EXHIBIT 3(b)
Adopted: December 12, 2002
BY-LAWS
OF
PULTE HOMES, INC.
ARTICLE I
OFFICES
SECTION 1.1 Registered Office. The registered office of the Corporation
shall be located at the Corporation's principal executive offices, 100
Bloomfield Hills Parkway, Suite 300 in the City of Bloomfield Hills, County of
Oakland, and State of Michigan, or at such other place as may be designated as
the registered office by the Board of Directors.
SECTION 1.2 Other Offices. The Corporation may also have other offices
or conduct business at such other places, both within and without the State of
Michigan, as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1 Place of Meetings. All meetings of the shareholders shall
be held at the registered office of the Corporation, or at such place either
within or without the State of Michigan as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting.
SECTION 2.2 Annual Meeting of Shareholders. The annual meeting of
shareholders shall be held, in each year, on the second Thursday in May, if not
a legal holiday in the State in which the meeting shall be held, 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. 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.
At each annual meeting the shareholders entitled to vote shall elect a
Board of Directors and they may transact such other corporate business as shall
be stated in the notice of the meeting.
SECTION 2.3 Other Meetings. Meetings of shareholders for any purpose
other than the election of directors may be held at such time and place within
or without the State of Michigan, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
SECTION 2.4 Voting. Each shareholder entitled to vote in accordance
with the terms of the Articles of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to one vote, in person or by
proxy, for each share of stock entitled to vote held by such shareholder and
with respect to each question, but no proxy shall be voted after six months from
its date unless such proxy provides for a longer period. Each proxy shall be in
writing and shall be signed by the shareholder or his authorized agent or
representative. Votes may be cast orally, in writing or by electronic
transmission in the discretion of the officer or other individual presiding at
such meeting, but the Board of Directors in its discretion may require that the
vote for directors and the vote upon any question before the meeting shall be by
ballot. Any shareholder or proxy holder who participates in a shareholder
meeting by means of a conference telephone or similar communications device
pursuant to Section 2.10 shall be
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permitted to vote orally. All elections for directors shall be decided by
majority vote of the quorum except as otherwise provided by the Articles of
Incorporation or the laws of the State of Michigan. All questions regarding the
qualification of voters, the validity of proxies and the acceptance or rejection
of votes shall be decided by the officer presiding at the meeting.
SECTION 2.5 List of Shareholders. The officer or agent who has charge
of the stock ledger or stock transfer books for shares of the Corporation shall
prepare, make and certify, at least ten days before every meeting of
shareholders, a complete list of the shareholders entitled to vote at the
shareholders' meeting and at any adjournment thereof, arranged in alphabetical
order within each class and series of stock, and showing the address of each
shareholder and the number of shares registered in the name of each shareholder.
The list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any shareholder who is present.
SECTION 2.6 Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote at a meeting, whether present in person or
represented by proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business except as otherwise provided by
statute or by the Articles of Incorporation. Once a quorum is present at a
meeting, all holders of shares entitled to vote at the meeting and all holders
of proxies for such shares present at such meeting may continue to conduct the
proper business of the meeting until its adjournment notwithstanding the
withdrawal of enough shareholders or proxy holders to leave less than a quorum.
If, however, such quorum shall not be initially present or represented at any
meeting of the shareholders, a majority of the shareholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time and to another place, 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 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 shareholder of record
entitled to vote at the meeting.
SECTION 2.7 Special Meetings. Special meetings of the shareholders for
any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, may be called by the Board of Directors, the
President, or the Secretary, and shall be called by the Board of Directors, the
President, or the Secretary upon a request in writing therefor stating the
purpose or purposes thereof signed by a majority of the Board of Directors or by
the holders of not less than twenty percent of the capital stock of the
Corporation issued and outstanding and entitled to vote thereat. Only business
germane to the purpose or purposes for which the meeting was called shall be
transacted at a special meeting of shareholders.
