EXHIBIT 3.1
AS AMENDED AND RESTATED
ON SEPTEMBER 24, 2002
AMENDED AND RESTATED
BYLAWS
OF
COMERICA INCORPORATED
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETING. All meetings of the stockholders of this
Corporation shall be held at such time and place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting.
SECTION 2. ANNUAL MEETING OF STOCKHOLDERS. The annual meeting of stockholders
shall be held on the third Friday of May of each year, if not a legal holiday,
and, if a legal holiday, then on the next secular day following, at 10:00 a.m.,
or at such other date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting. At said meeting,
stockholders shall elect by a plurality vote the directors to be elected at such
meeting, and shall transact such other business as may properly be brought
before the meeting.
SECTION 3. NOTICE OF MEETING OF STOCKHOLDERS. Written notice of every meeting of
stockholders stating the place, date and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to
each stockholder entitled to vote at such meeting not less than ten (10) nor
more than sixty (60) days before the date of the meeting.
SECTION 4. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 5. SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Corporation's certificate of incorporation, may be called by
the Chairman of the Board of Directors or, during the absence or disability of
the Chairman or while that office is vacant, by the President; and shall be
called by the President or Secretary at the request in writing of a majority of
the Board of Directors, or at the request in writing of stockholders owning, in
the aggregate, at least seventy-five percent (75%) in amount of the entire
capital stock of the Corporation issued and outstanding and entitled to vote at
such special meeting. Such request shall state the purpose or purposes of the
proposed meeting.
SECTION 6. QUORUM OF STOCKHOLDERS. The holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute or by the
Corporation's certificate of incorporation. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
SECTION 7. REQUIRED VOTE. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power, present in person or
represented by proxy, shall decide any question brought before such meeting,
unless the question is one upon which a different vote is required by statute,
these bylaws or by the Corporation's certificate of incorporation.
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SECTION 8. ONE VOTE PER SHARE. Unless otherwise provided in the Corporation's
certificate of incorporation or in a certificate filed pursuant to Section
151(g) of the General Corporation Law of Delaware, as amended, each stockholder
shall at every meeting of the stockholders be entitled to one vote, in person or
by proxy, for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted after three (3) years from its date,
unless the proxy provides for a longer period.
SECTION 9. NATURE OF BUSINESS. At any meeting of stockholders, only such
business shall be conducted as shall have been brought before the meeting by or
at the direction of the Board of Directors or by any stockholder who complies
with the procedures set forth in this Section 9. No business may be transacted
at any meeting of stockholders, other than business that is either:
(a) specified in the notice of meeting (or any supplement thereto) given by
or at the direction of the Board of Directors (or any duly authorized
committee thereof);
(b) otherwise properly brought before such meeting of stockholders by or at
the direction of the Board of Directors (or any duly authorized
committee thereof); or
(c) in the case of an annual meeting of stockholders, otherwise properly
brought before such meeting by any stockholder (i) who is a stockholder
of record on the date of the giving of the notice provided for in this
Section 9 and on the record date for the determination of stockholders
entitled to vote at such annual meeting of stockholders; and (ii) who
complies with the notice procedures set forth in this Section 9.
Time of Stockholder's Notice. In addition to any other applicable requirements,
such as the requirements set forth in Article III, Section 12 of the
Corporation's bylaws regarding director candidate nominations, for business to
be properly brought before an annual meeting of stockholders by a stockholder,
such stockholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation. To be timely, a stockholder's notice to the
Secretary of the Corporation must be delivered to or mailed and received at the
principal executive offices of the Corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the close of business on
the one hundred twentieth (120th) day prior to the first anniversary of the
immediately preceding year's annual meeting of stockholders; provided, however,
that in the event that the date of the annual meeting of stockholders is more
than thirty (30) days before or more than sixty (60) days after such anniversary
date, notice by the stockholder in order to be timely must be so received not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such
meeting of stockholders was first made. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. For purpose of this
Section 9, "public announcement" shall mean disclosure in a press release
reported by the
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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 Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding anything in the second sentence of the immediately preceding
paragraph 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 100
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder'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 is delivered to the Secretary or mailed and received 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.
