EXHIBIT 3.44
EXHIBIT A
BY-LAWS
OF
CMI INTERNATIONAL, INC.
A MICHIGAN CORPORATION
1. SHAREHOLDERS' MEETING
1.1 ANNUAL MEETING. The annual meeting of the Shareholders shall be held in
each year after the expiration of the fiscal year of the Corporation at such
time and place as shall be determined by the Board of Directors, for the purpose
of electing Directors and of transacting such other business as may properly be
brought before the meeting.
1.2 ORDER OF BUSINESS. The order of business at the Annual Meeting of the
Shareholders shall be as follows:
(a) Roll call;
(b) Reading of notice and proof of mailing;
(c) Annual reports of officers consisting of discussion
of: balance sheet as of the end of the preceding fiscal year; statement of
income for such fiscal year and, if prepared by the Corporation, a statement of
source and application of funds for such fiscal year;
(d) Election of Directors;
(e) Transaction of other business as follows:
Unfinished business
New business; and
(f) Adjournment
provided, that, in the absence of any objection, the presiding officer may
vary the order of business at his/her discretion.
1.3 SPECIAL MEETINGS. A Special Meeting of the Shareholders may be called
to be held at such time and place as may be designated by the Chairperson of the
Board, a majority of the Board of Directors, or not less than an aggregate of
ten percent (10%) of the outstanding shares of stock of the Corporation having
the right to vote at such Special Meeting.
Upon receipt of a notification in writing setting forth the time, place
and purpose of such proposed Special Meeting, signed by the Chairperson of the
Board, a majority of the Board of Directors or not less than an aggregate of ten
percent (10%) of the
outstanding shares of stock of the Corporation having a right to vote at such
Special Meeting, the Secretary of this Corporation shall prepare, sign and mail
the notice requisite to such meeting.
1.4 NOTICE OF MEETINGS. Written notice of the time, place and purposes of
every meeting of the Shareholders of this Corporation shall be given, either
personally or by mail, not less than ten (10) nor more than sixty (60) days
before said meeting to each Shareholder of record of the Corporation entitled to
vote at such meeting. Notices shall state the authority pursuant to which they
are issued as, "by order of" the "Chairperson of the Board", "Board of
Directors", or "Shareholders".
1.5 WAIVER OF NOTICE. Notice of the time, place and purpose of any meeting
of the Shareholders of this Corporation may be waived by telegram, radiogram,
cablegram, or other writing either before or after such meeting has been held.
A Shareholder's attendance at a meeting of Shareholders, in person or
by proxy, will result in (a) 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
and (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.
1.6 QUORUM. At every meeting of the Shareholders, the holders of record of
a majority of the outstanding shares of stock of the Corporation entitled to
vote at such meeting, whether present in person or represented by proxy, shall
constitute a quorum. If less than a quorum shall be present at any meeting of
Shareholders, those holders of record of outstanding shares of stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, may adjourn the meeting from time to time without further notice other
than by announcement at the meeting, until a quorum shall have been obtained, at
which time any business may be transacted which might have been transacted at
the meeting as first convened, had there been a quorum.
1.7 RECORD DATE. The Board of Directors may fix in advance a date not
exceeding sixty (60) days nor less than ten (10) days preceding the original
date fixed for any meeting of Shareholders, or the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect, as a record
date for the determination of the Shareholders entitled to notice of, and to
vote at, any such meeting, or entitled to receive payment of any such dividend,
or to any such allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock. In such case, such
Shareholders and
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only such Shareholders as shall be Shareholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting, or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights, as the case way be, notwithstanding any transfer of any stock on
the books of the Corporation or otherwise after any such record date is fixed as
aforesaid. Nothing in this Section shall affect the rights of a Shareholder and
his/her transferee or transferor as between themselves.
1.8 INSPECTION OF LIST OF SHAREHOLDERS. The officer or agent having charge
of the stock transfer books for shares of the Corporation shall make and certify
a complete list of the Shareholders entitled to vote at a Shareholders meeting
or any adjournment thereof. The list shall:
(a) Be arranged alphabetically within each class and
series, with the address of, and the number of shares held by,
each Shareholder.
(b) Be produced at the time and place of the meeting.
(c) Be subject to inspection by any Shareholder during
the whole time of the meeting.
(d) Be prima facie evidence as to who are the
Shareholders entitled to examine the list or to vote at the
meeting.
1.9 INSPECTORS OF ELECTION. The Board, in advance of a Shareholders'
meeting, may appoint one or more inspectors to act at the meeting or any
adjournment thereof. If inspectors are not so appointed, the person presiding at
a Shareholders' meeting may, and on request of a Shareholder entitled to vote
thereat shall, appoint one (1) or more inspectors. In case a person appointed
fails to appear or act, the vacancy may be filled by appointment made by the
Board in advance of the meeting or at the meeting by the person presiding
thereat.
The inspectors shall determine the number of shares outstanding and the
voting power of each, the share represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine challenges and questions arising in connection with
the right to vote, count and tabulate votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all Shareholders. On request of the person presiding at the meeting
or a Shareholder entitled to vote thereat, the inspectors shall make and execute
a written report to the person presiding at the meeting of any of the facts
found by them and matters determined by them.
