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Exhibit (4) Instruments Defining the Rights of Security Holders
As Amended on
July 21, 1995
BYLAWS
OF
COMERICA INCORPORATED
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in
the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices
at such other places both within and without the State of Delaware as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS
SECTION 1. PLACE OF MEETING. All meetings of the shareholders of
this Corporation shall be held at such time and place, either within or
without the State of Delaware, as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting.
SECTION 2. ANNUAL MEETING OF SHAREHOLDERS. The annual meeting of
shareholders shall be held on the third Friday of May, if not a legal
holiday, and if a legal holiday then the next secular day following, at
10:00 a.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. At said meeting, shareholders shall elect by a plurality vote
the Directors to be elected at such meeting, and shall transact such other
business as may properly be brought before the meeting.
SECTION 3. NOTICE OF MEETING OF SHAREHOLDERS. Written notice of
every meeting of shareholders stating the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given to each shareholder
entitled to vote at such meeting not less than ten (10) nor more than
sixty (60) days before the date of the meeting.
SECTION 4. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer who
has charge of the stock ledger of the Corporation shall prepare and make,
at least ten (10) days before every meeting of shareholders, a complete
list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each shareholder and the
number of shares registered in the name of each shareholder. Such list
shall be open to the examination of any shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in
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the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any shareholder who is present.
SECTION 5. SPECIAL MEETINGS OF SHAREHOLDERS. Special meetings of
the shareholders, for any purpose or purposes, unless otherwise prescribed
by statute or by the Certificate of Incorporation, may be called by the
Chairman of the Board of Directors or, during the absence or disability of
the Chairman or while that office is vacant, by the President and shall be
called by the President or Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of
shareholders owning, in the aggregate, at least seventy-five percent (75%)
in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote at such special meeting. Such request
shall state the purpose or purposes of the proposed meeting.
SECTION 6. QUORUM OF SHAREHOLDERS. The holders of a majority of
the stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings
of the shareholders for the transaction of business except as otherwise
provided by statute or by the Certificate of Incorporation. If, however,
such quorum shall not be present or represented at any meeting of the
shareholders, the shareholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting at
which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
SECTION 7. REQUIRED VOTE. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting
power, present in person or represented by proxy, shall decide any
question brought before such meeting, unless the question is one upon
which a different vote is required by statute or by the Certificate of
Incorporation.
SECTION 8. VOTING. Unless otherwise provided in the Certificate
of Incorporation or in a certificate filed pursuant to Section 151(g) of
the General Corporation Law of Delaware, as amended, each shareholder
shall at every meeting of the shareholders be entitled to one vote, in
person or by proxy, for each share of the capital stock having voting
power held by such shareholder, but no proxy shall be voted on after three
(3) years from its date, unless the proxy provides for a longer period.
SECTION 9. NATURE OF BUSINESS. At any meeting of shareholders,
only such business shall be conducted as shall have been brought before
the meeting by or at the direction of the Board of Directors or by any
shareholder who complies with the procedures set forth in this Section 9.
No business may be transacted at any meeting of shareholders, other than
business that is either:
(a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (or any
duly authorized committee thereof);
(b) otherwise properly brought before such meeting of
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shareholders by or at the direction of the Board of Directors (or any duly
authorized committee thereof); or
(c) in the case of an annual meeting of shareholders,
otherwise properly brought before such meeting by any shareholder (i) who
is a shareholder of record on the date of the giving of the notice
provided for in this Section 9 and on the record date for the
determination of shareholders entitled to vote at such annual meeting of
shareholders; and (ii) who complies with the notice procedures set forth
in this Section 9.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting of shareholders by a
shareholder, such shareholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation. To be timely, a
shareholder's notice to the Secretary of the Corporation must be delivered
to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preceding annual meeting
of shareholders; provided, however, that in the event that the annual
meeting of shareholders is called for a date that is not within thirty
(30) days before or after such anniversary date, notice by the shareholder
in order to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which notice of the
date of the annual meeting of shareholders was mailed or public disclosure
of the date of the annual meeting of shareholders was made, whichever
first occurs.
