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EXHIBIT 3.4
RESTATED
BYLAWS
OF
MCE COMPANIES, INC.
(EFFECTIVE , 2000)
ARTICLE I
OFFICES
1.01 PRINCIPAL OFFICE. The principal office of the corporation shall be at
such place within or outside the State of Michigan as the Board of Directors
shall determine from time to time.
1.02 OTHER OFFICES. The corporation also may have offices at such other
places as the Board of Directors from time to time determines or the business of
the corporation requires.
ARTICLE II
SEAL
2.01 SEAL. The corporation may have a seal in such form as the Board of
Directors may from time to time determine. The seal may be used by causing it or
a facsimile to be impressed, affixed, reproduced or otherwise.
ARTICLE III
CAPITAL STOCK
3.01 ISSUANCE OF SHARES. The shares of capital stock of the corporation
shall be issued in such amounts, at such times, for such consideration and on
such terms and conditions as the Board shall deem advisable, subject to the
provisions of the Articles of Incorporation of the Corporation and the further
provisions of these Bylaws, and subject also to any requirements of the laws of
the State of Michigan.
3.02 CERTIFICATES FOR SHARES. The shares of the corporation shall be
represented by certificates signed by the Chairman of the Board, Vice Chairman
of the Board, President or a Vice President of the corporation, and may be
sealed with the seal of the corporation or a facsimile thereof. A certificate
representing shares shall state upon its face that the corporation is formed
under the laws of the State of Michigan, the name of the person to whom it is
issued, the number and class of shares, and the designation of the series, if
any, that the certificate represents and such other provisions as may be
required by the laws of the State of Michigan.
3.03 TRANSFER OF SHARES. The shares of the capital stock of the corporation
are
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transferable only on the books of the corporation upon surrender of the
certificate therefor, properly endorsed for transfer, and the presentation of
such evidences of ownership and validity of the assignment as the corporation
may require.
3.04 REGISTERED SHAREHOLDERS. The corporation shall be entitled to treat
the person in whose name any share of stock is registered as the owner thereof
for purposes of dividends and other distributions or for any recapitalization,
merger, plan of share exchange, reorganization, sale of assets, or liquidation,
for the purpose of votes, approvals, and consents by shareholders, and for the
purpose of notices to shareholders, and for all other purposes whatever, and
shall not be bound to recognize any equitable or other claim to or interest in
such shares by any other person, whether or not the corporation shall have
notice thereof, save as expressly required by the laws of the State of Michigan.
3.05 LOST OR DESTROYED CERTIFICATES. Upon the presentation to the
corporation of a proper affidavit attesting the loss, destruction or mutilation
of any certificate or certificates for shares of stock of the corporation, the
Board of Directors shall direct the issuance of a new certificate or
certificates to replace the certificates so alleged to be lost, destroyed or
mutilated. The Board of Directors may require as a condition precedent to the
issuance of new certificates a bond or agreement of indemnity, in such form and
amount and with such sureties, or without sureties, as the Board of Directors
may direct or approve.
ARTICLE IV
SHAREHOLDERS AND MEETINGS OF SHAREHOLDERS
4.01 PLACE OF MEETINGS. All meetings of shareholders shall be held at the
principal office of the corporation or at such other place as shall be
determined by the Board of Directors and stated in the notice of meeting.
4.02 ANNUAL MEETING. The annual meeting of the shareholders of the
corporation shall be held on the third Thursday of the fifth calendar month
after the end of the corporation's fiscal year at 2 o'clock in the afternoon, or
on such other date and at such other time as may be determined by the Board of
Directors. Directors shall be elected at each annual meeting and such other
business transacted as may come before the meeting.
4.03 SPECIAL MEETINGS. Special meetings of shareholders may be called by
the Board of Directors, the Chairman of the Board (if such office is filled), or
the President and shall be called by the President or Secretary at the written
request of shareholders holding at least 10 percent of the outstanding shares of
stock of the corporation entitled to vote. The request shall state the purpose
or purposes for which the meeting is to be called.
4.04 NOTICE OF MEETINGS. Except as otherwise provided by statute, written
notice of the time, place, and purposes of a meeting of shareholders shall be
given not less than 10 nor more than 60 days before the date of the meeting to
each shareholder of record entitled to vote at the meeting, either personally or
by mailing such notice to his or her last address as it appears on the books of
the corporation. The notice shall include notice of proposals from shareholders
that
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are proper subjects for shareholder action and are intended to be presented by
shareholders who have so notified the corporation in accordance with Section
4.10 hereof No notice need be given of an adjourned meeting of the shareholders
provided the time and place to which such meeting is adjourned are announced at
the meeting at which the adjournment is taken and at the adjourned meeting only
such business is transacted as might have been transacted at the original
meeting. However, 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 on the new record date entitled to notice as provided in
this Bylaw.
