ARTICLES OF INCORPORATION
For Use by Domestic Profit Corporations
Corporate Identification Number 300-853
Pursuant to the provisions of Act 284, Public Acts of 1972,
the undersigned corporation executes the following Articles:
ARTICLE I
The name of the corporation is Sand Creek Communications Company.
ARTICLE II
The purpose or purposes for which the corporation is formed is to
engage in any activity within the purposes for which corporations
may be formed under the Business Corporation Act of Michigan.
ARTICLE III
The total authorized shares:
1. Common Shares: One Hundred Sixty Thousand (160,000)
Preferred Shares: None
2. A statement of all or any of the relative rights, preferences
and limitations of the shares of each class is as follows: None.
ARTICLE IV
1. The address of the registered office is: 6525 Sand Creek
Highway, Sand Creek, Michigan 49279.
2. The mailing address of the registered office, if different
than above: 6525 Sand Creek Highway, P.O. Box 66, Sand Creek,
Michigan 49279-0066.
3. The name of the resident agent at the registered office is:
Margie M. Gallatin.
ARTICLE V
The name and address of the incorporator is as follows: Ronald
W. Bloomberg, 232 South Capitol Avenue, Suite 1000, Lansing,
Michigan 48933.
ARTICLE VI
When a compromise or arrangement or a plan of reorganization of
this corporation is proposed between this corporation and its
creditors or any class of them or between this corporation and
its shareholders or any class of them, a court of equity
jurisdiction within the state, on application of this corporation
or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of
the creditors or class of creditors or of the shareholders or
class of shareholders to be affected by the proposed compromise
or arrangement or reorganization, to be summoned in such manner
as the court directs. If a majority in number representing 3/4
in value of the creditors or class of creditors, or if the
shareholders or class of shareholders to be affected by the
proposed compromise or arrangement or a reorganization, agree to
a compromise or arrangement or a reorganization of this
corporation as a consequence of the compromise or arrangement,
the compromise or arrangement and the reorganization, if
sanctioned by the court to which the application has been made,
shall be binding on all the creditors or class of creditors, or
on all the shareholders or class of shareholders and also on this
corporation.
ARTICLE VII
Any action required or permitted by the Act 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 consents in
writing, set forth the action so taken, are signed by the holders
of outstanding shares 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 on the action were
present and voted. The written consents shall bear the date of
signature of each shareholder who signs the consent. No written
consents shall be effective to take the corporation action
referred to unless, within 60 days after the record date for
determining shareholders entitled to express consent to or to
dissent from a proposal without a meeting, written consents dated
not more than 10 days before the record date and signed by a
sufficient number of shareholders to take the action are
delivered to the corporation. Delivery shall be to the
corporation's registered office, its principal place of business,
or an office or agent of the corporation having custody of the
minutes of the proceedings of its shareholders. Delivery made to
a corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to
shareholders who would have been entitled to notice of the
shareholder meeting if the action had been taken at a meeting and
who have not consented in writing.
ARTICLE VIII
A director of the Corporation shall not be personally liable to
the Corporation or its shareholders for monetary damages for
breach of the director's fiduciary duty. However, this Article
shall not eliminate or limit the liability of a director for any
of the following:
a. A breach of the director's duty of loyalty to the
Corporation or its shareholders.
b. Acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of law.
c. A violation of Section 551(1) of the Michigan Business
Corporation Act.
d. A transaction from which the director derived an
improper personal benefit.
e. An act or omission occurring before the effective date
of this Article.
Any repeal or modification of this Article by the shareholders of
the Corporation shall not adversely affect any right or
protection of any director of the Corporation existing at the
time of, or for or with respect to, any breach of the director's
fiduciary duty occurring before such repeal or modification.
I, the incorporator, sign my name this 8th day of June, 1995.
/s/Ronald W. Bloomberg
Ronald W. Bloomberg
As Amended: __________
BYLAWS OF THE
SAND CREEK COMMUNICATIONS COMPANY
ARTICLE I
Meetings
Section 1. Place Of Meeting. Any or all meetings of the
shareholders, and of the Board of Directors, of this corporation
may be held anywhere within the State of Michigan, provided that no
meeting shall be held at a place other than the registered office,
except pursuant to bylaws or resolution adopted by the Board of
Directors.
