in Section 7 of this Article III.
Notice of any such meeting need not be given to any committee member who
shall, either before or after the meeting, submit a signed waiver of notice or
who shall attend such meeting without protesting prior to or at its
commencement, the lack of notice to him.
A notice or waiver of notice of any regular or special meeting of any
committee need not state the purposes of such meeting. A majority of any committee may determine its
action, unless the Board of Directors shall otherwise provide. Each committee shall keep written minutes of
its formal proceedings and shall report such
14
proceedings to the Board. All
such proceedings shall be subject to revision or alteration by the Board of Directors;
provided, however, that third parties shall not be prejudiced by such revision
or alteration. The Board of Directors
shall have power at any time to fill vacancies in, to change the membership,
duties or authority of, or to dissolve any such committee.
Section 13. Resignations
. Any director of the Corporation may resign at
any time by giving notice by writing or by electronic transmission of his
resignation to the Board of Directors, the Chairman of the Board, the President
or the Secretary. Such resignation shall
take effect at the date of the receipt of such notice, or at any later time
specified therein; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 14. Removal
. Except as otherwise required by applicable
law, the Restated Certificate of Incorporation or these By-Laws, any director
may be removed at any time, at a special meeting of the stockholders called and
held for the purpose, but, for so long as the Board of Directors is classified,
only for cause, by the affirmative vote of the holders of a majority of the
shares then entitled to vote at an election of directors; and the vacancy in
the Board caused by any such removal shall be filled as the Restated Certificate
of Incorporation provides.
Section 15. Vacancies
. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may only be
filled by a majority of the directors then in office, though less than a quorum,
in accordance with the Restated Certificate of Incorporation.
Section 16. Compensation
. The Board of Directors shall have authority
to fix the compensation, including fees and reimbursement of expenses, of
directors for services to the Corporation in any capacity and no such payment
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor.
ARTICLE IV
OFFICERS
Section 1. Number and
Qualification
. The
officers of the Corporation shall be elected by the Board of Directors. The officers shall be a Chairman of the
Board, a President, one or more Vice Presidents, a Chief Financial Officer, a
General Counsel, a Secretary, a Treasurer, and a Controller. The Board of Directors may also elect a Vice
Chairman of the Board, one or more Sector Presidents and one or more Assistant
Secretaries, Assistant Treasurers, and Assistant Controllers, and the Board of
Directors may designate any Vice President as an Executive Vice President, a
Senior Vice President or a Group Vice President. The Board of Directors may also designate
from such officers (i) a Chief Executive Officer who shall have general
supervision and authority over the business and affairs of the Corporation
subject to the control of the Board of Directors, (ii) a Chief Operating
Officer who shall have general supervision and authority
15
over the operations of the Corporation subject to the control of the
Chief Executive Officer, if that designation has been made, and subject to the
control of the Board of Directors, or (iii) both a Chief Executive Officer
and a Chief Operating Officer. The
Chairman of the Board shall be chosen from among the directors, but no other
officer need be a director. Any two or
more offices may be held by the same person.
Section 2. Election and
Term
. The officers of the
Corporation shall be chosen annually by the Board of Directors at the first
meeting of the Board of Directors following the annual meeting of stockholders
or as soon thereafter as is conveniently possible. Officers may also be elected from time to
time at any other meeting of the Board of Directors to fill vacancies and
otherwise. Each officer, except such
officers as may be appointed in accordance with the provisions of Section 3
of this Article IV, shall continue in office until his successor shall
have been duly elected and qualified or until his earlier resignation or
removal.
Section 3. Other Officers
and Agents
. The Board
of Directors or the Chairman of the Board, or in his absence or disability, the
President, may appoint such other officers and agents, each of whom shall hold
office for such period, have such authority and perform such duties as are
provided for in these By-Laws, or as the Board of Directors or Chairman of the
Board, or the President, may from time to time determine.
Section 4. Resignation
. Any officer may resign at any time by giving
written notice to the Chairman of the Board, the President or the Secretary of
the Corporation. Such resignation shall
take effect at the date of the receipt of such notice, or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5. Removal
. Any officer or agent may be removed, either
with or without cause, at any time by the vote of the majority of the whole
Board of Directors. Any subordinate
officer or agent appointed in accordance with the provisions of Section 3
of this Article IV may be removed, either with or without cause, by a vote
of the majority of the whole Board of Directors or, except in the case of an
officer or agent elected or appointed by the Board of Directors, by the
Chairman of the Board or the President.
Section 6. Vacancies
. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause may be filled for the
unexpired portion of the term in the manner prescribed in these By-Laws for the
regular election or appointment to such office.
Section 7. Compensation
. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board of Directors or by
such officers or a committee of the Board of Directors to which the Board of
Directors has delegated such authority.
An officer of the Corporation shall not be prevented from receiving
compensation by reason of the fact that he is also a director of the
Corporation, but any such officer who shall also be a director shall not have
any vote in the determination of the amount of compensation paid to him.
16
Section 8. Chairman of the
Board
. The Chairman of the Board, or
in his absence, the President, or in the President’s absence, any other Person
selected by the Board of Directors, shall preside at all meetings of the
stockholders and of the Board of Directors.
He shall perform such duties with such authority as may be prescribed
from time to time by the Board of Directors.