4.05 RECORD DATES. The Board of Directors may fix in advance a date as the
record date for the purpose of determining shareholders entitled to notice of
and to vote at a meeting of shareholders or an adjournment thereof, or to
express consent to or to dissent from a proposal without a meeting; or for the
purpose of determining shareholders entitled to receive payment of a dividend or
an allotment of a right; or for the purpose of any other action. The date fixed
shall not be more than 60 nor less than 10 days before the date of the meeting,
nor more than 60 days before any other action. In such case only such
shareholders as shall be shareholders of record on the date so fixed shall be
entitled to notice of and to vote at such meeting or an adjournment of the
meeting, or to express consent to or to dissent from such proposal; to receive
payment of such dividend or to receive such allotment of rights; or to
participate in any other action, notwithstanding any transfer of any stock on
the books of the corporation, after any such record date. Nothing in this Bylaw
shall affect the rights of a shareholder and his or her transferee or transferor
as between themselves.
4.06 LIST OF SHAREHOLDERS. The Secretary of the corporation or the agent of
the corporation having charge of the stock transfer records for shares of the
corporation shall make and certify a complete list of the shareholders entitled
to vote at a shareholders' meeting or any adjournment thereof. The list shall be
arranged alphabetically within each class and series, with the address of, and
the number of shares held by, each shareholder; be produced at the time and
place of the meeting; be subject to inspection by any shareholder during the
whole time of the meeting; and be prima facie evidence of which shareholders are
entitled to examine the list or vote at the meeting.
4.07 QUORUM. Unless a greater or lesser quorum is required in the Articles
of Incorporation or by the laws of the State of Michigan, the shareholders
present at a meeting in person or by proxy who, as of the record date for such
meeting, were holders of a majority of the outstanding shares of the corporation
entitled to vote at the meeting shall constitute a quorum at the meeting.
Whether or not a quorum is present, a meeting of shareholders may be adjourned
by a vote of the shares present in person or by proxy. When the holders of a
class or series of shares are entitled to vote separately on an item of
business, this Bylaw applies in determining the presence of a quorum of such
class or series for transaction of such item of business.
4.08 PROXIES. A shareholder entitled to vote at a meeting of shareholders
or to express consent or dissent without a meeting may authorize other persons
to act for the shareholder by proxy. A proxy shall be signed by the shareholder
or the shareholder's authorized agent or representative and shall not be valid
after the expiration of three years from its date unless
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otherwise provided in the proxy. A proxy is revocable at the pleasure of the
shareholder executing it except as otherwise provided by the laws of the State
of Michigan.
4.09 VOTING. Each outstanding share is entitled to one vote on each matter
submitted to a vote, unless otherwise provided in the Articles of Incorporation.
Votes shall be cast in writing and signed by the shareholder or the
shareholder's proxy. When an action, other than the election of directors, is to
be taken by a vote of the shareholders, it shall be authorized by a majority of
the votes cast by the holders of shares entitled to vote thereon, unless a
greater vote is required by the Articles of Incorporation or by the laws of the
State of Michigan. Except as otherwise provided by the Articles of
Incorporation, directors shall be elected by a plurality of the votes cast at
any election.
4.10 MEETINGS OF SHAREHOLDERS.
(a) Annual Meetings of Shareholders.
(1) Nominations of persons for election to the Board of Directors
of the corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (A) pursuant to
the corporation's notice of meeting, (B) by or at the direction of the Board of
Directors, or (C) by any shareholder of the corporation who was a shareholder of
record at the time of giving of notice provided for in this Bylaw, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this Bylaw.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to Section 4.10(a)(1)(C)
above, the shareholder must have given timely notice thereof in writing to the
Secretary of the corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the corporation
not less than 60 days nor more than 90 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 30 days or delayed by
more than 60 days from such anniversary date, notice by the shareholder to be
timely must be so delivered not earlier than the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. Such shareholder's
notice shall set forth (A) as to each person whom the shareholder proposes to
nominate for election or reelection as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (B) as to
any other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; (C) as to the shareholder giving the notice and
beneficial owner, if any, on whose behalf the nomination or proposal is made (x)
the name and address of such shareholder, as they appear on the
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corporation's books, and of such beneficial owner, and (y) the class and number
of shares of the corporation which are owned beneficially and of record by such
shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of Section
4.10(a)(2) above to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the corporation is increased and there
is no public announcement naming all of the nominees for director or specifying
the size of the increased Board of Directors made by the corporation at least 70
days prior to the first anniversary of the preceding year's annual meeting, a
shareholder's notice required by this Bylaw shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the corporation.
