EXHIBIT 3.1(b)
PLASTIPAK HOLDINGS, INC.
BY-LAWS
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ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the
Corporation shall be in the City of Plymouth, County of Wayne, State of
Michigan, or at such other registered office as the Board of Directors may
determine from time to time.
SECTION 2. OTHER OFFICES. The Corporation may also have
offices at such other places both within and without the State of Michigan as
the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETING. All meetings of the Shareholders
of the Corporation shall be held at the registered office or such other place,
either within or without the State of Michigan, as may be determined from time
to time by the Board of Directors.
SECTION 2. ANNUAL MEETING OF SHAREHOLDERS. The annual meeting
of Shareholders, commencing with the year 1999, shall be held on or before
ninety (90) days after the expiration of the fiscal year end of the Corporation,
on a day not a legal holiday, at such time as shall be determined from time to
time by the Board of Directors, unless such action is taken by written consent
as provided in Article II, Section 12, of these By-Laws. At said meeting,
Shareholders shall elect a Board of Directors and shall transact such other
business as may properly be brought before the meeting. If the annual meeting is
not held on the date designated therefor, the Board of Directors shall cause the
meeting to be held as soon thereafter as convenient.
SECTION 3. ORDER OF BUSINESS AT ANNUAL MEETING. The order of
business at the annual meeting of the Shareholders shall be as follows:
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(a) Roll call.
(b) Reading of notice and proof of mailing.
(c) Reading and disposal of any unapproved minutes.
(d) Annual reports of officers and committees.
(e) Election of Directors.
(f) Transaction of other business as follows:
(i) Unfinished business
(ii) New business
(g) Adjournment.
Provided, however, in the absence of any objection, the presiding officer may
vary the order of business at his discretion.
SECTION 4. NOTICE OF MEETING OF SHAREHOLDERS. Except as
otherwise provided in the Michigan Business Corporation Act (herein called the
"Act"), written notice of the time, place and purposes of a meeting of
Shareholders shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, either personally or by mail or land/air express
courier service, to each Shareholder of record entitled to vote at the meeting.
When a meeting is adjourned to another time or place, it is not necessary to
give notice of the adjourned meeting if the time and place to which the 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 the Board
of Directors fixes a new record date for the adjourned meeting, a notice of
adjourned meeting shall be given to each Shareholder of record on the new record
date entitled to vote at the meeting. Attendance of a person at a meeting of
Shareholders, in person or by proxy, constitutes waiver of objection to (a) lack
of notice of defective notice of the meeting, unless the Shareholder at the
beginning of the meeting objects to the holding of the meeting or transacting
business at the meeting; and (b) consideration of a particular matter at the
meeting that is not within the purpose or purposes described in the meeting
notice, unless the Shareholder objects to considering the matter when presented.
SECTION 5. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer
or agent having charge of the stock transfer books for shares of the Corporation
shall make and certify a complete list of the Shareholders entitled to vote at
the Shareholders' meeting or any adjournment thereof. The list shall:
(a) Be arranged alphabetically within each class and
series, with the address of, and the number of shares
held by, each Shareholder.
(b) Be produced at the time and place of the meeting.
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(c) Be subject to inspection by any Shareholder during the
whole time of the meeting.
(d) Be prima facie evidence as to who are the Shareholders
entitled to examine the list or to vote at the meeting.
SECTION 6. SPECIAL MEETING OF SHAREHOLDERS. A special meeting
of Shareholders may be called at any time by the Chief Executive Officer of the
Corporation (See Article V, Section 4) or by a majority of the members of the
Board of Directors then in office or by Shareholders owning, in the aggregate,
not less than twenty-five (25%) percent of all the shares entitled 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 Chief Executive Officer,
or by a majority of the members of the Board of Directors then in office, or by
Shareholders as above provided, the Secretary of the Corporation shall prepare,
sign and mail the notice requisite to such meeting.
SECTION 7. QUORUM OF SHAREHOLDERS. Unless a greater or lesser
quorum is provided in the Articles of Incorporation or the Act, shares entitled
to cast a majority of the votes at a meeting constitute a quorum at the meeting.
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. Whether or not a quorum is present,
the meeting may be adjourned by a vote of the shares present.
SECTION 8. VOTE OF SHAREHOLDERS. Each outstanding share is
entitled to one (1) vote on each matter submitted to a vote, unless otherwise
provided in the Articles of Incorporation. A vote may be cast either orally or
in writing. When an action other than the election of Directors, is to be taken
by 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 the Act. Directors shall be elected
by a plurality of the votes cast at an election.
A. OTHER CORPORATIONS. Shares of the Corporation's outstanding
stock that are held in the name of another corporation may be voted by an
officer or agent of such other corporation, or by proxy appointed by an officer
or agent of such other corporation, or by some other person, who by action of
the board of directors of such other corporation or pursuant to these By-Laws,
shall be appointed to vote such shares.
