AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 13, 1999
Registration No.-----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CK WITCO CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
52-2183153
(I.R-S. Employer Identification No.)
ONE STATION PLACE, METRO CENTER
STAMFORD, CONNECTICUT 06902
(Address of Registrant's Principal Executive Offices)(zip Code)
CK WITCO CORPORATION 1998 LONG TERM INCENTIVE PLAN
(Full Title of the Plan)
JOHN T. FERGUSON II
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
CK WITCO CORPORATION
ONE STATION PLACE, METRO CENTER
STAMFORD, CONNECTICUT 06902
(Name and Address of Agent For Service)
(203) 353-5400
(Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed Amount of
Securities to Amount to be Maximum Maximum Registration
be Registered Registered Offering Price Aggregate Price Fee
Per Share**
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Common Stock*
($.01 Par Value) 7,800,000 $ 15.97 $ 124,566,000 $ 34,630
- -------------------------------------------------------------------------------
*Including preferred share purchase rights.
**Estimated for purposes of calculation of the registration fee pursuant to
Rule 457(h) and Rule 457(c) and based upon an average of the high and low prices
that the Common Stock of CK Witco Corporation was sold for on the New
York Stock Exchange on September 9, 1999.
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In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
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EXPLANATORY NOTE
This Form S-8 relates to the registration of shares of the common stock,
par value $.01 per share ("Common Stock") of CK Witco Corporation, a Delaware
corporation (the "Corporation"), in connection with the CK Witco Corporation
1998 Long Term Incentive Plan (the "Plan"). The Corporation is the surviving
corporation following the consummation of a series of transactions on September
1, 1999 pursuant to a merger agreement (the "merger agreement") by and among
the Corporation, Crompton & Knowles Corporation, a Massachusetts
corporation ("Crompton") and Witco Corporation, a Delaware corporation
("Witco"). Pursuant to the merger agreement, among other things, (a) Crompton
merged into the Corporation, and shortly thereafter (b) Witco merged into the
Corporation. The merger agreement was approved by the shareholders of Crompton
on September 1, 1999, and that approval also constituted approval of an
amendment to the Plan to increase the number of shares of Common Stock reserved
for issuance under the Plan by 5,000,000 shares. The shareholders of Crompton
previously approved an amendment to the Plan at the annual meeting of
shareholders on April 27, 1999, increasing the number of shares authorized for
issuance thereunder by 3,000,000 shares. 7,800,000 of these shares are being
registered hereunder.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be sent or
given to employees as specified by Rule 428(b)(1). In accordance with the
instructions to Part I of Form S-8, such documents are not being filed and will
not be filed with the Securities and Exchange Commission (the "Commission"),
either as part of this registration statement or as a prospectus or prospectus
supplement pursuant to Rule 424. These documents and those incorporated by
reference pursuant to Item 3 of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933 (the "Securities Act").
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are incorporated herein by reference the following documents of
Crompton filed with the Securities and Exchange Commission (the "Commission"):
(1) Annual Report of Crompton on Form 10-K for the fiscal year ended
December 26, 1998;
(2) Quarterly Reports of Crompton on Form 10-Q for the quarters ended
March 27, 1999 and June 26, 1999;
(3) Current Report of Crompton on Form 8-K dated May 31, 1999, July 30,
1999 and August 23, 1999, and Current Reports on Form 8-K/A dated May
31, 1999 and January 21, 1999; and
(4) The description of Crompton's Common Stock contained in Crompton's
Registration Statement on Form 8-A, dated July 19, 1988.
There are also incorporated herein by reference the following documents of Witco
filed with the Commission:
(1) Annual Report of Witco on Form 10-K for the fiscal year ended December
31, 1998;
(2) Quarterly Reports of Witco on Form 10-Q for the quarters ended March
31, 1999 and June 30, 1999; and
(3) Current Reports of Witco on Form 8-K dated June 4, 1999, July 7, 1999,
August 4, 1999 and August 25, 1999 and Current Report on Form 8-K/A
dated June 8, 1999.
All documents filed by Crompton or the Plan pursuant to Section 13(a),
13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement prior to the filing of a Post-Effective Amendment to this
Registration Statement which indicates that all securities offered hereby have
been sold or which deregisters those securities remaining unsold shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware contains detailed provisions on
indemnification of directors and officers of a Delaware corporation against
expenses, judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with litigation.
Article Ten of the Corporation's Restated Certificate of Incorporation
provides for indemnification of directors and officers. The provision provides
that any person shall to the fullest extent permitted by the General Corporation
Law of the State of Delaware be indemnified and reimbursed by for expenses and
liabilities imposed upon the person in connection with any action, suit or
proceeding, civil or criminal, or threat thereof, in which the person may be
involved by reason of the person being or having been a director, officer,
employee or agent of the Corporation, or of any corporation or organization
which the person served in any capacity at the request of the Corporation. Such
Article Ten, as permitted by the General Corporation Law of the State of
Delaware, also provides that a director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent that such
exemption from liability or limitation thereof is not permitted under the
General Corporation Law of the State of Delaware, as that law exists or may
hereafter be amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Plan is not a qualified Plan pursuant to the rules and regulations
under the Internal Revenue Code ("Code"). The Corporation has neither submitted
the Plan to, nor intends to submit the Plan to, the Internal Revenue Service for
qualification under the Code.
4.1 Amended and Restated Certificate of Incorporation of the Corporation.
4.2 By-laws of the Corporation.
15.1 Letter re: Unaudited financial information.
23.1 Consent of independent auditors KPMG LLP.
23.2 Consent of independent auditors Ernst & Young LLP.
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended (and, where applicable, each filing of any employee
benefit plan's annual report pursuant to Section 15(d)
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of the Securities Exchange Act of 1934, as amended), that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof .
(5) That, insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Stamford, State of Connecticut, on this 1st day
of September, 1999.
CK WITCO CORPORATION
(Registrant)
By:/s/ Peter Barna
Name: Peter Barna
Title:Senior Vice President and
Chief Financial Officer
(Principal Financial and Accounting
Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of the
Registrant and in the capacities and on the date indicated.
NAME TITLE
/s/ Vincent A. Calarco President, Chief Executive Officer and
Vincent A. Calarco Director
/s/ Charles J. Marsden Senior Vice President, Strategy & Development,
Charles J. Marsden and Director
/s/ John T. Ferguson II Senior Vice President, General Counsel,
John T. Ferguson, II Secretary and Director
Date: September 1, 1999
II-5
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The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan Administrator of the Plan has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Stamford, State of Connecticut, on the 1st day of September, 1999.
CK WITCO CORPORATION
(as Plan Administrator)
By: /s/ Peter Barna
Name: Peter Barna
Title: Plan Administrator
Date: September 1, 1999
II-6
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EXHIBIT INDEX
Exhibit
Number Description of Exhibits
4.1 Amended and Restated Certificate of Incorporation of the Corporation.
4.2 By-laws of the Corporation.
15.1 Letter re: Unaudited financial information.
23.1 Consent of independent auditors KPMG LLP.
23.2 Consent of independent auditors Ernst & Young LLP.
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Exhibit 4.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CK WITCO CORPORATION
CK Witco Corporation (hereinafter called the "corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify that the name
under which the corporation was originally incorporated is "Park Merger Co.",
that the date of filing the original certificate of incorporation of the
corporation with the Secretary of State of the State of Delaware was May 27,
1999, and that the amendments and restatement of the restated certificate of
incorporation herein certified have been duly adopted by the stockholders in
accordance with the provisions of Section 242 and of Section 245 of the General
Corporation Law of the State of Delaware.
ARTICLE I
The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
"CK Witco Corporation"
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is c/o National Registered Agents, Inc., 9 East Loockerman Street in
the City of Dover, County of Kent, State of Delaware 19901. The name of the
Corporation's registered agent at such address is National Registered Agents,
Inc.
ARTICLE III
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The purpose of the Corporation shall be to engage in any lawful act
or activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
ARTICLE IV
Section 1. The Corporation shall be authorized to issue 500,250,000
shares of capital stock, of which 500,000,000 shares shall be shares of Common
Stock, $.01 par value ("Common Stock"), and 250,000 shares shall be shares of
Preferred Stock, $.10 par value ("Preferred Stock").
Section 2. Shares of Preferred Stock may be issued from time to time
in one or more series as authorized by the Board of Directors. Prior to issuance
of any series of Preferred Stock, the Board of Directors by resolution shall
designate that series to distinguish it from other series and classes of stock
of the Corporation, shall specify the number of shares to be included in the
series, and shall fix the terms, rights, restrictions and qualifications of the
shares of the series, including any preferences, voting powers, dividend rights
and redemption, sinking fund and conversion rights. Subject to the express terms
of any other series of Preferred Stock outstanding at the time, the Board of
Directors may increase or decrease the number of shares or alter the designation
or classify or reclassify any unissued shares of a particular series of
Preferred Stock by fixing or altering in any or more respects from time to time
before issuing the shares of Preferred Stock any terms, rights, restrictions and
qualifications of the shares.
Section 3. (a) Dividends. After the requirements with respect to
preferential dividends upon any issued and outstanding Preferred Stock have been
satisfied, the holders of the Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
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(b) Voting Rights. Except as otherwise provided by
law, or by the resolution or resolutions adopted by the Board designating the
rights, powers and preferences of any series of Preferred Stock, the Common
Stock shall have the exclusive right to vote for the election of directors and
for all other purposes. Each share of Common Stock shall have one vote, and the
Common Stock shall vote together as a single class.
(c) Regarding Preemptive Rights. No stockholder
shall be entitled as a matter of right to subscribe for, purchase or receive any
shares of the stock or any rights or options of the Corporation which it may
issue or sell whether out of the number of shares now or hereafter authorized to
be issued at any time or out of the shares of the stock of the Corporation
acquired by it after the issuance thereof, nor shall any stockholder be entitled
as a matter of right to purchase or subscribe for or receive any bonds,
debentures or other obligations which the Corporation may issue or sell that
shall be convertible into or exchangeable for stock or to which shall be
attached or appertain any warrant or warrants or other instrument or instruments
that shall confer upon the holder or owner of such obligation the right to
subscribe for or purchase from the Corporation any shares of its stock. All such
additional issues of stock, rights, options, or of bonds, debentures or other
obligations convertible into or exchangeable for stock or to which warrants
shall be attached or appertain or which shall confer upon the holder the right
to subscribe for or purchase any shares of stock may (to the extent permitted by
law) be issued and disposed of by the Board of Directors to such persons and
upon such terms as in their absolute discretion they may deem advisable.
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ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatsoever.
ARTICLE VII
Section 1. The number of Directors of the Corporation shall be not
less than eight or more than 15 persons. The exact number of directors within
the minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the Board of Directors pursuant to a resolution
adopted by a majority of the entire Board of Directors. At the 2000 annual
meeting of stockholders, the directors shall be divided into three classes, as
nearly equal in number as possible, with the term of office of the first class
to expire at the 2001 annual meeting of stockholders, the term of office of the
second class to expire at the 2002 annual meeting of stockholders and the term
of office of the third class to expire at the 2003 annual meeting of
stockholders. At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election.