SECTION 2.8 Notice of Meetings. Except as may be provided by statute,
written notice or notice by electronic transmission of an annual or special
meeting of shareholders stating the place, if any, date and time of the meeting,
and the purpose or purposes for which the meeting is called, shall be given to
each shareholder entitled to vote thereat at his address as it appears on the
records of the Corporation, not less than ten nor more than sixty days before
the date of the meeting. No business other than that stated in the notice shall
be transacted at any meeting without the unanimous consent of all the
shareholders entitled to vote thereat.
SECTION 2.9 Action Without Meeting. Any action required or permitted
to be taken at an annual or special meeting of shareholders of the Corporation
may be taken without a meeting, without prior notice and without a vote, if
consent in writing or by electronic transmission, setting forth the action so
taken, shall be 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. All such consents shall be filed with the minutes of proceedings of
shareholders. Such consents shall have the same effect as a vote of shareholders
for all purposes. Prompt notice shall be given to all the shareholders of the
taking of corporate action without a meeting by less than unanimous written
consent.
SECTION 2.10 Remote Communication Attendance. A shareholder may
participate in a shareholders' meeting by a conference telephone or by other
means of remote communication through which all persons participating in the
meeting may communicate with the other participants, if the Board of Directors
determines to permit such
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participation and (a) the means of remote communication allowed are included in
the notice of the meeting, or (b) if notice is waived or not required. All
participants shall be advised of the means of remote communication and the names
of the participants in the meeting shall be divulged to all participants.
Participation in a meeting pursuant to this Section constitutes presence in
person at such meeting. The Board of Directors may hold a meeting of
shareholders conducted solely by means of remote communication.
ARTICLE III
DIRECTORS
SECTION 3.1 Resignations. Any director, member of a committee or other
officer may resign at any time. Such resignation shall be made in writing or by
electronic transmission, and shall take effect at the time specified therein,
and if no time be specified, at the time of its receipt by the President or
Secretary. The acceptance of a resignation shall not be necessary to make it
effective.
SECTION 3.2 Removal. A director or the entire board may be removed,
with or without cause, by vote of the holders of a majority of the shares
entitled to vote at an election of directors.
SECTION 3.3 Committees. The Board of Directors may, by resolution
passed by a majority of the whole board, designate one or more committees, each
committee to consist of two or more of the directors of the Corporation. The
Board 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 any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not 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, shall have and
may exercise the powers 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; provided, however,
that such a committee shall not have the power or authority to:
(a) Amend the Articles of Incorporation.
(b) Adopt an agreement of merger or consolidation.
(c) Recommend to the shareholders the sale, lease or exchange
of all or substantially all of the Corporations property and
assets.
(d) Recommend to the shareholders a dissolution of the Corporation
or a revocation of a dissolution.
(e) Amend the By-Laws of the Corporation.
(f) Fill vacancies in the Board.
(g) Fix compensation of the directors for serving on the Board or
on a committee.
(h) Declare a dividend.
(i) Authorize the issuance of stock.
Such committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors. A committee,
and each member thereof, shall serve at the pleasure of the Board. Each
committee shall keep regular minutes of its meetings and report the same to the
Board of Directors when required.
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The Corporation shall have an Executive Committee. Between meetings of
the Board of Directors, the Executive Committee 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 except as provided above for committees
generally. All actions and decisions of the Executive Committee shall require
the approval and consent of all members thereof. The Chairman of the Executive
Committee shall preside at all meetings of the Executive Committee.
The Corporation shall have an Audit Committee. The duties of the Audit
Committee shall be the following:
1. Recommending to the Board of Directors the engaging
and discharging of the independent auditors.
2. Directing and supervising special investigations.
3. Reviewing with the independent auditors the plan
(including the scope, fee and timing) of the audit
and reviewing with the independent auditors the
results of the auditing engagement.
4. Approving of each professional service to be provided
by the independent auditors prior to the performance
of such service, including the fee arrangement for
such services.
5. Reviewing with the independent auditors and
management the proposed annual earnings report before
the annual earnings report is released to the public.