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B. LEGAL REPRESENTATIVES AND FIDUCIARIES. Shares held by an
administrator, executor, guardian, custodian, conservator or trustee may be
voted by him, either in person or by proxy, without a transfer of such shares
into his name.
C. RECEIVERS. Shares standing in the name of a receiver may be
voted by such receiver, and shares held by or under the control of a receiver
may be voted by such receiver without the transfer thereof into his name if
authority to so vote is contained in an appropriate order of the court by which
such receiver was appointed.
D. PLEDGOR. A Shareholder whose shares are pledged is entitled
to vote the shares until they have been transferred into the name of the
pledgee, or a nominee of the pledgee.
E. TREASURY STOCK AND SUBSIDIARIES. To the extent the
Corporation is entitled to hold treasury shares, treasury shares shall not be
voted on any matter nor deemed to be outstanding shares. If the Corporation
holds shares sufficient to elect a majority of the Directors of another domestic
corporation or a foreign corporation, shares of this Corporation held by such
domestic corporation or foreign corporation shall not be voted on any matter or
counted in determining the total number of outstanding shares of this
Corporation.
F. MINORS. Shares held by a minor may be voted by such minor
in person or by proxy and no such vote shall be subject to disaffirmance or
avoidance, unless prior to such vote the Secretary of the Corporation has
received written notice or has actual knowledge that such Shareholder is a
minor.
G. INCOMPETENTS AND SPENDTHRIFTS. Shares held by an
incompetent or spendthrift may be voted by such incompetent or spendthrift in
person or by proxy and no such vote shall be subject to disaffirmance or
avoidance, unless prior to such vote the Secretary of the Corporation has actual
knowledge that such Shareholder has been adjudicated an incompetent or
spendthrift or actual knowledge of filing of judicial proceedings for
appointment of a guardian.
H. CO-OWNERS. Shares held by two (2) or more persons as joint
tenants or as tenants in common may be voted at a meeting of Shareholders by any
of such persons, unless another joint tenant or tenant in common seeks to vote
any of such shares in person or by proxy. In the latter event, the written
agreement, if any, which governs the manner in which the shares shall be voted,
controls if presented at the meeting. If no such agreement is presented at the
meeting, the majority in interest of the joint tenants or tenants in common
present shall control the manner of voting. If there is no such majority, the
shares, for the purpose of voting, shall be divided among such
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joint tenants or tenants in common in accordance with their interest in the
shares.
SECTION 9. RECORD DATE FOR DETERMINATION OF SHAREHOLDERS. 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 or to
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, the Board of Directors may fix, in
advance, a date as the record date for any such determination of Shareholders.
The date shall not be more than sixty (60) nor less than ten (10) days before
the date of the meeting, nor more than sixty (60) days before any other action.
If a record date is not fixed (i) the record date for determination of
Shareholders entitled to notice of or to vote at a meeting of Shareholders shall
be the close of business on the day next preceding the day on which notice is
given, or, if no notice is given, the day next preceding the day on which the
meeting is held, and (ii) the record date for determining Shareholders for any
purpose other than that specified in clause (i) shall be the close of business
on the day on which the resolution of the Board of Directors relating thereto is
adopted. 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,
the determination applies to any adjournment of the meeting, unless the Board of
Directors fixes a new record date under this Section for the adjourned meeting.
SECTION 10. PROXIES. A Shareholder entitled to vote at a
meeting of Shareholders or to express consent or dissent without a meeting may
authorize one or more other persons to act for him by proxy. A proxy shall be
signed by the Shareholder or his authorized agent or representative. A proxy is
not valid after the expiration of three (3) years from its date unless otherwise
provided in the proxy.
SECTION 11. INSPECTORS OF ELECTION. The Board of Directors, in
advance of a Shareholders' meeting, may appoint one (1) or more inspectors of
election to act at the meeting or any adjournment thereof. If inspectors are not
so appointed, the person presiding at a Shareholders' meeting may, and on
request of a Shareholder entitled to vote thereat shall, appoint one (1) or more
inspectors. In the event the person so appointed fails to appear or act, the
vacancy may be filled by appointment made by the Board of Directors in advance
of the meeting or at the meeting by the person presiding thereat. The inspectors
shall determine the number of shares outstanding and the voting power of each,
the shares represented at the meeting, the existence of a quorum, the validity
and effect of proxies, and shall receive votes, ballots or consents, hear and
determine
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challenges and questions arising in connection with the right to vote, count and
tabulate votes, ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all Shareholders.