Section 2. Annual Meeting Of Shareholders. The annual
meeting of the shareholders shall be held in each year on the first
Saturday in May, at 2:00 o'clock P.M., one of the purposes of which
shall be the election of a Board of Directors.
Section 3. Notice Of Annual Meeting Of Shareholders. At
least ten (10) days prior to the date fixed by Section 2 of this
article for the holding of the annual meeting of shareholders,
written notice of the time, place, and purposes of such meeting
shall be mailed, as hereinafter provided, to each shareholder
entitled to vote at such meeting.
Section 4. Delayed Annual Meeting. If, for any reason,
the annual meeting of the shareholders shall not be held on the day
hereinbefore designated, such meeting may be called and held as a
special meeting, and the same proceedings may be had thereat as at
an annual meeting, provided, however, that the notice of such
meeting shall be the same herein required for the annual meeting,
namely, not less than a ten (10) day notice.
Section 5. Order Of Business At Annual Meeting. The order
of business at the annual meeting of the shareholders shall be as
follows:
(a) roll call,
(b) reading notice and proof of mailing,
(c) report of president,
(d) report of secretary,
(e) report of treasurer,
(f) election of directors,
(g) transaction of other business mentioned in the notice,
and
(h) adjournment,
provided that, in the absence of any objections, the presiding
officer may vary the order of business at his discretion.
Section 6. Special Meetings Of Shareholders. A special
meeting of the shareholders may be called at any time by the
president, or by a majority of the Board of Directors, or by
shareholders entitled to vote upon not less than an aggregate of
fifty (50) percent of the outstanding shares of the corporation
having the right to vote at such special meeting. The method by
which such meeting may be called is as follows: upon receipt of a
specification in writing setting forth the date and objects of such
proposed special meeting, signed by the president, or by a majority
of the Board of Directors, or by shareholders as above provided,
the secretary of this corporation shall prepare, sign, and mail the
notices requisite to such meeting.
Section 7. Notice Of Special Meeting Of Shareholders. At
least three (3) days prior to the date fixed for the holding of any
special meeting of shareholders, written notice of the time, place,
and purposes of such meeting shall be mailed, as hereinafter
provided, to each shareholder entitled to vote at such meeting. No
business not mentioned in the notice shall be transacted at such
meeting.
Section 8. Organization Meeting Of Board. At the place of
holding the annual meeting of shareholders, and immediately
following the same, the Board of Directors as constituted upon
final adjournment of such annual meeting shall convene 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 consent of a majority of the directors of such
new Board.
Section 9. Regular Meetings Of Board. Regular meetings of
the Board of Directors shall be held not less frequently than once
in each three (3) months at such time and place as the Board of
Directors shall from time to time determine. No notice of regular
meetings of the Board shall be required.
Section 10. Special Meetings Of Board. Special meetings of
the Board of Directors may be called by the president at any time
by means of such written notice by mail of the time, place, and
purpose thereof to each director as the president in his discretion
shall deem sufficient, but action taken at any such meeting shall
not be invalidated for want of notice if such notice shall be
waived as hereafter provided. The President may call special
meetings of the Board by telephone provided that proper written
notice is sent to any director who cannot be reached by telephone,
and that the first action at the special Board meeting is a formal
waiver by the directors of written notice of the meeting.
Section 11. Notices And Mailing. All notices required to
be given by any provision of these bylaws shall state the authority
pursuant to which they are issued (as, "by order of the president,"
or "by order of the Board of Directors," or "by order of
shareholders," as the case may be) and shall bear the written or
printed signature of the secretary. Every notice shall be deemed
duly served when the same has been deposited in the United States
mail, with postage fully prepaid, plainly addressed to the sendee
at his, her, or its last address appearing upon the original or
duplicate stock ledger of this corporation at its registered office
in Michigan.
Section 12. Waiver Of Notice. Notice of the time, place,
and purpose of any meeting of the shareholders or the Board of
Directors may be waived by telegram, radiogram, cablegram, or other
writing, either before or after such meeting has been held.
ARTICLE II
Quorum
Section 1. Quorum Of Shareholders. Twenty-five percent
(25%) of the common stock issued and outstanding present by the
record holders thereof in person or by proxy shall constitute a
quorum at any meeting of the shareholders.