Form of Stockholder's Notice. To be in proper written form, a stockholder's
notice to the Secretary of the Corporation must set forth as to each matter such
stockholder proposes to bring before the annual meeting of stockholders: (a) a
brief description of the business desired to be brought before the annual
meeting of stockholders and the reasons for conducting such business at the
annual meeting of stockholders; (b) the name and address of such stockholder and
beneficial owner, if any, as they appear on the Corporation's books; (c) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder as of the record date
for the meeting (if such date shall then have been made publicly available and
shall have occurred); (d) as of the date of such notice, a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business; (e) any other information which would be required to be disclosed in a
proxy statement or other filings required to be made in connection with the
solicitation of proxies for the proposal pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder if such stockholder were engaged in such
a solicitation; and (f) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting of stockholders to bring such
business before the meeting.
No business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting of stockholders in accordance with
the procedures set forth in this Section 9, provided, however, that once
business has been properly brought before the annual meeting of stockholders in
accordance with such procedures, nothing in this Section 9 shall be deemed to
preclude discussion by any stockholder of any such business. If the Chairman of
an annual meeting of stockholders determines that business was not properly
brought before the annual meeting of stockholders in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall not
be transacted. When a meeting is
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adjourned to another time or place, notice of the adjourned meeting need not be
given if the time and place thereof are announced at the meeting at which the
adjournment is taken, unless the adjournment is for more than thirty (30) days,
or unless after the adjournment a new record date is fixed for the adjourned
meeting, in which case notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. At such adjourned meeting
at which a quorum is present or represented, any business may be transacted
which might have been transacted at the original meeting as originally notified.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. The business of the Corporation shall be managed by or under
the direction of its Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things which are not by statute
or by the Corporation's certificate of incorporation or by these bylaws directed
or required to be exercised or done by the stockholders.
SECTION 2. LOCATION OF MEETINGS. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Delaware.
SECTION 3. ORGANIZATION MEETING OF BOARD. The first meeting of each newly
elected Board of Directors shall be held at the place of holding the annual
meeting of stockholders, and immediately following the same, for the purpose of
electing officers and transacting any other business properly brought before it,
provided that the organization meeting in any year may be held at a different
time and place than that herein provided by a consent of a majority of the
directors of such new Board 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
stockholders.
SECTION 4. REGULAR MEETINGS OF BOARD. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the Board of Directors.
SECTION 5. SPECIAL MEETINGS OF BOARD. Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors, or, during the absence
or disability of the Chairman or while that office is vacant, by the President
on one (1) day's notice to each director; and special meetings shall be called
by the President or Secretary on like notice on the written request of five (5)
or more directors.
SECTION 6. QUORUM AND REQUIRED VOTE. At all meetings of the Board of Directors a
majority of the total number of directors shall constitute a quorum for the
transaction of
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business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Corporation's
certificate of incorporation. If a quorum is not 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 is present.
SECTION 7. CONSENT OF DIRECTORS IN LIEU OF MEETING. Unless otherwise restricted
by the Corporation's certificate of incorporation or these bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if all members of the Board
of Directors or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
of Directors or committee.
SECTION 8. COMMITTEES OF DIRECTORS.
(a) General Authority. The Board of Directors may, to the fullest extent
permitted by Section 141(c)(2) of the Delaware General Corporation Law as the
same may be hereinafter amended from time to time, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members present at any meeting and not
disqualified from voting, whether or not (s)he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
or in these bylaws, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matters (except as permitted by Delaware
General Corporation Law as the same may be hereinafter amended from time to
time): (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required to be submitted to stockholders for
approval; or (ii) adopting, amending or repealing any bylaw of the Corporation.