6. Approving any change in accounting principles and
practices and any significant proposed adjustments to
any financial statements.
7. Reviewing with the independent auditors and
management the Corporation's policies and procedures
with respect to, and the adequacy of, the
Corporation's internal auditing, accounting and
financial controls.
8. Reviewing on a periodic basis the Corporation's
business practices policy and inquiring on any
deviations from that policy.
9. Reviewing with the independent auditors management's
response to recommendations made by the auditors to
management as a result of the audit or otherwise,
including any recommendations relating to internal
accounting controls, choice of accounting principles
or management systems and determining the extent to
which the recommendations by the independent auditors
have been implemented.
10. Performing any other functions assigned to the Audit
Committee by the Board of Directors.
The Corporation shall have a Compensation Committee. The duties of the
Compensation Committee shall be the following:
1. Recommendation to the Board of Directors of the
compensation arrangements for senior management and
directors.
2. Recommendation to the Board of compensation plans in
which officers or directors are eligible to
participate.
3. Granting of options under the Company's Stock Option
Plans.
The Corporation shall have a Nominating and Governance Committee. The
Nominating and Governance Committee shall consider the performance of incumbent
directors and recommend to the shareholders nominees for
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election as directors. The Nominating and Governance Committee shall also
consider nominees for directors recommended by the shareholders, if such
nominations are submitted in accordance with the requirements set forth in
Section 3.10, and shall perform any other functions assigned by the Board of
Directors.
SECTION 3.4 Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Michigan.
The first meeting of each newly elected Board of Directors for the
purpose of organization and the transaction of any business which may come
before the meeting may be held immediately after the annual meeting of the
shareholders, if a quorum be present, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting. In the event such meeting is not held immediately after the annual
meeting of the shareholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
signed by all of the directors.
Regular meetings of the directors may be held without notice at such
places and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the Board may be called by the President or by the
Secretary in their discretion, and shall be called by the President or the
Secretary upon receiving notice of any two directors in a matter permitted under
Section 7.4. Special meetings shall be called by at least 48 hours notice in a
manner permitted under Section 7.4. The notice shall specify the purpose or
purposes of and the place and time of the special meeting. Only business germane
to the purpose or purposes for which the meeting was called shall be transacted
at a special meeting.
SECTION 3.5 Quorum. At all meetings of the Board or of a committee
thereof a majority of the directors then in office or of the members of such
committee shall constitute a quorum for the transaction of 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 or of the committee, respectively,
except as may be otherwise specifically provided by statute or by the Articles
of Incorporation. If at any meeting of the Board of Directors or of a committee
there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time and to another place until a quorum is
obtained, and no further notice thereof need be given other than by announcement
at the meeting which shall be so adjourned. At such an adjourned meeting, at
which a quorum shall be present, any business may be transacted which might have
been transacted at the meeting as originally scheduled.
SECTION 3.6 Compensation. The Board by affirmative vote of a majority
of directors in office and irrespective of any personal interest of any of them,
may establish reasonable compensation of directors for services to the
Corporation as directors, officers or members of a committee, including, but not
limited to, payment of the directors' expenses, if any, of attendance at each
meeting of the Board of Directors and payment of 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 3.7 Action Without Meetings. 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, without prior notice and without a
vote, if prior to such action a consent to the action in writing or by
electronic transmission thereto is signed by all members of the Board, or of
such committee as the case may be, and such consent is filed with the minutes of
proceedings of the Board or committee. Such consents shall have the same effect
as a vote of the Board of Directors or of the committee for all purposes.
SECTION 3.8 Waiver of Notice. Attendance of a director at a meeting
constitutes a waiver of notice of the meeting unless such director attends such
meeting solely 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.
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SECTION 3.9 Remote Communication Participation. Members of the Board of
Directors or any Board committee may participate in a Board or Board committee
meeting by means of conference telephone or other means of remote communication
through which all persons participating in the meeting can communicate with the
other participants. Participation in a meeting pursuant to this Section 3.9
constitutes presence in person at the meeting.