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1.10 VOTING RIGHTS. At all times, each holder of record of the common stock
of the Corporation shall be entitled to one vote for each share of common stock
standing in his/her name on the books of the Corporation, subject, however, to
the full effect of the limitations imposed by the fixed record date for
determination of Shareholders set forth elsewhere in this Article. A vote may be
cast either orally or in writing as determined by the Chairperson of the
meeting.
When an action other than the election of Directors is to be taken by
vote of the Shareholders, it shall be authorized by a majority of the votes cast
by the holders of shares entitled to vote thereon unless a greater vote is
required by the Articles of Incorporation or by law. Directors shall be elected
by a plurality of the votes cast at an election.
1.11 VOTE BY SHAREHOLDER CORPORATION. Shares standing in the name of another
domestic or foreign corporation may be voted by an officer or agent, or by proxy
appointed by an officer or agent or by some other person, who by action of its
Board or pursuant to its by-laws shall be appointed to vote such shares.
1.12 ACTION BY UNANIMOUS WRITTEN CONSENT. Any action required or permitted
to be taken at an Annual or Special Meeting of Shareholders may be taken without
a meeting, without prior notice and without a vote, if before or after the
action all the Shareholders entitled to vote thereon consent thereto in writing.
1.13 ELECTRONIC PARTICIPATION. A Shareholder may participate in a meeting of
Shareholders by a conference telephone or by other similar communications
equipment through which all persons participating in the meeting may communicate
with the other participants. All participants shall be advised of the
communications equipment and the names of the participants in the conference
shall be divulged to all participants. Participation in a meeting pursuant to
this Section constitutes presence in person at the meeting.
2. SHAREHOLDER INSPECTION OF BOOKS OF ACCOUNT AND STOCK BOOKS: REPORTS TO
SHAREHOLDERS
2.1 BOOKS OF ACCOUNT AND STOCK BOOKS. The Corporation shall keep books and
records of account and minutes of the proceedings of the Shareholders, Board and
Executive Committee, if any, which may be kept in or outside this state. The
Corporation shall keep at its registered office, or at the office of its
transfer agent in or outside this state, records containing the names and
addresses of all Shareholders, the number, class and series of shares held by
each and the dates when they respectively became holders of record thereof. Any
of the books, records or minutes may be in written form or in any other form
capable of being converted into written
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form within a reasonable time. The Corporation shall convert into written form
without charge any record not in written form upon written request of a person
entitled to inspect them.
2.2 FINANCIAL STATEMENTS. Upon written request of a Shareholder, the
Corporation shall mail to the Shareholder its balance sheet as of the end of the
preceding fiscal year; its statement of income for such fiscal year; and, if
prepared by the Corporation, its statement of source and application of funds
for such fiscal year.
2.3 EXAMINATION OF RECORDS. Any Shareholder of record, in person or by
attorney or other agent, has the right during the usual hours of business to
inspect for any proper purpose the Corporation's stock ledger, a list of its
Shareholders, and its other books and records, if the Shareholder gives the
Corporation written demand describing with reasonable particularity his or her
purpose and the records he or she desires to inspect, and the records sought are
directly connected with the purpose. A proper purpose shall mean a purpose
reasonably related to such person's interest as a Shareholder. The demand shall
be delivered to the Corporation at its registered office in this state or at its
principal place of business. In every instance where an attorney or other agent
shall be the person who seeks to inspect, the demand shall be accompanied by a
power of attorney or other writing which authorizes the attorney or other agent
to act on behalf of the Shareholder.
3. SHARES
3.1 CERTIFICATES. Every Shareholder of this Corporation shall be entitled
to a certificate of his or her shares signed by the Chairperson of the Board,
Vice-Chairperson of the Board, President or a Vice-President and which may also
be signed by another officer of the Corporation. Each such certificate shall
state on its face that the Corporation is formed under the laws of this state,
the name of the person to whom issued, the number and class of Shares, and the
designation of the series, if any, which the certificate represents. If a
certificate is counter-signed by a transfer agent or registered by a registrar
acting on behalf of this Corporation, the signature of any such officers may be
facsimile.
3.2 TRANSFER. Shares shall be transferable only on the books of the
Corporation by the person named in the certificate, or by attorney lawfully
constituted in writing, and upon surrender of the certificates therefor. A
record shall be made of every such transfer and issue. Whenever any transfer is
made for collateral security and not absolutely, the fact shall be so expressed
in the entry of such transfer.
3.3 SHAREHOLDERS. The Corporation shall have the right to treat the
registered holder of any share as the absolute owner thereof, and shall not be
bound to recognize any equitable or other claim
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to, or interest in, such share on the part of any other person, whether or not
the Corporation shall have express or other notice thereof, save as may be
otherwise provided by statute.
3.4 LIEN FOR STOCKHOLDERS INDEBTEDNESS. The Corporation shall have a lien
upon the shares of any holder thereof who is indebted to the Corporation in any
way and shall have the right to cancel the holder's right in such amount of the
shares as is equivalent to such indebtedness in payment and satisfaction thereof
and the discharge of such lien. Further, the Corporation shall have the right to
not accept any transfer of shares by the holder thereof which will impair the
security of its lien for the balance of the indebtedness then owing by such
holder to the Corporation.
3.5 TRANSFER AGENT AND REGISTRAR. The Board of Directors may appoint a
transfer agent and a registrar of transfer, and way require all certificates of
shares to bear the signature of such transfer agent and of such registrar of
transfers.
3.6 REGULATIONS. The Board of Directors shall have power and authority to
make such rules and regulations as the Board shall deem expedient regulating the
issue, transfer and registration of certificates for shares of this Corporation.