SECTION 12. CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. 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 all of the Shareholders entitled to vote thereon consent
thereto in writing. If the Corporation's Articles of Incorporation so provide,
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, setting forth the action so taken, are
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. The
written consents shall bear the date of signature of each Shareholder who signs
the consents. No written consents shall be effective to take the corporate
action referred to unless, within sixty (60) days after the record date for
determining Shareholders entitled to express consent to or dissent from a
proposal without a meeting, written consents signed by a sufficient number of
Shareholders to take the action are delivered to the Corporation in accordance
with the Act. 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.
SECTION 13. PARTICIPATION IN MEETING BY TELEPHONE. A
Shareholder 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 each other and each participant has been
advised of the means of communication and the names of all other persons
participating in the meeting. Participation in a meeting pursuant to this
Section constitutes presence in person at the meeting.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM OF DIRECTORS. The number of
Directors which shall constitute the whole Board of Directors shall be at least
one (1) Director but no more than nine (9) Directors. The first Board of
Directors shall consist of two (2) Directors. Thereafter, the number of
Directors which shall constitute the Board of Directors for each ensuing year
shall be determined at the annual meeting by vote of the Shareholders prior to
such election; provided, however, that if a motion is
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not made and carried to increase or decrease the number of Directors, the Board
of Directors shall consist of the same number of Directors as were elected for
the preceding year. The first Board of Directors shall hold office until the
succeeding annual meeting, except in case of the classification of Directors as
permitted by the Act. A Director shall hold office for the term for which he or
she is elected and until his or her successor is elected and qualified, or until
his or her resignation or removal. Directors need not be Shareholders but must
be natural persons over the age of eighteen (18) years.
SECTION 2. VACANCIES. A vacancy occurring in the Board of
Directors may be filled by the Shareholders or by the affirmative vote of a
majority of the remaining Directors, even though the remaining Directors may not
constitute a quorum, and said person shall hold office for a term continuing
only until the next election of Directors by the Shareholders. If because of
death, resignation or other cause, the Corporation has no Directors in office,
an officer, a Shareholder, an executor, administrator, trustee or guardian of a
Shareholder, or other fiduciary entrusted with like responsibility for the
person or estate of a Shareholder, may call a special meeting of Shareholders in
accordance with the Articles of Incorporation or these By-Laws. A vacancy that
will occur at a specific date by reason of resignation or otherwise, may be
filled before the vacancy occurs but the newly elected or appointed Director may
not take office until the vacancy occurs.
SECTION 3. REMOVAL. A Director or the entire Board of
Directors may be removed at any time, with or without cause, by a vote of the
holders of a majority of the shares entitled to vote at an election of
Directors.
SECTION 4. RESIGNATION. 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.
SECTION 5. POWERS. The business and affairs of the Corporation
shall be managed by its Board of Directors except as otherwise provided in the
Act or in the Articles of Incorporation.
SECTION 6. LOCATION OF MEETINGS. Regular or special meetings
of the Board of Directors may be held either within or without the State of
Michigan.
SECTION 7. ORGANIZATIONAL MEETING OF THE BOARD OF DIRECTORS.
The first meeting of each newly elected Board of Directors shall be held at the
place of holding the annual meeting of Shareholders, and immediately following
the same, for the purpose of electing officers and transacting any other
busi-
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ness properly brought before it, provided that the organization meeting in any
year may be held at a different time and place than that herein provided by a
consent of a majority of the Directors of such new Board of Directors. No notice
of such meeting shall be necessary to the newly elected Directors in order
legally to constitute the meeting, provided a quorum shall be present, unless
said meeting is not held at the place of holding and immediately following the
annual meeting of Shareholders.
SECTION 8. REGULAR MEETING OF THE BOARD OF DIRECTORS. Regular
meetings of the Board of Directors may be held without notice at such time and
at such place as shall from time to time be determined by the Board of
Directors, and may be held concurrently with an organizational meeting of the
Board of Directors or otherwise.
SECTION 9. SPECIAL MEETING OF THE BOARD OF DIRECTORS. Special
meetings of the Board of Directors may be called by the President, or by a
majority of the persons then comprising the Board of Directors (or if there are
only two (2) members of the Board of Directors, by either of said Directors), at
any time by means of notice of the time and place thereof to each Director,
given not less than twenty-four (24) hours before the time such special meeting
is to be held.
SECTION 10. COMMITTEES OF DIRECTORS. The Board of Directors
may designate one (1) or more committees, each committee to consist of one or
more Directors of the Corporation. 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 of the committee. In the absence or
disqualification of a member of a committee, the members thereof present at any
meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
creating such committee may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation.