Section 2. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority vote
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of the directors then in office, although less than a quorum, and directors so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of the class to which they have been elected
expires. If the number of directors is changed any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in each
class as nearly equal as possible. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Section 3. Any director, or the entire Board of Directors may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80% of the voting power of all of the shares of
the Corporation entitled to vote for the election of directors.
Section 4. Notwithstanding the foregoing, whenever the holders of
any class of stock (other than Common Stock) issued by the Corporation shall
have the right, voting as a class or otherwise, to elect directors, the then
authorized number of directors of the Corporation shall be increased by the
number of additional directors to be elected.
Section 5. In furtherance, and not in limitation of the powers
conferred by law, the Board of Directors is expressly authorized:
(a) to make, alter, amend or repeal the By-Laws of the Corporation
and, subject to Articles XIV and XV herein, stockholders of the
Corporation shall have the power to alter, amend or repeal By-Laws made by
the Board of Directors;
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(b) to remove at any time any officer elected or appointed by the
Board of Directors by such vote of the Board of Directors as may be
provided for in the By-Laws. Any other officer of the Corporation may be
removed at any time by a vote of the Board of Directors, or by any
committee or superior officer upon whom such power of removal may be
conferred by the By-Laws or by the vote of the Board of Directors;
(c) to determine whether any, and if any, what part, of the annual
net profits of the Corporation or of its net assets in excess of its
capital shall be declared in dividends and paid to the stockholders, and
to direct and determine the use and disposition of any such annual net
profits or net assets in excess of capital;
(d) to fix from time to time the amount of the profits of the
Corporation to be reserved as working capital or for any other lawful
purpose;
(e) to establish bonus, profit sharing, stock option, retirement, or
other types of incentive or compensation plans for the employees
(including directors and officers) of the Corporation and to fix the
amount of the profits to be distributed or shared and to determine the
persons to participate in any such plans and the amounts of their
respective participations;
(f) from time to time to determine whether and to what extent, and
at what time and places and under what conditions and regulations the
accounts and books of the Corporation (other than the stock ledger), or
any of them, shall be open to the inspection of the stockholders; and no
stockholder shall have any right to inspect any account or
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book or document of the Corporation, except as conferred by statute or
authorized by the Board of Directors or by a resolution of the
stockholders; and
(g) to authorize, and cause to be executed, mortgages and liens upon
the real and personal property of the Corporation.
ARTICLE VIII
No contract or other transaction between the Corporation and any
other corporation and no other act of the Corporation with relation to any other
corporation shall, in the absence of fraud, in any way be invalidated or
otherwise affected by the fact that any one or more of the directors of the
Corporation are pecuniarily or otherwise interested in, or are directors or
officers of, such other corporation. Any director of the Corporation
individually, or any firm or association of which any director may be a member,
may be party to, or may be pecuniarily or otherwise interested in, any contract
or transaction of the Corporation; provided that the fact that he individually
or as a member of such firm or association is such a party or so interested
shall be disclosed or shall have been known to the Board of Directors or a
majority of such members thereof as shall be present at any meeting of the Board
of Directors at which action upon any such contract or transaction shall be
taken; and any director of the Corporation who is also a director or officer of
such other corporation or who is such a party or so interested may be counted in
determining the existence of a quorum at any meeting of the Board of Directors
which shall authorize any such contract or transaction, and may vote thereat to
authorize any such contract or transaction, with like force and effect as if he
were not such director or officer of such other corporation or not so
interested. Any director of the Corporation may vote upon any
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contract or other transaction between the Corporation and any subsidiary or
affiliated corporation without regard to the fact that he is also a director of
such subsidiary or affiliated corporation.
Any contract, transaction or act of the Corporation or of the
directors, which shall be ratified at any annual meeting of the stockholders of
the Corporation, or at any special meeting called for such purpose, shall, in so
far as permitted by law or by the Certificate of Incorporation of the
Corporation, be as valid and as binding as though ratified by every stockholder
of the Corporation; provided, however, that any failure of the stockholders to
approve or ratify any such contract, transaction or act, when and if submitted,
shall not be deemed in any way to invalidate the same or deprive the
Corporation, its directors, officers or employees, of its or their right to
proceed with such contract, transaction or act.
ARTICLE IX
Each officer, director, or member of any committee designated by the
Board of Directors shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of account or reports made to the
Corporation by any of its officials or by an independent public accountant or by
an appraiser selected with reasonable care by the Board of Directors or by any
such committee or in relying in good faith upon other records of the
Corporation.
ARTICLE X
Section 1. Elimination of Certain Liability of Directors. Neither
any director nor any officer (including former directors and officers) of the
Corporation shall be personally liable
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to the Corporation or 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 General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
repeal or modification.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, to
the fullest extent permitted by law, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
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permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines,
amounts paid or to be paid in settlement, and excise taxes or penalties arising
under the Employee Retirement Income Security Act of 1974) reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his or her heirs, executors and
administrators. The right to indemnification conferred in this Article X shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the General Corporation Law of the
State of Delaware requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may, by action of the Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a)
of this Section is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the
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claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the General Corporation Law of the State
of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, and shall continue as to a person who has
ceased to be a director or officer of the Corporation and shall inure to the
benefit of the heirs, executors and administrators of such person.