Section 2. Quorum Of Directors. A majority of the
directors shall constitute a quorum.
ARTICLE III
Voting, Elections And Proxies
Section 1. Who Entitled To Vote. Except as the articles
or an amendment or amendments thereto otherwise provide, each
shareholder of this corporation shall at every meeting of the
shareholders be entitled to one vote in person or by proxy for each
share of capital stock of this corporation held by such
shareholder, subject, however, to the full effect of the
limitations imposed by the fixed record date for determination of
shareholders set forth in Section 2 of this article.
Section 2. Record Date For Determination Of Shareholders.
Twenty (20) days preceding (a) the date of any meeting of
shareholders, (b) the date for the payment of any dividends, (c)
the date for the allotment of rights, (d) the date when any change
or conversion or exchange of capital stock shall go into effect is
hereby fixed as a record date for the determination of the
shareholders entitled to notice of, and to vote at, any such
meeting, or entitled to receive payment of any such dividend, or to
any such allotment, of rights, or to exercise the rights in respect
of any such change, conversion or exchange of capital stock, and in
such case such shareholders and only such shareholders as shall be
shareholders of record on the date so fixed shall be entitled to
such notice of, and to vote at, such meeting, or to receive payment
of such dividend, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation or otherwise
after any such record date fixed as aforesaid. Nothing in this
section shall affect the rights of a shareholder and his transferee
or transferor as between themselves.
Section 3. Proxies. No proxy shall be deemed operative
unless and until signed by the shareholder and filed with the
corporation. In the absence of limitation to the contrary
contained in the proxy, the same shall extend to all meetings of
the shareholders and shall remain in force three years from its
date and no longer.
Section 4. Inspectors Of Election. Whenever any person
entitled to vote at a meeting of the shareholders shall request the
appointment of inspectors, the chairman of the meeting shall
appoint not more than three inspectors who need not be
shareholders. If the right of any person to vote at such meeting
shall be challenged, the inspectors shall determine such right.
The inspectors shall receive and count the votes either upon an
election or for the decision of any question and shall determine
the result. Their certificate of any vote shall be prima facie
evidence thereof.
ARTICLE IV
Board Of Directors
Section 1. Number And Term Of Directors. The business,
property, and affairs of this corporation shall be managed by a
Board of Directors composed of five (5) members, who must be
shareholders. Each director shall hold office for a term of three
years and until his successor is elected and qualified. Elections
of directors shall be organized in three-year cycles so that two
directors are elected to their terms in each of the first two years
of the cycle and one director elected in the third year of the
cycle.
Section 2. Vacancies. Vacancies in the Board of Directors
shall be filled by appointment made by the remaining directors.
Each so elected to fill a vacancy shall remain a director until his
successor has been elected by the shareholders, who may make such
election at their next annual meeting or at any special meeting,
duly called for that purpose, held prior thereto.
Section 3. Action By Unanimous Written Consent. If and
when the directors shall severally or collectively consent in
writing to any action to be taken by the corporation, such action
shall be as valid corporate action as though it had been authorized
at a meeting of the Board of Directors.
Section 4. Power To Elect Officers. The Board of
Directors shall elect from among their members a president and one
vice president. The Board shall also select a secretary-treasurer,
or secretary and treasurer, in its discretion, who need not be
members of the Board.
Section 5. Power To Appoint Other Officers And Agents.
The Board of Directors shall have power to appoint such other
officers and agents as the Board may deem necessary for transaction
of the business of the corporation.
Section 6. Removal Of Officers, Agents And Directors. Any
officer or agent may be removed by the Board of Directors whenever
in the judgment of the Board the business interest of the
corporation will be served thereby.
A majority in number of shares voted by shareholders of the
corporation shall have the power at any regular or special
stockholders' meeting legally called for such purpose to remove any
director or officer and elect his successor. Thereupon, the
director or officer so removed shall cease to be a director or
officer of the corporation. Provided, such director or officer
shall be given ten (10) days' notice of such meeting and furnished
with a copy of the complaint or charges against him, and
opportunity shall be given to such director or officer at such
meeting to disprove such complaint or charges. Grounds for removal
of a director shall include, but not be limited to, breach of
fiduciary duty, conflict of interest, or negligence in carrying out
the director's responsibilities.