Provided, however, no such committee shall have the power or authority to (i)
amend the Articles of Incorporation of the Corporation, (ii) adopt an agreement
of merger or consolidation, (iii) recommend to the Shareholders the sale, lease
or exchange of all or substantially all of the Corporation's property and
assets, (iv) recommend to the Shareholders a dissolution of the Corporation, a
revocation of a dissolution, or a cessation of the business of the Corporation,
(v) amend the By-Laws of the Corporation, (vi) fill vacancies in the Board of
Directors; and, unless the resolution of the Board of Directors creating such
committee or the Articles of Incorporation or these By-Laws
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expressly so provide, no such committee shall have the power or authority to
declare a distribution, dividend or to authorize the issuance of stock. Any such
committee, and each member thereof, shall serve at the pleasure of the Board of
Directors.
SECTION 11. QUORUM AND REQUIRED VOTE OF BOARD AND COMMITTEES.
At all meetings of the Board of Directors, or of a committee thereof, a majority
of the members of the Board of Directors then in office, or of the members of a
committee thereof, shall constitute a quorum for transaction of business. The
vote of the majority of members present at a meeting at which a quorum is
present constitutes the action of the Board of Directors or of the committee
unless the vote of a larger number is required by the Act, the Articles of
Incorporation, the By-Laws, or, in the case of a committee, the Board of
Directors resolution establishing the committee. Amendment of these By-Laws by
the Board of Directors requires the vote of not less than a majority of the
members of the Board of Directors then in office. If a quorum shall not be
present at any meeting of the Board of Directors, the Directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
SECTION 12. CONSENT OF DIRECTORS IN LIEU OF MEETING. Action
required or permitted to be taken pursuant to authorization voted at a meeting
of the Board of Directors then in office or a committee thereof, may be taken
without a meeting if, before or after the action, all members of the Board of
Directors then in office or of the committee consent thereto in writing. The
written consents shall be filed with the minutes of the proceedings of the Board
of Directors or committee. The consent has the same effect as a vote of the
Board of Directors or committee for all purposes.
SECTION 13. COMPENSATION OF DIRECTORS. 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 or officers, but approval of the Shareholders is required if the
Articles of Incorporation, these By-Laws or any provisions of the Act so
provide.
SECTION 14. PARTICIPATION IN MEETING BY TELEPHONE. A member of
the Board of Directors or of a committee designated by the Board of Directors
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 each other. Participation in a meeting pursuant to
this Section constitutes presence in person at the meeting.
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SECTION 15. WAIVER OF NOTICE. Attendance at or participation
of a Director at a meeting constitutes a waiver of notice of the meeting, unless
the Director at the beginning of the meeting, or upon his arrival, objects to
the meeting or the transaction of business at the meeting and does not
thereafter vote for or assent to any action taken at the meeting.
ARTICLE IV
NOTICES
SECTION 1. NOTICE. Whenever any notice or communication is
required to be given to any Director or Shareholder under any provision of the
Act, the Articles of Incorporation or these By-Laws, it may be given in writing,
either by mail or land/air express courier service, addressed to such Director
or Shareholder, at the address designated by him for that purpose or, if none is
designated, at his last known address. The notice or communication is given when
deposited, with postage thereon prepaid, in a post office or official depository
under the exclusive care and custody of the United States postal service or in
an appropriate depository for such land/air express courier service. The mailing
shall be registered, certified or other first class mail, except where otherwise
provided in the Act. Notice may also be given orally in person or by telephone,
facsimile, telex, radiogram or cablegram, and such notice shall be deemed to be
given when the recipient receives the notice personally, by telephone, or when
the notice, addressed as provided above, has been delivered to the company, or
to the equipment transmitting such notice. Neither the business to be transacted
at, nor the purpose of, a regular or special meeting of the Board of Directors
need be specified in the notice of the meeting, except as provided by the Act.
SECTION 2. WAIVER OF NOTICE. When, under the Act or the
Articles of Incorporation or these By-Laws, or by the terms of an agreement or
instrument, the Corporation or the Board of Directors or any committee thereof
may take action after notice to any person or after lapse of a prescribed period
of time, the action may be taken without notice and without lapse of the period
of time, if at any time before or after the action is completed the person
entitled to notice or to participate in the action to be taken or, in case of a
Shareholder, by his attorney-in-fact, submits a signed waiver of such
requirements. Neither the business to be transacted at, nor the purpose of, a
regular or special meeting of the Board of Directors need be specified in the
waiver of notice of the meeting, except as provided by the Act. Attendance of a
person at a meeting constitutes a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objection, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
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ARTICLE V
OFFICERS
SECTION 1. SELECTION. The Board of Directors, at its
organization meeting after the organization meeting of incorporators and after
each annual meeting of Shareholders, shall elect or appoint a President,
Secretary and a Treasurer. The Board of Directors may also elect or appoint a
Chairman of the Board, one (1) or more Vice Presidents and such other officers,
employees and/or agents as it shall deem necessary who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the Board of Directors. Two (2) or more
offices may be held by the same person but an officer shall not execute,
acknowledge or verify an instrument in more than one (1) capacity if the
instrument is required by law or the Articles of Incorporation or By-Laws of the
Corporation to be executed, acknowledged or verified by two (2) or more
officers.