(b) Corporate Governance and Nominating Committee. The Board of Directors shall
establish a Corporate Governance and Nominating Committee of the Board of
Directors. The Corporate Governance and Nominating Committee may: (i) nominate
candidates for election as directors of the Corporation at any meeting of
stockholders called for election of directors (an "Election Meeting"); (ii)
nominate candidates to fill any vacancies on the Board of Directors which may
exist from time to time; and (iii) have such other powers and authority as the
Board of Directors may delegate to it from time to time.
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(c) Compensation Committee. The Board of Directors shall establish a
Compensation Committee of the Board of Directors. The Compensation Committee
shall have such powers and authority as the Board of Directors may delegate to
it from time to time.
(d) Audit and Legal Committee. The Board of Directors shall establish an Audit
and Legal Committee of the Board of Directors. The Audit and Legal Committee
shall have such powers and authority as the Board of Directors may delegate to
it from time to time.
SECTION 9. COMMITTEE MINUTES. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
SECTION 10. COMPENSATION OF DIRECTORS. Unless otherwise restricted by the
Corporation's certificate of incorporation, the Board of Directors shall have
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 11. PARTICIPATION IN MEETING BY TELEPHONE OR OTHER ELECTRONIC MEDIA.
Unless otherwise restricted by the Corporation's certificate of incorporation or
these bylaws, members of the Board of Directors or any committee designated by
the Board of Directors may participate in a meeting of the Board of Directors or
committee by means of conference telephone, internet conferencing or similar
communications equipment by means of which all persons participating in the
meeting can hear or otherwise communicate with each other, and such
participation in a meeting shall constitute presence in person at such meeting.
SECTION 12. NOMINATIONS OF DIRECTOR CANDIDATES. Only persons who are nominated
in accordance with the following procedures shall be eligible for election as
directors of the Corporation, except as may be otherwise provided in the
Corporation's certificate of incorporation with respect to the right of
directors to fill any vacancies on the Board of Directors, and the right of
holders of preferred stock of the Corporation to nominate and elect a specified
number of directors in certain circumstances. Nominations of persons for
election to the Board of Directors may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose
of electing directors, and shall be made:
(a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof, including the Corporate Governance and
Nominating Committee); or
(b) by any stockholder of the Corporation: (i) who is a stockholder of
record on the date of the giving of the notice provided for in this
Section 12 and on the record date for the
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determination of stockholders entitled to vote at such meeting; and
(ii) who complies with the notice procedures set forth in this Section
12.
In addition to any other applicable requirements, for a nomination to be made by
a stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a stockholder's
notice to the Secretary of the Corporation must be delivered to or mailed and
received at the principal executive offices of the Corporation:
(a) in the case of an annual meeting of stockholders, not later than the
close of business on the ninetieth (90th) day nor earlier than the
close of business on the one hundred twentieth (120th) day prior to the
first anniversary of the immediately preceding year's annual meeting of
stockholders; provided, however, that in the event that the date of the
annual meeting of stockholders is more than thirty (30) days before or
more than sixty (60) days after such anniversary date, notice by the
stockholder in order to be timely must be so received not earlier than
the close of business on the one hundred twentieth (120th) day prior to
such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the
date of such meeting of stockholders was first made; and
(b) in the case of a special meeting of stockholders called for the purpose
of electing directors, not earlier than the close of business on the
one hundred twentieth (120th) day prior to such special meeting and not
later than the close of business on the later of the ninetieth (90th)
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. In no event shall the public announcement of
an adjournment of a special meeting commence a new time period for the
giving of a stockholder's notice as described above. For purpose of
this Section 12, "public announcement" shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or
comparable national news service, or reported in a document publicly
filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
To be in proper written form, a stockholder's notice to the Secretary of the
Corporation must set forth:
(a) as to each person whom the stockholder proposes to nominate for
election as a director: (i) the name, age, business address and
residence address of the person; (ii) the principal occupation or
employment of the person; (iii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially
or of record by the person as of the record date for the meeting (if
such date shall then have been made publicly available and shall have
occurred) and as of the date of such
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notice; and (iv) any other information relating to the person that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for
election of directors pursuant to section 14 of the Exchange Act, and
the rules and regulations promulgated thereunder; and
(b) as to the stockholder giving the notice: (i) the name and address of
such stockholder and beneficial owner, if any, as they appear on the
Corporation's books; (ii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of
record by such stockholder as of the record date for the meeting (if
such date shall then have been made publicly available and shall have
occurred) and as of the date of such notice; (iii) a description of all
arrangements or understandings between such stockholder and each
proposed nominee and any other person or persons (including their
names) pursuant to which the nominations are to be made by such
stockholder; (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons
named in its notice; and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations
of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such
notice must be accompanied by the written consent to such nomination of
each person proposed as a nominee and such person's written consent to
serve as a director if elected.