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(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
(e) Borrowing. The Board of Directors, without approval of the
stockholders, shall have the power to borrow money on behalf of the Corporation,
including the power to pledge the assets of the Corporation, from time to time
to discharge the Corporation's obligations with respect to indemnification, the
advancement and reimbursement of expenses, and the purchase and maintenance of
insurance referred to in this Article X.
(f) Successors. For purposes of this Article, references to the
"Corporation" shall include, in addition to the resulting corporations, 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 directors and officers so that any
person who is or was a director or officer of such constituent corporation shall
stand in the same position under this Article X with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(g) Additional Agreements. The Board of Directors is authorized to
enter into a contract with any director, officer, employee or agent of the
Corporation providing for indemnification rights equivalent to or, if the Board
of Directors so determines, greater than, those provided for in this Article X.
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(h) Amendments. Any amendment, repeal or modification of any
provision of this Article X by the stockholders or the directors of the
Corporation shall not adversely affect any right of protection of a director or
officer of the Corporation under this Article XI existing at the time of such
amendment, repeal or modification.
(i) Other Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification and to the advancement of expenses to any employee or agent of
the Corporation to the fullest extent of the provisions of this Article with
respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
ARTICLE XI
Both the stockholders and the directors of the Corporation may hold
their meetings and the Corporation may have an office or offices in such place
or places outside of the State of Delaware as the By-Laws may provide and the
Corporation may keep its books outside of the State of Delaware except as
otherwise provided by law.
ARTICLE XII
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 may not be effected by any consent in
writing by such stockholders. Special meetings of stockholders of the
Corporation may be called only by the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors.
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ARTICLE XIII
(a) (i) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in paragraph (b) of this Article:
(A) any merger or consolidation of the Corporation or any subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder) which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to or
with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
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(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder, shall require the affirmative
vote of the holders of at least 80% of the outstanding shares of stock of
the Corporation entitled to vote generally in the election of directors,
considered for the purpose of this Article as one class ("Voting Shares").
Such affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that some lesser percentage may be specified, by
law or in any agreement with any national securities exchange or
otherwise.
(ii) The term "business combination" as used in this Article shall
mean any transaction which is referred to in any one or more of clauses (A)
through (E) of Section (i) of this paragraph (a).
(b) The provisions of paragraph (a) of this Article shall not be
applicable to any particular business combination, and such business combination
shall require only such affirmative vote as is required by law and any other
provisions of this Certificate of Incorporation, if either (i) such business
combination has been approved by a majority of the Continuing Directors (as
hereinafter defined) or (ii) the aggregate amount of the cash and fair market
value of consideration other than cash to be received per share by holders of
Common
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Stock in such business combination shall be in the same form and of the
same kind as the consideration paid by the Interested Stockholder in acquiring
the initial 10% of the Common Stock owned by it and shall be at least equal to
the highest per share price (including brokerage commission, transfer taxes and
soliciting dealers' fees and after giving effect to appropriate adjustments for
any recapitalizations and for any stock splits, stock dividends and like
distributions) paid by such Interested Stockholder for any shares of Common
Stock acquired by it prior to the business combination; and the aggregate amount
of cash to be received per share by the holders of any class of preferred stock
in such business combination is the greater of (i) the highest per share price
paid by the Interested Stockholder in acquiring any shares of such preferred
stock or (ii) the highest preferential amount per share to which the holders of
such class of preferred stock are entitled in the event of a voluntary or
involuntary liquidation of the Corporation.
(c) For the purposes of this Article XIII:
(i) A "person" shall mean any individual, firm, corporation or other
entity.
(ii) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who or
which, as of the record date for the determination of stockholders entitled to
notice of and to vote on such business combination, or immediately prior to the
consummation of any such transaction,
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
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(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly, of
not less than 10% of the then outstanding Voting Shares, or
(C) is an assignee of or has otherwise succeeded to any shares of
capital stock of the Corporation which were at any time within two years
prior thereto beneficially owned by any Interested Stockholder, and such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(iii) A person shall be the "beneficial owner" of the Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereinafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (1)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (2) the right to vote pursuant to
any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person, with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any shares
of capital stock of the Corporation.
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(iv) The outstanding Voting Shares shall include shares deemed owned
through applications of Section (iii) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or otherwise.
(v) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on March 1, 1983.
(vi) "Subsidiary" means any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules and
Regulation under the Securities Exchange Act of 1934, as in effect on March 1,
1983) is owned, directly or indirectly, by the Corporation; provided, however,
that for the purposes of the definition of Interested Stockholder set forth in
Section (ii) of this subparagraph (c), the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(vii) "Continuing Director" means any member of the Board of
Directors of the Corporation who is unaffiliated with an Interested Stockholder
and was a member of the Board prior to the time that an Interested Stockholder
became an Interested Stockholder and any successor of a Continuing Director who
is unaffiliated with the Interested Stockholder and is recommended to succeed a
Continuing Director by a majority of the Continuing Directors then on the Board.
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(d) A majority of the directors shall have the power and duty to
determine for the purposes of this Article, on the basis of information known to
them, (A) the number of Voting Shares beneficially owned by any person, (B)
whether a person is an Affiliate or Associate of another, (C) whether a person
has an agreement, arrangement or understanding with another as to the matters
referred to in Section (iii) of paragraph (c), or (D) whether the assets subject
to any business combination or the consideration received for the issuance or
transfer of securities by the Corporation or any Subsidiary has an aggregate
fair market value of $1,000,000 or move.