Section 9. President
. The President shall be responsible to the
Chief Executive Officer and shall perform such duties with such authority as
may be prescribed in these By-Laws and from time to time by the Board of
Directors and the Chief Executive Officer.
Section 10. Vice Presidents
. Each Vice President shall have such powers
and shall perform such duties as shall from time to time be prescribed by the
Board and as shall from time to time be assigned to him by the Chairman of the
Board or the President.
Section 11. Secretary
. The Secretary shall give or cause to be given
all required notices of meetings of stockholders and of the Board of Directors,
shall record all of the proceedings and act as custodian of the minutes of all
such meetings, shall have charge of the corporate seal and the corporate minute
books, and shall make such reports and perform such other duties as may be
assigned from time to time by the Board of Directors, the Chairman of the
Board, or the President. The Secretary
shall keep in safe custody the seal of the Corporation and the Secretary or any
Assistant Secretary shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by the signature of the
Secretary or any Assistant Secretary.
The Assistant Secretaries, or any of them, shall perform such of the
duties of the Secretary as may from time to time be assigned to them by the
Board of Directors, the Chairman of the Board, the President, or the Secretary,
and in the absence of the Secretary or in the event of his disability or
refusal to act, shall perform the duties of the Secretary, and when so acting
shall have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 12. Treasurer
. The Treasurer shall have custody of all
moneys and securities of the Corporation, shall have responsibility for
disbursement of the funds of the Corporation, shall make payment of the just
demands on the Corporation, shall invest surplus cash of the Corporation and
manage its investment portfolio under the direction of the Board of Directors,
and shall render to the Board of Directors an account of all transactions of
the Corporation and of the financial condition of the Corporation as may be
required of him. The Treasurer shall
also perform such other duties as may be assigned to him from time to time by
the Board of Directors, the Chairman of the Board, the President or by the
Chief Financial Officer. The Assistant
Treasurers, or any of them, shall perform such of the duties of the Treasurer
as may from time to time be assigned to them by the Board of Directors, the
Chairman of the Board, the President, the Chief Financial Officer, or the
Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer.
17
Section 13. Controller
. The Controller shall provide and maintain a
system of accounts and accounting records of the Corporation, shall provide and
administer a system of internal financial controls, and shall present such
financial statements to the Board of Directors as may be required. The Controller shall also perform such other
duties as may from time to time be assigned to him by the Board of Directors,
the Chairman of the Board, the President or by the Chief Financial
Officer. The Assistant Controllers, or
any of them, shall perform such of the duties of the Controller as may from
time to time be assigned to them by the Board of Directors, the Chairman of the
Board, the President, the Chief Financial Officer, or the Controller, and in
the absence of the Controller or in the event of his disability or refusal to
act, shall perform the duties of the Controller, and when so acting shall have
all the powers of and be subject to all the restrictions upon the Controller.
ARTICLE V
INDEMNIFICATION
Section 1. Right to
Indemnification
. Every
person who was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or officer of the Corporation or, while a director
or officer of the Corporation, is or was serving at the request of the
Corporation or for its benefit as a director, officer, employee or agent of
another corporation, or as its representative in a partnership, joint venture,
trust or other enterprise, including any employee benefit plan, shall be
indemnified and held harmless by the Corporation to the fullest extent legally
permissible under the General Corporation Law of the State of Delaware in the
manner prescribed therein, from time to time, against all expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection therewith. Similar indemnification shall be provided by
the Corporation to an employee of the Corporation or subsidiary of the
Corporation who was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding, by
reason of the fact that he is or was serving for the benefit of the Corporation
as a director or officer of another corporation or as the Corporation’s
representative in a partnership, joint venture, trust or other enterprise,
including any employee benefit plan.
Section 2. Other
Indemnification
. The rights
of indemnification conferred by this Article shall not be exclusive of any
other rights which such directors, officers, employees or agents may have or
hereafter acquire and, without limiting the generality of such statement, they
shall be entitled to their respective rights of indemnification under any
by-law, agreement, vote of stockholders, provision of law or otherwise, as well
as their rights under this Article.
18
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 1. Shares of Stock
. The shares of stock in the Corporation shall
be represented by a certificate, unless and until the Board of Directors of the
Corporation adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such
resolution providing for uncertificated shares, every holder of stock of the
Corporation theretofore represented by certificates and, upon request, every
holder of uncertificated shares, shall be entitled to have a numbered certificate
in such form as shall be approved by the Board of Directors, certifying the
number of shares owned by him and signed in the name of the Corporation by the
Chairman of the Board or the President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary, and
sealed with the seal of the Corporation (which seal may be a facsimile,
engraved or printed). Any or all the
signatures on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent, or registrar at the
date of issue.