SECTION 3.10 Shareholder Nominations. As provided in Section 3.3,
nominations for the election of directors shall be made by the Nominating and
Governance Committee of the Board of Directors or by any shareholder entitled to
vote in the election of directors generally. However, any shareholder entitled
to vote in the election of directors generally may nominate one or more persons
for election as directors at a meeting only if written notice or notice by
electronic transmission of such shareholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Corporate Secretary of the Corporation not later
than 60 days in advance of such meeting (except that, if public disclosure of
the meeting is made less than 70 days prior to the meeting, the notice need only
be received within 10 days following such public disclosure). Each such notice
shall set forth: (a) the name and address of the shareholder who intends to make
the nomination and of the person or persons to be nominated; (b) a
representation that the shareholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the shareholder; (d) such other information regarding each nominee proposed by
the shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the Corporation if
so elected. The Chairman of the meeting may refuse to acknowledge the nomination
of any person not made in compliance with the foregoing procedure.
ARTICLE IV
OFFICERS
SECTION 4.1 Officers. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a Chairman of the Board of Directors, a
Chief Executive Officer, a President, a Chairman of the Executive Committee, a
Secretary and a Treasurer. In addition, the Board of Directors may elect such
Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board of
Directors may deem proper. The officers shall be elected at the first meeting of
the Board of Directors after each annual meeting. None of the officers of the
Corporation need be directors except the Chairman of the Board of Directors. Any
number of offices may be held by the same person, except that the same person
shall not act as both President and Secretary. Anything to the contrary
notwithstanding, the Board of Directors may, at its sole option, choose one of
its members to serve as Co-Chairman of the Executive Committee together with the
officer chosen to serve as Chairman of the Executive Committee; provided,
however, that the individual so chosen as Co-Chairman shall not, by virtue of
such selection, be or become an officer of the Corporation for any purpose
whatsoever.
SECTION 4.2 Other Officers and Agents. The Board of Directors may
appoint such other officers and agents as it may deem advisable, 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.
SECTION 4.3 Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
SECTION 4.4 Tenure and Removal. The officers of the Corporation shall
hold office until their successors are chosen and qualify. Any officer elected
by the Board of Directors may be removed at any time with or without cause by
the affirmative vote of a majority of the Board of Directors in office. An
officer may resign by written notice to the Corporation. The resignation shall
be 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.
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SECTION 4.5 Chairman of the Board of Directors. The Chairman of the
Board of Directors shall preside at all meetings of the shareholders and of the
Board of Directors, and shall have and perform such other duties as from time to
time may be determined by the Board of Directors.
SECTION 4.6 Chief Executive Officer. Unless otherwise designated by the
Board of Directors, the President shall be the Chief Executive Officer of the
Corporation. The Chief Executive Officer of the Corporation shall have the
general powers of supervision and management of the business and affairs of the
Corporation usually vested in the chief executive officer of a corporation and
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The chief executive officer may delegate to the other officers such
of his or her authority and duties at such time and in such manner as he or she
deems advisable.
SECTION 4.7 President. Unless otherwise provided by the Board of
Directors, the President shall have the general powers and duties of supervision
and management usually vested in the office of the president of a corporation
and shall see that all orders and policies of the Board are carried into effect.
In the absence or non-election of the Chairman of the Board of Directors, the
President shall preside at all meetings of the shareholders if present thereat
and at all meetings of the Board of Directors. Unless the Board of Directors
shall have designated an Executive Vice President or other officer to be the
Chief Operating Officer, the President shall be the Chief Operating Officer of
the Corporation.
SECTION 4.8 Chairman of the Executive Committee. The Chairman of the
Executive Committee shall preside at all meetings of the Executive Committee and
shall have and perform such other duties as from time to time may be determined
by the Board of Directors. In the absence or non-election of the Chairman of the
Board of Directors and of the President, he shall preside at all meetings of the
shareholders if present thereat, and at all meetings of the Board of Directors.