Attendance at regular and special meetings of the Board of
Directors shall be required for each director. Failure to attend
two consecutive board meetings or three board meetings through a
calendar year without an excuse deemed acceptable to the Board of
Directors shall be treated as a resignation by the director
involved. The Board shall declare the director's position vacant
under these circumstances and follow the procedures in Section 7 of
this article.
Section 7. Power To Fill Vacancies. The Board shall have
power to fill any vacancy in any office occurring from any reason
whatsoever, provided, that the power herein conferred to fill
vacancies shall not apply to any director or officer removed by the
shareholders as hereinafter provided.
Section 8. Power To Require Bonds. The Board of Directors
may require any officer or agent to file with the corporation a
satisfactory bond conditioned for faithful performance of his
duties.
Section 9. Compensation. The compensation of directors,
officers and agents may be fixed by the Board.
Section 10. Appointment Of Appraisers. Whenever any
personal or real property not having a readily ascertainable fixed
value shall be exchanged for stock in the corporation, the Board of
Directors may appoint one or more disinterested appraisers to
determine the value upon the property for which stock is being
exchanged.
ARTICLE V
Officers
Section 1. President. The president shall be elected by,
and from the membership of, the Board of Directors. He shall be
the chief executive officer of the corporation. He shall be ex-officio a
member of all standing committees and shall have the
general powers and duties of supervision and management usually
vested in the office of president of a corporation. He shall sign
as president all orders upon the treasurer of the corporation.
Section 2. Vice-President. One vice-president shall be
elected by the Board of Directors. The vice-president shall be
chosen from the membership of the Board of Directors. Such vice-president shall
perform the duties and exercise the powers of the
president during the absence or disability of the president.
Section 3. Secretary. The secretary shall attend all
meetings of the shareholders and of the Board of Directors and
shall preserve in books of the corporation true minutes of the
proceedings of all such meetings. He shall safely keep in his
custody the seal of the corporation and shall have the authority to
affix the same to all instruments where its use is required. He
shall perform such other duties as may be delegated to him by the
Board of Directors.
Section 4. Treasurer. The treasurer shall have custody of
all corporate funds and securities and shall keep in books
belonging to the corporation full and accurate accounts of all
receipts and disbursements; he shall deposit all moneys,
securities, and other valuable effects in the name of the
corporation in such depositories as may be designated for that
purpose by the Board of Directors. He shall disburse the funds of
the corporation upon the order of the president, duly attested or
countersigned by him. He shall render to the president and
directors at the regular meetings of the Board, and whenever
requested by them, an account of all his transactions as treasurer,
and of the financial condition of the corporation, and shall
regularly render a quarterly financial statement to the Board. If
required by the Board, he shall deliver to the president of the
corporation, and shall keep in force, a bond in form, amount and
with a surety or sureties satisfactory to the Board, conditioned
for faithful performance of the duties of his office, and for
restoration to the corporation in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers,
money and property of whatever kind in his possession or under his
control belonging to the corporation. The treasurer may delegate
any or all of these duties to management, employees, or outside
services, but shall retain the responsibility for fulfilling each
of the treasurer's functions.
Section 5. The offices of secretary and treasurer may be
combined in one person, who shall perform the respective duties of
each office in the discretion of the Board.
ARTICLE VI
Stock And Transfers
Section 1. Certificates Of Share. Every shareholder shall be
entitled to a certificate of his shares signed by the president or
vice-president and the secretary or the treasurer under the seal of
the corporation, certifying the number and class of shares
represented by such certificates, which certificates shall state
the terms and provisions of all classes of shares and, if such
shares are not full paid, the amount paid; provided, that where
such certificate is signed by a transfer agent or an assistant
transfer agent or by a transfer clerk acting on behalf of such
corporation, and by a registrar, the signature of any such
president, vice-president, secretary or treasurer, and the seal of
the corporation, may be a facsimile.
Section 2. Transferable Only On Books Of Corporation.
Shares shall be transferable only on the books of the corporation
by the person named in the certificate, or by attorney lawfully
constituted in writing, and upon surrender of the certificate
lawfully therefor. A record shall be made of every such transfer
and issue. Whenever any transfer is made for collateral security
and not absolutely, the fact shall be so expressed in the entry of
such transfer.