Section 2. Transfer of
Stock
. Stock of the Corporation shall
be transferable in the manner prescribed by applicable law and in these
By-Laws. Transfers of shares of stock of the Corporation shall be made on the
stock records of the Corporation, and in the case of certificated shares of
stock, only upon authorization by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary or with a transfer agent or transfer clerk, and on surrender of
the certificate or certificates for such shares properly endorsed or
accompanied by a duly executed stock transfer power with reasonable assurances
given that such endorsement is genuine and that all taxes thereon have been
paid; or, in the case of uncertificated shares of stock, upon receipt of proper
transfer instructions from the registered holder of the shares or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary or with the transfer agent or transfer clerk, and reasonable
assurances that all taxes thereon have been paid and compliance with
appropriate procedures for transferring shares in uncertificated form; provided,
however, that such surrender and endorsement, compliance or payment of taxes
shall not be required in any case in which the authorized officers of the
Corporation shall determine to waive such requirement. Except as otherwise provided by law, the
Corporation shall be entitled to recognize the exclusive right of a person in
whose name any share or shares stand on the record of stockholders as the owner
of such share or shares for all purposes, including, without limitation, the
rights to receive dividends or other distributions, and to vote as such owner,
and the Corporation may hold any such stockholder or record liable for calls
and assessments, and the Corporation shall not be bound to recognize any
equitable or legal claim to or interest in any such share or shares on the part
of any other person whether or not it shall have express or other notice
thereof.
19
Section 3. Lost
Certificates
. The
Corporation may issue a new certificate of stock in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, or which shall have been mutilated, and the Board of Directors may,
in its discretion, require the owner of the lost, stolen, destroyed or
mutilated certificate, or his legal representative, to give the Corporation a
bond, limited or unlimited, in such sum and in such form and with such surety
or sureties as the Board of Directors in its absolute discretion shall
determine is sufficient to indemnify the Corporation against any claim that may
be made against it on account of the alleged loss, theft, destruction or
mutilation of any such certificate, or the issuance of a new certificate. Anything herein to the contrary notwithstanding,
the Board of Directors in its absolute discretion may refuse to issue any such
new certificate except pursuant to legal proceedings under the laws of the
State of Delaware.
Section 4. Rules and
Regulations
. The Board
of Directors may make such additional rules and regulations, not inconsistent
with these By-Laws, the Restated Certificate of Incorporation or the laws of
the State of Delaware, as it may deem expedient concerning the issuance,
transfer and registration of certificates for shares of stock of the
Corporation. The Board of Directors may
appoint, or authorize any officer or officers of the Corporation to appoint,
one or more independent transfer agents and one or more independent registrars,
and may require all certificates for shares of stock to bear the signature or
signatures of any of them.
Section 5. Record Date
. In order to determine the stockholders
entitled to notice and to vote at any meeting of stockholders or adjournment
thereof, or to express consent to corporate action in writing without a
meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of Directors may
fix, in advance, a record date, which shall not be less than ten (10) nor
more than sixty (60) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. A
determination of stockholders of record entitled to notice of and to vote at a
meeting of stockholders shall apply to any adjournment of the meeting unless
the Board of Directors shall elect to fix a record date for the adjourned
meeting.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Contracts and
Other Instruments
. The
Chairman of the Board, the Vice Chairman of the Board, the President, the Chief
Operating Officer, the Chief Financial Officer, the General Counsel, any Sector
President, any Senior Executive Vice President, any Executive Vice President
and any Senior Vice President may enter into any contract or execute and
deliver any instrument in the name of the Corporation and on behalf of the
Corporation except as in these By-Laws or by resolution otherwise
provided. The Board of Directors, except
as in these By-Laws otherwise provided, may
20
authorize any other officer or officers, agent or agents of the
Corporation, to enter into any contract or execute and deliver any instrument
in the name of the Corporation and on behalf of the Corporation, and such
authority may be general or confined to specific instances, and unless so
authorized by the Board of Directors, no such other officer, agent or employee
shall have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable pecuniarily for any
purpose or to any amount.
Section 2. Loans
. No loans shall be contracted on behalf of the
Corporation and no negotiable paper shall be issued in its name unless, and on
such terms as shall be, authorized by the Board of Directors.
Section 3. Disbursements
. All checks, drafts, demands for money, notes
or other evidences of indebtedness of the Corporation shall be signed by such
officer or officers or such other person or persons as may from time to time be
designated by the Board of Directors or by any officer or officers or person or
persons authorized by the Board of Directors to make such designations. Facsimile signatures may be authorized in any
such case where authorized by the Board of Directors.
Section 4. Deposits
. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
under such conditions and in such banks or other depositories as the Board of
Directors may designate, or as may be designated by any officer or officers,
agent or agents of the Corporation to whom such power of designation may from
time to time be delegated by the Board of Directors. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, checks, drafts, and
other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer or agent of
the Corporation as the Board of Directors may determine by resolution.
Section 5. Voting
Securities of Other Corporations
. Unless otherwise ordered by the Board of
Directors, the Chairman of the Board, the President or any person either may
designate, shall have full power and authority on behalf of the Corporation, in
person or by proxy, to attend and to act and to vote at any meeting of the
security holders of any other corporation in which this Corporation may hold
securities, and at any such meeting he or his proxy shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities and which as the owner thereof the Corporation might have possessed
and exercised if present. The Board of
Directors, by resolution from time to time, may confer like powers upon any
other person or persons.
Section 6.
Corporate
Seal
. The Board of Directors shall
provide a corporate seal, which shall be in the form of a circle, and which
shall bear the words and figures:
21
ECOLAB INC.
CORPORATE SEAL
1924
DELAWARE
Section 7. Fiscal Year
. The fiscal year of the Corporation shall be
as determined by the Board of Directors.
Section 8. Gender
. Whenever used in these By-Laws, words in the
masculine gender shall include the feminine gender.
ARTICLE VIII
AMENDMENTS
Except as otherwise provided in the Restated Certificate of
Incorporation or these By-Laws, the Board of Directors may from time to time,
by vote of a majority of its members, alter, amend or rescind all or any of
these By-Laws as permitted, by law, subject to the power of the stockholders to
change or repeal such By-Laws.