SECTION 4.9 Executive Vice President. The Board of Directors may
designate one or more Executive Vice Presidents and may grant other Vice
Presidents titles which describe their functions or specify their order of
seniority. The Executive Vice President and Vice Presidents shall assist and act
under the direction of the Corporation's chief executive officer, unless
otherwise determined by the Board of Directors or the chief executive officer.
In the absence or disability of the President, the authority of the President
shall descend to the Executive Vice Presidents or, if there are none, to the
Vice Presidents in the order of seniority indicated by their titles or otherwise
specified by the Board. If not specified by their titles or the Board, the
authority of the President shall descend to the Executive Vice Presidents or, if
there are none, to the Vice Presidents, in the order of their seniority in such
office.
SECTION 4.10 Vice President. The Vice President shall act under the
direction of the President. In the absence of the President or in the event of
his inability or refusal to act, the Vice President (or in the event there be
more than one Vice President, the Vice Presidents in the order designated, or in
the absence of any designation, then in the order of their election) shall
perform the duties of the President, and when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the President. Each Vice
President shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
SECTION 4.11 Treasurer. The Treasurer shall act under the direction of
the President. Unless otherwise provided by the President, the Treasurer shall
have the custody of the corporate funds and securities and shall keep full and
accurate account of assets, liabilities, receipts and disbursements in books
belonging to the Corporation. He shall deposit all moneys and other valuables in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors or the President, taking proper vouchers for
such disbursements. He shall render to the President and Board of Directors at
the regular meetings of the Board of Directors, or whenever they may request it,
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 give the
Corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the Board shall prescribe.
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SECTION 4.12 Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers shall act under the direction
of the President and the Treasurer, and, in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of his
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 as the
President, Treasurer or Board of Directors may from time to time prescribe.
SECTION 4.13 Secretary. The Secretary shall act under the direction of
the President. Unless otherwise provided by the President, the Secretary shall
give, or cause to be given, notice of all meetings of shareholders and of
special meetings of the Board of Directors, and all other notices required by
law or by these By-Laws, and in the case of his absence or refusal or neglect to
do so, any such notice may be given by any person thereunto directed by the
President, or by the directors, or shareholders, upon whose requisition the
meeting is called as provided in these By-Laws. He shall record all the
proceedings of the meetings of the shareholders of the Corporation and of the
directors in a book to be kept for that purpose, and shall perform such other
duties as may be assigned to him by the directors or the President. He shall
perform like duties for the standing committees when required. He shall have the
custody of the seal of the Corporation and shall affix the same to all
instruments requiring it, when authorized by the directors or the President, and
attest the same.
SECTION 4.14 Assistant Secretary. The Assistant Secretary, or if there
be more than one, the Assistant Secretaries, shall act under the direction of
the President and the Secretary, and in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of his
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 as the
President, Secretary or Board of Directors may from time to time prescribe.
ARTICLE V
PROVISIONS REGARDING STOCK OF THE CORPORATION
SECTION 5.1 Certificates of Stock. Every holder of shares of stock in
the Corporation shall be entitled to have a certificate, signed by, or in the
name of the Corporation by, the Chairman or Vice Chairman of the Board of
Directors, or the President or a Vice President and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
The seal of the Corporation or a facsimile thereof may, but need not, be affixed
to the certificates of stock. Where a certificate is countersigned (1) by a
transfer agent other than the Corporation or its employee, or, (2) by a
registrar other than the Corporation or its employee, any other signature on the
certificate may be a 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 he were such officer, transfer agent or registrar at the date of issue.
SECTION 5.2 Classes and Series of Stock. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the 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 shall issue to represent such class or series of stock,
provided that, except as otherwise provided in the Michigan Business Corporation
Act, in lieu of the foregoing requirements, there may be set forth on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the Corporation will furnish without
charge to each shareholder who so requests the 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 5.3 Lost Certificate. The Board of Directors may direct a new
certificate for shares to be issued in the place of any certificate theretofore
issued by the Corporation alleged to have been lost or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost or destroyed. When authorizing the issuance of such new
certificate the directors may in their discretion and as a condition
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precedent to the issuance thereof, impose any reasonable terms and conditions to
such issuance, including, but not limited to, requiring the owner of the lost or
destroyed certificate, or his legal representative, to give the Corporation a
bond, in such sum as they may direct, to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss of any such
certificate, or the issuance of any such new certificate.
