EXHIBIT 3.3(b)
PENVEST, INC.
ADOPTION OF BYLAWS AND SELECTION
OF DIRECTORS BY WRITTEN INSTRUMENT
This document is executed by and on behalf of Upper Peninsula Energy
Corporation, a Michigan corporation, as the sole shareholder and
incorporator of PENVEST, INC., a Michigan corporation, pursuant to Section
223 of the Michigan Business Corporation Act (1972 PA 284, MCLA 450.1223) in
lieu of a formal meeting of incorporator for the purpose of adopting bylaws
and selecting directors of PENVEST, INC.
ADOPTION OF BYLAWS
RESOLVED, that bylaws in the form attached hereto as Exhibit A, be,
and the same are, hereby adopted as the bylaws of PENVEST, INC.
SELECTION OF DIRECTORS
RESOLVED, that each of the following persons are hereby selected as
directors of PENVEST, INC. to serve until the first annual meeting of
shareholders of PENVEST, INC. and until their respective successors are duly
elected and qualified:
Clarence R. Fisher
Burton C. Arola
Neil D. Nelson
IN WITNESS WHEREOF, Upper Peninsula Energy Corporation, sole
shareholder and incorporator, has caused this instrument to be executed by
its duly authorized officer as of the 20th day of October, 1995.
UPPER PENINSULA ENERGY CORPORATION,
a Michigan corporation
By /s/ Clarence R. Fisher
-----------------------------------------
Clarence R. Fisher, Chairman of the Board
and President
BYLAWS
OF
PENVEST, INC.
ARTICLE I
OFFICES
Penvest, Inc. (Company) shall maintain a principal office in the State
of Michigan, as required by law.
ARTICLE II
SEAL
The Company shall have no corporate seal.
ARTICLE III
MEETINGS OF SHAREHOLDERS
Section 1. Place. Meetings of the shareholders of the Company shall
be held at such place either within or without the State of Michigan as may,
from time to time, be designated by the Board of Directors and stated in the
notice of meeting.
Section 2. Annual Meeting. Commencing in 1996, an annual meeting of
the shareholders of the Company shall be held each year on the fourth
Tuesday in April (or if that be a legal holiday, then on the next business
day) for the election of directors and for the transaction of such other
business as may be brought before the meeting.
Section 3. Special Meetings. Special meetings of the shareholders
may be called on the order of the Chairman of the Board, the President, a
Vice President, or of a majority of the Board of Directors.
Section 4. Notice. Written notice of all meetings of the
shareholders shall be mailed to, or delivered to, each shareholder not less
than ten (10) nor more than sixty (60) days prior to the meeting. Notice of
any meeting shall state in general terms the purposes for which the meeting
is to be held.
Section 5. Quorum. The holders of a majority of the issued and
outstanding shares of the capital stock of the Company entitled to vote
thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of business at all meetings of the shareholders,
except as may otherwise be provided by law, by the Articles of Incorporation
or by these Bylaws. The shareholders present in person, or by proxy, at
such meeting may continue to do business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a quorum. If there
be less than a quorum, the holders of a majority of the stock so present or
represented may adjourn the meeting from time to time.
Section 6. Voting. At all meetings of the shareholders, every
registered owner of shares entitled to vote may vote in person or by proxy
and shall have one vote for each such share standing in his name on the
books of the Company. The Board of Directors, in advance of a shareholders'
meeting, may appoint one or more inspectors to act at the meeting or any
adjournment thereof. The inspectors shall perform such duties and shall
make such determinations as are prescribed by law.
Section 7. Chairman of the Meeting. The Chairman of the Board or, in
his absence, the President or, in the President's absence, a Vice President
shall preside at all meetings of the shareholders; and, in the absence of
all of the same, the Board of Directors may appoint any shareholder to act
as chairman of the meeting.
Section 8. Secretary of Meeting. The Secretary of the Company shall
act as secretary of all meetings of the shareholders; and, in his absence,
the chairman may appoint any person to act as secretary of the meeting.