22
Exhibit 10
ECOLAB
INC.
CHANGE IN CONTROL SEVERANCE
COMPENSATION POLICY
ARTICLE
I - INTRODUCTION
Section 1.1
Background
. The Board of
Directors (the “Board”) of Ecolab Inc. (the “Company”) has considered the
effect a Change in Control of the Company may have on certain Executives of the
Company. The Board recognizes and
understands the concern such Executives have for their careers and their
personal financial security in the event of a Change in Control of the Company. As a result, absent appropriate assurances,
such Executives are likely to seek more secure career opportunities elsewhere
if a Change in Control of the Company is perceived to be a real possibility, or
if a Change in Control transaction is proposed or threatened.
Section 1.2
Purpose
. This Policy
is designed to encourage Executives to remain employees of the Company and its
Subsidiaries notwithstanding the time pressure and financial uncertainty which
may result from a proposed or threatened Change in Control transaction and
notwithstanding the outcome of any such proposed transaction, to enable
Executives to make career decisions and to assure fair treatment of such
Executives in the event of a Change in Control of the Company.
ARTICLE
II - ESTABLISHMENT OF THE POLICY
Section 2.1
Establishment of Policy
. As of February 22,
2002, the Company established this severance compensation Policy known as the “Change
in Control Severance Compensation Policy” (the “Policy”). The Company amended and restated the Policy
effective as of the Effective Date. The
Company is amending and restating the Policy pursuant to this document
effective as of the Restatement Date.
Section 2.2
Applicability of Policy
. The benefits
provided by this Policy shall be available to all Executives who, at or after the
Effective Date, meet the eligibility requirements of Article IV hereof.
Section 2.3
Contractual Right to Benefits
.
Subject to the provisions of Article VIII hereof, this Policy
establishes and vests in each Participant a contractual right to the benefits
to which he or she is entitled hereunder, enforceable by the Participant
against the Company on the terms and subject to the conditions hereof.
ARTICLE
III - DEFINITIONS AND CONSTRUCTION
Section 3.1
Definitions
. The following
terms shall have the following meanings when used in this Policy with initial
capital letters:
(a)
“
Base Pay
” of a Participant means
the Participant’s annual base salary rate as in effect on the Termination Date
from the Participant’s Employer(s); provided, however, that any reductions in
Base Pay following the date of the Change in Control will not be taken into
account when determining Base Pay hereunder.
1
(b)
“
Board
” means the Board of
Directors of the Company.
(c)
“
Change in Control
” of the Company
shall be deemed to have occurred if the events set forth in any one of the
following paragraphs shall have occurred:
(i)
any “person” as such term is used in
Sections 13(d) and 14(d) of the Exchange Act (other than the Company,
any trustee or other fiduciary holding securities under any employee benefit
plan of the Company or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company), is or becomes, including pursuant to a
tender or exchange offer for shares of Common Stock pursuant to which purchases
are made, the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company’s then
outstanding securities; provided, however, that the provisions of this
subparagraph (i) shall not be applicable to a transaction in which a
corporation becomes the owner of all the Company’s outstanding securities in a
transaction that would not be a Change in Control under subparagraph (iii) of
this Section 3.1(c); or
(ii)
during any twenty-four consecutive
calendar months, individuals who constitute the Board on the first day of such
period or any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest
including, but not limited to, a consent solicitation, relating to the election
of directors of the Company) whose appointment or election by the Board or
nomination for election by the Company’s stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who were either directors on the first day of such period, or whose
appointment, election or nomination for election was previously so approved or
recommended, shall cease for any reason to constitute at least a majority
thereof; or
(iii)
there is consummated a merger or
consolidation of the Company or any direct or indirect subsidiary of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) more than 50% of the combined voting
power of the securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation, and in
which no “person” (as defined under Subsection (i) above) acquires 50% or
more of the combined voting power of the securities of the Company or such
surviving entity or parent thereof outstanding immediately after such merger or
consolidation; or
(iv)
there is consummated a plan of complete
liquidation or dissolution of the Company or there is consummated the sale or
disposition by the Company of all
2
or substantially
all of the Company’s assets, other than a sale or disposition by the Company of
all or substantially all of the Company’s assets to an entity, more than 50% of
the combined voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
(d)
“
Code
” means the Internal Revenue
Code of 1986, as amended.
(e)
“
Company
” means Ecolab Inc., a
Delaware corporation, and any successor thereto as provided in Section 7.1
hereof.
(f)
“
Effective Date
” means January 1,
2005.
(g)
“
Employer
” means the Company, any
Subsidiary or any “affiliated organization” which employs an Executive. For purposes of this Policy, an “affiliated
organization” is the Company and (i) any corporation that is a member of a
controlled group of corporations (within the meaning of Code Section 1563(a) without
regard to Code Sections 1563(a)(4) and 1563(e)(3)(C) that includes
the Company, (ii) any trade or business (whether or not incorporated) that
is controlled (within the meaning of Code Section 414(c)) by the Company, (iii) any
member of an “affiliated service group” (within the meaning of Code Section 414(m) of
which the Company is a member or (iv) any other organization that,
together with the Company, is treated as a single employer pursuant to Code Section 414(o) or
the regulations thereunder; provided that the provisions of Code Section 1563(a) shall
be applied by substituting the phrase “more than 50 percent” for the phrase “at
least 80 percent” wherever it appears in such Code Section.