No person shall be eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 12, or as
otherwise provided in the Corporation's certificate of incorporation with
respect to the right of directors to fill any vacancies on the Board of
Directors, and the right of holders of preferred stock of the Corporation to
nominate and elect a specified number of directors in certain circumstances. If
the Chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
ARTICLE IV
NOTICES
SECTION 1. NOTICE. Whenever any notice is required to be given to any director
or stockholder under any provision of statute or of the Corporation's
certificate of incorporation or of these bylaws, it shall not be construed to
mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given orally in person or by
electronic mail to the
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electronic mail address, if any, provided by such director, telegram, telex,
radiogram or cablegram, and such notice shall be deemed to be given when the
recipient receives the notice personally, by telephone or internet or when the
notice, addressed as provided above, has been delivered to the company, or to
the equipment transmitting such notice.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be given under
any provision of statute or of the Corporation's certificate of incorporation or
of these bylaws, a written waiver thereof, signed (manually or electronically by
electronic mail) by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice unless so required
by the Corporation's certificate of incorporation or these bylaws. Attendance of
a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
ARTICLE V
OFFICERS
SECTION 1. SELECTION. The Board of Directors may appoint such officers and
agents as it shall deem necessary, who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by or at the direction of the Board of Directors. The officers
so appointed may include a Chairman of the Board, President, one or more Vice
Chairmen, one or more Vice Presidents (including Executive, Senior, First,
regular and Assistant Vice Presidents), a Secretary and a Treasurer, and one or
more lesser officers as may be deemed appropriate. The Chief Executive Officer
also may appoint officers of the level of Senior Vice President and below and
such agents as the Chief Executive Officer shall deem necessary, at any time,
which officers and agents 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 or at the direction of the Board of Directors or the Chief Executive
Officer. Any number of offices may be held by the same person, unless the
Certificate of Incorporation otherwise provides.
SECTION 2. COMPENSATION. The salaries of all executive officers of the
Corporation shall be fixed by the Board of Directors or by the Compensation
Committee or another authorized committee of the Board of Directors.
SECTION 3. TERM, REMOVAL AND VACANCIES. Each officer of the Corporation shall
hold office until his or her successor is elected and qualified, or until his or
her earlier resignation or removal from office. Any officer elected or appointed
by the Board of Directors may be removed from office at any time, with or
without cause, by the affirmative vote of a
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majority of the Board of Directors. Any officer also may be removed from office
at any time by the Chief Executive Officer. Any vacancy occurring in any office
of the Corporation may be filled by the Board of Directors or by the Chief
Executive Officer.
SECTION 4. CHIEF EXECUTIVE OFFICER AND CHIEF OPERATING OFFICER.