SECTION 2. COMPENSATION. The salaries of all officers,
employees and agents of the Corporation shall be fixed by the Board of
Directors; provided, however, that the Board of Directors may delegate to the
officers the fixing of compensation of assistant officers, employees and agents.
SECTION 3. TERM, REMOVAL AND VACANCIES. Each officer of the
Corporation shall hold office for the term for which he is elected or appointed
and until his successor is elected or appointed and qualified, or until his
resignation or removal. Any officer elected or appointed by the Board of
Directors may be removed by the Board of Directors with or without cause at any
time. Any 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. Any vacancy occurring in any office
of the Corporation shall be filled by the Board of Directors.
SECTION 4. CHIEF EXECUTIVE OFFICER. At the first meeting of
each newly elected Board of Directors, the Board of Directors may designate the
Chairman of the Board or President of the Corporation, or such other individual
as it may deem appropriate, as the Chief Executive Officer of the Corporation;
provided, however, that if a motion is not made and carried to change the
designation, the designation shall be the same as the designation for the
preceding year; provided, further, that the designation of the Chief Executive
Officer may be changed at any special meeting of the Board of Directors. The
President shall be the Chief Executive Officer of the Corporation whenever the
office of Chief Executive Officer is vacant and there is no Chairman of the
Board whose duties include being Chief Executive Officer. The Chief Executive
Officer shall be responsible to
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the Board of Directors for the general supervision and management of the
business and affairs of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The Chairman of
the Board or President who is not the Chief Executive Officer shall be subject
to the authority of the Chief Executive Officer, but shall exercise all of the
powers and discharge all of the duties of the Chief Executive Officer, during
the absence or disability of the Chief Executive Officer.
SECTION 5. CHAIRMAN OF THE BOARD OF DIRECTORS. If the Board of
Directors elects or appoints a Chairman of the Board, he shall be elected or
appointed by, and from among the membership of, the Board of Directors. He shall
preside at all meetings of the Shareholders, of the Board of Directors and of
any Executive Committee. He shall perform such other duties and functions as
shall be assigned to him from time to time by the Board of Directors. He shall
be ex officio, a member of all standing committees. Except where by law the
signature of the President of the Corporation is required, the Chairman of the
Board of Directors shall possess the same power and authority to sign all
certificates, contracts, instruments, papers and documents of every conceivable
kind and character whatsoever in the name of and on behalf of the Corporation
which may be authorized by the Board of Directors. During the absence or
disability of the President, or while the office is vacant, the Chairman of the
Board of Directors shall exercise all of the powers and discharge all of the
duties of the President.
SECTION 6. PRESIDENT. The President shall be elected or
appointed by, the Board of Directors. During the absence or disability of the
Chairman of the Board, or while that office is vacant, the President shall
preside over all meetings of the Board of Directors, Shareholders and any
Executive Committee, and shall perform all of the duties and functions, and when
so acting shall have all powers and authority, of the Chairman of the Board. He
shall be, ex officio, a member of all standing committees. The President shall,
in general, perform all duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors.
SECTION 7. VICE PRESIDENTS. The Board of Directors may elect
or appoint one or more Vice Presidents. The Board of Directors may designate one
or more Vice Presidents as Executive or Senior Vice Presidents. Unless the Board
of Directors shall otherwise provide by resolution duly adopted by it, such of
the Vice Presidents as shall have been designated Executive or Senior Vice
Presidents and are members of the Board of Directors in the order specified by
the Board of Directors (or if no Vice President who is a member of the Board of
Directors shall have been designated as Executive or Senior Vice President, then
such Vice Presidents as are members of the Board of Directors in the
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order specified by the Board of Directors) shall perform the duties and exercise
the powers of the President during the absence or disability of the President.
The Vice Presidents shall perform such other duties as may be delegated to them
by the Board of Directors, any Executive Committee, or the President.
SECTION 8. SECRETARY. The Secretary shall attend all meetings
of the Shareholders, and of the Board of Directors and of any Executive
Committee, and shall preserve in the 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 authority to affix the same to all
instruments where its use is required or permitted. He shall give all notice
required by the Act, these By-Laws or resolution. He shall perform such other
duties as may be delegated to him by the Board of Directors, any Executive
Committee, or the President.
SECTION 9. 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 monies, 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 as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors
whenever requested an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
he shall keep in force a bond in form, amount and with a surety or sureties
satisfactory to the Board of Directors, 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. He shall perform such other duties as may
be delegated to him by the Board of Directors, any Executive Committee, or the
President.