(h)
“
Exchange Act
” means the
Securities Exchange Act of 1934, as amended.
(i)
“
Executive
” means any person who
is designated as an officer of the Company by the Board and who is employed by
an Employer as a salaried employee on a substantially full-time basis, other
than a person who is designated solely as an assistant officer.
(j)
“
Good Reason
” means, without the
express written consent of the Participant:
(i)
the assignment to the Participant of any
duties inconsistent in any substantial respect with the Participant’s position,
authority or responsibilities as in effect during the 90-day period immediately
preceding the Change in Control which assignment results in a substantial
diminution in such position, authority or responsibilities or any other
substantial adverse change in such position (including titles), authority or
responsibilities, excluding an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Employer as set forth
below.
(ii)
any failure by the Employer to furnish
the Participant with compensation and benefits at a level substantially equal
to or exceeding those received by the Participant from the Employer during the
90-day period preceding the Change in Control, other than (A) an
insubstantial and inadvertent failure remedied by the Employer as set forth
below, (B) a reduction in compensation which is applied to
3
all non-union
employees of the Employer in the same dollar amount or percentage or (C) a
reduction or modification of any employee benefit program covering
substantially all of the employees of the Employer, which reduction or
modification generally applies to all employees covered under such program; or
(iii)
the Employer’s requiring the Participant
to be based or to perform services at any office or location that is in excess
of 50 miles from the principal location of the Participant’s work during the
90-day period immediately preceding the Change in Control, except for travel
reasonably required in the performance of the Participant’s responsibilities.
Before a termination by the Participant under this Section 3.1(j) will
constitute termination for Good Reason, the Participant must give the Company a
Notice of Termination within 30 calendar days of the occurrence of the event
that constitutes Good Reason. Failure to
provide such Notice of Termination within such 30-day period shall be
conclusive proof that the Participant shall not have Good Reason to terminate
employment.
For purposes of this Section 3.1(j), Good Reason shall exist only
if the Employer fails to remedy the event or events constituting Good Reason
within 30 calendar days after receipt of the Notice of Termination from the
Participant. If the Participant
determines that Good Reason for termination exists and timely files a Notice of
Termination, such determination shall be presumed to be true and the Company
will have the burden of proving that Good Reason does not exist.
(k)
“
Incentive Pay
” means the target
bonus as notified to the Participant for the year in which the Termination Date
occurs under the Management Incentive Plan or the Management Performance
Incentive Plan, as applicable to the Participant, or if such Plan or Plans are
no longer in effect, the annual bonus, incentive or other payment of
compensation in addition to Base Pay, made or to be made in regard to services
rendered in any year or other annual measurement period pursuant to any bonus,
incentive, performance, or similar agreement, policy, Policy, program or
arrangement of the Employer or any successor thereto.
(l)
“
Just Cause
” means without the
written consent of the Company, the Participant (i) participates in
dishonesty, fraud, misrepresentation, embezzlement or deliberate injury or
attempted injury, in each case related to the Company, an Employer or a
Subsidiary, (ii) commits any unlawful or criminal activity of a serious
nature, (iii) commits any intentional and deliberate breach of a duty or
duties that, individually or in the aggregate, are material in relation to the
Participant’s overall duties or (iv) materially breaches any
confidentiality or noncompete agreement entered into with the Company or an
Employer. The Company shall have the
burden of proving that Just Cause exists.
For purposes of this Policy, the Participant shall not be deemed to
have been terminated for “Just Cause” hereunder unless (A) the Participant
receives a Notice of Termination setting forth the grounds for the termination
at least 30 calendar days prior to the specified Termination Date, (B) if
requested by the Participant, the Participant (and/or the
4
Participant’s counsel or other representative) is granted a hearing
before the full Board and (C) a majority of the members of the full Board
determine that the Participant violated one or more of the provisions of the
definition of “Just Cause” set forth above.
(m)
“
Notice of Termination
” means (i) a
written notice of termination by the Company to the Executive or (ii) a
written notice of termination for Good Reason by the Executive to the Company,
in either case, setting forth in reasonable detail the specific reason for
termination and the facts and circumstances claimed to provide a basis for
termination of employment under the provision indicated.
(n)
“
Participant
” means an Executive
who meets the eligibility requirements of Article IV hereof, other than an
Executive who has entered into an employment, severance or other similar
agreement with the Company (other than a stock option or restricted stock
agreement or other form of participation document entered into pursuant to an
Employer-sponsored plan which may incidentally refer to accelerated vesting or
accelerated payment upon a change in control (as defined in such separate plan
or document)) which becomes operative upon the occurrence of a change in
control of the Company (as defined in such agreement).
(o)
“
Policy
” means this Change in
Control Severance Compensation Policy.
(p)
“
Protection Period
” means the
period of time commencing on the date of the first occurrence of a Change in
Control and continuing until the second anniversary of the occurrence of the
Change in Control.
(q)
“
Restatement Date
” means February 26,
2010; provided, however, as it relates to the amendment and restatement of this
Policy in a manner that adversely affects the rights of a Participant within
the meaning of Section 8.2, if the Participant has not consented to this
amendment and restatement, “Restatement Date” means March 1, 2012.