To be in proper written form, a shareholder's notice to the Secretary of
the Corporation must set forth as to each matter such shareholder proposes
to bring before the annual meeting of shareholders: (i) a brief
description of the business desired to be brought before the annual
meeting of shareholders and the reasons for conducting such business at
the annual meeting of shareholders; (ii) the name and record address of
such shareholder; (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of
record by such shareholder as of the record date for the meeting (if such
date shall then have been made publicly available and shall have
occurred); (iv) as of the date of such notice, a description of all
arrangements or understandings between such shareholder an any other
person or persons (including their names) in connection with the proposal
of such business by such shareholder and any material interest of such
shareholder in such business; (v) any other information which would be
required to be disclosed in a proxy statement or other filings required to
be made in connection with the solicitation of proxies for the proposal
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations promulgated
thereunder if such shareholder were engaged in such a solicitation; and
(vi) a representation that such shareholder intends to appear in person
or by proxy at the annual meeting of shareholders to bring such business
before the meeting.
No business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting of shareholders in
accordance with the procedures set forth in this Section 9, provided
however, that once business has been properly brought before the annual
meeting of shareholders in accordance with such procedures, nothing in
this Section 9 shall be deemed to preclude discussion by any shareholder
of any such business. If the Chairman of an annual meeting of
shareholders determines that business was not properly brought before the
annual meeting of shareholders in accordance with the foregoing
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procedures, the Chairman shall declare to the meeting that the business
was not properly brought before the meeting and such business shall not be
transacted. When a meeting is adjourned to another time or place, notice
of the adjourned meeting need not be given if the time and place thereof
are announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than 30 days, or unless after the adjournment a
new record date is fixed for the adjourned meeting, in which case notice
of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted
which might have been transacted at the original meeting as originally
notified.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. The business of the Corporation shall be
managed by or under the direction of its Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts
and things as are not by statute or by the Certificate of Incorporation or
by these Bylaws directed or required to be exercised or done by the
shareholders.
SECTION 2. LOCATION OF MEETINGS. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
SECTION 3. ORGANIZATION MEETING OF BOARD. The first meeting of
each newly elected Board of Directors shall be held at the place of
holding the annual meeting of shareholders, and immediately following the
same, for the purpose of electing officers and transacting any other
business properly brought before it, provided that the organization
meeting in any year may be held at a different time and place than that
herein provided by a consent of a majority of the Directors of such new
Board. No notice of such meeting shall be necessary to the newly elected
Directors in order legally to constitute the meeting, provided a quorum
shall be present, unless said meeting is not held at the place of holding
and immediately following the annual meeting of shareholders.
SECTION 4. REGULAR MEETINGS OF BOARD. Regular meetings of the
Board of Directors may be held without notice at such time and at such
place as shall from time to time be determined by the Board.
SECTION 5. SPECIAL MEETINGS OF BOARD. Special meetings of the
Board of Directors may be called by the Chairman of the Board of Directors
or, during the absence or disability of the Chairman or while that office
is vacant by the President on one (1) day's notice to each director; and
special meetings shall be called by the President or Secretary on like
notice on the written request of five or more Directors.
SECTION 6. QUORUM AND REQUIRED VOTE. At all meetings of the Board
of Directors a majority of the total number of Directors shall constitute
a quorum for the transaction of business and the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically
provided by statute or by the Certificate of Incorporation. If a quorum
shall not be present at any meeting of the Board of Directors the
Directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum
shall be present.
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SECTION 7. CONSENT OF DIRECTORS IN LIEU OF MEETING. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of the Board
of Directors or of any Committee thereof may be taken without a meeting if
all members of the Board or Committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or Committee.
SECTION 8. COMMITTEES OF DIRECTORS.