4. BOARD OF DIRECTORS
4.1 NUMBER AND TERM OF OFFICE. The business, property and affairs of the
Corporation shall be managed by a Board of Directors composed of one (1) or more
members who need not be Shareholders. The number of Directors for the Board of
Directors shall be determined by a majority vote of the Shareholders. The first
Board of Directors shall hold office until the first annual meeting of
Shareholders. At the first annual meeting of Shareholders and at each annual
meeting thereafter, the Shareholders shall elect Directors to hold office until
the succeeding annual meeting. A Director shall hold office for the term for
which he or she is elected and until his or her successor is elected and
qualified, or until his or her resignation or removal. A Director may resign by
written notice to the Corporation. The resignation is effective upon its receipt
by the Corporation or a later time as set forth in the notice of resignation.
4.2 INDEPENDENT DIRECTOR. The Shareholders or Board may designate one (1)
or more Directors as an independent Director. Any Director so designated shall
be entitled to reasonable compensation in addition to compensation paid to
directors generally, as determined by the Shareholders, and reimbursement for
expenses reasonably related to performance of duties as an independent director.
An independent director must be elected by the shareholders and designated as
such by the Shareholders; have at least five (5) years of business, legal or
financial experience,
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or other equivalent experience; not be, or during the three (3) years prior to
being designated an independent director has not been (i) an officer or employee
of the Corporation or any affiliate of the Corporation, (ii) engaged in any
business transaction for profit or series of transactions for profit involving
more than $10,000.00 with the Corporation or any affiliate of the Corporation,
(iii) an affiliate, executive officer, general partner, or member of the
immediate family of any person that had the status or engaged in a transaction
described in (i) and (ii) above; not propose to enter into a relationship or
transaction described in (i) through (iii) above; and not have an aggregate of
more than three (3) years of service as a director of the Corporation, whether
or not as an independent director.
4.3 VACANCIES. A vacancy occurring in the Board may be filled by the
Shareholders or the Board. A vacancy filled by the Board may be filled for a
term of office continuing only until the next election of Directors by the
Shareholders.
4.4 ANNUAL MEETINGS. At the place of holding the annual meeting of
Shareholders and immediately following the same, the Board of Directors as
constituted upon final adjournment of such Shareholder meeting shall convene
without notice for the purpose of electing officers and transacting any other
business properly brought before it; provided, that the annual meeting in any
year may be held at a different time and place than that herein provided by
consent of a majority of the Directors of such new Board.
4.5 REGULAR MEETINGS. Regular meetings of the Board of Directors shall be
held at such time and place as the Board of Directors shall from time to time
determine by resolution of the Board of Directors or by waiver of notice and
consent. No notice of regular meetings of the board shall be required.
4.6 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by the Chairperson of the Board or a majority of the Directors in office
at the time of the call, whenever in his/her or their judgment it may be
necessary, by giving reasonable notice, either personally or by mail or
telegram, of the time and place of such meeting. Any action taken at any such
meeting shall not be invalidated for want of notice if such notice shall be
waived as herein provided.
4.7 WAIVER OF NOTICE. Notice of the time and place of any meeting of the
Board of Directors may be waived in writing or by telegram, radiogram, or
cablegram, either before or after such meeting has been held. A Director's
attendance at or participation in a 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.
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4.8 PURPOSE. Neither the business to be transacted nor the purpose of a
regular or special meeting need be specified in the notice or waiver of notice
of the meeting.
4.9 ELECTRONIC PARTICIPATION. A Director may participate in a meeting of
the Board or of any committee designated by the Board by means of a conference
telephone or similar communications equipment through which all persons
participating in the meeting can communicate with the other participants.
Participation in a meeting pursuant to this subsection constitutes presence in
person at the meeting.
4.10 QUORUM. A majority of the Directors then in office, or of the members
of a committee thereof, constitutes a quorum for the transaction of business. If
there shall be less than a quorum present at any meeting of the Board of
Directors, a majority of the Directors present may adjourn the meeting from time
to time without notice other than announcement at the meeting until a quorum
shall be present, at which time any business may be transacted which might have
been transacted at the meeting as first convened had there been a quorum
present. The vote of the majority of the Directors present at any meeting of the
Board or committee thereof at which a quorum is present constitutes the action
of the Board or of the committee except that amendment of these By-Laws requires
the vote of not less than a majority of the members of the Board then in office.
4.11 APPOINTMENT OF COMMITTEES. The Board may designate one (1) or more
committees, each committee to consist of one (1) or more of the Directors of the
Corporation. The Board may designate one (1) or more rectors as alternate
members of a committee, who may replace an absent or disqualified member at a
meeting of the committee. In the absence or disqualification of a member of a
committee, the members thereof present at a meeting and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in place of such an absent or
disqualified member. A committee, and each member thereof, shall serve at the
pleasure of the Board.
4.12 POWERS OF COMMITTEES. A committee designated pursuant to Section 11 of
this Article, to the extent provided in the resolution of the Board, may
exercise all powers and authority of the Board in management of the business and
affairs of the Corporation. However, such a committee does not have power or
authority to do any of the following:
(a) Amend the Articles of Incorporation;
(b) Adopt an agreement of merger or consolidation;
(c) Recommend to Shareholders the sale, lease or
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exchange of all or substantially all of the Corporation's
property and assets;
(d) Recommend to 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 of Directors;
(g) Fix compensation of the directors for serving on the
Board or on a committee; or
(h) Declare a distribution, dividend or authorize the
issuance of stock (unless the resolution appointing the
committee expressly provides that the committee may do so).