SECTION 5.4 Transfer of Shares. The shares of stock of the Corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the Corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or
to such other person as the directors may designate, by whom they shall be
canceled, and new certificates shall thereupon be issued. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for one or
more shares duly endorsed and accompanied by proper evidence of succession,
assignment or authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. A record shall be made of each transfer
and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer, if when the
certificates are presented for transfer, both the transferor and the transferee
request the Corporation to do so.
SECTION 5.5 Shareholders Record Date. For the purpose of determining
shareholders entitled to notice of, or to vote at, any meeting of shareholders
or any adjournment thereof, or to express consent to, or dissent from, 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 any other purpose or action, the Board of Directors may fix, in advance,
a record date, which shall be the date upon which an individuals status as a
shareholder for such purpose or action shall be determined and which shall not
be more than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. If no Record Date is fixed:
(a) the Record Date for determining the shareholders of
record entitled to notice of, or to vote at, a
meeting of shareholders shall be at the close of
business on the day on which notice of the meeting is
given, or, if no notice is given, at the close of
business on the day next preceding the day on which
the meeting is held; and
(b) the Record Date for determining shareholders for any
other purpose shall be at the close of business on
the day on which the Board of Directors first adopts
a resolution relating thereto.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders 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. If the adjournment is for more than thirty 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 shareholder of record entitled to
vote at the meeting.
SECTION 5.6 Registered Shareholders. The Corporation shall be entitled
to treat the record holder of any shares of stock of the Corporation as the
owner thereof for all purposes, including all rights deriving from such shares
(such as voting and dividends), and shall not be bound to recognize any
equitable or other claim to, or interest in, such shares or rights deriving from
such shares, on the part of any other person, including, but without limiting
the generality thereof, a purchaser, assignee or transferee of such shares or
rights deriving from such shares, unless and until such purchaser, assignee,
transferee or other person becomes the record holder of such shares, whether or
not the Corporation shall have either actual or constructive notice of the
interest of such purchaser, assignee, transferee or other person except as
otherwise provided by applicable statute. Any such purchaser, assignee,
transferee or other person shall not be entitled to receive notice of the
meetings of shareholders, to vote at such meetings, to examine a complete list
of the shareholders entitled to vote at meetings, or to own, enjoy, and exercise
any other property or rights deriving from such shares against the Corporation,
until such purchaser, assignee, transferee or other person has become the record
holder of such shares.
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SECTION 5.7 Dividends. Subject to the provisions of the Articles of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the Corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conducive to the interests of the Corporation.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 Obligation to Indemnify. To the fullest extent authorized
or permitted by applicable law from time to time in effect and subject to the
provisions of Section 6.2 of this Article, the Corporation shall indemnify any
person, and his heirs, executors, administrators and legal representatives, 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 (whether or not by or in the right of the Corporation),
including a shareholders' derivative action, by reason of the fact that such
person is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation or its shareholders, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he 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 reasonable cause to believe that his conduct was unlawful.
SECTION 6.2 Determination as to Propriety. Any indemnification under
Section 6.1 of this Article (unless ordered by a court) shall be made by the
Board of Directors only upon a determination in the specific case that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
said Section 6.1. Such determination shall be made (1) by the Board of Directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable and a quorum of disinterested directors so directs, by
independent legal counsel (compensated by the Corporation) in a written opinion,
or (3) by the shareholders.
SECTION 6.3 Payment of Expenses in Advance of Final Disposition.
Expenses incurred in defending a civil, criminal, administrative or
investigative action, suit or proceeding, or threat thereof, may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors, whether a disinterested
quorum exists or not, upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article.