(r)
“
Severance Payment
” means the
payment of severance compensation as provided in Article V hereof.
(s)
“
Subsidiary
” means any corporation
or other legal entity a majority of the securities entitled to vote generally
in the election of directors of which are owned by the Company or another
Subsidiary of the Company.
(t)
“
Termination Date
” means, (i) with
respect to a termination by the Employer, the date on which the Participant’s
employment is terminated as stated in the Notice of Termination and (ii) with
respect to a termination by the Participant for Good Reason, the date that is
15 calendar days following the Company’s receipt of the Notice of Termination.
Section 3.2
Status of Policy/Applicable Law
.
(a)
This Policy is classified as a “payroll
practice” under Department of Labor Regulation Section 2510.3-1(b) and,
as such is not subject to the provisions of the
5
Employee
Retirement Income Security Act of 1974, as amended. The Policy will be interpreted and
administered accordingly.
(b)
This Policy shall be administered,
construed and enforced according to the laws of the State of Minnesota.
Section 3.3
Severability
. If a
provision of this Policy shall be held illegal or invalid, the illegality or
invalidity shall not affect the remaining parts of this Policy and this Policy
shall be construed and enforced as if the illegal or invalid provision had not
been included.
ARTICLE
IV - ELIGIBILITY
Section 4.1
Participation
. Each person
who is an Executive on the Effective Date shall be a Participant on the
Effective Date. Thereafter, each other
person who becomes an Executive prior to both (a) a Change in Control and
(b), unless specifically provided for by the Board at the time a Participant is
elected as an Executive, the date a notice of termination of the Policy is
provided under Section 8.1(a), shall automatically become a Participant on
the day on which such person becomes an Executive.
Section 4.2
Duration of Participation
.
A Participant shall cease to be a Participant and shall have no rights
hereunder, without further action, when he or she ceases to be an Executive,
unless such Participant is then entitled to payment of a Severance Payment as
provided in Section 5.1 hereof. A
Participant entitled to a Severance Payment shall remain a Participant in this
Policy until the full amount of the Severance Payment has been paid to the
Participant.
ARTICLE
V - SEVERANCE PAYMENTS
Section 5.1
Right to Severance Payment
.
(a)
Subject to Subsection (c) hereof, a
Participant shall be entitled to receive from the Company a Severance Payment
in the amount provided in Section 5.2 hereof if there has been a Change in
Control and if, after a Change in Control and within the Protection Period, (i) the
Participant’s employment by an Employer shall be terminated by the Employer
without Just Cause or (ii) the Participant shall terminate employment with
an Employer for Good Reason.
(b)
Notwithstanding anything to the contrary
contained in this Policy, any termination of employment of the Participant or
removal of the Participant from the office or position in the Company that
occurs prior to a Change in Control but which the Participant reasonably
demonstrates occurred at the request of a third party who had taken steps
reasonably calculated to effect the Change in Control shall be deemed to be a
termination or removal of the Participant after a Change in Control for
purposes of this Policy.
(c)
Notwithstanding anything to the contrary
contained in this Policy, a Participant shall not be entitled to receive any
Severance Payment hereunder unless, no later than by March 10 of the calendar year following the calendar year of the
Participant’s Termination Date (i) he or she has signed and
returned to the Company a release in the
6
form prescribed by
the Company and (ii) the applicable rescission period for such release has
expired.
Section 5.2
Amount of Severance Payment
.
(a)
Each Participant entitled to a Severance
Payment under this Policy shall receive the following Severance Payment from
the Company.
(i)
A lump sum cash payment in an amount
equal to two times the sum of (A) the Participant’s Base Pay plus (B) Incentive
Pay; provided, however, that the amount of such cash payment determined
pursuant to this Section 5.2(a)(i) shall be reduced by an amount
equal to the aggregate amount of any other cash payments in the nature of
severance payments paid or payable by the Company or the Employer or any
Subsidiary pursuant to any agreement, policy, program, arrangement or requirement
of statutory or common law (other than this Policy or cash payments received in
lieu of stock incentives);
(ii)
A lump sum cash payment in an amount
equal to (A) the Incentive Pay for the year in which the Termination Date
occurs, pro rated to reflect time worked during the year in which the
Termination Date occurs, days worked during the year divided by 365 days times
the Incentive Pay expressed as a dollar amount) and (B) reduced by any
amounts paid under the terms of the applicable incentive bonus Policy itself
for the same period of time;
(iii)
Reasonable fees for outplacement
services, by a firm selected by the Company and at the expense of the Company,
in an amount not in excess of 20% of Base Pay; provided, however, that all such
fees shall be incurred by the Participant no later than the last day of the
second calendar year, and all amounts under this paragraph (iii) shall be
paid no later than the last day of the third calendar year, following the year
in which the Participant’s Termination Date occurs; and
(iv)
Eligibility for continuation coverage
pursuant to Section 4980B of the Code (or any successor provision thereto)
under the Employer’s medical, dental and other group health plans, or successor
plans as in effect from time to time; provided, however, that (A) the
Company shall reimburse the Participant, on a semi-annual basis, for any costs
incurred in securing such continuation coverage that are in excess of the costs
that would have been incurred by the Participant immediately prior to the
Termination Date to obtain such coverage and (B) such reimbursements shall
in no event continue beyond a period of eighteen (18) months following the
Termination Date.