(a) General Authority. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
Committees, each Committee to consist of one or more of the Directors of
the Corporation. The Board may designate one or more Directors as
alternate members of any Committee, who may replace any absent or
disqualified member of any meeting of the Committee. In the absence or
disqualification of a member of a Committee, the member or members
thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absent or disqualified member. Any such Committee, to the extent
provided in the resolution of the Board of Directors, or in these Bylaws
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it; but no such Committee shall have the
power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws of the Corporation; and, unless the
resolution of the Board of Directors or the Certificate of Incorporation
expressly so provide, no such Committee shall have the power or authority
to declare a dividend or to authorize the issuance of stock.
(b) Directors' Committee. The Board of Directors may
establish a Directors' Committee of the Board of Directors. The
Directors' Committee may: (i) nominate candidates for election as
Directors of the Corporation at any meeting of shareholders called for
election of Directors (an "Election Meeting"); (ii) nominate candidates to
fill any vacancies on the Board of Directors which may exist from time to
time; and (iii) have such other powers and authority as the Board of
Directors may delegate to it from time to time.
(c) MNC Indemnification Committee. Until June 18, 1998,
there shall be an MNC Indemnification Committee consisting of all of the
directors of Manufacturers National Corporation ("MNC"). The MNC
Indemnification Committee shall make all determinations necessary with
respect to the Corporation's indemnification obligations pursuant to
Section 5.13 of the Agreement and Plan of Merger, dated as of October 27,
1991, between the Corporation and MNC (the "Merger Agreement").
(d) Comerica Indemnification Committee. Until June 18,
1998, there shall be a Comerica Indemnification Committee consisting of
all of the directors of the Corporation immediately prior to June 18,
1992. The Comerica Indemnification Committee shall make all
determinations necessary with respect to the Corporation's indemnification
obligations pursuant to the Corporation's Bylaws prior to June 18, 1992.
SECTION 9. COMMITTEE MINUTES. Each Committee shall keep regular
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minutes of its meetings and report the same to the Board of Directors when
required.
SECTION 10. COMPENSATION OF DIRECTORS. Unless otherwise restricted
by the Certificate of Incorporation, the Board of Directors shall have
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 or a stated salary as 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 11. PARTICIPATION IN MEETING BY TELEPHONE. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws,
members of the Board of Directors or any Committee designated by the Board
of Directors may participate in a meeting of the Board of Directors or
Committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and such participation in a meeting shall constitute
presence in person at such meeting.
SECTION 12. NOMINATIONS OF DIRECTOR CANDIDATES. Only persons who
are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as may be
otherwise provided in the Certificate of Incorporation with respect to the
right of holders of preferred stock of the Corporation to nominate and
elect a specified number of directors in certain circumstances.
Nominations of persons for election to the Board of Directors may be made
at any annual meeting of shareholders, or at any special meeting of
shareholders called for the purpose of electing directors, shall be made:
(a) by or at the direction of the Board of Directors (or any
duly authorized committee thereof, including the Directors' Committee); or
(b) by any shareholder of the Corporation: (i) who is a
shareholder of record on the date of the giving of the notice provided for
in this Section 12 and on the record date for the determination of
shareholders entitled to vote at such meeting; and (ii) who complies with
the notice procedures set forth in this Section 12.
In addition to any other applicable requirements, for a nomination to be
made by a shareholder, such shareholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation. To be
timely, a shareholder's notice to the Secretary of the Corporation must be
delivered to or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual meeting of shareholders, not
less than sixty (60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of
shareholders; provided, however, that in the event that the annual meeting
of shareholders is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the shareholder in order
to be timely must be so received not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
annual meeting of shareholders was mailed or public disclosure of the date
of the annual meeting was made, whichever first occurs; and (b) in the
case of a special meeting of shareholders called for the purpose of
electing directors, not later than the close of business on the tenth
(l0th) day following the day on which notice of the date of the special
meeting of shareholders was mailed or public disclosure of the date of the
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special meeting of shareholders was made, whichever first occurs.