(b) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareholders at which directors are to be elected pursuant to the
corporation's notice of meeting (1) by or at the direction of the Board of
Directors, or (2) by any shareholder of the corporation who is a shareholder of
record at the time of giving of notice provided hereunder, who shall be entitled
to vote at the meeting and who complies with the notice procedures set forth in
this Bylaw. Nominations by shareholders of persons for election to the Board of
Directors may be made at such a special meeting of shareholders if the
shareholder's notice required by Section 4.10(a)(2) hereof shall be delivered to
the Secretary at the principal executive offices of the corporation not earlier
than the 90th day prior to such special meeting and not later than the close of
business on the later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Bylaw shall be eligible to serve as directors and
only such business shall be conducted at a meeting of shareholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this Bylaw. The Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this Bylaw and,
if any proposed nomination or business is not in compliance with this Bylaw, to
declare that such defective proposal shall be disregarded.
(2) For purposes of this Bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Exchange Act.
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(3) Notwithstanding the foregoing provisions of this Bylaw, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights
of shareholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
4.11 CONDUCT OF MEETING. At each meeting of shareholders, a chair shall
preside. In the absence of a specific selection by the Board of Directors, the
chair shall be the President as provided in Section 8.03 of these Bylaws. The
chair shall determine the order of business and shall have the authority to
establish rules for the conduct of the meeting which are fair to shareholders.
The chair of the meeting shall announce at the meeting when the polls close for
each matter voted upon. If no announcement is made, the polls shall be deemed to
have closed upon the final adjournment of the meeting. After the polls close, no
ballots, proxies or votes, nor any revocations or changes thereto may be
accepted.
ARTICLE V
DIRECTORS
5.01 NUMBER. The business and affairs of the corporation shall be
managed by a Board of not less than one nor more than fifteen directors as shall
be fixed from time to time by the Board of Directors, and such number of
directors so fixed may be changed only by the affirmative vote of at least
two-thirds of the directors then in office. The directors need not be residents
of Michigan or shareholders of the corporation.
5.02 ELECTION, RESIGNATION AND REMOVAL. The Board of Directors shall be
classified into three classes with staggered terms of office. Each class shall
be as nearly equal in number as possible. Each class of directors shall be
elected for a term of three years and until the director's successor is elected
and qualified, or until the director's resignation or removal. At each annual
meeting of the shareholders, successors to the directors whose terms expire in
that year shall be elected to hold office for a term of three years. A director
may resign by written notice to the corporation. The resignation is effective
upon its receipt by the corporation or a subsequent time as set forth in the
notice of resignation. Except as otherwise provided in the Articles of
Incorporation, any director may be removed from office as a director at any
time, but only for cause, by the affirmative vote of shareholders of record
holding a majority of the outstanding shares of stock of the corporation
entitled to vote in elections of directors given at a meeting of the
shareholders specifically called for that purpose.
5.03 VACANCIES. During the intervals between annual meetings of
shareholders, any vacancy occurring in the Board of Directors caused by
resignation, removal, death or incapacity, and any newly created directorships
resulting from an increase in the number of directors, shall be filled only by a
majority vote of the directors then in office, whether or not a quorum. Each
director chosen to fill a vacancy shall hold office for the unexpired term of
the class in which such vacancy occurred. Each director chosen to fill a newly
created directorship shall hold office until the next election of the class for
which such director shall have been chosen. When the number of directors is
changed, any newly created directorships or any decrease in directorships shall
be so
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apportioned among the classes as to make all classes as nearly equal in number
as possible. No decrease in the number of directors shall have the effect of
shortening the term of any incumbent director. A vacancy that will occur at a
specific date, by reason of a resignation effective at a later date or
otherwise, may be filled before the vacancy occurs, but the newly elected
director may not take office until the vacancy occurs.