SECTION 10. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
The Board of Directors may elect or appoint one or more Assistant Secretaries
and one or more Assistant Treasurers. The Assistant Secretary or Assistant
Secretaries, in the absence or disability of the Secretary, shall perform the
duties and exercise the powers of the Secretary. The Assistant Treasurer or
Assistant Treasurers, in the absence or disability of the Treasurer, shall
perform the duties and exercise the powers of the Treasurer. Any Assistant
Treasurer, if required by the Board of Directors, shall keep in force a bond as
provided in
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Section 9, Article V. The Assistant Secretaries and Assistant Treasurers, in
general, shall perform such duties as shall be assigned to them by the Secretary
or by the Treasurer, respectively, or by the Board of Directors, any Executive
Committee, or the President.
SECTION 11. DELEGATION OF AUTHORITY AND DUTIES BY BOARD OF
DIRECTORS. All officers, employees and agents shall, in addition to the
authority conferred, or duties imposed, on them by these By-Laws, have such
authority and perform such duties in management of the property and affairs of
the Corporation as may be delegated to them by the Board of Directors, unless
the same is contrary to the Articles of Incorporation or these By-Laws.
ARTICLE VI
INDEMNIFICATION
SECTION 1. NON-DERIVATIVE ACTIONS. Subject to all of the other
provisions of this Article VI, the Corporation shall indemnify any person who
was or is a party defendant (including counter defendants, third party
defendants and cross defendants) or is threatened to be made a party defendant
(including counter defendants, third party defendants and cross defendants) to
any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, 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, 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 actual and reasonable attorney fees), judgments, penalties, fines,
and amounts paid in settlement actually and reasonably incurred by him in
connection with defending 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 conduct was unlawful. The termination of any action, suit,
or proceeding by judgment, order, settlement, conviction, or on 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 that 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 conduct was unlawful.
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SECTION 2. DERIVATIVE ACTIONS. Subject to all of the other
provisions of this Article VI, the Corporation shall indemnify any person who
was or is a party defendant (including counter defendants, third party
defendants and cross defendants) to or is threatened to be made a party
defendant (including counter defendants, third party defendants and cross
defendants) 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 actual and reasonable attorney fees) and amounts paid in
settlement actually and reasonably incurred by the person in connection with
defending the 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 the person has been found liable to the
Corporation unless and only to the extent that the court in which the action or
suit was brought has determined on application that, despite the adjudication of
liability but in view of all the circumstances of the case (and regardless of
whether such officer or director has met the standards of conduct described
above, i.e. "good faith," "best interests of the corporation" or "no reasonable
cause to believe his conduct was unlawful"), the person is fairly and reasonably
entitled to indemnification for the reasonable expenses incurred.
SECTION 3. EXPENSES OF SUCCESSFUL DEFENSE. Without limiting
the foregoing indemnities in any way, 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 Sections 1 and 2 of this Article VI, or in defense of
any claim, issue, or matter in the action, suit, or proceeding (and regardless
of whether such officer or director has met the standards of conduct described
above, i.e. "good faith," "best interests of the corporation" or "no reasonable
cause to believe his conduct was unlawful"), the person shall be indemnified
against actual and reasonable expenses (including attorney fees) incurred by the
person in connection with the action, suit, or proceeding and an action, suit,
or proceeding brought to enforce the mandatory indemnification provided in this
Section 3.
SECTION 4. DEFINITION. For the purposes of Sections 1 and 2,
"other enterprises" shall include employee benefit plans; "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit plan;
and "serving at the request of the Corporation" shall include any
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service as a Director, officer, employee, or agent of the Corporation that
imposes duties on, or involves services by, the Director or officer with respect
to an employee benefit plan, its participants, or its 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 1
and 2.
SECTION 5. CONTRACT RIGHT; LIMITATION ON INDEMNITY. The right
to indemnification conferred in this Article VI 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 the person's capacity as a Director or officer. Except
as provided in Section 3 of this Article VI, the Corporation shall have no
obligations under this Article VI to indemnify any person in connection with any
proceeding, or part thereof, initiated by the person without authorization by
the Board of Directors.
SECTION 6. DETERMINATION THAT INDEMNIFICATION IS PROPER. An
indemnification under Sections 1 or 2 of this Article VI (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
(a) when it is determined that indemnification of the person is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in Sections 1 or 2, whichever is applicable, and (b) upon an evaluation of
the reasonableness of expenses 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 of Directors
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 (a) above is not obtainable,
then by majority vote of a committee consisting solely
of two or more Directors, duly designated by the Board
of Directors, who are not at the time parties or
threatened to be made parties to the action, suit, or
proceeding.
(c) By independent legal counsel in a written opinion, which
counsel shall be selected in one of the following ways:
(1) by the Board of Directors or its committee in the
manner prescribed in (a) or (b) above; or (2) if a
quorum of the Board of Directors cannot be obtained
under (a) above and a committee cannot be designated
under (b) above, by the Board of Directors.
