UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 16, 2007
VISTEON CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 1-15827 | 38-3519512 | ||
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
| One Village Center Drive, Van Buren Township, Michigan | 48111 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code (800)-VISTEON
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
| o | Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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SECTION 5 — CORPORATE GOVERNANCE AND MANAGEMENT
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
On May 16, 2007, the Board of Directors of Visteon Corporation (the “Company”) appointed
Michael J. Widgren to the position of Vice President, Corporate Controller and Chief Accounting
Officer, effective as of May 16, 2007. The Company’s press release relating to the foregoing is
attached hereto as Exhibit 99.1 and is incorporated herein by reference. In connection with the
appointment, Mr. Widgren will receive an annual base salary of $280,000 and his 2007 annual
incentive bonus opportunity will be increased to 50% of his eligible base salary. Also, the
Company awarded Mr. Widgren 7,500 restricted stock units, which will vest after three years, and
15,000 stock appreciation rights, which will vest annually in equal one-third increments. Mr.
Widgren also will receive other benefits that are consistent with the Company’s compensation
policies for similarly situated officers.
Mr. Widgren, age 39, was previously the Company’s Assistant Corporate Controller, a position
he held since joining the Company in October 2005. Before joining the Company, he was the Chief
Accounting Officer of Federal-Mogul Corporation since January 2005, and the Director of Accounting
and Reporting of Federal-Mogul Corporation prior thereto.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
At the Annual Meeting of Stockholders of the Company held on May 16, 2007, the stockholders
approved amendments to the Company’s Amended and Restated Certificate of Incorporation, as
described in the Company’s Proxy Statement dated April 9, 2007 relating to the Annual Meeting (the
“Proxy Statement”), to provide for the phased elimination over three years of the Company’s
classified Board of Directors and certain ancillary changes to reflect the absence of a classified
Board (the “Declassification Amendment”). The Declassification Amendment was submitted to the State
of Delaware by the Company on May 17, 2007 and became effective upon filing. A copy of the Amended
and Restated Certificate of Incorporation of the Company reflecting the Declassification Amendment
is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Effective upon the adoption of the Declassification Amendment, the Company’s Amended and
Restated By-Laws (the “By-Laws”) were amended to reflect the phased elimination over three years of
the Company’s classified Board as described in the Proxy Statement. Prior to their amendment, the
By-Laws permitted removal of directors only for cause and required the affirmative vote of at least
a majority of the outstanding shares. Upon adoption of the Declassification Amendment, the By-Laws
were amended so that these requirements will continue to apply to the Class II and Class III
directors during the remainder of their terms expiring in 2008 and 2009, respectively. The By-Laws
were also amended: to provide that the directors elected at the Annual Meeting held on May 16,
2007, and at future annual meetings, will be removable “with or without cause” upon the affirmative
vote of the holders of a majority of the outstanding shares; and to make certain ancillary changes.
A copy of the Amended and Restated By-Laws of the Company reflecting these changes is attached
hereto as Exhibit 3.2 and is incorporated herein by reference.
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SECTION 9 — FINANCIAL STATEMENTS AND EXHIBITS
Item 9.01. Financial Statements and Exhibits.
| Exhibit No. | Description | |
3.1
|
Amended and Restated Certificate of Incorporation of the Company, as amended through May 17, 2007. | |
3.2
|
Amended and Restated By-Laws of the Company, as amended through May 17, 2007. | |
99.1
|
Press release dated May 18, 2007. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| VISTEON CORPORATION |
||||
| Date: May 22, 2007 | By: | /s/ William G. Quigley III | ||
| William G. Quigley III | ||||
| Senior Vice President and Chief Financial Officer | ||||
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EXHIBIT INDEX
| Exhibit No. | Description | Page | ||||
| 3.1 | Amended and Restated Certificate of Incorporation of
Visteon Corporation, as amended through May 17,
2007. |
|||||
| 3.2 | Amended and Restated By-Laws of Visteon Corporation,
as amended through May 17, 2007. |
|||||
| 99.1 | Press release dated May 18, 2007. |
|||||
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
CERTIFICATE OF INCORPORATION
Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law
Delaware General Corporation Law
(As amended through May 17, 2007)
FIRST: The name of the Corporation is Visteon Corporation (the “Corporation”).
SECOND: The address of the registered office of the Corporation in the State of
Delaware is 2711 Centerville Road, in the City of Wilmington, County of New Castle. The name of
its registered agent at that address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of the State of Delaware
(the “GCL”).