To be in proper written form, a shareholder's notice to the Secretary of
the Corporation must set forth:
(a) as to each person whom the shareholder proposes to
nominate for election as a director: (i) the name, age, business address
and residence address of the person; (ii) the principal occupation or
employment of the person; (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by the person as of the record date for the meeting (if such date
shall then have been made publicly available and shall have occurred) and
as of the date of such notice; and (iv) any other information relating to
the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of
proxies for election of directors pursuant to section 14 of the Exchange
Act, and the rules and regulations promulgated thereunder; and
(b) as to the shareholder giving the notice: (i) the name and
record address of such shareholder; (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or
of record by such shareholder as of the record date for the meeting (if
such date shall then have been made publicly available and shall have
occurred) and as of the date of such notice; (iii) a description of all
arrangements or understandings between such shareholder and each proposed
nominee and any other person or persons (including their names) pursuant
to which the nominations are to be made by such shareholder; (iv) a
representation that such shareholder intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice; and (v)
any other information relating to such shareholder that would be required
to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by the written
consent to such nomination of each person proposed as a nominee and such
person's written consent to serve as a director if elected.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this
Section 12. If the Chairman of the meeting determines that a nomination
was not made in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
ARTICLE IV
NOTICES
SECTION 1. NOTICE. Whenever any notice is required to be given to
any director or shareholder under any provision of statute or of the
Certificate of Incorporation or of these Bylaws, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or shareholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to Directors may also be
given orally in person or by telegram, telex, radiogram or cablegram, and
such notice shall be deemed to be given when the recipient receives the
notice personally, by telephone or when the notice, addressed as provided
above, has been delivered to the company, or to the equipment transmitting
such notice.
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SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to
be given under any provision of statute or of the Certificate of
Incorporation or of these Bylaws, a written waiver thereof, signed by the
person or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, Directors, or members of a Committee of
Directors need be specified in any written waiver of notice unless so
required by the Certificate of Incorporation or these Bylaws. Attendance
of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
ARTICLE V
OFFICERS
SECTION 1. SELECTION. The Board of Directors may appoint such
officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board. The
officers so appointed may include a Chairman of the Board, President, one
or more Vice Chairmen, one or more Vice Presidents (including Executive,
Senior, First, regular and Assistant Vice Presidents), a Secretary and a
Treasurer, and one or more lesser officers as may be deemed appropriate.
The Chief Executive Officer may also appoint officers of the level of
Senior Vice President and below as he shall deem necessary, at any time,
which officers shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to
time by the Board or the Chief Executive Officer. Any number of offices
may be held by the same person, unless the Certificate of Incorporation
otherwise provides.
SECTION 2. COMPENSATION. The salaries of all executive officers
of the Corporation shall be fixed by the Board of Directors.
SECTION 3. TERM, REMOVAL AND VACANCIES. Each officer of the
Corporation shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. Any officer
elected or appointed by the Board of Directors may be removed at any time
by the affirmative vote of a majority of the Board of Directors.
Additionally, any officer of the level of regular Vice President or below
may also be removed at any time by the Chief Executive Officer. Any
vacancy occurring in any office of the Corporation may be filled by the
Board of Directors. Any vacancy occurring in any office of the
Corporation of the level of regular Vice President or below may also be
filled by the Chief Executive Officer.
SECTION 4. CHIEF EXECUTIVE OFFICER AND CHIEF OPERATING OFFICER.
(a) Chief Executive Officer. At the first meeting of each
newly-elected Board of Directors, the Board shall designate the Chairman
of the Board or President as the chief executive officer of the
Corporation; provided, however, that if a motion is not made and carried
to change the designation, the designation shall be same as the
designation for the preceding year; provided, further, that the
designation of the chief executive officer may be changed at any regular
or special meeting of the Board of Directors. The chief executive officer
shall be responsible to the Board of Directors for the general supervision
and management of the business and affairs of the Corporation. The
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Chairman of the Board or President who is not the chief executive officer
shall be subject to the authority of the chief executive officer, but
shall exercise all of the powers and discharge all of the duties of the
chief executive officer, during the absence or disability of the chief
executive officer.