5.04 ANNUAL MEETING. The Board of Directors shall meet each year
immediately after the annual meeting of the shareholders, or within three (3)
days of such time excluding Sundays and legal holidays if such later time is
deemed advisable, at the place where such meeting of the shareholders has been
held or such other place as the Board may determine, for the purpose of election
of officers and consideration of such business that may properly be brought
before the meeting; provided, that if less than a majority of the directors
appear for an annual meeting of the Board of Directors the holding of such
annual meeting shall not be required and the matters which might have been taken
up therein may be taken up at any later special or annual meeting, or by consent
resolution.
5.05 REGULAR AND SPECIAL MEETINGS. Regular meetings of the Board of
Directors may be held at such times and places as the majority of the directors
may from time to time determine at a prior meeting or as shall be directed or
approved by the vote or written consent of all the directors. Special meetings
of the Board may be called by the Chairman of the Board (if such office is
filled) or the President and shall be called by the President or Secretary upon
the written request of any two directors.
5.06 NOTICES. No notice shall be required for annual or regular meetings of
the Board or for adjourned meetings, whether regular or special. Twenty-four
hours written notice shall be given for special meetings of the Board, and such
notice shall state the time, place and purpose or purposes of the meeting.
5.07 QUORUM. A majority of the Board of Directors then in office, or of the
members of a committee thereof, constitutes a quorum for the transaction of
business. The vote of a majority of the directors present at any meeting at
which there is a quorum shall be the acts of the Board or of the committee,
except as a larger vote may be required by the laws of the State of Michigan. A
member of the Board or of a committee designated by the Board may participate in
a meeting by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can communicate with
the other participants. Participation in a meeting in this manner constitutes
presence in person at the meeting.
5.08 EXECUTIVE AND OTHER COMMITTEES.
(a) Executive Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint three or more members of the
Board as an executive committee to exercise all powers and authorities of the
Board in management of the business and affairs of the corporation, except that
the committee shall not have power or authority to (1) amend the Articles of
Incorporation or recommend to the shareholders that the shareholders amend the
Articles of Incorporation; (2) adopt an agreement of merger or consolidation;
(3)
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recommend to shareholders the sale, lease or exchange of all or substantially
all of the corporation's property and assets; (4) recommend to shareholders a
dissolution of the corporation or revocation of a dissolution; (5) amend these
Bylaws; (6) fill vacancies in the Board; or (7) unless expressly authorized by
the Board, declare a dividend or authorize the issuance of stock.
(b) Other Committees. The Board of Directors from time to time may, by
like resolution, appoint such other committees of one or more directors to have
such authority as shall be specified by the Board in the resolution making such
appointments. The Board of Directors may designate one or more directors as
alternate members of any committee who may replace an absent or disqualified
member at any meeting thereof.
5.09 DISSENTS. A director who is present at a meeting of the Board of
Directors, or a committee thereof of which the director is a member, at which
action on a corporate matter is taken is presumed to have concurred in that
action unless the director's dissent is entered in the minutes of the meeting or
unless the director files a written dissent to the action with the person acting
as secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the corporation promptly after
the adjournment of the meeting. Such right to dissent does not apply to a
director who voted in favor of such action. A director who is absent from a
meeting of the Board, or a committee thereof of which the director is a member,
at which any such action is taken is presumed to have concurred in the action
unless the director files a written dissent with the Secretary of the
corporation within a reasonable time after the director has knowledge of the
action.
5.10 COMPENSATION. Except as provided in the Articles of Incorporation, the
Board of Directors, by affirmative vote of a majority of directors in office and
irrespective of any personal interest of any of them, may establish reasonable
compensation of directors for services to the corporation as directors or
officers.
ARTICLE VI
NOTICES, WAIVERS OF NOTICE AND MANNER OF ACTING
6.01 NOTICES. All notices of meetings required to be given to shareholders,
directors or any committee of directors may be given by mail (registered,
certified or other first class mail, with postage pre-paid), overnight carrier,
telecopy, telegram, computer transmission, radiogram, cablegram or other similar
form of communication, addressed to any shareholder, director or committee
member at his last address as it appears on the books of the corporation. The
corporation shall have no duty to change the written address of any shareholder,
director or committee member unless the secretary of the corporation receives
written notice of such address change. Such notice shall be deemed to be given
at the time when the same shall be mailed or otherwise dispatched.
6.02 WAIVER OF NOTICE. Notice of the time, place and purpose of any meeting
of shareholders, directors or committee of directors may be waived by telecopy,
telegram, radiogram, cablegram or other writing, either before or after the
meeting, or in such other manner as may be permitted by the laws of the State of
Michigan. Attendance of a person at any meeting
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of shareholders, in person or by proxy, or at any meeting of directors or of a
committee of directors, constitutes a waiver of notice of the meeting except as
follows:
(a) In the case of a shareholder, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, or unless with respect to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, the shareholder objects to considering the matter when it is
presented.