FOURTH: (a) Authorized Capital Stock. The total number of shares of stock
which the Corporation shall have authority to issue is five hundred fifty million (550,000,000)
shares of capital stock, consisting of (i) five hundred million (500,000,000) shares of common
stock, par value $1.00 per share (the “Common Stock”) and (ii) fifty million (50,000,000) shares of
preferred stock, par value $1.00 per share (the “Preferred Stock”). The holders of shares of
Common Stock shall not
have cumulative voting rights. No holder of shares of Common Stock shall be entitled to
preemptive or subscription rights.
(b) Preferred Stock. The Board of Directors is hereby expressly authorized to provide
for the issuance of all or any shares of the Preferred Stock in one or more classes or series, and
to fix for each such class or series such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors providing for the issuance of such
class or series, including, without limitation, the authority to provide that any such class or
series may be (i) subject to redemption at such time or times and at such price or prices; (ii)
entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such
conditions, and at such times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled to such rights upon the
dissolution of, or upon any distribution of the assets of, the Corporation; or (iv) convertible
into, or exchangeable for, shares of any other class or classes of stock, or of any other series of
the same or any other class or classes of stock, of the Corporation at such price or prices or at
such rates of exchange and with such adjustments; all as may be stated in such resolution or
resolutions.
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(c) Power to Sell and Purchase Shares. Subject to the requirements of applicable law,
the Corporation shall have the power to issue and sell all or any part of any shares of any class
of stock herein or hereafter authorized to such persons, and for such consideration, as the Board
of Directors shall from time to time, in its discretion, determine, whether or not greater
consideration could be received upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law. Subject to the requirements of applicable law, the
Corporation shall have the power to purchase any shares of any class of stock herein or hereafter
authorized from such persons, and for such consideration, as the Board of Directors shall from time
to time, in its discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise permitted by law.
FIFTH: The following provisions are inserted for the management of the business and
the conduct of the affairs of the Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by or under the direction of
the Board of Directors.
(b) The Board of Directors shall consist of not less than one nor more than fifteen members,
the exact number of which shall be fixed from time to
3
time by resolution adopted by the affirmative vote of a majority of the active Board of
Directors.
(c) Commencing at the annual meeting of stockholders that is held in calendar year 2007 (the
“2007 Annual Meeting”), directors shall be elected annually for terms of one year, except that any
director in office at the 2007 Annual Meeting whose term expires at the annual meeting of
stockholders held in calendar year 2008 or calendar year 2009 (a “Continuing Classified Director”)
shall continue to hold office until the end of the term for which such director was elected and
until such director’s successor shall have been elected and qualified. Accordingly, at the 2007
Annual Meeting, the successors of the directors whose terms expire at that meeting shall be elected
for a term expiring at the annual meeting of stockholders that is held in calendar year 2008 and
until such directors’ successors shall have been elected and qualified. At the annual meeting of
stockholders that is held in calendar year 2008, the successors of the directors whose terms expire
at that meeting shall be elected for a term expiring at the annual meeting of shareholders that is
held in calendar year 2009 and until such directors’ successors shall have been elected and
qualified. At each annual meeting of stockholders thereafter, all directors shall be elected for
terms expiring at the next annual meeting of stockholders and until such directors’ successors
shall have been elected and qualified. Except as otherwise required by law, until the term of a
Continuing Classified Director expires as aforesaid (or the earlier resignation of such director), such Continuing Classified
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Director may be removed from
office at any time, but only for cause, and only by the affirmative vote of the holders of at least
a majority in voting power of the issued and outstanding capital stock of the Corporation entitled
to vote in the election of directors. In no case will a decrease in the number of directors
shorten the term of any incumbent director.
(d) A director shall hold office until the annual meeting for the year in which his or her
term expires and until his or her successor shall be elected and shall qualify, subject, however,
to prior death, resignation, retirement, disqualification or removal from office.
(e) Subject to the terms of any one or more classes or series of Preferred Stock, any vacancy
on the Board of Directors that results from an increase in the number of directors may be filled by
a majority of the Board of Directors then in office, provided that a quorum is present, and any
other vacancy occurring on the Board of Directors may be filled by a majority of the Board of
Directors then in office, even if less than a quorum, or by a sole remaining director. Subject to
the rights, if any, of the holders of shares of Preferred Stock then outstanding, any or all of the
directors of the Corporation (other than any Continuing Classified Director) may be removed from
office at any time, with or without cause, and only by the affirmative vote of the holders of at
least a majority of the voting power of the Corporation’s then outstanding capital stock entitled to vote generally in the election of
directors. Notwithstanding the foregoing, whenever the holders of any one or
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more classes or
series of Preferred Stock issued by the Corporation shall have the right, voting separately by
class or series, to elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships shall be governed by
the terms of the Amended and Restated Certificate of Incorporation applicable thereto.