4.13 ACTION BY UNANIMOUS WRITTEN CONSENT. Action required or permitted to be
taken pursuant to authorization voted at a meeting of the Board or a committee
thereof, may be taken without a meeting if, before or after the action, all
members of the Board then in office or of the committee consent to the action in
writing. The written consents shall be filed with the minutes of the proceedings
of the Board or the committee. The consent has the same effect as a vote of the
Board or committee for all purposes.
4.14 ELECTION OF OFFICERS. The Board of Directors of the Corporation shall
elect or appoint a president, a secretary and a treasurer and may elect or
appoint a chairman of the board. None of said officers, except the chairman of
the board, need be a director. The Board of Directors shall have the power to
appoint such other officers and agents as the board may deem necessary for the
transaction of the business of the Corporation, including the power to appoint
one or more vice-presidents and one or more attorneys-in-fact.
4.15 COMPENSATION. Reasonable compensation of Directors and Officers may be
fixed by the Board irrespective of any personal interest of any of them.
4.16 PAYMENTS TO BE REIMBURSED. Any payment made to an officer or employee
or any expense reimbursed on his or her behalf, which shall be disallowed in
whole or in part as a deductible expense by the Internal Revenue Service, shall
be reimbursed by such officer or employee to the Corporation to the full extent
of such disallowance. The Board of Directors shall enforce payment of each such
amount disallowed.
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5. DISTRIBUTIONS TO SHAREHOLDERS
5.1 SOURCES. The Board of Directors shall have the power and authority to
authorize the Corporation to make distributions to its Shareholders from any
source; provided, that no distribution may be made if, after giving it effect,
the Corporation would not be able to pay its debts as they become due in the
usual course of business, or the Corporation's total assets would be less than
the sum of its total liabilities, plus the amount that would be needed, if the
Corporation were to be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution, if any, of Shareholders whose preferential
rights are superior to those receiving the distribution.
5.2 MANNER OF PAYMENT. Distributions may be paid in cash, in property, in
obligations of the Corporation.
5.3 SHARE DIVIDENDS. Shares of the Corporation may be issued pro rata and
without consideration to the Corporation's Shareholders or to the Shareholders
of one (1) or more classes or series.
6. TRANSACTIONS WITH THE CORPORATION: LOANS TO DIRECTORS, OFFICERS OR
EMPLOYEES
6.1 INTERESTED DIRECTOR OR OFFICER. A transaction in which a Director or
Officer is determined to have an interest shall not, because of the interest, be
enjoined, set aside, or give rise to an award of damages or other sanctions, in
a proceeding by a Shareholder or by or in the right of the Corporation if the
person interested in the transaction establishes any of the following:
(a) The transaction was fair to the Corporation at the
time entered into;
(b) The material facts of the transaction and the
Director's or officer's interest were disclosed or known to
the Board, a committee of the Board, or the independent
director or directors and the Board, committee or independent
director or directors authorized, approved or ratified the
transaction;
(c) The material facts of the transaction and the
Director's or Officer's interest were disclosed or known to
Shareholders entitled to vote and they authorized, approved,
or ratified the transaction.
6.2 LOANS TO DIRECTORS, OFFICERS OR EMPLOYEES. The Corporation may lend
money to, or guarantee an obligation of, or otherwise assist an Officer or
employee of the Corporation or of its subsidiary, including an Officer or
employee who is a Director of the Corporation or its subsidiary, when, in the
judgment of the
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Board, the loan, guaranty or assistance may reasonably be expected to benefit
the Corporation or is pursuant to a plan authorizing loans, guarantees, or
assistance, which plan the Board has reasonably determined will benefit the
Corporation. The loan, guaranty or assistance may be with or without interest,
and may be unsecured, or secured in a manner as the Board approves, including
without limitation, a pledge of shares of stock of the Corporation. Nothing in
this section shall deny, limit or restrict the powers of guaranty or warranty of
the Corporation at common law or under any statute.
7. OFFICERS
7.1 OFFICERS. The officers of the Corporation shall consist of a president,
secretary, treasurer and, if approved by the Board, a chairperson of the Board,
one or more vice-presidents and such other officers as may be determined by the
Board.
7.2 CHAIRPERSON OF THE BOARD. The Chairperson of the Board shall be
selected by and from the membership of the Board of Directors. He/she shall
preside at all meetings of the Shareholders and of the Board of Directors.
7.3 PRESIDENT. The President shall be the chief executive officer of the
Corporation. He/she shall, subject to the control of the Board of Directors,
have general and active management of the business of the Corporation, with such
general powers and duties of supervision and management as are usually vested in
the office of president of a corporation. He/she shall see that all orders and
resolutions of the Board of Directors are carried into effect, and shall have
such other powers and duties as may be assigned to him/her by the Board of
Directors.
7.4 VICE-PRESIDENTS. The Board of Directors may select one or more
vice-president who, subject to the control of the president, shall have such
powers and duties as may be assigned to each of them by the Board of Directors.
7.5 SECRETARY. The Secretary shall be selected by the Board of Directors.
Subject to the control of the Chairperson of the Board, he/she shall attend all
meetings of Shareholders and of the Board of Directors, and shall preserve in
books of the Corporation, true minutes of the proceedings of all such meetings.