(b) In the case of a director, unless he or she at the beginning of
the meeting, or upon his or her arrival, objects to the meeting or the
transacting of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting.
6.03 ACTION WITHOUT A MEETING. Except as the Articles of Incorporation may
otherwise provide for action to be taken by the Board of Directors, any action
required or permitted at any meeting of directors or committee of directors may
be taken without a meeting, without prior notice and without a vote, if all of
the directors or committee members entitled to vote thereon consent thereto in
writing, before or after the action is taken.
ARTICLE VII
OFFICERS
7.01 NUMBER. The Board of Directors shall elect or appoint a President, a
Secretary and a Treasurer, and may select a Chairman of the Board, a Vice
Chairman of the Board, and one or more Vice Presidents, Assistant Secretaries or
Assistant Treasurers. Any two or more of the above offices, except those of
Chairman and Vice Chairman, and President and Vice President, may be held by the
same person. No officer shall execute, acknowledge or verify an instrument in
more than one capacity if the instrument is required by law, the Articles of
Incorporation or these Bylaws to be executed, acknowledged, or verified by one
or more officers.
7.02 TERM OF OFFICE, RESIGNATION AND REMOVAL. An officer shall hold office
for the term for which he or she is elected or appointed and until his or her
successor is elected or appointed and qualified, or until his or her resignation
or removal. An officer may resign by written notice to the corporation. The
resignation is effective upon its receipt by the corporation or at a subsequent
time specified in the notice of resignation. An officer may be removed by the
Board with or without cause. The removal of an officer shall be without
prejudice to his or her contract rights, if any. The election or appointment of
an officer does not of itself create contract rights.
7.03 VACANCIES. The Board of Directors may fill any vacancies in any office
occurring for whatever reason.
7.04 AUTHORITY. All officers, employees and agents of the corporation shall
have such authority and perform such duties in the conduct and management of the
business and affairs of the corporation as may be designated by the Board of
Directors and these Bylaws.
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ARTICLE VIII
DUTIES OF OFFICERS
8.01 CHAIRMAN OF THE BOARD. The Chairman of the Board, if such office is
filled, shall preside at all meetings of the shareholders and of the Board of
Directors at which the Chairman is present and shall perform such other duties
as the Board of Directors may from time to time prescribe.
8.02 VICE CHAIRMAN. The Vice Chairman, if such office is filled, shall, in
the absence or disability of the Chairman, perform the duties and exercise the
powers of the Chairman of the Board and shall perform such other duties as the
Board of Directors or the Chairman of the Board may from time to time prescribe.
8.03 PRESIDENT. The President shall be the chief executive officer of the
corporation. The President shall see that all orders and resolutions of the
Board are carried into effect and shall have the general powers of supervision
and management usually vested in the chief executive officer of a corporation,
including the authority to vote all securities of other corporations and
business organizations which are held by the corporation. In the absence or
disability of the Chairman of the Board, or if that office has not been filled,
the President also shall perform the duties and execute the powers of the
Chairman of the Board as set forth in these Bylaws.
8.04 VICE PRESIDENTS. The Vice Presidents, in the order designated by the
Board of Directors or, lacking such designation, in the order of their
seniority, shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President and shall perform such other
duties as the Board of Directors or the President may from time to time
prescribe.
8.05 SECRETARY. The Secretary shall attend all meetings of the Board of
Directors and of shareholders and shall record all votes and minutes of all
proceedings in a book to be kept for that purpose, shall give or cause to be
given notice of all meetings of the shareholders and of the Board of Directors,
and shall keep in safe custody the seal of the corporation and, when authorized
by the Board, affix the same to any instrument requiring it, and when so affixed
it shall be attested by the signature of the Secretary, or by the signature of
the Treasurer or an Assistant Secretary. The Secretary may delegate any of the
duties, powers and authorities of the Secretary to one or more Assistant
Secretaries, unless such delegation is disapproved by the Board.
8.06 TREASURER. The Treasurer shall have the custody of the corporate funds
and securities; shall keep full and accurate accounts of receipts and
disbursements in books of 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
render to the President and directors, whenever they may require it, an account
of his or her transactions as Treasurer and of the financial condition of the
corporation. The Treasurer may delegate any of his or her duties, powers and
authorities to one or more Assistant Treasurers unless such delegation is
disapproved by the Board of Directors.