(f) In addition to the powers and authority hereinbefore or by statute expressly conferred
upon them, the directors are hereby empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of
the GCL, this Amended and Restated Certificate of Incorporation, and any By-Laws adopted by the
stockholders; provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which would have been valid if such
By-Laws had not been adopted.
SIXTH: No director shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
such exemption from liability or limitation thereof is not permitted under the GCL as the same
exists or may hereafter be amended. If the GCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent authorized by the GCL, as so amended. Any repeal or
modification of this Article SIXTH by the stockholders of the Corporation
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shall not adversely
affect any right or protection of a director of the Corporation existing at the time of such repeal
or modification with respect to acts or omissions occurring prior to such repeal or modification.
SEVENTH: The Corporation shall indemnify its directors and officers to the fullest
extent authorized or permitted by law, as now or hereafter in effect, and such right to
indemnification shall continue as to a person who has ceased to be a director or officer of the
Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce rights
to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or
his or her heirs, executors or personal or legal representatives) in connection with a proceeding
(or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the Board of Directors. The right to indemnification conferred by this Article
SEVENTH shall include the right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article SEVENTH to directors and officers of the
Corporation.
7
The rights to indemnification and to the advance of expenses conferred in this Article SEVENTH
shall not be exclusive of any other right which any person may have or hereafter acquire under this
Amended and Restated Certificate of Incorporation, the By-Laws of the Corporation, any statute,
agreement, vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SEVENTH by the stockholders of the Corporation
shall not adversely affect any rights to indemnification and to the advancement of expenses of a
director or officer of the Corporation existing at the time of such repeal or modification with
respect to any acts or omissions occurring prior to such repeal or modification.
EIGHTH: Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of stockholders of the
Corporation, and the ability of the stockholders to consent in writing to the taking of any action
is hereby specifically denied.
NINTH: Meetings of stockholders may be held within or without the State of Delaware,
as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such
place or places as may be designated from time to time by the Board of Directors or in the By-Laws
of the Corporation.
TENTH: In furtherance and not in limitation of the powers conferred upon it by the
laws of the State of Delaware, the Board of Directors shall have the
8
power to adopt, amend, alter
or repeal the Corporation’s By-Laws. The affirmative vote of at least a majority of the entire
Board of Directors shall be required to adopt, amend, alter or repeal the Corporation’s By-Laws.
The Corporation’s By-Laws also may be adopted, amended, altered or repealed by the affirmative vote
of the holders of at least fifty percent (50%) of the voting power of the shares entitled to vote
at an election of directors.
ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation in the manner now or
hereafter prescribed in this Amended and Restated Certificate of Incorporation, the Corporation’s
By-Laws or the GCL, and all rights herein conferred upon stockholders are granted subject to such
reservation.
9
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
of
VISTEON CORPORATION
A Delaware Corporation
As of May 17, 2007
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE I — OFFICES | 1 | |||||||
| Section 1. | Registered Office | 1 | ||||||
| Section 2. | Other Offices | 1 | ||||||
| ARTICLE II — MEETINGS OF STOCKHOLDERS | 1 | |||||||
| Section 1. | Place of Meetings | 1 | ||||||
| Section 2. | Annual Meetings | 1 | ||||||
| Section 3. | Special Meetings | 2 | ||||||
| Section 4. | Quorum | 2 | ||||||
| Section 5. | Proxies | 3 | ||||||
| Section 6. | Voting | 4 | ||||||
| Section 7. | Nature of Business at Meetings of Stockholders | 4 | ||||||
| Section 8. | List of Stockholders Entitled to Vote | 6 | ||||||
| Section 9. | Stock Ledger | 7 | ||||||
| Section 10. | Record Date | 7 | ||||||
| Section 11. | Inspectors of Election | 8 | ||||||
| ARTICLE III — DIRECTORS | 8 | |||||||
| Section 1. | Number and Election of Directors | 8 | ||||||
| Section 2. | Nomination of Directors | 9 | ||||||
| Section 3. | Vacancies | 11 | ||||||
| Section 4. | Duties and Powers | 12 | ||||||
| Section 5. | Organization | 12 | ||||||
| Section 6. | Resignations and Removals of Directors | 12 | ||||||
| Section 7. | Meetings | 13 | ||||||
| Section 8. | Quorum | 13 | ||||||
| Section 9. | Actions of Board | 14 | ||||||
| Section 10. | Meetings by Means of Conference Telephone | 14 | ||||||
| Section 11. | Committees | 14 | ||||||
| Section 12. | Compensation | 15 | ||||||
| Section 13. | Interested Directors | 15 | ||||||
| ARTICLE IV — OFFICERS | 16 | |||||||