Section 3. Restrictions On Transfer And Ownership Of Stock
A. Restrictions On Transfer Of Shares
Shareholders desiring to sell their shares of the corporation
shall first present the shares to the corporation for sale.
Commencing with receipt of written notice from a shareholder who
wishes to sell his or her stock in the corporation, the corporation
shall have a period of sixty (60) days in which to exercise this
right of first refusal and buy the shares. If this period of time
elapses without a consummation of the transaction by the
corporation, the shareholder shall be free to sell the shares to
any party who meets the shareholder requirements established in
these bylaws and/or by Board policies. The corporation shall
notify the shareholder before the end of the sixty day period if it
decides it will not be interested in purchasing the stock.
Purchase of the stock shall be for cash, unless another payment
plan is acceptable to the shareholder.
The price to be paid by the corporation for the stock shall be
established between the corporation and the shareholder not lower
than the price per share established by the Board of Directors for
the purchase and sale of company stock (Section 5 below) and not
higher than the amount offered to the shareholder (in a valid and
currently unexpired offer) by an outside, unrelated third party for
the shares being presented to the corporation for purchase.
The right of first refusal the corporation retains regarding
all outstanding corporation stock shall not be enforced in the
transactions involving immediate family members. (For purposes of
this section, "immediate family member" shall be defined for
individuals to be spouses, children, parents, or siblings. These
immediate family members are to include marital relationships and
those created by law such as adoption. If the stock is held by a
corporation, "immediate family member" shall be defined as members
of the controlled group, as defined under the Internal Revenue
Code, to which the corporate shareholder belongs.)
B. Limitation On Percent Of Ownership
The shareholders' position concerning stock ownership is that
the corporation's services, its responsiveness to the needs of the
communities served, and the level of the rates charged to its
customers are best preserved through local community ownership.
This policy is considered of major importance to the corporation's
continued success and its ability to best serve its customers.
Therefore, no shareholder shall own more than eight percent (8%) of
the corporation's issued and outstanding stock. Should the
circumstance arise through immediate family transfers described
above or inheritance where a shareholder does own more than eight
percent (8%) of the then issued and outstanding common stock
shares, the excess shares shall be purchased by the corporation as
described above. The corporation shall retain the right to issue
additional shares to the other then existing shareholders at the
then stated transfer price (see Section 5 below) to reduce the
holdings of the shareholder in question to eight percent (8%) of
the outstanding stock. For purposes of this section, stock issued
but being held by the corporation as treasury stock shall not be
considered as outstanding stock.
C. Limitation On Ownership
Because of the importance of local control to the corporation
and to its shareholders discussed in (B) above, the Board of
Directors is authorized and required to establish a policy for
limitations on the persons and entities to whom the corporation
will sell its stock. Such a policy shall be based upon the
business needs of the corporation and shall not be discriminatory
or against public policy.
Section 4. Transfer Agent And Registrar. The Board of
Directors may appoint a transfer agent and registrar of transfers
and may require all certificates of shares to bear the signature of
such transfer agent and of such registrar of transfers, or as the
Board may otherwise direct.
Section 5. Regulations, Policies, And Establishing Share
Transfer Price. The Board of Directors shall have power and
authority to make all such rules and regulations as the Board shall
deem expedient regulating the issue, transfer, and registration of
certificates for shares in this corporation.
In addition, the Board of Directors shall establish from time
to time (at least annually) a transfer price which shall be used by
the corporation for the purchase of stock offered by existing
shareholders or for the sale of corporation stock to new
shareholders. Such price shall be set to reflect a fair current
value for the stock being sold or purchased.
The Board of Directors shall also adopt a policy to define
eligible shareholders as described in Section 3 above and a policy
to assure fair and orderly sales of the corporation stock it
acquires from shareholders when exercising its right of first
refusal.
ARTICLE VII
Dividends And Reserves
Section 1. Sources Of Dividends. The Board of Directors
shall have power and authority to declare dividends.
Section 2. Manner Of Payment Of Dividend. Dividends may be
paid in cash, in property, in obligations of the corporation, or in
shares of the capital stock of the corporation.