(a) Chief Executive Officer. At the first meeting of each newly-elected
Board of Directors, the Board of Directors shall designate the Chairman
of the Board or President as the Chief Executive Officer of the
Corporation; provided, however, that if a motion is not made and
carried to change the designation, the designation shall be same as the
designation for the preceding year; provided, further, that the
designation of the Chief Executive Officer may be changed at any
regular or special meeting of the Board of Directors. The Chief
Executive Officer shall be responsible to the Board of Directors for
the general supervision and management of the business and affairs of
the Corporation. The Chairman of the Board or President who is not the
Chief Executive Officer shall be subject to the authority of the Chief
Executive Officer, but shall exercise all of the powers and discharge
all of the duties of the Chief Executive Officer, during the absence or
disability of the Chief Executive Officer.
(b) Chief Operating Officer. At any meeting of the Board of Directors, the
Board of Directors may designate a Chief Operating Officer of the
Corporation. The Chief Operating Officer shall perform all duties
incident to that office and such other duties as may be delegated to
him or her by or at the direction of the Board of Directors, the
Executive Committee of the Board of Directors, or the Chief Executive
Officer.
SECTION 5. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board of
Directors shall be selected by, and from among the membership of, the Board of
Directors. He or she shall preside at all meetings of the stockholders and of
the Board of Directors. He or she shall perform all other duties and functions
incident to the office of Chairman of the Board of Directors, and such other
duties and functions as may be assigned to him or her from time to time by the
Board of Directors. He or she shall be, ex officio, a member of all standing
committees except the Compensation Committee, the Corporate Governance and
Nominating Committee and the Audit and Legal Committee. Ex officio members of
standing committees shall have all the same rights (including, without
limitation, the right to vote) and all the same responsibilities as any other
member thereof. Except where by law the signature of the President of this
Corporation is required, the Chairman of the Board of Directors shall possess
the same power and authority as the President to sign all certificates,
contracts, instruments, papers and documents of every conceivable kind and
character whatsoever, in the name and on behalf of this Corporation, which may
be authorized by the Board of Directors. During the absence or disability of the
President, the Chairman of the Board of Directors shall exercise all of the
powers and discharge all of the duties of the President.
SECTION 6. PRESIDENT. The President shall be selected by the Board of Directors.
During the absence or disability of the Chairman of the Board of Directors, or
while such office
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is vacant, the President shall perform all duties and functions, and while so
acting shall have all of the powers and authority of the Chairman of the Board
of Directors. The President shall perform all duties incident to the office of
President, and such other duties as may be prescribed by or at the direction of
the Board of Directors, the Executive Committee of the Board of Directors, or
the Chief Executive Officer. The President shall be, ex officio, a member of all
standing committees except the Compensation Committee, the Corporate Governance
and Nominating Committee and the Audit and Legal Committee. Ex officio members
of standing committees shall have all the same rights (including, without
limitation, the right to vote) and all the same responsibilities as any other
member thereof.
SECTION 7. VICE CHAIRMEN. One or more Vice Chairmen (who need not be members of
the Board of Directors) may be selected by the Board of Directors. The Vice
Chairmen shall perform all duties incident to their office, and such other
duties as may be delegated to them by or at the direction of the Board of
Directors, any executive committee, or the Chief Executive Officer.
SECTION 8. SECRETARY. The Secretary or an Assistant Secretary, or, during their
absence or disability, a Secretary Pro Tem designated by the Board of Directors
or the Chief Executive Officer, shall attend all meetings of the Board of
Directors and all meetings of the stockholders, shall record all the proceedings
thereof in a book to be kept for that purpose, and shall perform like duties for
the standing committees when required. The Secretary shall give, or cause to be
given, all notices required by statute, bylaw or resolution, and shall perform
such other duties incident to his or her office or as may be prescribed by or at
the direction of the Board of Directors or the Chief Executive Officer. The
Secretary shall have custody of the corporate seal of the Corporation and the
Secretary and Assistant Secretaries shall have authority to affix the same to
any instrument when its use is required or appropriate.
SECTION 9. ASSISTANT SECRETARIES. The Assistant Secretary or Assistant
Secretaries shall, in the absence of the Secretary or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the
Secretary, and shall perform such other duties and have such other powers
incident to his or her office or as may be prescribed from time to time by or at
the direction of the Board of Directors or the Chief Executive Officer.