| Section 1. | General | 16 | ||||||
| Section 2. | Election | 16 | ||||||
| Section 3. | Voting Securities Owned by the Corporation | 17 | ||||||
| Section 4. | Chairman of the Board of Directors | 17 | ||||||
| Section 5. | President | 17 | ||||||
| Section 6. | Vice Presidents | 18 | ||||||
| Section 7. | Secretary | 18 | ||||||
| Section 8. | Treasurer | 19 | ||||||
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| Page | ||||||||
| Section 9. | Assistant Secretaries | 20 | ||||||
| Section 10. | Assistant Treasurers | 20 | ||||||
| Section 11. | Other Officers | 21 | ||||||
| ARTICLE V — STOCK | 21 | |||||||
| Section 1. | Form of Certificates | 21 | ||||||
| Section 2. | Signatures | 21 | ||||||
| Section 3. | Lost, Destroyed, Stolen or Mutilated Certificates | 21 | ||||||
| Section 4. | Transfers | 22 | ||||||
| Section 5. | Transfer and Registry Agents | 22 | ||||||
| Section 6. | Beneficial Owners | 22 | ||||||
| ARTICLE VI — NOTICES | 23 | |||||||
| Section 1. | Notices | 23 | ||||||
| Section 2. | Waivers of Notice | 23 | ||||||
| ARTICLE VII — GENERAL PROVISIONS | 24 | |||||||
| Section 1. | Dividends | 24 | ||||||
| Section 2. | Disbursements | 24 | ||||||
| Section 3. | Fiscal Year | 24 | ||||||
| Section 4. | Corporate Seal | 24 | ||||||
| ARTICLE VIII — INDEMNIFICATION | 25 | |||||||
| Section 1. | Power to Indemnify in Actions, Suits or Proceedings Other than Those by or in the Right of the Corporation | 25 | ||||||
| Section 2. | Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation | 26 | ||||||
| Section 3. | Authorization of Indemnification | 26 | ||||||
| Section 4. | Good Faith Defined | 27 | ||||||
| Section 5. | Indemnification by a Court | 28 | ||||||
| Section 6. | Expenses Payable in Advance | 28 | ||||||
| Section 7. | Nonexclusivity of Indemnification and Advancement of Expenses | 28 | ||||||
| Section 8. | Insurance | 29 | ||||||
| Section 9. | Certain Definitions | 29 | ||||||
| Section 10. | Survival of Indemnification and Advancement of Expenses | 30 | ||||||
| Section 11. | Limitation on Indemnification | 30 | ||||||
| Section 12. | Indemnification of Agents | 31 | ||||||
| ARTICLE IX — AMENDMENTS | 31 | |||||||
| Section 1. | Amendments | 31 | ||||||
| Section 2. | Entire Board of Directors | 31 | ||||||
ii
AMENDED AND RESTATED
BY-LAWS
OF
VISTEON CORPORATION
(hereinafter called the “Corporation”)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
without the State of Delaware, as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders shall be
held on such date and at such time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect
directors, and transact such other business as may properly be brought before the meeting. Written
notice
1
of the annual meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
certificate of incorporation of the Corporation, as amended and restated from time to time (the
“Certificate of Incorporation”), special meetings of stockholders, for any purpose or purposes, may
be called by either (i) the Chairman of the Board of Directors, (ii) the President, or (iii) the
Board of Directors. Such request shall state the purpose or purposes of the proposed meeting. At
a special meeting of the stockholders, only such business shall be conducted as shall be specified
in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of
Directors. Written notice of a special meeting stating the place, date and hour of the meeting and
the purpose or purposes for which the meeting is called shall be given not less than ten nor more
than sixty days before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 4. Quorum. Except as otherwise required by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be
2
present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally noticed. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting not less than ten nor more than sixty days before the date of the meeting.
Section 5. Proxies. Any stockholder entitled to vote may do so in person or
by his or her proxy appointed by an instrument in writing subscribed by such stockholder or by his
or her attorney thereunto authorized, delivered to the Secretary of the meeting; provided,
however, that no proxy shall be voted or acted upon after three years from its date, unless
said proxy provides for a longer period. Without limiting the manner in which a stockholder may
authorize another person or persons to act for him or her as proxy, either of the following shall
constitute a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person or persons to act
for him or her as proxy. Execution may be accomplished by the stockholder or his or her
authorized officer, director, employee or agent signing such writing or causing his or her
signature to be affixed to such writing by any reasonable means, including, but not limited
to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act for him or her as
proxy by transmitting or authorizing the transmission of a telegram or other
means of electronic transmission to the person who will be the holder of the proxy or
to a proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such transmission,
provided that any such telegram or other means of electronic transmission must either set
forth or
3
be submitted with information from which it can be determined that the telegram or
other electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original writing or
transmission.