Section 3. 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
power and authority to abolish any reserve created by the Board,
subject to requirements of applicable law.
ARTICLE VIII
Right Of Inspection
Section 1. Inspection Of List Of Shareholders. At least ten
(10) days before every election of directors, a complete list of
shareholders entitled to vote at such election shall be open to
examination by any registered shareholder entitled to vote at such
election.
Section 2. Inspection Of Books On Account And Stock Books.
The books of account and stock books of this corporation shall be
open to inspection at all reasonable times and for any proper
purpose by the shareholders; provided, that no person who has not
then been a shareholder of record of this corporation for at least
three (3) months prior to making such application shall be
permitted to exercise such privilege of inspection, except pursuant
to resolution of the Board of Directors.
ARTICLE IX
Execution Of Instruments
Section 1. Checks, Etc. All checks, drafts and orders for
payment of money shall be signed in the name of the corporation and
shall be countersigned by any one of the officers of the
corporation.
Section 2. Contracts, Conveyances, Etc. When the execution
of any contract, conveyance, or other instrument has been
authorized without specification of the executing officers, the
president or vice-president, and the 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 the
power to designate the officer and agent who shall have authority
to execute any instrument on behalf of this corporation.
ARTICLE X
Indemnification Plan Of The Corporation
Section 1. Third Party Actions. 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 is or was a director,
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 expenses (including attorneys' fees),
judgments, fines and amounts paid in settlements, actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation or its shareholders, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith in
a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation or its shareholders, and,
with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Actions In The Right Of The Corporation. The
corporation shall indemnify any person who was or is a party to 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 is or
was a director, 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 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 him in connection with the
defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation or its
shareholders and except that no indemnification shall be made in
respect to any claim, issue, or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty 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 circumstances of the
case, such person is fairly and reasonably entitled to indemnity
for such expenses which such court shall deem proper.
Section 3. Mandatory And Permissive Payments. To the extent
that a director, 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 Sections 1 or 2 of the of
the Indemnification Plan of the corporation or in defense of any
claim, issue, or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Any indemnification under Sections 1 or 2 of the
Indemnification Plan of the corporation (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, employee, or agent is proper in the circumstances because
he met the applicable standard of conduct set forth in Sections 1
and 2 of the Indemnification Plan of the corporation. Such
determination shall be made in either of the following ways:
(1) by the Board by a majority vote of a quorum consisting of
directors who are not parties to such action, suit or
proceeding;
(2) by independent legal counsel in a written opinion, if
such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs; or
(3) by the shareholders.
Section 4. Expense Advances. Expenses incurred in defending
a civil or criminal action, suit or proceeding described in
Sections 1 or 2 of the Indemnification Plan of the corporation may
be paid by the corporation in advance of the final disposition of
such action, suit, or proceeding as authorized in the manner
provided in subsection (2) of Section 3 of the Indemnification Plan
of the corporation upon receipt of an undertaking by or on behalf
of the director, officer, employee, or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation.
Section 5. Continuation. The indemnification provided in
Sections 1 to 4 of the Indemnification Plan of the corporation
continues as to a person who has ceased to be a director, officer,
employee or agent and shall insure the benefit to the heirs,
executors and administrators of such person.
Section 6. Insurance. The corporation may purchase and
maintain insurance on behalf of any person who is or was a
director, 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 him or incurred by him in any such capacity or
arising out of his status as such, whether or not the corporation
would have power to indemnify him against such liability under
Sections 1 to 5 of the Indemnification Plan of the corporation.
Section 7. Changes In Michigan Law. In the event of any
change of the Michigan statutory provisions applicable to the
corporation relating to the subject matter of this Article or these
Bylaws, the indemnification to which any person shall be entitled
hereunder shall be determined by such changed provisions.
Section 8. Limitation Of Director's Liability. To the
fullest extent authorized by the laws of the State of Michigan, and
subject only to the exceptions contained in MCL 450.1209(c), a
director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for a breach
of the director's fiduciary duty.
ARTICLE XI
Amendment Of Bylaws
The shareholders or the Board of Directors may make and alter
these bylaws provided that the Board of Directors shall not make or
alter any bylaws fixing their qualifications, classifications or
term of office.