Section 9. Shareholder Action Taken Without Meeting. Any action
required or permitted by law to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote thereon were
present and voted.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to shareholders who
have not consented in writing.
ARTICLE IV
BOARD OF DIRECTORS
Section 1. Management of Company. The property, business, and
affairs of the Company shall be managed and controlled by its Board of
Directors.
Section 2. Number, Classification and Term of Office. The number of
Directors shall be not less than three (3) nor more than seven (7), at the
discretion of the Board of Directors. Directors need not be shareholders of
the Company. The first Board of Directors of this corporation shall hold
office until the first annual shareholders' meeting to be held in 1996 and
thereafter until the annual meeting of shareholders held each subsequent
year. Directors shall hold office for the term of one year, and/or until
their successors are elected and qualified.
Section 3. Vacancy. Whenever any vacancy shall occur in the Board of
Directors, by reason of death, resignation, or increase in the number of
directors or otherwise, it may be filled by a majority of the remaining
directors, through less than a quorum, for the balance of the term.
Section 4. Annual Meeting. The annual meeting of the Board of
Directors, of which no notice shall be necessary, shall be held immediately
following the annual meeting of shareholders, or any adjournment thereof,
for the purpose of the organization of the Board of Directors and the
election or appointment of officers for the ensuing year and for the
transaction of such other business as may conveniently and properly be
brought before such meeting.
Section 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such dates, hours and places as may, from time to
time, be fixed by the Board of Directors.
Section 6. Special Meetings. Special meetings of the Board of
Directors may be called by any director. The Secretary shall give notice of
the time, place, and purpose or purposes of each special meeting by mailing
the same at least two days before the meeting or by telephoning or
telegraphing the same at least one day before the meeting to each director.
Section 7. Conduct of Meetings. At meetings of the Board of
Directors, the Chairman of the Board, or, in his absence, the President, or
a designated Vice President shall preside. A majority of the members of the
Board of Directors shall constitute a quorum for the transaction of
business, but less than a quorum may adjourn any meeting from time to time
until a quorum shall be present, whereupon the meeting may be held, as
adjourned, without further notice. At any meeting at which every director
shall be present, even though without any notice, any business may be
transacted.
Section 8. Compensation. The directors shall receive such
compensation for their services as directors and as members of any committee
appointed by the Board of Directors as may be prescribed by the Board of
Directors.
Section 9. Manifestation of Dissent. A director of the Company who
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
taken, unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person
acting as the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
Company immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
ARTICLE V
COMMITTEES
Section 1. Committees. The Board of Directors may appoint from among
its own members such committees as the Board of Directors may determine,
which shall consist of one or more directors, and which shall have such
powers and duties as shall, from time to time, be prescribed by the Board of
Directors. The Chairman of the Board shall be a member ex officio of each
committee appointed by the Board of Directors, unless otherwise directed by
the Board of Directors.
Section 2. Rules of Procedure. A majority of members of any
committee may fix its rules of procedure. All action by any committee shall
be reported to the Board of Directors at a meeting succeeding such
action and shall be subject to revision, alteration, and approval by the
Board of Directors; provided that no rights or acts of third parties shall
be affected by any such revision or alteration.
ARTICLE VI
OFFICERS
Section 1. Elections. The Board of Directors shall elect a Chairman
of the Board and a President from its own number and such Vice Presidents
(who may or may not be directors) as in the opinion of the Board of
Directors the business of the Company requires, a Treasurer and a Secretary;
and, it shall elect or appoint, from time to time, such other or additional
officers as in its opinion are desirable for the conduct of the business of
the Company. Any two or more offices may be held by the same person.
Section 2. Removal. In its discretion, the Board of Directors, by
the vote of a majority of the whole Board of Directors, may leave unfilled
for any such period as it may fix by resolution, any office, except those of
the Chairman of the Board, President, Treasurer, and Secretary. Any officer
or agent shall be subject to removal at any time by the affirmative vote of
a majority of the whole Board of Directors. Any officer, agent, or
employee, other than officers appointed by the Board of Directors, shall
hold office at the discretion of the officer appointing them.