Section 6. Voting. At all meetings of the stockholders at which a quorum is
present, except as otherwise required by law, the Certificate of Incorporation or these By-Laws,
any question brought before any meeting of stockholders shall be decided by the affirmative vote of
the holders of a majority of the total number of votes of the capital stock present in person or
represented by proxy and entitled to vote on such question, voting as a single class. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his or her discretion, may require that any votes cast at such meeting shall be
cast by written ballot.
Section 7. Nature of Business at Meetings of Stockholders. 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 Company (i) who is a
stockholder of record on the date of the giving of the notice provided
4
for in this Section 7 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 7.
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 Company.
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 Company not less than one hundred twenty (120)
days prior to the anniversary date of the Company’s proxy statement released to stockholders in
connection with the previous year’s Annual Meeting of stockholders, except that if no Annual
Meeting of stockholders was held in the previous year or if the date of the Annual Meeting has been
changed by more than thirty (30) days from the anniversary date of the previous year’s meeting,
notice by the stockholder in order to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever
first occurs.
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 (i) 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, (ii) the name and record address of such
stockholder, (iii) the class or series and number of shares of capital stock of the Company which
are owned beneficially or of record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons (including their
5
names) in
connection with the proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the meeting.
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 7,
provided, however, that, once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 7 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 8. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
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Section 9. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 8 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 10. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or 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 a record date,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall not be
more than sixty nor less than ten days before the date of such meeting; and (2) in the case of any
other action, shall not be more than sixty days prior to such other action. If no record date is
fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held; and (2) the record date for
determining stockholders for any other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
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Section 11. Inspectors of Election. In advance of any meeting of
stockholders, the Board by resolution or the Chairman or President shall appoint one or more
inspectors of election to act at the meeting and make a written report thereof. One or more other
persons may be designated as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is present, ready and willing to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the meeting. Unless
otherwise required by law, inspectors may be officers, employees or agents of the Corporation.
Each inspector, before entering upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector shall have the duties prescribed by law and shall take
charge of the polls and, when the vote is completed, shall make a certificate of the result of the
vote taken and of such other facts as may be required by law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. (a) The Board of Directors
shall consist of not less than one nor more than fifteen members, the exact number of which shall
be determined from time to time by resolution adopted by the Board of Directors. Except as
provided in Section 3 of this Article III, directors shall be elected by the stockholders at the
annual meetings of stockholders, and each director so elected shall hold office for the term
set forth in subsection (b) hereof and until such director’s successor is duly elected and
qualified, or until such director’s death, or until such director’s earlier resignation or removal.
Directors need not be stockholders.
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(b) Commencing at the annual meeting of stockholders that is held in calendar year 2007 (the
“2007 Annual Meeting”), directors shall be elected annually for terms of one year, except that any
director in office at the 2007 Annual Meeting whose term expires at the annual meeting of
stockholders held in calendar year 2008 or calendar year 2009 (a “Continuing Classified Director”)
shall continue to hold office until the end of the term for which such director was elected and
until such director’s successor shall have been elected and qualified. Accordingly, at the 2007
Annual Meeting, the successors of the directors whose terms expire at that meeting shall be elected
for a term expiring at the annual meeting of stockholders that is held in calendar year 2008 and
until such directors’ successors shall have been elected and qualified. At the annual meeting of
stockholders that is held in calendar year 2008, the successors of the directors whose terms expire
at that meeting shall be elected for a term expiring at the annual meeting of shareholders that is
held in calendar year 2009 and until such directors’ successors shall have been elected and
qualified. At each annual meeting of stockholders thereafter, all directors shall be elected for
terms expiring at the next annual meeting of stockholders and until such directors’ successors
shall have been elected and qualified.
Section 12. Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as directors of the
Company, except as may be otherwise provided in the Certificate of Incorporation with respect to the right of holders of preferred stock of the Corporation to
nominate and elect a specified number of directors in certain circumstances. Nominations of
persons for election to the Board of Directors may be made at any annual meeting of stockholders,
or at any special meeting of stockholders called for the purpose of electing directors, (a) by or
at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Company (i) who is a
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stockholder of record on the date of the giving of the
notice provided for in this Section 2 and on the record date for the determination of stockholders
entitled to vote at such meeting and (ii) who complies with the notice procedures set forth in this
Section 2.
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 Company.
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 Company as provided in Section 7 of Article II.