SECTION 10. TREASURER. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by or at the direction of the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by or at the direction of the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Chief Executive Officer and the
Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his or her transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall deliver to the
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Corporation, and shall keep in force, a bond, in such form and amount, and with
such surety or sureties as shall be satisfactory to the Board of Directors, for
the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
SECTION 11. ASSISTANT TREASURERS. The Assistant Treasurer or Assistant
Treasurers shall, in the absence of the Treasurer or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer, and shall perform such other duties and have such other powers
incident to his or her office or as may be prescribed from time to time by or at
the direction of the Board of Directors or the Chief Executive Officer.
SECTION 12. INDEMNIFICATION AND INSURANCE.
(a) To the fullest extent permitted by these bylaws and by applicable law
and regulation, as presently existing or hereafter amended, the
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he or she is or was a
director, officer or employee of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or
proceeding, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. Any person who is or was an agent of the Corporation may be
indemnified to the same extent as provided above. In addition, in the
event any such action, suit or proceeding is threatened or instituted
against a spouse to whom a director or officer is legally married at
the time the director or officer is covered under the indemnification
provided herein, which action, suit or proceeding arises solely out of
his or her status as the spouse of a director or officer, including,
without limitation, an action, suit or proceeding that seeks damages
recoverable from marital community property of the director or officer
and his or her spouse, property owned jointly by them or property
purported to have been transferred from the director or officer to his
or her spouse, then the spouse of the director or officer shall be
indemnified to the same extent as provided above. At the Corporation's
election, and in its sole discretion, any person who is or was the
spouse of an employee or agent of the Corporation may be indemnified to
the same extent as provided above. 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
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did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding,
raise any inference that he or she had reasonable cause to believe that
his or her conduct was unlawful.
(b) To the fullest extent permitted by these bylaws and by applicable law
and regulation, as presently existing or hereafter amended, the
Corporation shall indemnify any person who is or was a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor, by reason of the fact that he or she is or was a
director or officer or employee of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit, if he or she acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper. Any person who is or was an agent
of the Corporation may be indemnified to the same extent as provided
above. In addition, in the event any such action or suit is threatened
or instituted against a spouse to whom a director or officer is legally
married at the time the director or officer is covered under the
indemnification provided herein, which action or suit arises solely out
of his or her status as the spouse of a director or officer, including,
without limitation, an action or suit that seeks damages recoverable
from marital community property of the director or officer and his or
her spouse, property owned jointly by them or property purported to
have been transferred from the director or officer to his or her
spouse, then the spouse of the director or officer shall be indemnified
to the same extent as provided above. At the Corporation's election,
and in its sole discretion, any person who is or was the spouse of an
employee or agent of the Corporation may be indemnified to the same
extent as provided above.
(c) To the extent that a present or former director, officer, or spouse of
the director or officer of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b) of this Section, or in defense
of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
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(d) Any indemnification under subsections (a) and (b) of this Section
(unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the present or former director, officer, spouse of
the director or officer, employee, agent or spouse of the employee or
agent is proper in the circumstances because the person has met the
applicable standard of conduct set forth in subsections (a) and (b) of
this Section. Unless prohibited by applicable law or regulation, or
otherwise required by Section 18(k) of the Federal Deposit Insurance
Act, as amended, such determination shall be made with respect to a
person who is a director or officer or the spouse of a director or
officer at the time of the determination (a "D&O Claimant") by
Independent Legal Counsel (as defined below) in a written opinion to
the Board of Directors, a copy of which shall be delivered to the D&O
Claimant, as follows:
1. the Disinterested Directors (as defined below) shall select
Independent Legal Counsel by majority vote, even if such
Disinterested Directors constitute less than a quorum, and
direct that the determination be made by such counsel (or, if
there are no Disinterested Directors, the full Board of
Directors shall select Independent Legal Counsel by majority
vote and shall direct that the determination be made by such
counsel); unless there shall have occurred within two years
prior to the date of the commencement of the Proceeding for
which indemnification is claimed a "Change of Control" as
defined in the Amended and Restated Comerica Incorporated 1997
Long-Term Incentive Plan as in effect on September 24, 2002
(or, if applicable, as in effect on such later date as
determined by written agreement between the Corporation and
the D&O Claimant), in which case the Independent Legal Counsel
shall be selected by the D&O Claimant unless the D&O Claimant
shall request that such selection be made by the Board of
Directors. If it is so determined that the D&O Claimant is
entitled to indemnification, payment to the D&O Claimant shall
be made within 10 days after such determination.