Section 3. Duties of the Chairman of the Board. The Chairman of the
Board shall be the Chief Executive Officer of the Company and, as such,
shall have supervision of its policies, business and affairs, and such other
powers and duties as are commonly incident to the office of Chief Executive
Officer. He shall preside at the meetings of the Board of Directors and may
call meetings of the Board of Directors and of any committee thereof,
whenever he deems it necessary, and he shall call to order and act as
chairman of all meetings of the shareholders of the Company. He may sign,
execute, and deliver in the name of the Company, powers of attorney,
contracts, bonds, and other obligations and shall perform such other duties
as may be prescribed, from time to time, by the Board of Directors or by the
Bylaws. He may appoint officers, agents, or employees other than those
appointed by the Board of Directors.
Section 4. President. The President shall be the Chief Operating
Officer of the Company. He shall exercise such duties as customarily
pertain to the office of President and Chief Operating Officer and shall
have general and active supervision over the property, business, and affairs
of the Company and over its several officers and shall have such other
duties as shall be delegated by the Chairman of the Board. He may sign,
execute, and deliver in the name of the Company, powers of attorney,
contracts, bonds, and other obligations and shall perform such other duties
as may be prescribed, from time to time, by the Board of Directors or by the
Bylaws. In the absence or disability of the Chairman of the Board, the
President shall perform the duties and exercise the powers of the Chairman
of the Board.
Section 5. Vice Presidents. The Vice Presidents shall have such
powers and perform such duties as may be assigned to them by the Board of
Directors or the Chairman of the Board or by the President. In the absence
or disability of the President and the Vice President (or if more than one,
the Vice President designated by the Board of Directors to act for the
President) shall perform the duties and exercise the powers of the
President. A Vice President may sign and execute contracts and other
obligations pertaining to the regular course of his duties.
Section 6. Treasurer. The Treasurer shall have general custody of
all the funds and securities of the Company and have general supervision of
the collection and disbursement of funds of the Company. He shall endorse,
on behalf of the Company, for collection checks, notes, and other
obligations, and shall deposit the same to the credit of the Company in such
bank or banks or depositories as the Board of Directors may designate. He
may sign with the Chairman of the Board or the President, or such other
person or persons as may be designated for the purpose by the Board of
Directors all bills of exchange or promissory notes of the Company. He
shall enter, or cause to be entered, regularly in the books of the Company
full and accurate account of all moneys received and paid by him on account
of the Company; shall, at all reasonable times, exhibit his books and
accounts to any director of the Company upon application at the office of
the Company during business hours; and, whenever required by the Board of
Directors or the Chairman of the Board or the President, shall render a
statement of his accounts. He shall be responsible to the Board of
Directors and to the Chairman of the Board and to the President for all
financial control and internal audit of the Company and the subsidiaries.
He shall perform such other duties as may be prescribed from time to time by
the Board of Directors or by the Bylaws.
Section 7. Secretary. The Secretary shall keep the minutes of all
meetings of the shareholders and of the Board of Directors, and to the
extent ordered by the Board of Directors, or the Chairman of the Board or
the President, the minutes of meetings of all committees. He shall cause
notice to be given of meetings of shareholders, of the Board of Directors,
and of any committee appointed by the Board of Directors. He shall have
general charge of the records, documents, and papers of the Company not
pertaining to the performance of the duties vested in other officers, which
shall, at all reasonable times, be open to the examination of any director.
He may sign or execute contracts with the Chairman of the Board or the
President or a Vice President thereunto authorized in the name of the
Company. He shall perform such other duties as may be prescribed, from time
to time, by the Board of Directors or by the Bylaws.
Section 8. Bank Accounts. Bank accounts shall be authorized by
resolution of the Board of Directors.