Page 17
(d) By the Shareholders. However, 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.
SECTION 7. PROPORTIONATE INDEMNITY. If a person is entitled to
indemnification under Sections 1 or 2 of this Article VI for a portion of
expenses, including attorney fees, judgments, penalties, fines, and amounts paid
in settlement; but not for the total amount, 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.
SECTION 8. EXPENSE ADVANCE. The Corporation may pay or
reimburse the reasonable expenses incurred by a person referred to in Sections 1
and 2 of this Article VI 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
all of the following apply: (a) the person furnishes the Corporation a written
affirmation of his good faith belief that he has met the applicable standard of
conduct set forth in Sections 1 or 2; (b) the person furnishes the Corporation a
written undertaking, executed personally or on his behalf, to repay the advance
if it is ultimately determined that he did not meet the standard of conduct; and
(c) a determination is made that the facts then known to those making the
determination would not preclude indemnification under Sections 1 or 2. The
authorization of payment must be made in the manner specified in Section 6. The
undertaking shall be an unlimited general obligation of the person on whose
behalf advances are made, but it need not be secured.
SECTION 9. NON-EXCLUSIVITY OF RIGHTS. The indemnification or
advancement of expenses provided under this Article VI 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.
SECTION 10. 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 VI with respect to the indemnification and
advancement of expenses of Directors and officers of the Corporation.
Page 18
SECTION 11. FORMER DIRECTORS AND OFFICERS. The indemnification
provided in this Article VI continues for a person who has ceased to be a
Director or officer with respect to acts or omissions taken by them during their
tenure as a Director or officer and after the date this Article VI was adopted
by the Corporation and shall inure to the benefit of the heirs, executors, and
administrators of the person.
SECTION 12. 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 in any
such capacity or arising out of his status as such, whether or not the
Corporation would have power to indemnify the person against the liability under
these By-Laws or the laws of the State of Michigan.
SECTION 13. CHANGES IN MICHIGAN LAW. If there is any change in
Michigan law applicable to the Corporation relating to the subject matter of
this Article VI, then the indemnification to which any person shall be entitled
under this Article VI shall be determined by the changed provisions, but only to
the extent that the change permits the Corporation to provide broader
indemnification rights than the provisions permitted the Corporation to provide
before the change. Subject to Section 14, the Board of Directors is authorized
to amend these By-Laws to conform to any such changed statutory provisions.
SECTION 14. AMENDMENT OR REPEAL OF THIS ARTICLE VI. No
amendment or repeal of this Article VI 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 the Director or officer occurring before the amendment or repeal.
ARTICLE VII
REIMBURSEMENT TO CORPORATION
SECTION 1. REIMBURSEMENT TO CORPORATION. Should any payment
made by the Corporation to an officer of the Corporation, or on his behalf,
including, without limitation, salary, commission, bonus, interest, rent or
expense reimbursement, be disallowed in whole or in part as a deductible expense
for purposes of determining the income tax liability of the Corporation, then
such officer shall reimburse the Corporation to the full extent of such
disallowance. It shall be the duty of the Board of Directors to enforce payment
of any amount to be reimbursed to the Corporation hereunder immediately
following such disallowance. In lieu of payment to the
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Corporation by the officer, the Board of Directors, in its discretion, may
permit proportionate amounts to be withheld from future compensation to be paid
to such officer until the total amount owed to the Corporation has been
recovered.
ARTICLE VIII
STOCK AND TRANSFERS
SECTION 1. SHARE CERTIFICATES: REQUIRED SIGNATURES. The shares
of the Corporation shall be represented by certificates signed by the Chairman
of the Board of Directors, Vice-Chairman, President or a Vice President and may
be signed by another officer of the Corporation, and may be sealed with the seal
of the Corporation or a facsimile thereof. The signatures of the officers may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or its employee. In case any
officer who had signed or whose facsimile signature has been placed upon a
certificate ceases to be such officer before the certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer at
the date of issue.
SECTION 2. SHARE CERTIFICATES: REQUIRED PROVISIONS. A
certificate representing shares of the Corporation shall state upon its face:
(a) That the Corporation is formed under the laws of this
State.
(b) The number of the certificate and the name of the person
to whom issued.
(c) The number and class of shares, and the designation of
the series, if any, which the certificate represents.
A certificate representing shares shall set forth on its face or back or state
on its face or back that the Corporation will furnish to a Shareholder upon
request and without charge a full statement of the designation, relative rights,
preferences and limitations of the shares of each class authorized to be issued,
sand if the Corporation is authorized to issue any class of shares in series,
the designation, relative rights, preferences and limitations of each series so
far as the same have been prescribed and the authority of the Board of Directors
to designate and prescribe the relative rights, preferences and limitations of
other series.