(e) Nothing contained in this Article shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
ARTICLE XIV
The provisions set forth in Article VII, Article XII, Article XIII,
Article XIV and Article XV herein may not be repealed or amended in any respect,
and the Corporation's By-Laws may not be amended by stockholders, unless such
action is approved by the affirmative vote of the holders of not less than 80%
of the voting power of all shares of stock of the Corporation entitled to vote
in the election of directors, considered for purposes of this Article XIV as one
class. The voting requirements contained in Article VIII, Article XII, Article
XIII, Article XIV, and Article XV herein shall be in addition to the voting
requirements imposed by law, other provisions of this Certificate of
Incorporation or any certificate of designation of preferences filed with
respect to any series of Preferred Stock. The By-Laws of the Corporation may be
altered, amended or repealed by the Board of Directors at any regular or special
meeting of the Board of Directors.
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ARTICLE XV
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the laws of the State of Delaware, and all rights
conferred on stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in Article VII, Article
XII, Article XIII, Article XIV and Article XV may not be repealed or amended in
any respect unless such repeal or amendment is approved as specified in Article
XV herein. Executed on this 1st day of September, 1999.
/s/ John T. Ferguson II
II
Name: John T. Ferguson II
Title: Senior Vice President,
General Counsel and
Secretary
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Exhibit 4.2
BY-LAWS
OF
CK WITCO CORPORATION
Incorporated under the Laws of the State of Delaware
===============================================================
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1 Delaware Office. The principal office of the Corporation
in the State of Delaware shall be located in the City of Dover, County of Kent,
and the name and address of its registered agent is National Registered Agents,
Inc., 9 East Loockerman Street, Dover, Delaware.
SECTION 1.2 Other Offices. The Corporation may have such other
offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
SECTION 1.3 Books and Records. The books and records of
the Corporation may be kept outside the State of Delaware at such place or
places as may from time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 Annual Meeting. Annual meetings of stockholders shall
be held on the last Tuesday in April, if not a legal holiday, and if a legal
holiday, then on the next business day following, at 2:00 p.m., or at such other
date and time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting.
SECTION 2.2 Special Meeting. Subject to the rights of the holders
of any series of stock having a preference over the Common Stock of the
Corporation as to dividends or upon liquidation ("Preferred Stock") with respect
to such series of Preferred Stock, special meetings of the stockholders may be
called only by the Chairman of the Board or by the Board of Directors
<PAGE>
pursuant to a resolution adopted by a majority of the total number of directors
which the Corporation would have if there were no vacancies (the "Whole Board").
SECTION 2.3 Place of Meeting. The Board of Directors or the
Chairman of the Board, as the case may be, may designate the place of meeting
for any annual meeting or for any special meeting of the stockholders called by
the Board of Directors or the Chairman of the Board. If no designation is so
made, the place of meeting shall be the principal office of the Corporation.
SECTION 2.4 Notice of Meeting. Written or printed notice, stating
the place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
stockholder at his address as it appears on the stock transfer books of the
Corporation. Such further notice shall be given as may be required by law. Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation's notice of
meeting. Any previously scheduled meeting of the stockholders may be postponed,
and (unless the Certificate of Incorporation otherwise provides) any special
meeting of the stockholders may be cancelled, by resolution of the Board of
Directors upon public notice given prior to the date previously scheduled for
such meeting of stockholders.
SECTION 2.5 Quorum and Adjournment. Except as otherwise provided by
law or by the Certificate of Incorporation, the holders of a majority of the
outstanding shares of the Corporation entitled to vote generally in the election
of directors (the "Voting Stock"), represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders, except that when specified
business is to be voted on by a class or series of stock voting as a class, the
holders of a majority of the shares of such class or series shall constitute a
quorum of such class or series for the transaction of such business. The
Chairman of the meeting or a majority of the shares so represented may adjourn
the meeting from time to time, whether or not there is such a quorum. No notice
of the time and place of adjourned meetings need be given except as required by
law. The stockholders present at a duly called meeting at which a quorum is
present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 2.6 Proxies. At all meetings of stockholders, a
stockholder may vote by proxy executed in writing (or in such manner prescribed
by the General Corporation Law of the State of Delaware) by the stockholder, or
by his duly authorized attorney in fact.
SECTION 2.7 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation's notice of meeting, (b) by or
at the direction of the Board of Directors or (c) by any stockholder of
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the Corporation who was a stockholder of record at the time of giving of notice
provided for in this By-Law, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this By-Law.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this By-Law, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation at least 90 days prior to the first
anniversary of the preceding year's annual meeting or not later than ten days
after notice or public disclosure of the date of the annual meeting, whichever
is earlier. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth (a) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and number of shares of
the Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner; and (d) a representation that the stockholder is a
holder of record of stock of the Corporation entitled to vote at such meeting
having a market value of at least one thousand dollars and intends to appear in
person or by proxy at the meeting to propose such item of business.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-Law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this By-Law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the
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Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this By-Law, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in this
By-Law. In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of Directors, any
such stockholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice required by paragraph (A)(2) of this By-Law
shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the 90th day prior to such
special meeting and not later than the close of business on the later of the
60th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
(C) General. (1) Only such persons who are nominated in accordance
with the procedures set forth in this By-Law shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-Law. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-Law and, if any proposed
nomination or business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
SECTION 2.8 Procedure for Election of Directors; Required Vote.
Election of directors at all meetings of the stockholders at which directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any series of Preferred Stock to elect directors under specified circumstances,
a plurality of the votes cast thereat shall elect directors. Except as
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otherwise provided by law, the Certificate of Incorporation, or these By-Laws,
in all matters other than the election of directors, the affirmative vote of a
majority of the shares present in person or represented by proxy at the meeting
and entitled to vote on the matter shall be the act of the stockholders.