Section 9. Vacancies. In case any office shall become vacant, the
Board of Directors shall have power to fill such vacancies. In case of the
absence or disability of any officer, the Board of Directors may delegate
the powers or duties of any officer to another officer or a director for the
time being.
Section 10. Exercise of Rights as Shareholders. Unless otherwise
ordered by the Board of Directors, the Chairman of the Board, the President
or a Vice President thereunto duly authorized by the Chairman of the Board
shall have full power and authority on behalf of the Company to attend and
to vote at any meeting of shareholders of any corporation in which this
Company may hold stock, and may exercise on behalf of this Company any and
all of the rights and powers incident to the ownership of such stock at any
such meeting, and shall have power and authority to execute and deliver
proxies and consents on behalf of this Company in connection with the
exercise by this Company of the rights and powers incident to the ownership
of such stock. The Board of Directors, from time to time, may confer like
powers upon any other person or persons.
ARTICLE VII
CAPITAL STOCK
Section 1. Stock Certificates. Certificates for stock of the Company
shall be in such form as the Board of Directors may, from time to time,
prescribe and shall be signed by the Chairman of the Board or the President
or a Vice President and the Secretary or an Assistant Secretary. If
certificates are countersigned by a Transfer Agent (other than the Company
or its employee), the signatures of the officers of the Company may be
facsimile.
Section 2. Transfer Agent. The Board of Directors shall have power
to appoint one or more Transfer Agents and Registrars for the transfer and
registration of certificates of stock of any class, and may require that
stock certificates shall be countersigned and registered by one or more of
such Transfer Agents and Registrars.
Section 3. Transfer of Stock. Shares of capital stock of the Company
shall be transferable on the books of the Company only by the holder of
record thereof in person or by a duly authorized attorney, upon surrender
and cancellation of certificates for a like number of shares.
Section 4. Lost Certificates. In case any certificate for the
capital stock of the Company shall be lost, stolen, or destroyed, the
Company may require such proof of the fact and such indemnity to be given to
it and to its Transfer Agent and Registrar, if any, as shall be deemed
necessary or advisable by it.
Section 5. Holder of Record. The Company shall be entitled to treat
the holder of record of any share or shares of stock as the holder thereof
in fact and shall not be bound to recognize any equitable or other claim to,
or interest in, such shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise expressly
provided by law.
Section 6. Record Date for Determination of Shareholders. The Board
of Directors may, in its discretion, for the purpose of determining
shareholders entitled to notice of, and to vote at, a meeting of
shareholders or any adjournment thereof, or to express consent or dissent
from a proposal without a meeting, or for the purpose of determining
shareholders entitled to receive payment of a dividend or allotment of a
right, or for the purpose of any other action, may fix in advance a date as
the record date for any such determination of shareholders. The record date
shall not be more than sixty (60) nor less than the ten (10) days before the
date of the meeting, nor more than sixty (60) days before any other action.
When a determination of shareholders of record entitled to notice of, or to
vote at, a meeting of shareholders has been made as provided in this Section
6, the determination applies to any adjournment of the meeting, unless the
Board of Directors fixes a new record date under this Section 6 for the
adjourned meeting.
ARTICLE VIII
MISCELLANEOUS
Section 1. Fiscal Year. The Board of Directors shall have power to
fix, and from time to time change, the fiscal year of the Company. Unless
otherwise fixed by the Board of Directors, the calendar year shall be the
fiscal year.
Section 2. Waiver of Notice. Any notice required to be given under
the provisions of these Bylaws, or otherwise, may be waived by the
shareholder, director, or officer to whom such notice is required to be
given.
Section 3. Indemnification. Directors and officers of the
corporation and former directors and officers, their heirs, executors and
administrators, shall be entitled to indemnification by the corporation to
the extent and under the circumstances permitted by law, including, where
permitted and upon any undertaking required, payment in advance of expenses
incurred in defending a civil or criminal action.
ARTICLE IX
AMENDMENTS
The shareholders entitled to vote may alter, amend, add to or repeal
these Bylaws.