(b)
Notwithstanding any provision of this
Policy to the contrary, if any amount or benefit to be paid or provided under
this Policy or any other plan or agreement between the Participant and an
Employer would be an “Excess Parachute Payment,” within the meaning of Section 280G
of the Code, or any successor provision thereto, but for the application of
this sentence, then the payments and benefits to be paid or provided under
7
this Policy shall
be reduced to the minimum extent necessary (but in no event to less than zero)
so that no portion of any such payment or benefit, as so reduced, constitutes
an Excess Parachute Payment; provided, however, that the foregoing reduction
shall be made only if and to the extent that such reduction would result in an
increase in the aggregate payment and benefits to be provided to the
Participant, determined on an after-tax basis (taking into account the excise
tax imposed pursuant to Section 4999 of the Code, or any successor
provision thereto, any tax imposed by any comparable provision of state law, and
any applicable federal, state and local income taxes). If requested by the Participant or the
Employer, the determination of whether any reduction in such payments or
benefits to be provided under this Policy or otherwise is required pursuant to
the preceding sentence shall be made by the Company’s independent accountants,
at the expense of the Company, and the determination of the Company’s
independent accounts shall be final and binding on all persons. The fact that the Participant’s right to
payments or benefits may be reduced by reason of the limitations contained in
this Section 5.2(b) shall not of itself limit or otherwise affect any
other rights of the Participant pursuant to this Policy. In the event that any payment or benefit
intended to be provided under this Policy or otherwise is required to be
reduced pursuant to this Section, payment under this Policy shall be reduced
before payments under any other arrangements are reduced and the Participant
(in his or her sole discretion) shall be entitled to designate the payments
and/or benefits under this Policy to be so reduced in order to give effect to
this Section. The Employer shall provide
the Participant with all information reasonably requested by the Participant to
permit the Participant to make such designation. In the event that the Participant fails to
make such designation within ten business days of receiving such information,
the Employer may effect such reduction in any manner it deems appropriate.
(c)
The Participant shall not be required to
mitigate damages or the amount of his or her Severance Payment by seeking other
employment or otherwise, nor shall the amount of such payment be reduced by any
compensation earned by the Participant as a result of employment after the
termination of his or her employment by an Employer.
Section 5.3
Time of Severance Payment
.
The Severance Payment to which a Participant is entitled under Section 5.2(a)(i) and
(ii) shall be paid to the Participant by the Company in cash and in full,
not later than March 15 of the
calendar year following the calendar year in which the Participant’s
Termination Date occurs, subject to Section 5.1(c). If such a Participant should die before all
amounts payable to him have been paid, such unpaid amounts shall be paid to the
Participant’s spouse, if living, otherwise to the personal representative of
the Participant’s estate.
Section 5.4
Liability for Payment
. The Company
shall be solely liable for and shall pay the Severance Payments (or cause the
Severance Payments to be paid) to the Executive.
ARTICLE
VI - OTHER RIGHTS AND BENEFITS NOT
AFFECTED
Section 6.1
Other Benefits
. Except as
provided in Section 5.2(b), neither the provisions of this Policy nor the
Severance Payment provided for hereunder shall reduce or increase any amounts
otherwise payable, or in any other way affect a Participant’s rights as an
employee of an Employer, whether existing now or hereafter, under any benefit,
incentive, retirement, stock option, stock bonus, stock purchase or employment
agreement, policy (other than this Policy),
8
program or arrangement (collectively, the “Other Plans”),
except to the extent specifically provided under such Other Plans.
Section 6.2
Certain Limitations
. This Policy
does not constitute a contract of employment or impose on any Participant, the
Company or any other Employer any obligation to retain any Participant as an
employee or in any other capacity, to change or not change the status, terms or
conditions of any Participant’s employment, or to change or not change the
Employer’s policies regarding termination of employment.
ARTICLE
VII - SUCCESSORS SECTION
Section 7.1
Successors
. Without
limiting the obligations of any person or entity under applicable law, the
Company shall require any successor or assignee, whether direct or indirect, by
purchase, merger, consolidation or otherwise, to all or substantially all the
business or assets of the Company, expressly and unconditionally to assume and
agree to perform the Company’s obligations under this Policy, in the same
manner and to the same extent that the Company would be required to perform if
no such succession or assignment had taken place. In such event, the term “Company,” as used in
this Policy, shall mean the Company as hereinbefore defined and any successor
assignee to the business or assets which by reason hereof becomes bound by the
terms and provisions of this Policy.
ARTICLE
VIII - DURATION, AMENDMENT AND
TERMINATION
Section 8.1
Duration/Termination
.
(a)
This Policy will terminate as to all
Participants: (i) if a Change in Control has not occurred, the date that
is 2 years following the giving of notice to each Executive who is a
Participant on the date of the notice that the Board has determined (by
resolution adopted by a majority of the members of the Board) that the Policy
will terminate; and (ii) if a Change in Control has occurred, the
expiration of the Protection Period.
(b)
Notwithstanding the foregoing, if a
Change in Control occurs, this Policy shall continue in full force and effect,
and shall not terminate or expire until after all Participants who were
Participants on the date of the Change in Control who became entitled to a
Severance Payment hereunder shall have received such payment in full.