To be in proper written form, a stockholder’s notice to the Secretary must set forth (a) as to
each person whom the stockholder proposes to nominate for election as a director (i) the name, age,
business address and residence address of the person, (ii) the principal occupation or employment
of the person, (iii) the class or series and number of shares of capital stock of the Company which
are owned beneficially or of record by the person and (iv) any other information relating to the
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; and (b) as to the stockholder giving the notice
(i) the name and record address of such stockholder, (ii) the class or series and number of shares
of capital stock of the Company which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such stockholder and each
proposed nominee and any other person or persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder, (iv) a representation that such stockholder
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intends to appear in person or by proxy at the meeting to nominate the persons named in its notice
and (v) any other information relating to such stockholder 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 Exchange Act and the rules and
regulations promulgated thereunder. 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.
No person shall be eligible for election as a director of the Company unless nominated in
accordance with the procedures set forth in this Section 2. 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.
Section 13. Vacancies. Subject to the terms of any one or more classes or
series of preferred stock, any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the directors then in office, provided that
a quorum is present, and any other vacancy occurring on the Board of Directors may be filled by a
majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director. Notwithstanding the foregoing, whenever the
holders of any one or more class or classes or series of preferred stock of the Corporation shall
have the right, voting separately as a class, to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies and other features of such
directorships shall be governed by the Certificate of Incorporation.
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Section 14. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws required to be exercised or done by the stockholders.
Section 15. Organization. At each meeting of the Board of Directors, the
Chairman of the Board of Directors, or, in his or her absence, a director chosen by a majority of
the directors present, shall act as Chairman. The Secretary of the Corporation shall act as
Secretary at each meeting of the Board of Directors. In case the Secretary shall be absent from
any meeting of the Board of Directors, an Assistant Secretary shall perform the duties of Secretary
at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant
Secretaries, the Chairman of the meeting may appoint any person to act as Secretary of the meeting.
Section 6. Resignations and Removals of Directors. Any director of the
Corporation may resign at any time, by giving written notice to the Chairman of the Board of
Directors, the President or the Secretary of the Corporation. Such resignation shall take effect
at the time therein specified or, if no time is specified, immediately; and, unless otherwise
specified in such notice, the acceptance of such resignation shall not be necessary to make it
effective. Except as otherwise required by law and subject to the rights, if any, of the holders of
shares of preferred stock then outstanding, any director or the entire Board of Directors may be
removed from office at any time, with or without cause, and only by the affirmative vote of the
holders of at least a majority in voting power of the issued and outstanding capital stock of the
Corporation entitled to vote in the election of directors; provided, however, that
until the term of a Continuing Classified Director expires (or the earlier resignation of such
Continuing Classified Director),
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such Continuing Classified Director may be removed from office at
any time, but only for cause, and only by the affirmative vote of the holders of at least a
majority in voting power of the issued and outstanding capital stock of the Corporation entitled to
vote in the election of directors.
Section 16. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of Delaware. Regular
meetings of the Board of Directors may be held at such time and at such place as may from time to
time be determined by the Board of Directors and, unless required by resolution of the Board of
Directors, without notice. Special meetings of the Board of Directors may be called by the
Chairman of the Board of Directors, the Vice Chairman, if there be one, or a majority of the
directors then in office. Notice thereof stating the place, date and hour of the meeting shall be
given to each director either by mail not less than forty-eight (48) hours before the date of the
meeting, by telephone, facsimile or telegram on twenty-four (24) hours’ notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 17. Quorum. Except as may be otherwise required by law, the
Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a
majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the meeting of the time and
place of the adjourned meeting, until a quorum shall be present.
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Section 18. Actions of Board. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, 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 the
members of the Board of Directors or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 19. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, members of the Board of Directors of
the Corporation, or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this Section 10 shall constitute presence in
person at such meeting.
Section 20. Committees. The Board of Directors may, by resolution passed by
a majority of the entire Board of Directors, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent per-
14
mitted by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required.
Section 21. Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary, or such other emoluments as the Board
of Directors shall from time to time determine. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending committee meetings.
Section 22. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because such person’s or their votes are
counted for such purpose if (i) the material facts as to such person’s or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to such person’s or
their relationship or interest and as
15
to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is specifically approved
in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a President, a Secretary and a Treasurer. The Board of Directors,
in its discretion, may also choose a Chairman of the Board of Directors (who must be a director)
and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers.