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8.07 ASSISTANT SECRETARIES AND TREASURERS. The Assistant Secretaries, in
order of their seniority, shall perform the duties and exercise the powers and
authorities of the Secretary in case of the Secretary's absence or disability.
The Assistant Treasurers, in the order of their seniority, shall perform the
duties and exercise the powers and authorities of the Treasurer in case of the
Treasurer's absence or disability. The Assistant Secretaries and Assistant
Treasurers shall also perform such duties as may be delegated to them by the
Secretary and Treasurer, respectively, and also such duties as the Board of
Directors and the President may prescribe.
ARTICLE IX
SPECIAL CORPORATE ACTS
9.01 ORDERS FOR PAYMENT OF MONEY. All checks, drafts, notes, bonds, bills
of exchange and orders for payment of money of the corporation shall be signed
by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
9.02 CONTRACTS AND CONVEYANCES. The Board of Directors of the corporation
may in any instance designate the officer and/or agent who shall have authority
to execute any contract, conveyance, mortgage or other instrument on behalf of
the corporation, or may ratify or confirm any execution. When the execution of
any instrument has been authorized without specification of the executing
officers or agents, the Chairman of the Board, the President or any Vice
President, and the Secretary or Assistant Secretary or Treasurer or Assistant
Treasurer, may execute the same in the name and on behalf of this corporation
and may affix the corporate seal thereto.
ARTICLE X
BOOKS AND RECORDS
10.01 MAINTENANCE OF BOOKS AND RECORDS. The proper officers and agents of
the corporation shall keep and maintain such books, records and accounts of the
corporation's business and affairs, minutes of the proceedings of its
shareholders, Board and committees, if any, and such stock ledgers and lists of
shareholders, as the Board of Directors shall deem advisable, and as shall be
required by the laws of the State of Michigan and other states or jurisdictions
empowered to impose such requirements. Books, records and minutes may be kept
within or without the State of Michigan in a place which the Board shall
determine.
10.02 RELIANCE ON BOOKS AND RECORDS. In discharging his or her duties, a
director or an officer of the corporation, when acting in good faith, may rely
on information, opinions, reports, or statements, including financial statements
and other financial data, if prepared or presented by any of the following: (a)
one or more directors, officers, or employees of the
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corporation, or of a business organization under joint control or common control
whom the director or officer reasonably believes to be reliable and competent in
the matters presented, (b) legal counsel, public accountants, engineers, or
other persons as to matters the director or officer reasonably believes are
within the person's professional or expert competence, or (c) a committee of the
Board of Directors of which he or she is not a member if the director or officer
reasonably believes the Committee merits confidence. A director or officer is
not entitled to rely on such information if he or she has knowledge concerning
the matter in question that makes such reliance unwarranted.
ARTICLE XI
INDEMNIFICATION
11.01 NON-DERIVATIVE ACTIONS. Subject to all of the other provisions of this
Article XI, 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 and
whether formal or informal (other than an action by or in the right of the
corporation), by reason of the fact that the person is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, against expenses (including actual
and reasonable attorney fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person 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, if the person had no reasonable cause to believe
his or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person 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 or her conduct was unlawful.
11.02 DERIVATIVE ACTIONS. Subject to all of the provisions of this Article
XI, 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 the person is or was a director or officer of the
corporation, or, while serving as a director or officer of the corporation, is
or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, whether for profit or
not, against expenses (including attorney fees) and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation or its
shareholders. However, indemnification shall not be made for any claim, issue or
matter in which such person has been found liable to the corporation unless and
only to the extent that the court in which such action or suit was brought
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has determined 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 indemnification for the reasonable expenses incurred.
11.03 EXPENSES OF SUCCESSFUL DEFENSE. To the extent that a person has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 11.01 or 11.02 of these Bylaws, or in defense
of any claim, issue or matter in the action, suit or proceeding, the person
shall be indemnified against actual and reasonable expenses (including attorney
fees) incurred by such person in connection with the action, suit, or proceeding
and any action, suit or proceeding brought to enforce the mandatory
indemnification provided by this Section 11.03.
11.04 DEFINITIONS. For the purposes of Sections 11.01 and 11.02, "other
enterprises" shall include employee benefit plans; "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan;
"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, the director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
considered to have acted in a manner "not opposed to the best interests of the
corporation or its shareholders" as referred to in Sections 11.01 and 11.02.