Section 8.2
Amendment
. Unless a
Change in Control has previously occurred, this Policy may be amended in any
respect by resolution adopted by a majority of the members of the Board;
provided, however, that no such amendment shall adversely affect the rights of
a Participant under this Policy without the Participant’s consent unless such
amendment does not become effective until the date that is two years following
the giving of notice to all Participants of the adoption of such amendment by
the Board. If a Change in Control
occurs, notwithstanding the foregoing, this Policy no longer shall be subject
to amendment, change, substitution, deletion or revocation in any respect.
Section 8.3
Form of Amendment/Termination
.
The form of any proper amendment or termination of this Policy shall be
a written instrument signed by a duly authorized officer or officers of the
Company, certifying that the amendment or termination has been approved by the
9
Board as provided in Sections 8.1 or 8.2 hereof. A proper amendment of this Policy
automatically shall effect a corresponding amendment to all Participants’
rights hereunder. A proper termination
of this Policy automatically shall effect a termination of all Participants’
rights and benefits hereunder without further action.
ARTICLE
IX - MISCELLANEOUS SECTION
Section 9.1
Legal Fees and Expenses/Binding Arbitration
.
(a)
It is the intent of the Company that
Participants not be required to incur any expenses associated with the
enforcement of rights under this Policy because the cost and expense thereof
would substantially detract from the benefits intended to be extended to
Participants hereunder. Accordingly, if
the Company or any Employer, as the case may be, has failed to comply with any
of its obligations under this Policy or in the event that the Company or any
Employer, or any other person takes any action to declare this Policy void or
unenforceable, or institutes any litigation designed to deny, or to recover
from, a Participant the benefits intended to be provided to the Participant
hereunder, the Company and each Employer irrevocably authorizes the Participant
from time to time to retain counsel of his or her choice, at the expense of the
Company, as hereafter provided, to represent the Participant in connection with
the initiation or defense of any legal action, whether by or against the
Company or any Employer, in any jurisdiction.
The Company shall pay or cause to be paid and shall be solely
responsible for any and all reasonable attorneys’ fees and expenses incurred by
the Participant in enforcing his or her rights hereunder individually (but not
as a representative of any class) as a result of the Company’s or any Employer’s,
failure to perform this Policy or any provision hereof or as a result of the
Company or any Employer, or any person contesting the validity or
enforceability of this Policy or any provision hereof.
(b)
Notwithstanding any provision of this
Policy to the contrary, (including, without limitation, determining whether a
termination is for Just Cause or with Good Reason) any dispute or controversy
arising under or in connection with this Policy shall be settled by binding
arbitration, conducted before a panel of three arbitrators sitting in a
location selected by the Participant within 50 miles from the location of his
or her job with his or her Employer, in accordance with current Employment
Dispute rules of the American Arbitration Association (“AAA”) then in
effect. Within fifteen days after the
commencement of arbitration, each of the Company and the Participant shall
select one person to act as arbitrator, and the two selected shall select a
third arbitrator within ten days of their appointment. If the arbitrators are unable or fail to
agree upon the third arbitrator, the third arbitrator shall be selected by the
AAA. Judgment shall be entered on the
award of the arbitrator in any court having jurisdiction. All expenses of such arbitration, including
the fees and expenses of the counsel for the Participant, shall be borne by the
Company.
(c)
Notwithstanding any provision of the
Policy to the contrary, all fees and expenses subject to payment or
reimbursement pursuant to this Section 9.1 shall be paid not later than the
last day of the calendar year following the calendar year in which the
Participant incurs such fees or expenses.
The Participant shall be solely responsible for timely
10
providing to the
Company sufficient proof of the fees and expenses to be paid or reimbursed
pursuant to this Section.
Section 9.2
Withholding of Taxes
. The Employer
may withhold from any amounts payable under this Policy all foreign, federal,
provincial, state, city or other taxes as the Employer reasonably determines
are required pursuant to any law or government regulation or ruling.
Section 9.3
Successors
.
(a)
This Policy shall inure to the benefit of
and be enforceable by the Participant’s personal or legal representatives, executors,
administrators, successors, heirs, distributees and/or legatees.
(b)
The rights under this Policy are personal
in nature and neither the Company nor any Participant shall, without the
consent of the other, assign, transfer or delegate any rights or obligations
hereunder except as expressly provided in Section 7.2 hereof. Without limiting the generality of the
foregoing, the Participant’s right to receive a Severance Payment hereunder
shall not be assignable, transferable or delegable, whether by pledge, creation
of a security interest or otherwise, other than by a transfer by his or her
will or by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section 9.3(b), the
Company, shall have no liability to pay any amount so attempted to be assigned,
transferred or delegated.
(c)
The Company and each Participant
recognize that each party will have no adequate remedy at law for breach by the
other of any of the agreements contained herein and, in the event of any such
breach, the Company, and each Participant hereby agree and consent that the
other shall be entitled to a decree of specific performance, mandamus or other
appropriate remedy to enforce performance of this Policy.
Section 9.4
Notices
. For all
purposes of this Policy, all communications, including without limitation
notices, consents, requests or approvals provided for herein shall be in
writing and shall be deemed to have been duly given when delivered or five
business days after having been mailed by registered or certified mail, return
receipt requested, postage prepaid, addressed to the Company, (to the attention
of the General Counsel of the Company), at its principal executive office and
to any Participant at his or her principal residence as shown in the relevant
records of the Employer, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except that
notices of change of address shall be effective only upon receipt
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