(b) Chief Operating Officer. At any meeting of the Board
of Directors, the Board may designate a chief operating officer of the
Corporation. The chief operating officer shall perform such duties as may
be delegated to him or her by the Board of Directors, the Executive
Committee of the Board or the Chairman of the Board.
SECTION 5. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of
the Board of Directors shall be selected by, and from among the membership
of, the Board of Directors. He shall preside at all meetings of the
shareholders and of the Board of Directors. He shall perform such other
duties and functions as shall be assigned to him from time to time by the
Board of Directors. He shall be, ex officio, a member of all standing
committees except the Select Compensation Committee and the Audit and
Legal Committee. Except where by law the signature of the President of
this Corporation is required, the Chairman of the Board of Directors shall
possess the same power and authority as the President to sign all
certificates, contracts, instruments, papers and documents of every
conceivable kind and character whatsoever, in the name of and on behalf of
this Corporation, which may be authorized by the Board of Directors.
During the absence or disability of the President, the Chairman of the
Board of Directors shall exercise all of the powers and discharge all of
the duties of the President.
SECTION 6. PRESIDENT. The President shall be selected by, and
from among the membership of, the Board of Directors. During the absence
or disability of the Chairman of the Board of Directors, or while such
office is vacant, the President shall perform all duties and functions,
and while so acting shall have all of the powers and authority, of the
Chairman of the Board of Directors. The President shall perform all
duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors. The President shall be, ex officio,
a member of all standing committees except the Select Compensation
Committee and the Audit and Legal Committee.
SECTION 7. VICE CHAIRMEN. One or more Vice Chairmen may be chosen
from the membership of the Board. Unless the Board of Directors shall
otherwise provide by resolution duly adopted by it, such of the Vice
Chairmen who are members of the Board of Directors in the order specified
by the Board of Directors shall perform the duties and exercise the powers
of the President during the absence or disability of the President. The
Vice Chairmen shall perform such other duties as may be delegated to them
by the Board of Directors, any executive committee, or the President.
SECTION 8. SECRETARY. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the stockholders and shall
record all the proceedings thereof in a book to be kept for that purpose
and shall perform like duties for the standing committees when required.
The Secretary shall give, or cause to be given, all notices required by
statute, Bylaw or resolution, and shall perform such other duties as may
be prescribed by the Board of Directors or President. The Secretary shall
have custody of the corporate seal of the Corporation and the Secretary
and Assistant Secretaries shall have authority to affix the same to any
instrument when its use is required or appropriate.
SECTION 9. ASSISTANT SECRETARIES. The Assistant Secretary or
Assistant Secretaries shall, in the absence of the Secretary or in the
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event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
SECTION 10. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation. If required
by the Board of Directors, the Treasurer shall deliver to the Corporation,
and shall keep in force, a bond, in such form, amount, and with such
surety or sureties as shall be satisfactory to the Board of Directors, for
the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control
belonging to the Corporation.
SECTION 11. ASSISTANT TREASURERS. The Assistant Treasurer or
Assistant Treasurers shall, in the absence of the Treasurer or in the
event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
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SECTION 12. INDEMNIFICATION AND INSURANCE.