He/she shall have such additional powers and duties as may be assigned to
him/her by the Board of Directors.
7.6 TREASURER. The Treasurer shall be selected by the Board of Directors.
Subject to the control of the President, he/she shall have custody of all
corporate funds and securities, and shall keep in books belonging to the
Corporation full and accurate accounts of all receipts and disbursements. He/she
shall deposit all monies,
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securities and other valuable effects in the name of the Corporation in such
depositories as may be designated for the purpose by the Board of Directors.
He/she shall disburse the funds of the Corporation as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
Chairperson of the Board and the Directors at regular meetings of the Board and
whenever requested by them and to the President, an account of all his
transactions as Treasurer. He/she shall in general perform all duties incident
to the office of treasurer, and shall have such additional powers and duties as
may be assigned to him/her by the Board of Directors.
7.7 TERM; REMOVAL OF OFFICERS AND AGENTS; RESIGNATION. AN officer elected
or appointed as herein provided shall hold office for the term for which he or
she is elected or appointed and until his/her successor is elected or appointed
and qualified, or until his/her resignation or removal. Any officer or agent may
be removed by the Board of Directors at any time, with or without cause. The
removal of an officer shall be without prejudice to his contract rights, if any.
The election or appointment of an officer does not of itself create contract
rights. An officer may resign by written notice to the Corporation. The
resignation is effective upon its receipt by the Corporation or at a subsequent
time specified in the notice of resignation.
8. EXECUTION OF INSTRUMENTS
8.1 MONEY INSTRUMENTS. All checks, drafts and orders for payment of money
shall be signed in the name of the Corporation by such officer(s) or agent(s)
and in such manner including the use of facsimile signatures as the Board of
Directors shall from time to time designate for that purpose.
8.2 OTHER INSTRUMENTS. The Board of Directors shall have power to designate
the officers and agents (or a single officer or agent) who shall have authority
to execute any contract, conveyance or other instrument or document on behalf of
the Corporation. When the execution of any contract, conveyance or other
instrument or document has been authorized without specification of the
executing officers, the Chairperson of the Board or President may execute the
same in the name and on behalf of the Corporation, or any Vice-President, and
the Secretary or Assistant Secretary may execute the same in the name, and on
behalf of the Corporation.
9. INDEMNIFICATION OF OFFICERS, DIRECTORS AND EMPLOYEES
9.1 LIMITATION OF PERSONAL LIABILITY OF DIRECTORS. A director of the
Corporation shall not be personally liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty. However, this
bylaw provision does not eliminate or limit
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the liability of a director for any of the following:
(a) For any breach of the director's duty of loyalty to the
Corporation or its shareholders;
(b) For acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of law;
(c) For a violation of Section 551(1} of the Michigan Business
Corporation Act;
(d) For any transaction from which the director derived an
improper personal benefit; or
(e) For any acts or omissions occurring before March 1, 1987.
9.2 INDEMNIFICATION; ACTIONS BY THIRD PARTIES (OTHER THAN BY STOCKHOLDERS).
The Corporation hereby indemnifies any person who was or is a party or is
threatened to be made a party to a threatened, pending nor completed action,
suit or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal, other than an action by or in the right of the
Corporation, by reason of the fact that he or she is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, against expenses, including
attorneys' fees, judgments, penalties, fines, and amounts paid in settlement
actually and reasonably incurred by him or her in connection with the action,
suit, or proceeding, if the person 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 or its shareholders, and with respect to any criminal action or
proceeding, if the person had no reasonable cause to believe his or her conduct
was unlawful. The termination of an action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the person 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 or its shareholders,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
9.3 INDEMNIFICATIONS; ACTIONS BY OR IN RIGHT OF THE CORPORATION
(STOCKHOLDER ACTIONS). The Corporation hereby indemnifies a person who was or is
a party to or is threatened to be made a party to a 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,
officer, employee or agent of the Corporation, or is or was serving at the
request of
BYLAWS-STANDARD LONG FORM
13
the Corporation as a director, officer, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, against expenses, including actual and reasonable
attorneys' fees, and amounts paid in settlement incurred by the person in
connection with the action or suit, if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation or its shareholders. However, indemnification shall
not be made for a particular claim, issue, or matter in which the person has
been found liable to the Corporation unless and only to the extent that the
court in which the action or suit was brought has determined upon application
that, despite the adjudication of liability but in view of all circumstances,
the person is fairly and reasonably entitled to indemnification for the expenses
which the Court considers proper.
9.4 INDEMNIFICATION AGAINST EXPENSES; DIRECTORS, OFFICERS, EMPLOYEES, OR
AGENTS SUCCESSFUL IN DEFENSE OF PROCEEDINGS OR CLAIMS.
(a) To the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in
defense of an action, suit or proceeding referred to in 9.2 or 9.3 or
in defense of a claim, issue or matter in the action, suit or
proceeding, he or she shall be indemnified against expenses, including
actual and reasonable attorneys' fees, incurred by him or her in
connection with the action, suit or proceeding and an action, suit or
proceeding brought to enforce the mandatory indemnification provided in
this Section 9.
(b) An indemnification under paragraph 9.1 or 9.2, unless ordered
by a court, shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances
because he or she has met the applicable standard of conduct set forth
in paragraph 9.1 or 9.2. This determination shall be made in any of
the following ways:
(i) By a majority vote of a quorum of the Board
consisting of directors who are not parties or threatened to
be made parties to the action, suit, or proceeding.