11.05 CONTRACT RIGHT; LIMITATION ON INDEMNITY. The right to indemnification
conferred in this Article XI shall be a contract right, and shall apply to
services of a director or officer as an employee or agent of the corporation as
well as in such person's capacity as a director or officer. Except as provided
in Section 11.03 of these Bylaws, the corporation shall have no obligations
under this Article XI to indemnify any person in connection with any proceeding,
or part thereof, initiated by such person without authorization by the Board of
Directors.
11.06 DETERMINATION THAT INDEMNIFICATION IS PROPER. Any indemnification
under Section 11.01 or 11.02 of these Bylaws (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 person is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
Section 11.01 or 11.02, whichever is applicable, and upon an evaluation of the
reasonableness of expense and amounts paid in settlement. The determination and
evaluation shall be made in any of the following ways:
(a) By a majority vote of a quorum of the Board consisting of
directors who are not parties or threatened to be made parties to the action,
suit, or proceeding.
(b) If the quorum described in subsection (a) above is not obtainable,
then by majority vote of a committee of directors duly designated by the Board
and consisting solely of two or more directors who are not at the time parties
or threatened to be made parties to the action, suit, or proceeding.
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(c) By independent legal counsel in a written opinion, which counsel
shall be selected in one of the following ways: (1) by the Board or its
committee in the manner prescribed in subsection (a) or (b) above; or (2) if a
quorum of the Board cannot be obtained under subparagraph (a) and a committee
cannot be designated under subsection (b) above, by the Board.
(d) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties to the
action, suit, or proceeding may not be voted.
(e) By all independent directors (as defined by Section 107(3) of the
Michigan Business Corporation Act) who are not parties or threatened to be made
parties to the action, suit, or proceeding.
11.07 AUTHORIZATIONS OF PAYMENT.
(a) Authorizations of payment under Sections 11.01 and 11.02 of these
Bylaws shall be made in any of the following ways:
(1) by the Board of Directors:
(A) if there are two or more directors who are not parties
or threatened to be made parties to the action, suit or proceeding, by a
majority vote of all such directors (a majority of whom shall for this
purpose constitute a quorum) or by a majority of the members of a committee
of two or more directors who are not parties or threatened to be made
parties to the action, suit or proceeding; or
(B) if the corporation has one or more independent directors
who are not parties or threatened to be made parties to the action, suit or
proceeding, by a majority vote of all such directors (a majority of whom
shall for this purpose constitute a quorum); or
(C) if there are no independent directors and fewer than two
directors who are not parties or threatened to be made parties to the
action, suit or proceeding, by the vote necessary for action by the board in
accordance with Section 5.07 of these Bylaws, in which authorization all
directors may participate; or
(2) by the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties to the
action, suit, or proceeding may not be voted on the authorization.
(b) To the extent that the articles of incorporation include a
provision eliminating or limiting the liability of a director pursuant to MCLA
450.1209(1)(c), MSA 21.200(209)(1), the corporation may indemnify a director for
the expenses and liabilities described below without a determination that the
director has met the standard of conduct set
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forth in Sections 11.01 and 11.02, but no indemnification may be made except to
the extent authorized in MCLA 450.1564c, MSA 21.200(564c), if the director
received a financial benefit to which he or she was not entitled, intentionally
inflicted harm on the corporation or its shareholders, violated MCLA 450.1551,
MSA 21.200(551), or intentionally violated criminal law. In connection with an
action or suit by or in the right of the corporation, as described in Section
11.02, indemnification under this Section 11.07(b) may be for expenses,
including attorney fees, actually and reasonably incurred. In connection with an
action, suit or proceeding other than one by or in the right of the corporation,
as described in Section 11.01, indemnification under this Section 11.07(b) may
be for expenses, including attorney fees, actually and reasonably incurred, and
for judgments, penalties, fines, and amounts paid in settlement actually and
reasonably incurred.
11.08 PROPORTIONATE INDEMNITY. If a person is entitled to indemnification
under Sections 11.01 or 11.02 of these Bylaws for a portion of expenses,
including attorney fees, judgments, penalties, fines, and amounts paid in
settlement, but not for the total amount thereof, the corporation shall
indemnify the person for the portion of the expenses, judgments, penalties,
fines, or amounts paid in settlement for which the person is entitled to be
indemnified.