(a) The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending,
or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right
of the Corporation) by reason of the fact that he or she is or was a
director, officer or employee of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred by
him or her in connection with such action, suit, or proceeding if he or
she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. Any person who is or was an
agent of the Corporation may be indemnified to the same extent as
hereinabove provided. In addition, in the event any such action, suit or
proceeding is threatened or instituted against a spouse to whom a director
or officer is legally married at the time such director or officer is
covered under the indemnification provided herein which action, suit or
proceeding arises solely out of his or her status as the spouse of a
director or officer, including, without limitation, an action, suit or
proceeding that seeks damages recoverable from marital community property
of the director or officer and his or her spouse, property owned jointly
by them or property purported to have been transferred from the director
or officer to his or her spouse, the spouse of the director or officer
shall be indemnified to the same extent as hereinabove provided. The
termination of any action, suit, or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, raise any inference
that he or she had reasonable cause to believe that his or her conduct was
unlawful.
(b) The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending,
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he or she is or
was a director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper. Any person who is or was an agent of the
Corporation may be indemnified to the same extent as hereinabove provided.
In addition, in the event any such action or suit is threatened or
instituted against a spouse to whom a director or officer is legally
married at the time such director or officer is covered under the
indemnification provided herein which action or suit arises solely out of
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his or her status as the spouse of a director or officer, including,
without limitation, an action or suit that seeks damages recoverable from
marital community property of the director or officer and his or her
spouse, property owned jointly by them or property purported to have been
transferred from the director or officer to his or her spouse, the spouse
of the director or officer shall be indemnified to the same extent as
hereinabove provided.
(c) To the extent that a director, officer, spouse of the
director or officer, employee, or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this Section, or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this Section (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, spouse of the director or
officer, employee, or agent is proper in the circumstances because such
person has met the applicable standard of conduct set forth in subsections
(a) and (b) of this Section. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of Directors
who were not parties to the action, suit or proceeding, or (2) if such a
quorum is not obtainable, or even if obtainable a quorum of disinterested
Directors so directs, by independent legal counsel chosen by the entire
Board of Directors, subject to the reasonable satisfaction of the party
seeking indemnification, in a written opinion, or (3) by the shareholders.
(e) Expenses (including attorney's fees) incurred by an
officer, director, or spouse of an officer or director, in defending any
civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer or spouse to repay
such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation as authorized in this
Section. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this Section
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to
action in another capacity while holding such office.
(g) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, spouse of a
director or officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Section.
(h) For the purposes of this Section, references to "the
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Corporation" include, in addition to the resulting or surviving
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had the power and authority to
indemnify its directors, officers, spouses of directors or officers, and
employees or agents, so that any person who is or was a director, officer,
spouse of a director or officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Section with
respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or
agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a person who acted
in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent, and with respect to
any spouse of a director or officer, shall continue following the time the
director or officer spouse ceases to be a director or officer even if the
marriage of the individuals terminates prior to the end of the period of
coverage, and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 13. OFFICERS APPOINTED PURSUANT TO MERGER AGREEMENT.
During the period in which the Employment Agreement, dated as of February
20, 1992, between the Corporation and Mr. Gerald V. MacDonald, and the
Employment Agreement, entered into as of February 20, 1992, between the
Corporation and Mr. Eugene A. Miller (the "Employment Agreements") are in
effect, any modification, amendment or failure to honor the terms of
either of such Employment Agreements shall require the affirmative vote of
75% of the members of the entire Board of Directors.
ARTICLE VI
STOCK AND TRANSFERS
SECTION 1. CERTIFICATES OF STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the
name of the Corporation by, the Chairman of the Board of Directors, or the
President or a Vice President and the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary of the Corporation, certifying
the number of shares owned by him in the Corporation. If the Corporation
shall be authorized to issue more than one class of stock or more than one
series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the
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face or back of the Certificate which the Corporation shall issue to
represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation
will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights. Any of or all of the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the
date of issue.
SECTION 2. LOST CERTIFICATES. The Board of Directors may direct
a new certificate to be issued in the place of any certificate theretofore
issued by the Corporation, alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing
the issuance of a new certificate the Board of Directors may, in its
discretion and as a condition present to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against it with respect to
the certificate alleged to have been lost, stolen or destroyed.