Any number of offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these By-Laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors,
need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its meeting held on the date
of each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any time by the
16
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the Corporation shall be filled by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and power incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation
which may be authorized by the Board of Directors. During the absence or disability of the
President, the Chairman of the Board of Directors shall exercise all the powers and discharge all
the duties of the President. The Chairman of the Board of Directors shall also perform such other
duties and may exercise such other powers as from time to time may be assigned to him or her by
these By-Laws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors and, if there be one, the Chairman of the Board of Directors, have general
supervision
17
of the business of the Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. The President shall execute all bonds, mortgages,
contracts and other instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may sign and execute documents when so authorized
by these By-Laws, the Board of Directors or the President. In the absence or disability of the
Chairman of the Board of Directors, or if there be none, the President shall preside at all
meetings of the stockholders and the Board of Directors. The President shall also perform such
other duties and may exercise such other powers as from time to time may be assigned to him or her
by these By-Laws or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his or her
absence or in the event of his or her inability or refusal to act (and if there be no Chairman of
the Board of Directors), the Vice President or the Vice Presidents if there is more than one (in
the order designated by the Board of Directors) shall perform the duties of the President, and when
so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have
such other powers as the Board of Directors from time to time may prescribe. If there be no
Chairman of the Board of Directors and no Vice President, the Board of Directors shall designate
the officer of the Corporation who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the duties of the President, and when
so acting, shall have all the powers of and be subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings thereat in a book or
18
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or President, under whose supervision the
Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given notice
of all meetings of the stockholders and special meetings of the Board of Directors, and if there be
no Assistant Secretary, then either the Board of Directors or the President may choose another
officer to cause such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there be one, 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 by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his or her signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all transactions as Treasurer and of the financial condition of the
19
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the office of Treasurer and for the
restoration to the Corporation, in case of the Treasurer’s death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of whatever kind in
the Treasurer’s possession or under control of the Treasurer belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the President, any
Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the
event of his or her 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 10. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event
of the Treasurer’s 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. If required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of the office of Assistant Treasurer
and for the restoration to the Corporation, in case of the Assistant Treasurer’s death,
resignation, retirement or removal from office, of all books, papers, vouchers,
20
money and other
property of whatever kind in the Assistant Treasurer’s possession or under control of the Assistant
Treasurer belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation, (i) by the Chairman
of the Board of Directors, the President or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by such holder of stock in the Corporation.
Section 2. Signatures. Any or all of the signatures on a 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 such person were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost, Destroyed, Stolen or Mutilated Certificates. The Board of
Directors may direct a new certificate to be issued in place of any certificate theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
21
authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such person’s legal representative, to advertise the same in such manner as the
Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct
as indemnity against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of
the Corporation only by the person named in the certificate or by such person’s attorney lawfully
constituted in writing and upon the surrender of the certificate therefor, properly endorsed for
transfer and payment of all necessary transfer taxes; provided, however, that such
surrender and endorsement or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. Every
certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with
the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the
transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any
purpose until it shall have been entered in the stock records of the Corporation by an entry
showing from and to whom transferred.
Section 5. Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agencies and registry offices or agencies at such
place or places as may be determined from time to time by the Board of Directors.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its
22
books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee
or stockholder, such notice may be given by mail, addressed to such director, member of a committee
or stockholder, at such person’s address as it appears on the re cords of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Written notice may
also be given personally or by telegram, facsimile, telex or cable.
Section 2. Waivers of Notice.
(a) Whenever any notice is required by law, the Certificate of Incorporation or these By-Laws,
to be given to any director, member of a committee or stockholder, a waiver thereof in writing,
signed, by the person or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a meeting, present by
person or represented by proxy, shall constitute a waiver of notice of such meeting, except where
the person attends the meeting for the express purpose of objecting at the beginning of the meeting
to the transaction of any business because the meeting is not lawfully called or convened.
(b) Neither the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors or members of a committee of directors
23
need be specified in
any written waiver of notice unless so required by law, the Certificate of Incorporation or these
By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the requirements of the GCL and the
provisions of the Certificate of Incorporation, dividends upon the capital stock of the Corporation
may be declared by the Board of Directors at any regular or special meeting of the Board of
Directors, and may be paid in cash, in property, or in shares of the Corporation’s capital stock.
Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options,
bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the
Corporation, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any other proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”.
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The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that such person is or was a director, officer or employee
of the Corporation, or is or was a director, officer or employee of the Corporation serving at the
request of the Corporation as a director or officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
such person had no reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption that
such person did not act in good faith and in a manner which such person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
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Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director, officer or employee of the
Corporation, or is or was a director, officer or employee of the Corporation serving at the request
of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director, officer or employee is
proper in the circumstances because such person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall
be made (i) by a majority vote of the directors who are not parties to such action, suit or
proceed-
26
ing, even though less than a quorum, or (ii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director, officer or employee of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of
authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause
to believe his or her conduct was unlawful, if such person’s action is based on the records or
books of account of the Corporation or another enterprise, or on information supplied to such
person by the officers of the Corporation or another enterprise in the course of their duties, or
on the advice of legal counsel for the Corporation or another enterprise or on information or
records given or reports made to the Corporation or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected with reasonable care by the
Corporation or another enterprise. The term “another enterprise” as used in this Section 4 shall
mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 shall not be deemed to be exclusive
or to limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or 2 of this Article VIII, as the case may be.