(ii) If a quorum described in (i) is not obtainable, then
by a majority vote of a committee of directors who are not
parties to the action. The committee shall consist of not less
than two disinterested directors.
(iii) By independent legal counsel in a written opinion.
(iv) By the shareholders.
BYLAWS-STANDARD LONG FORM
14
(c) If a person is entitled to indemnification under paragraph 9.2
or 9.3 for a portion of expenses, including reasonable attorneys' fees,
judgments, penalties, fines and amounts paid in settlement, but not for
the total amount thereof, the Corporation shall indemnify the person
for the portion of the expenses, judgments, penalties, fines or amounts
paid in settlement for which the person is entitled to be indemnified.
9.5 ADVANCE PAYMENT; EXPENSE OF DIRECTOR, OFFICER, EMPLOYEE OR AGENT IN
DEFENDING ACTION OR PROCEEDING. Expenses incurred in defending a civil or
criminal action, suit or proceeding described in paragraph 9.2 or 9.3 shall be
paid by the Corporation in advance of the final disposition of the action, suit
or proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay the expense if it is ultimately determined
that the person is not entitled to be indemnified by the Corporation. The
undertaking shall be an unlimited general obligation of the person on whose
behalf advances are made but need not be secured.
9.6 INDEMNIFICATION NOT EXCLUSIVE.
(a) The indemnification or advancement of expenses provided under
paragraphs 9.1 through 9.5 is not exclusive of other rights to which a
person seeking indemnification or advancement of expenses may be
entitled under the Corporation's Articles of Incorporation, Bylaws, or
a contractual agreement. However, the total amount of expenses advanced
or indemnified from all sources combined shall not exceed the amount of
actual expenses incurred by the person seeking indemnification or
advancement of expenses.
(b) The indemnification provided for in paragraphs 9.2 through 9.6
continues as to a person who ceases to be a director, officer, employee
or agent, and shall inure to the benefit of the heirs, executors and
administrators of the person.
9.7 MERGER. For purposes of this Article, "Corporation" includes all
constituent corporations absorbed in a consolidation or merger and the
resulting, or surviving corporation, so that a person who is or was a director,
officer, employee, or agent of the constituent corporation or is or was serving
at the request of the constituent corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise whether for profit or not
shall stand in the same position under the provisions of this paragraph with
respect to the resulting or surviving corporation as the person would if he or
she had served the resulting or surviving corporation in the same capacity.
BYLAWS-STANDARD LONG FORM
15
10. CORPORATE SEAL
There shall be no corporate seal.
11. FISCAL YEAR
The fiscal year of the Corporation shall end on such date as the Board
of Directors shall specify.
12. AMENDMENT OF BY-LAWS
These by-laws may be altered, amended, added to, rescinded or repealed
by the affirmative vote of a majority of the Shares entitled to vote or, except
insofar as exercise of such power shall be contrary to the Articles of
Incorporation, by the Board of Directors.
Adopted: December 7, 1995
BYLAWS-STANDARD LONG FORM
16
BY-LAWS
OF
CMI INTERNATIONAL, INC.
A Michigan Corporation
ARTICLE I
SHAREHOLDERS MEETINGS
Section 1. Annual Meeting. The Annual Meeting of the shareholders shall
be held in each year after the expiration of the fiscal year of the Corporation
at such time and place as shall be determined by the Board of Directors, for
the purpose of electing Directors and of transacting such other business as may
properly be brought before the meeting.
Section 2. Order of Business. The order of business at the Annual
Meeting of the shareholders shall be as follows:
(a) Roll call;
(b) Reading of notice and proof of mailing;
(c) Annual reports of officers consisting of discussion of:
balance sheet as of the end of the preceding fiscal year;
statement of income for such fiscal year and if prepared by
the Corporation, a statement of source and application of
funds for such fiscal year;
(d) Election of Directors;
(e) Transaction of other business as follows:
Unfinished business
New business;
(f) Adjournment;
provided that in the absence of any objection, the presiding officer may vary
the order of business at his discretion.
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Section 3. Special Meetings. A Special Meeting of the shareholders may
be called to be held at such time and place as may be designated by the Chairman
of the Board, a majority of the Board of Directors, or not less than an
aggregate of ten percent (10%) of the outstanding shares of stock of the
corporation having the right to vote at such Special Meeting.
Upon receipt of a notification in writing setting forth the time, place
and purpose of such proposed Special Meeting, signed by the Chairman of the
Board, a majority of the Board of Directors or not less than an aggregate of ten
percent (10%) of the outstanding shares of stock of the Corporation having a
right to vote at such Special Meeting, the Secretary of this Corporation shall
prepare, sign and mail the notice requisite to such meeting.
Section 4. Notice of Meetings. Written notice of the time, place and
purposes of every meeting of the shareholders of this Corporation shall be
given either personally or by mail not less than ten (10) nor more than sixty
(60) days before said meeting upon each shareholder of record of the corporation
entitled to vote at such meeting. Notices shall state the authority pursuant to
which they are issued as, "by order of" the "Chairman of the Board", "Board of
Directors", or "shareholders".
Section 5. Waiver of Notice. Notice of the time, place and purpose of
any meeting of the shareholders of this Corporation may be waived by telegram,
radiogram, cablegram, or other writing either before or after such meeting has
been held.