2. the term "Disinterested Directors" shall mean directors that
are not and were not parties, and who are not and were not
threatened to be made parties, to such Proceeding;
3. "Independent Legal Counsel" shall mean a law firm, a member of
a law firm, or an independent practitioner, that is
experienced in matters of corporation law and that, under the
applicable standards of professional conduct then prevailing,
would not have a conflict of interest in representing either
the Corporation or the D&O Claimant in an action to determine
the D&O Claimant's rights under this Section.
Such determination may be made with respect to any person other than a
D&O Claimant seeking indemnification under subsections (a) and (b) of
this Section by the Corporation's Chairman, Chief Executive Officer,
President, Vice Chairman or General Counsel, or by their designees.
(e) Expenses (including attorney's fees) incurred by an officer, director
or spouse of an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid
by the Corporation in advance of the final disposition
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of such action, suit or proceeding upon receipt of an undertaking by or
on behalf of the director, officer or spouse to repay such amount if it
shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this Section. Such
expenses (including attorneys' fees) incurred by former directors or
officers, their spouses or other employees and agents may be so paid
upon such terms and conditions, if any, as the Corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this Section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement,
vote of stockholders or Disinterested Directors or otherwise, both as
to action in his or her official capacity and as to action in another
capacity while holding such office.
(g) The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, spouse of a director or
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power
to indemnify such person against such liability under the provisions of
this Section.
(h) For the purposes of this Section, references to "the Corporation"
include, in addition to the resulting or surviving corporation, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence
had continued, would have had the power and authority to indemnify its
directors, officers, spouses of directors or officers, and employees or
agents, so that any person who is or was a director, officer, spouse of
a director or officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Section
with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this Section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to be
in the interest of the participants and beneficiaries
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of an employee benefit plan shall be deemed to have acted in a manner
"not opposed to the best interests of the Corporation" as referred to
in this Section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent, and with respect to any spouse of
a director or officer, shall continue following the time the director
or officer spouse ceases to be a director or officer even if the
marriage of the individuals terminates prior to the end of the period
of coverage, and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery shall have exclusive jurisdiction to hear and
determine all actions for advancement of expenses or indemnification
brought under this Section or under any agreement, vote of stockholders
or Disinterested Directors, or otherwise. The Court of Chancery may
summarily determine the Corporation's obligation to advance expenses
(including attorneys' fees).
ARTICLE VI
STOCK AND TRANSFERS
SECTION 1. CERTIFICATES OF STOCK. Shares of the Corporation's stock may be
certificated or uncertificated, as provided under Delaware law at any time. All
certificated shares of stock shall exhibit on the certificate the holders' name
and number of shares and shall be signed by, or in the name of the Corporation
by the Chairman or a Vice Chairman of the Board of Directors, or the President
or a Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation. Any or all the
signatures on the certificate may be by facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue. All holdings of shares of stock of the
Corporation shall be numbered and shall be entered into the books of the
Corporation as they are issued. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof, and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
Corporation may issue to represent such class or series of stock or, in the case
of uncertificated shares, contained in a written notice that shall be sent to
the registered owner within a reasonable time after the issuance or transfer of
such uncertificated stock, provided that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the
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Corporation may issue to represent such class or series of stock or, in the case
of uncertificated shares, contained in the written notice sent to the registered
holder as set forth above, a statement that the Corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof, and the qualifications, limitations or restrictions of
such preferences and/or rights.