SECTION 6.4 Not Exclusive Right. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any agreement, vote of shareholders or of
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 6.5 Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of
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his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article or the
Michigan Business Corporation Act.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 Seal. The Board of Directors may, but need not, adopt a
corporate seal for the Corporation. The corporate seal, if adopted, shall be
circular in form and shall contain the name of the Corporation, the year of its
creation and the words "CORPORATE SEAL MICHIGAN". Said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
SECTION 7.2 Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 7.3 Checks. All checks, drafts, demands or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or officers, agent or agents of
the Corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may from time to time designate.
SECTION 7.4 Notice. All notices to shareholders, directors and Board
committee members shall be given (a) personally, (b) by mail (registered,
certified or other first class mail, except where otherwise provided in the
Michigan Business Corporation Act, with postage pre-paid), addressed to such
person at the address designated by him or her for that purpose or, if none is
designated, at his or her last known address, (c) by electronic transmission in
a manner authorized by the person, or (d) as otherwise provided in the Michigan
Business Corporation Act. In addition to any other form of notice to a
shareholder permitted by the Articles of Incorporation, these Bylaws, or the
Michigan Business Corporation Act, any notice given to a shareholder by a form
of electronic transmission to which the shareholder has consented is effective.
Notices to directors or Board committee members may also be delivered at his or
her office on the Corporation's premises, if any, or by express carrier,
addressed to the address referred to in the first sentence of this Section. When
a notice is required or permitted by the Michigan Business Corporation Act or
these By-Laws to be given in writing, electronic transmission is written notice.
Notices given pursuant to this Section 7.4 shall be deemed to be given when
dispatched, or, if mailed, when deposited in a post office or official
depository under the exclusive care and custody of the United States postal
service; provided that when a notice or communication is permitted by the
Michigan Business Corporation Act or these By-Laws to be transmitted
electronically, the notice or communication is given when electronically
transmitted to the person entitled to the notice or communication in a manner
authorized by the person. Notices given by express carrier shall be deemed
"dispatched" on the day and at the time the express carrier guarantees delivery
of the notice. The Corporation shall have no duty to change the written or
electronic address of any director, Board committee member or shareholder unless
the Secretary receives notice in writing or by electronic transmission of such
address change.
SECTION 7.5 Waiver of Notice. Action may be taken without a required
notice and without lapse of a prescribed 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 the case of a shareholder, his or her
attorney-in-fact, submits a signed waiver or a waiver by electronic transmission
of the requirements, or if such requirements are waived in such other manner
permitted by applicable law. Neither the business to be transacted at, nor the
purpose of, the meeting need be specified in the waiver of notice of the
meeting. A shareholder's attendance at a meeting (in person or by proxy) will
result in both of the following:
(a) Waiver of objection to lack of notice or defective
notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the
meeting or transacting business at the meeting.
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(b) Waiver of objection to 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 it is presented.
A director's attendance at or participation in any Board or Board
committee meeting waives any required notice to him or her of the meeting unless
he or she, at the beginning of the meeting or upon his or her arrival, objects
to the meeting or the transacting of business at the meeting and does not
thereafter vote for or assent to any action taken at the meeting.
SECTION 7.6 Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the shareholders when called
for by vote of the shareholders, a full and clear statement of the business and
condition of the Corporation.
SECTION 7.7 Scope of By-Laws. These By-Laws shall govern the internal
affairs of the Corporation to the extent they are consistent with applicable law
and the Articles of Incorporation. Nothing contained in these By-Laws shall,
however, prevent the imposition by contract of greater voting, notice or other
requirements than those set forth in these By-Laws.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 By-Law Amendments. These By-Laws may be altered, amended or
repealed or new By-Laws may be adopted by the shareholders or by the Board of
Directors at any regular meeting of the shareholders or of the Board of
Directors or at any special meeting of the shareholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
By-Laws be contained in the notice of such special meeting. The shareholders may
from time to time specify particular provisions of the By-Laws which shall not
be altered, amended or repealed by the Board of Directors.
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