Attendance of a person at a meeting of shareholders, in person or by
proxy, constitutes a waiver of notice of the meeting, except when the
shareholder 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.
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Section 6. Electronic Participation. A shareholder shall be deemed to
be present in person at a meeting of shareholders if such shareholder
participates in a meeting of shareholders by a conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear each other and all participants are advised of the communications equipment
and the names of the participants in the conference are divulged to all
participants.
Section 7. Quorum. At every meeting of the shareholders, the holders of
record of a majority of the outstanding shares of stock of the Corporation
entitled to vote at such meeting, whether present in person or represented by
proxy, shall constitute a quorum. If less than a quorum shall be present at any
meeting of shareholders, those holders of record of outstanding shares of stock
of the corporation entitled to vote at such meeting, present in person or
represented by proxy, may adjourn the meeting from time to time without further
notice other than by announcement at the meeting, until a quorum shall have been
obtained, at which time any business may be transacted which might have been
transacted at the meeting as first convened, had there been a quorum.
Section 8. Record Date. The Board of Directors may fix in advance a
date not exceeding sixty (60) days nor less than ten (10) days preceding the
original date fixed for any meeting of shareholders, or the date for the payment
of any dividend, or the date for the allotment of rights, or the date when any
change or conversion or exchange of capital stock shall go into effect, as a
record date for the determination of the shareholders entitled to notice of, and
to vote at, any such meeting, or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock. In such
case, such shareholders and only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting, or to receive payment of such
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dividend, or to receive such allotment of rights, or to exercise such rights, as
the case may be, notwithstanding any transfer of any stock on the books of the
Corporation or otherwise after any such record date is fixed as aforesaid.
Nothing in this Section shall affect the rights of a shareholder and his
transferee or transferor as between themselves.
Section 9. Inspection of List of Shareholders. The officer or agent
having charge of the stock transfer books for shares of the Corporation shall
make and certify a complete list of the shareholders entitled to vote at a
shareholders meeting or any adjournment thereof. The list shall:
(a) Be arranged alphabetically within each class and series, with
the address of and the number of shares held by each
shareholder.
(b) Be produced at the time and place of the meeting.
(c) Be subject to inspection by any shareholder during the whole
time of the meeting.
(d) Be prima facie evidence as to who are the share-holders
entitled to examine the list or to vote at the meeting.
Section 10. Inspectors of Election. The Board, in advance of a
shareholders meeting, may appoint one or more inspectors to act at the meeting
or any adjournment thereof. If inspectors are not so appointed, the person
presiding at a shareholders meeting may, and on request of a shareholder
entitled to vote thereat shall, appoint one (1) or more inspectors. In case a
person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board in advance of the meeting or at the meeting by the
person presiding thereat.
The inspectors shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, the validity and effect
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of proxies, and shall receive votes, ballots or consents, hear and determine
challenges and questions arising in connection with the right to vote, count and
tabulate votes, ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all shareholders. On
request of the person presiding at the meeting or a shareholder entitled to vote
thereat, the inspectors shall make and execute a written report to the person
presiding at the meeting of any of the facts found by them and matters
determined by them.
Section 11. Voting Rights. At all times, each holder of record of the
common stock of the Corporation shall be entitled to one vote for each share of
common stock standing in his name on the books of the Corporation, subject,
however, to the full effect of the limitations imposed by the fixed record date
for determination of shareholders set forth elsewhere in this Article. A vote
may be cast either orally or in writing as determined by the Chairman of the
meeting.
When an action other than the election of Directors is to be taken by
vote of the shareholders, it shall be authorized by a majority of the votes cast
by the holders of shares entitled to vote thereon. Directors shall be elected by
a plurality of the votes cast at an election.
Section 12. Vote by Shareholder Corporation. Shares standing in the
name of another domestic or foreign corporation may be voted by an officer or
agent, or by proxy appointed by an officer or agent or by some other person, who
by action of its board or pursuant to its by-laws shall be appointed to vote
such shares.
Section 13. Action by Unanimous Written Consent. Any action required
or permitted to be taken at an Annual or Special Meeting of shareholders may be
taken without a meeting, without prior notice and without a vote, if all the
shareholders entitled to vote thereon consent thereto in writing.
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ARTICLE II
SHAREHOLDER INSPECTION OF BOOKS OF ACCOUNT
AND STOCK BOOKS: REPORTS TO SHAREHOLDERS
Section 1. Books of Account and Stock Books. The Corporation shall keep
books and records of account and minutes of the proceedings of the shareholders,
board and executive committee, if any. The Corporation shall keep at its
registered office, or at the office of its transfer agent within or without this
state, records containing the names and addresses of all share-holders, the
number, class and series of shares held by each and the dates when they
respectively became holders of record thereof. Any of such books, records or
minutes may be in written form or in any other form capable of being converted
into written form within a reasonable time. The Corporation shall convert into
written form without charge any such record not in such form upon written
request of a person entitled to inspect them.
Section 2. Financial Statements. Within four months of the end of its
fiscal year, the Corporation shall mail to each shareholder its balance sheet as
of the end of the preceding fiscal year; its statement of income for such fiscal
year; and, if prepared by the Corporation, its statement of source and
application of funds for such fiscal year. The same shall be furnished to any
shareholder at any time upon written request from such shareholder.
Section 3. Examination of Stock Books. A person who is a shareholder of
record of the Corporation, upon at least ten (10) days' written demand, may
examine for any proper purpose in person or by agent or attorney, during usual
business hours, its minutes of shareholders meeting and record of shareholders
and make extracts therefrom, at the places where they are kept.