SECTION 2. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation, alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing the issuance of a new certificate
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against it with respect
to the certificate alleged to have been lost, stolen or destroyed.
SECTION 3. TRANSFERS OF STOCK. The Corporation shall make transfers of stock on
the Corporation's books only by the record holder of such stock or by his or her
duly authorized agent or attorney-in-fact, and, in the case of stock represented
by a certificate, upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares, duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer.
SECTION 4. FIXING RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 5. REGISTERED STOCKHOLDERS. The Corporation shall have the right to
treat the person registered on its books as the owner of shares as the absolute
owner thereof, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
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ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. The Board of Directors, subject to any restrictions
contained in its Certificate of Incorporation, may declare and pay any dividends
upon the shares of its capital stock either (a) out of surplus as defined in and
computed in accordance with the provisions of the governing statute, or (b) in
case there shall be no such surplus, out of its net profits for the fiscal year
in which the dividend is declared and/or the preceding fiscal year. Dividends
may be paid in cash, in property, or in shares of the Corporation's capital
stock, subject to the provisions of the statute and of the Corporation's
certificate of incorporation.
SECTION 2. RESERVES. The Board of Directors shall have power and authority to
set apart, out of any funds available for dividends, such reserve or reserves,
for any proper purpose, as the Board of Directors in its discretion shall
approve, and the Board of Directors shall have the power and authority to
abolish any reserve created by the Board of Directors.
SECTION 3. VOTING SECURITIES. Unless otherwise directed by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the
President, or, in the case of their absence or inability to act, the Vice
Chairmen or Vice Presidents, in order of their seniority, shall have full power
and authority on behalf of the Corporation to attend and to act and to vote, or
to execute in the name or on behalf of the Corporation, a proxy authorizing an
agent or attorney-in-fact for the Corporation to attend and vote at any meetings
of security holders of Corporations in which the Corporation may hold
securities, and at such meetings (s)he or his or her 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 for the payment of money shall
be signed in the name of the Corporation in such manner and by such officer or
officers or such other person or persons as the Board of Directors shall from
time to time designate for that purpose.
SECTION 5. CONTRACTS, CONVEYANCES, ETC. When the execution of any contract,
conveyance or other instruments has been authorized without specification of the
executing officers, the Chairman of the Board, Chief Executive Officer,
President, any Vice Chairman or any Vice President, and the Secretary or any
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 of this Corporation or any
of its subsidiaries or affiliates who shall have authority to execute any
instrument on behalf of this Corporation.
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SECTION 6. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
SECTION 7. SEAL. The corporate seal shall have inscribed thereon the name of the
Corporation and the words "Corporate Seal" and "Delaware". The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or otherwise
reproduced.
SECTION 8. MICHIGAN CONTROL SHARE STATUTE. Pursuant to Section 794 of the
Michigan Business Corporation Act ("MBCA"), Chapter 7B of the MBCA shall not
apply to the Corporation or control share acquisitions (as such term is defined
in Section 791 of the MBCA) of the shares of the Corporation's capital stock.
ARTICLE VIII
AMENDMENTS
SECTION 1. AMENDMENT BY REGULAR VOTE. These bylaws may be altered, amended or
repealed or new bylaws may be adopted by the stockholders or by the Board of
Directors, when such power is conferred upon the Board of Directors by the
Corporation's certificate of incorporation, at any regular meeting of the
stockholders or of the Board of Directors, or at any special meeting of the
stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new bylaws is contained in the notice of such
special meeting.
SECTION 2. AMENDMENT BY 75% VOTE. The affirmative vote of 75% of the total Board
of Directors is required to alter, amend, repeal, add to or otherwise change the
effects of Article V, Section 12; or this Article VIII, Section 2 of the
Corporation's bylaws.
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