11.09 EXPENSE ADVANCE. The corporation may pay or reimburse the reasonable
expenses incurred by a person referred to in Sections 11.01 or 11.02 of these
Bylaws who is a party or threatened to be made a party to an action, suit, or
proceeding in advance of final disposition of the proceeding if both of the
following apply: (a) the person furnishes the corporation a written affirmation
of his or her good faith belief that he or she has met the applicable standard
of conduct set forth in Sections 11.01 or 11.02; and (b) the person furnishes
the corporation a written undertaking executed personally, or on his or her
belief, to repay the advance if it is ultimately determined that he or she did
not meet the standard of conduct. Determinations and evaluations under this
Section 11.09 shall be made as specified in Section 11.06, and authorizations
shall be made in the manner specified in Section 11.07. A provision in the
Articles of Incorporation, these Bylaws, a resolution by the Board or the
shareholders, or an agreement making indemnification mandatory shall also make
advancement of expenses mandatory unless the provision specifically provides
otherwise.
11.10 NON-EXCLUSIVITY OF RIGHTS. The indemnification or advancement of
expenses provided under this Article XI is not exclusive of other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under a contractual arrangement with the corporation. However, the
total amount of expenses advanced or indemnified from all sources combined shall
not exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses.
11.11 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the corporation to the fullest extent of the provisions
of this Article XI with respect to the indemnification and advancement of
expenses of directors and officers of the corporation.
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11.12 FORMER DIRECTORS AND OFFICERS. The indemnification provided in this
Article XI continues as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors, and administrators of
such person.
11.13 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, partner, trustee, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against any liability
asserted against the person and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation would
have power to indemnify the person against such liability under these Bylaws or
the laws of the State of Michigan.
11.14 CHANGES IN MICHIGAN LAW. If there is any change of the Michigan
statutory provisions applicable to the corporation relating to the subject
matter of this Article XI, then the indemnification to which any person shall be
entitled hereunder shall be determined by such changed provisions, but only to
the extent that any such change permits the corporation to provide broader
indemnification rights than such provisions permitted the corporation to provide
prior to any such change. Subject to Section 11.15, the Board of Directors is
authorized to amend these Bylaws to conform to any such changed statutory
provisions.
11.15 AMENDMENT OR REPEAL OF ARTICLE XI. No amendment or repeal of this
Article XI shall apply to or have any effect on any director or officer of the
corporation for or with respect to any acts or omissions of such director or
officer occurring prior to such amendment or repeal.
ARTICLE XII
CONTROL SHARES AND CONTROL SHARE ACQUISITIONS
12.01 POWER TO REDEEM IF NO ACQUIRING PERSON STATEMENT IS FILED. Control
shares acquired in a control share acquisition, with respect to which no
acquiring person statement has been filed with the corporation, may, at any time
during the period ending 60 days after the last acquisition of control shares or
the power to direct the exercise of voting power of control shares by the
acquiring person, be redeemed by the corporation at the fair value of the
shares.
12.02 POWER TO REDEEM AFTER SHAREHOLDER VOTE. After an acquiring person
statement has been filed and after the meeting at which the voting rights of the
control shares acquired in a control share acquisition are submitted to the
shareholders, the shares are subject to redemption by the corporation at the
fair value of the shares unless the shares are accorded full voting rights by
the shareholders pursuant to Section 798 of the MBCA.
12.03 PROCEDURES. A redemption of shares by the corporation pursuant to
Sections 12.01 or 12.02 shall be made upon election to redeem made by the Board
of Directors. Written notice of the election shall be sent to the acquiring
person within seven days after the election is made. The price to be paid for
the control shares shall not exceed the fair value of the shares, as determined
by the Board of Directors, which determination shall be conclusive. The
consideration paid for the control shares shall consist of cash, property or
securities of the
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corporation, or any combination thereof, including shares of capital stock of
the corporation or debt obligations of the corporation. Payment shall be made
for the control shares subject to redemption within 30 days after the election
to redeem is made at a date and place selected by the Board of Directors. The
Board of Directors may adopt additional procedures to accomplish a redemption.
12.04 INTERPRETATION OF ARTICLE XII. This Article XII is adopted pursuant to
Section 799 of the MBCA and the terms used herein shall have the meanings
ascribed to them in Chapter 7B of the MBCA.
ARTICLE XIII
AMENDMENTS
13.01 AMENDMENTS. Subject to the Articles of Incorporation and Section 11.15
of these Bylaws, the Bylaws of the corporation may be amended, altered or
repealed, in whole or in part, by the shareholders or by the Board of Directors.