SECTION 2.9. Inspectors of Elections; Opening and Closing the
Polls. The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meetings of stockholders and
make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act or is able to act at a meeting of
stockholders, the Chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspectors shall have the duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting
the date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting.
SECTION 2.10 No Stockholder Action by Written Consent. Subject to
the rights of the holders of any series of Preferred Stock with respect to such
series of Preferred Stock, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
ARTICLE III
BOARD OF DIRECTORS
SECTION3.1 General Powers. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
SECTION 3.2 Number, Tenure and Qualifications. The number of
Directors of the Corporation shall be not less than eight or more than 15
persons. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence shall be fixed from time to time
by the Board of Directors pursuant to a resolution adopted by a majority of the
entire Board of Directors. At the 2000 annual meeting of stockholders, the
directors shall be divided into three classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the 2001
annual meeting of stockholders, the term of office of the second class to expire
at the 2002 annual meeting of stockholders and the term of office of
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the third class to expire at the 2003 annual meeting of stockholders. At each
annual meeting of stockholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding annual meeting
of stockholders after their election. Subject to the rights of the holders of
any series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
by a majority vote of the directors then in office, although less than a quorum,
and directors so chosen shall hold office for a term expiring at the annual
meeting of stockholders at which the term of the class to which they have been
elected expires. If the number of directors is changed any increase or decrease
shall be apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION 3.3 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law immediately after,
and at the same place as, the Annual Meeting of Stockholders. The Board of
Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
SECTION 3.4 Special Meetings. Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board, the
President or a majority of the Board of Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.5 Notice. Notice of any special meeting of directors
shall be given to each director at his business or residence in writing by hand
delivery, first-class or overnight mail or courier service, telegram or
facsimile transmission, or orally by telephone. If mailed by first-class mail,
such notice shall be deemed adequately delivered when deposited in the United
States mails so addressed, with postage thereon prepaid, at least five (5) days
before such meeting. If by telegram, overnight mail or courier service, such
notice shall be deemed adequately delivered when the telegram is delivered to
the telegraph company or the notice is delivered to the overnight mail or
courier service company at least twenty-four (24) hours before such meeting. If
by facsimile transmission, such notice shall be deemed adequately delivered when
the notice is transmitted at least twelve (12) hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least twelve (12)
hours prior to the time set for the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting, except for
amendments to these By-Laws, as provided under Section 8.1. A meeting may be
held at any time without notice if all the directors are present or if those not
present waive notice of the meeting in accordance with Section 6.4 of these
By-Laws.
SECTION 3.6 Action by Consent of Board of Directors. Any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if all members of the Board
or committee, as the case may be,
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consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
SECTION 3.7 Conference Telephone Meetings. Members of the Board of
Directors, or any committee thereof, may participate in a meeting of the Board
of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.8 Quorum. Subject to Section 3.9, a whole number of
directors equal to at least a majority of the Whole Board shall constitute a
quorum for the transaction of business, but if at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of the directors
present may adjourn the meeting from time to time without further notice. The
act of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. The directors present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
SECTION 3.9 Vacancies. Subject to applicable law and the rights of
the holders of any series of Preferred Stock with respect to such series of
Preferred Stock, and unless the Board of Directors otherwise determines,
vacancies resulting from death, resignation, retirement, disqualification,
removal from office or other cause, and newly created directorships resulting
from any increase in the authorized number of directors, may be filled only by
the affirmative vote of a majority of the remaining directors, though less than
a quorum of the Board of Directors, and directors so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of authorized directors constituting the Whole Board shall shorten
the term of any incumbent director.
SECTION 3.10 Executive and Other Committees. The Board of Directors
may, by resolution adopted by a majority of the Whole Board, designate one or
more committees, each to consist of two or more directors of the Corporation.
The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Any such committee may to the extent permitted by law exercise
such powers and shall have such responsibilities as shall be specified in the
designating resolution. In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Each committee shall keep
written minutes of its proceedings and shall report such proceedings to the
Board when required.
A majority of any committee may determine its action and fix the
time and place of its meetings, unless the Board of Directors shall otherwise
provide. Notice of such meetings
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shall be given to each member of the committee in the manner provided for in
Section 3.5 of these By-Laws. The Board of Directors shall have power at any
time to fill vacancies in, to change the membership of, or to dissolve any such
committee. Nothing herein shall be deemed to prevent the Board of Directors from
appointing one or more committees consisting in whole or in part of persons who
are not directors of the Corporation; provided, however, that no such committee
shall have or may exercise any authority of the Board of Directors.
SECTION 3.11. Compensation of Directors. Unless otherwise restricted
by the Certificate of Incorporation or these By-Laws, the Board of Directors
shall have the authority to fix the compensation of directors. The directors may
be paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors and/or a stated annual sum as a director. No such payment
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
SECTION 3.12 Removal. Subject to the rights of the holders of any
series of Preferred Stock with respect to such series of Preferred Stock, any
director, or the entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of at
least 80 percent of the voting power of all of the then-outstanding shares of
Voting Stock, voting together as a single class.
SECTION 3.13 Records. The Board of Directors shall cause to be
kept a record containing the minutes of the proceedings of the meetings of the
Board and of the stockholders, appropriate stock books and registers and such
books of records and accounts as may be necessary for the proper conduct of the
business of the Corporation.
ARTICLE IV
OFFICERS
SECTION 4.1 Elected Officers. The elected officers of the
Corporation shall be chosen by the Board of Directors and shall include a
Chairman of the Board of Directors, a President, a Secretary, a Treasurer, and
such other officers as the Board of Directors from time to time may deem proper.