SECTION 3. TRANSFERS OF STOCK. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a
new certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its books.
SECTION 4. FIXING RECORD DATE. In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix, in advance, a record date, which shall not be more
than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. A
determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
SECTION 5. REGISTERED SHAREHOLDERS. The Corporation shall have
the right to treat the person registered on its books as the owner of
shares as the absolute owner thereof, and shall not be bound to recognize
any equitable or other claim to or interest in such share or shares on the
part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
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ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. The Board of Directors, subject to any
restrictions contained in its Certificate of Incorporation, may declare
and pay any dividends upon the shares of its capital stock either (1) out
of surplus as defined in and computed in accordance with the provisions of
the governing statute, or (2) in case there shall be no such surplus, out
of its net profits for the fiscal year in which the dividend is declared
and/or the preceding fiscal year. Dividends may be paid in cash, in
property, or in shares of the Corporation's capital stock, subject to the
provisions of the statute and of the Certificate of Incorporation.
SECTION 2. RESERVES. The Board of Directors shall have power and
authority to set apart, out of any funds available for dividends, such
reserve or reserves, for any proper purpose, as the Board in its
discretion shall approve, and the Board shall have the power and authority
to abolish any reserve created by the Board.
SECTION 3. VOTING SECURITIES. Unless otherwise directed by the
Board, the Chairman of the Board or President, or, in the case of their
absence or inability to act, the Vice Presidents, in order of their
seniority, shall have full power and authority on behalf of the
Corporation to attend and to act and to vote, or to execute in the name
or on behalf of the Corporation a proxy authorizing an agent or attorney-
in-fact for the Corporation to attend and vote at any meetings of security
holders of Corporations in which the Corporation may hold securities, and
at such meetings he or his duly authorized agent or attorney-in-fact shall
possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the
Corporation might have possessed and exercised if present. The Board by
resolution from time to time may confer like power upon any other person
or persons.
SECTION 4. CHECKS. All checks, drafts and orders for the payment
of money shall be signed in the name of the Corporation in such manner and
by such officer or officers or such other person or persons as the Board
of Directors shall from time to time designate for that purpose.
SECTION 5. CONTRACTS, CONVEYANCES, ETC. When the execution of any
contract, conveyance or other instruments has been authorized without
specification of the executing officers, the Chairman of the Board,
President or any Vice President, and the Secretary or Assistant Secretary,
may execute the same in the name and on behalf of this Corporation and may
affix the corporate seal thereto. The Board of Directors shall have power
to designate the officers and agents who shall have authority to execute
any instrument in behalf of this Corporation.
SECTION 6. FISCAL YEAR. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
SECTION 7. SEAL. The corporate seal shall have inscribed thereon
the name of the Corporation and the words "Corporate Seal" and "Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
SECTION 8. MICHIGAN CONTROL SHARE STATUTE. Pursuant to Section
794 of the Michigan Business Corporation Act ("MBCA"), Chapter 7B of the
MBCA shall not apply to the Corporation or control share acquisitions (as
such term is defined in Section 791 of the MBCA) of the shares of the
Corporation's capital stock.
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ARTICLE VIII
AMENDMENTS
SECTION 1. AMENDMENT BY REGULAR VOTE. These bylaws may be
altered, amended or repealed or new Bylaws may be adopted by the
shareholders or by the Board of Directors, when such power is conferred
upon the Board of Directors by the Certificate of Incorporation, at any
regular meeting of the shareholders or of the Board of Directors or at any
special meeting of the shareholders or of the Board of Directors if notice
of such alteration, amendment, repeal or adoption of new Bylaws be
contained in the notice of such special meeting.
SECTION 2. AMENDMENT BY 75% VOTE. The affirmative vote of 75% of
the total Board of Directors is required to alter, amend, repeal, add to
or otherwise change the effects of Article III, Sections 8(b), (c) or (d);
Article V, Section 13; or this Article VIII, Section 2 of the
Corporation's Bylaws.