SECTION 3. REPLACEMENT OF LOST OR DESTROYED SHARE
CERTIFICATES. The Corporation may issue a new certificate for
Page 20
shares or fractional shares in place of certificate theretofore issued by it,
alleged to have been lost or destroyed, and the Board of Directors may require
the owner of the lost or destroyed certificate, or his legal representative, to
give the Corporation a bond sufficient to indemnify the Corporation against any
claim that may be made against it on account of the alleged lost or destroyed
certificate, or the issuance of such new certificate.
SECTION 4. REGISTERED SHAREHOLDERS. The Corporation shall have
the right to treat the registered holder of any share as the absolute owner
thereof, and shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether or not the
Corporation shall have express or other notice thereof, except as may be
otherwise provided by the statutes of Michigan.
SECTION 5. TRANSFER AGENT AND REGISTRAR. The Board of
Directors may appoint a transfer agent and a 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 of Directors may otherwise
direct.
ARTICLE IX
GENERAL PROVISIONS
SECTION 1. DISTRIBUTIONS IN CASH OR PROPERTY. By action of the
Board of Directors, and subject to the terms of the Act, the Corporation may
declare and pay dividends or make other distributions in cash, its bonds or its
property, including the shares or bonds of other corporations, on its
outstanding shares, except when the distribution would be contrary to any
restriction contained in its Articles of Incorporation or the Act.
SECTION 2. RESERVES. The Board of Directors shall have power
and authority to set apart, out of any funds available for distributions, such
reserve or reserves, for any proper purpose, as the Board of Directors, in its
discretion, shall approve, and the Board of Directors shall have the power and
authority to abolish any reserve created by it.
SECTION 3. VOTING SECURITIES. Unless otherwise directed by the
Board of Directors, the Chairman of the Board or President, or in the case of
their absence or inability to act, the Vice Presidents, in order of their
seniority, shall have full power and authority on behalf of the Corporation to
attend and to act and to vote, or to execute in the name or on behalf of the
Corporation a consent in writing in lieu of a meeting of Shareholders or a proxy
authorizing an agent or attorney-in-fact for the Corporation to attend and vote
at any meetings of
Page 21
security holders of corporations in which the Corporation may hold securities,
and at such meetings he or his duly authorized agent or attorney-in-fact shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities and which, as the owner thereof, the Corporation might have
possessed and exercised if present. The Board of Directors by resolution from
time to time may confer like power upon any other person or persons.
SECTION 4. CHECKS. All checks, drafts and orders of the
payment of money shall be signed in the name of the Corporation in such manner
and by such officer or officers or such other person or persons as the Board of
Directors shall from time to time designate for that purpose.
SECTION 5. CONTRACTS, CONVEYANCES, ETC. When the execution of
any contract, conveyance or other instrument has been authorized without
specification of the executing officers, the Chairman of the Board, President or
any Vice President, and the Secretary or Assistant Secretary, may execute the
same in the name and on behalf of this Corporation and may affix the corporate
seal thereto. The Board of Directors shall have power to designate the officers
and agents who shall have authority to execute any instrument in behalf of the
Corporation.
SECTION 6. CORPORATE BOOKS AND RECORDS. The Corporation shall
keep books and records of account and minutes of the proceedings of its
Shareholders, Board of Directors and Executive Committee, if any. The
Corporation shall keep at its registered office, or at the office of its
transfer agent within or without this state, records containing the names and
addresses of all Shareholders, the number, class, and series of shares held by
each and the dates when they respectively became holders of record thereof. Any
of such books, records or minutes may be in written form or in any other form
capable of being converted into written form. The Corporation shall convert into
written form without charge any such record not in such form, upon written
request of a person entitled to inspect them.
SECTION 7. YEAR END. The year end of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 8. SEAL. If the Corporation has a corporate seal, it
shall have inscribed thereon the name of the Corporation and the words
"Corporate Seal" and "Michigan". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Page 22
ARTICLE X
AMENDMENTS
SECTION 1. AMENDMENTS. These By-Laws may be altered, amended
or repealed or new By-Laws may be adopted (a) at any regular or special meeting
of Shareholders at which a quorum is present or represented, by the majority of
the votes cast by the holders of shares entitled to vote on the action, or (b)
by the affirmative vote of a majority of the Board of Directors then in office
at any regular or special meeting of the Board of Directors at which a quorum is
present unless the power to do so is reserved exclusively to the Shareholders by
the Articles of Incorporation or these By-Laws. Such action may be taken by
written consent or at any meeting of Shareholders or the Board of Directors;
provided, that if notice of any such meeting is required by these By-Laws, the
notice of meeting shall contain notice of the proposed amendment, repeal or new
By-Laws. Any By-Laws hereafter made by the Shareholders shall not be altered or
repealed by the Board of Directors.
Dated: October 30, 1999