The Chairman of the Board shall be chosen from among the directors. All officers
elected by the Board of Directors shall each have such powers and duties as
generally pertain to their respective offices, subject to the specific
provisions of this ARTICLE IV. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board of Directors or by any
committee thereof. The Board or any committee thereof may from time to time
elect, or the Chairman of the Board or President may appoint, such other
officers (including one or more Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers, and Assistant Controllers) and such agents,
as may be necessary or desirable for the conduct of the business of the
Corporation. Such other officers and agents shall have such duties and shall
hold their offices for such terms as shall be provided in these By-Laws or as
may be
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prescribed by the Board or such committee or by the Chairman of the Board or
President, as the case may be.
SECTION 4.2 Election and Term of Office. The elected officers of
the Corporation shall be elected annually by the Board of Directors at the
regular meeting of the Board of Directors held after the annual meeting of the
stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign, but any officer may be
removed from office at any time by the affirmative vote of a majority of the
Whole Board or, except in the case of an officer or agent elected by the Board,
by the Chairman of the Board or President. Such removal shall be without
prejudice to the contractual rights, if any, of the person so removed.
SECTION 4.3 Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors. The Chairman of the Board
shall perform all duties incidental to his office which may be required by law
and all such other duties as are properly required of him by the Board of
Directors. He shall make reports to the Board of Directors, and shall see that
all orders and resolutions of the Board of Directors and of any committee
thereof are carried into effect. The Chairman of the Board may also serve as
President, if so elected by the Board.
SECTION 4.4 Chief Executive Officer. The Chief Executive Officer
of the Corporation shall be the President, or such other officer as may from
time to time be designated by the Board of Directors. If no such designation is
made, the President shall be the Chief Executive Officer. The Chief Executive
Officer shall, subject to the control of the Board of Directors, have general
charge and supervision of the business of the Corporation and, except as the
Board of Directors shall otherwise determine, shall preside at all meetings of
the stockholders and of the Executive Committee.
SECTION 4.5 Secretary. The Secretary shall keep or cause to be
kept in one or more books provided for that purpose, the minutes of all meetings
of the Board, the committees of the Board and the stockholders; he shall see
that all notices are duly given in accordance with the provisions of these
By-Laws and as required by law; he shall be custodian of the records and the
seal of the Corporation and affix and attest the seal to all stock certificates
of the Corporation (unless the seal of the Corporation on such certificates
shall be a facsimile, as hereinafter provided) and affix and attest the seal to
all other documents to be executed on behalf of the Corporation under its seal;
and he shall see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and in general, he shall perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Board, the Chairman of the Board or the President.
SECTION 4.6 Removal. Any officer elected, or agent appointed, by
the Board of Directors may be removed by the affirmative vote of a majority of
the Whole Board. Any officer or agent appointed by the Chairman of the Board or
the President may be removed by him
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whenever, in his judgment, the best interests of the Corporation would be served
thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of his successor, his death, his resignation or his removal, whichever
event shall first occur, except as otherwise provided in an employment contract
or under an employee deferred compensation plan.
SECTION 4.7 Vacancies. A newly created elected office and a
vacancy in any elected office because of death, resignation, or removal may be
filled by the Board of Directors for the unexpired portion of the term at any
meeting of the Board of Directors. Any vacancy in an office appointed by the
Chairman of the Board or the President because of death, resignation, or removal
may be filled by the Chairman of the Board or the President.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.1 Stock Certificates and Transfers. The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by his attorney, upon surrender for cancellation of certificates for at least
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require.
The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution prescribe,
which resolution may permit all or any of the signatures on such certificates to
be in facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
SECTION 5.2 Lost, Stolen or Destroyed Certificates. No certificate
for shares of stock in the Corporation shall be issued in place of any
certificate alleged to have been lost, destroyed or stolen, except on production
of such evidence of such loss, destruction or theft and on delivery to the
Corporation of a bond of indemnity in such amount, upon such terms and secured
by such surety, as the Board of Directors or any financial officer may in its or
his discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Fiscal Year. The fiscal year of the Corporation shall be
such period as shall be determined from time to time by the Board of Directors.
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SECTION 6.2 Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
SECTION 6.3 Seal. The corporate seal shall have enscribed thereon
the words "Corporate Seal", the year of incorporation and around the margin
thereof the words "CK Witco Corporation - Delaware."
SECTION 6.4 Waiver of Notice. Whenever any notice is required to
be given to any stockholder or director of the Corporation under the provisions
of the General Corporation Law of the State of Delaware or these By-Laws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at, nor the purpose of, any annual or special meeting of the stockholders or the
Board of Directors or committee thereof need be specified in any waiver of
notice of such meeting.
SECTION 6.5 Audits. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board of Directors, and
it shall be the duty of the Board of Directors to cause such audit to be done
annually.
SECTION 6.6 Resignations. Any director or any officer, whether
elected or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board, the President, or the Secretary, and
such resignation shall be deemed to be effective as of the close of business on
the date said notice is received by the Chairman of the Board, the President, or
the Secretary, or at such later time as is specified therein. No formal action
shall be required of the Board of Directors or the stockholders to make any such
resignation effective.
SECTION 6.7 Indemnification and Insurance. (A) Each person who was
or is made a party or is threatened to be made a party to or is involved in any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans maintained or sponsored by the
Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has
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ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators. The right to
indemnification conferred in this By-Law shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this By-Law or otherwise.