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Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director, officer or employee may apply to the Court
of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court that indemnification of the
director, officer or employee is proper in the circumstances because such person has met the
applicable standards of conduct set forth in Section 1 or 2 of this Article VIII, as the case may
be. Neither a contrary determination in the specific case under Section 3 of this Article VIII nor
the absence of any determination thereunder shall be a defense to such application or create a
presumption that the director, officer or employee seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification pursuant to this
Section 5 shall be given to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director,
officer or employee in defending or investigating a threatened or pending action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such director, officer or
employee to repay such amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this
28
Article
VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation or any By-Law,
agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in such
person’s official capacity and as to action in another capacity while holding such office, it being
the policy of the Corporation that indemnification of the persons specified in Section 1 and 2 of
this Article VIII shall be made to the fullest extent permitted by law. The provisions of this
Article VIII shall not be deemed to preclude the indemnification of any person who is not specified
in Section 1 or 2 of this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the GCL, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer or employee of the Corporation, or is or was
a director, officer or employee of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person’s status as such,
whether or not the Corporation would have the power or the obligation to indemnify such person
against such liability under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII,
references to “the Corporation” shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and authority to
indemnify its
29
directors, officers or employees, so that any person who is or was a director, officer or employee of such constituent corporation, or is or was a
director, officer or employee of such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the
same position under the provisions of this Article VIII with respect to the resulting or surviving
corporation as such person would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VIII, references to “fines” shall include
any excise taxes assessed on a person with respect to an employee benefit plan; and references to
“serving at the request of the Corporation” shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director, officer or employee with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred
to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer or employee and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5 hereof), the Corporation shall not be obligated to indem-
30
nify any director, officer or employee
(or his or her heirs, executors or personal or legal representatives) or advance expenses in
connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the Board of Directors of the Corporation.
Section 12. Indemnification of Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to agents of the Corporation similar to those conferred in this Article
VIII to directors, officers and employees of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-Laws may be altered, amended or repealed, in
whole or in part, or new By-Laws may be adopted by the Board of Directors or by the stockholders as
provided in the Certificate of Incorporation.
Section 2. Entire Board of Directors. As used in this Article IX and in
these By-Laws generally, the term “entire Board of Directors” means the total number of directors
which the Corporation would have if there were no vacancies.
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Exhibit
99.1
| NEWS RELEASE — For Immediate Release |  |
Visteon names Michael J. Widgren vice president, corporate controller and chief accounting officer
VAN BUREN TOWNSHIP, Mich., May 18, 2007 – Global automotive supplier Visteon Corporation
(NYSE: VC) has named Michael J. Widgren as vice president, corporate controller and chief
accounting officer effective May 16.
“Michael Widgren’s deep technical skills and knowledge of the auto industry make him ideal for this
role,” said William Quigley, senior vice president and chief financial officer. “He has the
experience and capability to support Visteon during this important period of transformation.”
Widgren joined Visteon in 2005 as assistant controller. Prior to joining Visteon, he served as
chief accounting officer for Federal-Mogul Corp., where he held several financial management
positions during his seven-year tenure. Before that, Widgren worked at Coopers & Lybrand, LLP.
Widgren earned a bachelor’s degree in accounting and a master’s degree in business administration
from Michigan State University. He is a certified public accountant in the state of Michigan and a
member the Michigan Association of CPAs.
Visteon Corporation is a leading global automotive supplier that designs, engineers and
manufactures innovative climate, interior, electronic and lighting products for vehicle
manufacturers, and also provides a range of products and services to aftermarket customers. With
corporate offices in Van Buren Township, Mich. (U.S.); Shanghai, China; and Kerpen, Germany; the
company operates in 26 countries and employs approximately 45,000 people.
Contact(s):
Media Inquiries
Kimberley Goode
734-710-5000
kgoode@visteon.com
Kimberley Goode
734-710-5000
kgoode@visteon.com
Investor Inquiries
Derek Fiebig
734-710-5800
dfiebig@visteon.com
Derek Fiebig
734-710-5800
dfiebig@visteon.com
###
Visteon news releases, photographs and product specification details
are available at www.visteon.com
are available at www.visteon.com