(B) To obtain indemnification under this By-Law, a claimant shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this paragraph (B), a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the claimant,
by Independent Counsel (as hereinafter defined), or (2) if no request is made by
the claimant for a determination by Independent Counsel, (i) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the
stockholders of the Corporation. In the event the determination of entitlement
to indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors
unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceeding for which indemnification is
claimed a "Change of Control" as defined in any employment agreement or change
of control agreement between the claimant and the Corporation, in which case the
Independent Counsel shall be selected by the claimant unless the claimant shall
request that such selection be made by the Board of Directors. If it is so
determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such determination.
(C) If a claim under paragraph (A) of this By-Law is not paid in
full by the Corporation within thirty days after a written claim pursuant to
paragraph (B) of this By-Law has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if
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any is required, has been tendered to the Corporation) that the claimant has not
met the standard of conduct which makes it permissible under the General
Corporation Law of the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, Independent Counsel or stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware, nor
an actual determination by the Corporation (including its Board of Directors,
Independent Counsel or stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
(D) If a determination shall have been made pursuant to paragraph
(B) of this By-Law that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to paragraph (C) of this By-Law.
(E) The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to paragraph (C) of this By-Law that the
procedures and presumptions of this By-Law are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is bound
by all the provisions of this By-Law.
(F) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this By-Law shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise, and shall continue as to a person who has ceased to be a
director or officer of the Corporation and shall inure to the benefit of the
heirs, executors and administrators of such person. No repeal or modification of
this By-Law shall in any way diminish or adversely affect the rights of any
director, officer, employee or agent of the Corporation hereunder in respect of
any occurrence or matter arising prior to any such repeal or modification.
(G) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware. To the extent that
the Corporation maintains any policy or policies providing such insurance, each
such director or officer, and each such agent or employee to which rights to
indemnification have been granted as provided in paragraph (H) of this By-Law,
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage thereunder for any such director,
officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification, and rights to be
paid by the Corporation the
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expenses incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the fullest extent
of the provisions of this By-Law with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
(I) If any provision or provisions of this By-Law shall be held to
be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this By-Law
(including, without limitation, each portion of any paragraph of this By-Law
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (2) to the fullest extent possible, the
provisions of this By-Law (including, without limitation, each such portion of
any paragraph of this By-Law containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
(J) For purposes of this By-Law:
(1) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(2) "Independent Counsel" means a law firm, a member of a law
firm, or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable standards
of professional conduct then prevailing, would not have a conflict of interest
in representing either the Corporation or the claimant in an action to determine
the claimant's rights under this By-Law.
(K) Any notice, request or other communication required or permitted
to be given to the Corporation under this By-Law shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the Corporation and shall be effective
only upon receipt by the Secretary.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
SECTION 7.1 Contracts. Except as otherwise required by law, the
Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on the behalf of the
Corporation by such officer or officers of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board may determine. The Chairman of the
Board, the President or any Vice President may execute bonds, contracts, deeds,
leases and other instruments to be made or executed for or on behalf of the
Corporation. Subject to any restrictions imposed by the Board of Directors or
the Chairman of the Board, the President or any
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Vice President of the Corporation may delegate contractual powers to others
under his jurisdiction, it being understood, however, that any such delegation
of power shall not relieve such officer of responsibility with respect to the
exercise of such delegated power.
SECTION 7.2 Proxies. Unless otherwise provided by resolution
adopted by the Board of Directors, the Chairman of the Board, the President or
any Vice President may from time to time appoint an attorney or attorneys or
agent or agents of the Corporation, in the name and on behalf of the
Corporation, to cast the votes which the Corporation may be entitled to cast as
the holder of stock or other securities in any other corporation, any of whose
stock or other securities may be held by the Corporation, at meetings of the
holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such holder, to any action
by such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal or otherwise, all such written proxies or other instruments
as he may deem necessary or proper in the premises.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments. These By-Laws may be altered, amended,
repealed or new By-Laws may be adopted at any meeting of the Board of Directors
or of the stockholders, provided notice of the proposed change was given in the
notice of the meeting and, in the case of a meeting of the Board of Directors,
in a notice given not less than two days prior to the meeting; provided,
however, that, in the case of any such actions by stockholders, notwithstanding
any other provisions of these By-Laws or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the capital stock of
the Corporation required by law, the Certificate of Incorporation or these
By-Laws, the affirmative vote of the holders of at least 80 percent of the
voting power of all the then outstanding shares of the Voting Stock, voting
together as a single class, shall be required to alter, amend or repeal any
provision of these By-Laws.
15
Exhibit 15.1
LETTER RE: UNAUDITED FINANCIAL INFORMATION
ACKNOWLEDGMENT LETTER
September 7, 1999
The Board of Directors
CK Witco Corporation
We are aware of the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the CK Witco Corporation 1998 Long Term
Incentive Plan of our reports dated May 6, 1999 and August 11, 1999 relating to
the unaudited condensed consolidated interim financial statements of Witco
Corporation and Subsidiary Companies which are included in its Form 10-Q for the
quarters ended March 31, 1999 and June 30, 1999.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ ERNST & YOUNG LLP
Stamford, Connecticut
Exhibit 23.1
The Board of Directors
CK Witco Corporation
We consent to the use of our reports incorporated herein by reference in the
Registration Statement on Form S-8.
/s/ KPMG LLP
Stamford, Connecticut
September 13, 1999
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the CK Witco Corporation 1998 Long Term Incentive Plan of our
report dated February 1, 1999, with respect to the consolidated financial
statements and schedule of Witco Corporation and Subsidiary Companies included
in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed
with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Stamford, Connecticut
September 7, 1999