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Section 4. Circuit Court. The Corporation recognizes that upon proof by
a shareholder of a proper purpose, a circuit court may compel production for
examination by the shareholder of the books and records of account, minutes, and
record of shareholders of the Corporation, and may allow the shareholder to make
extracts therefrom.
ARTICLE III
CAPITAL STOCK
Section 1. Certificates. Every shareholder of this Corporation shall be
entitled to a certificate of his shares signed by the President or Vice
president and the secretary or Assistant secretary, certifying the number and
class of shares represented by such certificate; provided that where such
certificate is signed by a transfer agent acting on behalf of this Corporation,
and by a registrar, the signature of any such president, Vice president,
secretary or Assistant Secretary may be facsimile.
Section 2. Transfer. Shares shall be transferable only on the books of
the Corporation by the person named in the certificate, or by attorney lawfully
constituted in writing, and upon surrender of the certificates therefor. A
record shall be made of every such transfer and issue. Whenever any transfer is
made for collateral security and not absolutely, the fact shall be so ex-pressed
in the entry of such transfer.
Section 3. Shareholders. The Corporation shall have the right to treat
the registered holder of any share as the absolute owner thereof, and shall not
be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any
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other person, whether or not the Corporation shall have express or other notice
thereof, save as may be otherwise provided by statute.
Section 4. Lien for Stockholders Indebtedness. The Corporation shall
have a lien upon the capital stock of any holder thereof who is indebted to the
Corporation in any way and shall have the right to cancel the holder's right in
such amount of the capital stock as is equivalent to such Indebtedness in
payment and satisfaction thereof and the discharge of such lien. Further, the
Corporation shall have the right to not accept any transfer of capital stock by
the holder thereof which will impair the security of its lien for the balance of
the indebtedness then owing by such holder to the Corporation.
Section 5. Transfer Agent and Registrar. The Board of Directors may
appoint a transfer agent and a registrar of transfer, and may require all
certificates of shares to bear the signature of such transfer agent and of such
registrar of transfers.
Section 6. Regulations. The Board of Directors shall have power and
authority to make such rules and regulations as the Board shall deem expedient
regulating the issue, transfer and registration of certificates for share of
this Corporation.
ARTICLE IV
BOARD OF DIRECTORS
Section 1. Number and Term of Office. The business, property and
affairs of the Corporation shall be managed by a Board of Directors composed of
one (1) or more members who need not be shareholders. The number of Directors
for the Board of Directors shall be determined as three (3) at the time of
adoption of these By-Laws, and thereafter, the number of Directors shall be
determined from time
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to time by resolution adopted by a majority of the Board. At each Annual Meeting
of shareholders, the shareholders shall elect Directors to hold office until the
succeeding Annual Meeting. A Director shall hold office for the term for which
he is elected and until his successor is elected and qualified, or until his
resignation or removal. A Director may resign by written notice to the
Corporation. The resignation is effective upon its receipt by the Corporation or
a subsequent time as set forth in the notice of resignation.
Section 2. Vacancies. A vacancy occurring in the Board may be filled by
the affirmative vote of a majority of the remaining Directors though less than a
quorum of the Board. A directorship to be filled because of an increase in the
number of Directors or to fill a vacancy may be filled by the Board for a term
of office continuing only until the next election of Directors by the
shareholders.
Section 3. Organizational Meeting. At the place of holding the Annual
Meeting of shareholders and immediately following the same, the Board of
Directors as constituted upon final adjournment of such Annual Meeting shall
convene without notice for the purpose of electing officers and transacting any
other business properly brought before it; provided, that the organizational
meeting in any year may be held at a different time and place than that herein
provided by consent of a majority of the Directors of such new Board.
Section 4. Regular Meetings. Regular Meetings of the Board of Directors
shall be held at such time and place as the Board of Directors shall from time
to time determine by resolution of the Board of Directors or by Waiver of Notice
and Consent. NO notice of Regular Meetings of the Board shall be required.
Section 5. Special Meetings. Special Meeting of the Board of Directors
may be called by the Chairman of the Board or
a majority of the Directors in office at the time of the call, whenever in his
or their judgment it may be necessary, by giving reasonable notice, either
personally or by mail or telegram, of the time and place of such meeting. Any
action taken at any such meeting shall not be invalidated for want of notice if
such notice shall be waived as herein provided.
Section 6. Waiver of Notice. Notice of the time and place of any
meeting of the Board of Directors of this Corporation may be waived in writing
or by telegram, radiogram, or cablegram, either before or after such meeting has
been held.
Section 7. Purpose. Neither the business to be transacted nor the
purpose of a Regular or Special Meeting need be specified in the notice or
waiver of notice of the meeting.
Section 8. Electronic Participation. A member of the Board or a
committee designated by the Board may participate in a meeting by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this subsection constitutes presence in person at the
meeting.
Section 9. Quorum. A majority of the Directors in office or of the
members of a committee thereof at the time of a meeting of the Board shall
constitute a quorum for the transaction of business. If there shall be less than
a quorum present at any meeting of the Board of Directors, a majority of the
Directors present may adjourn the meeting from time to time without notice other
than announcement at the meeting until a quorum shall be present, at which time
any business may be transacted which might have been transacted at the meeting
as first convened had there been a quorum present. The acts of a majority of the
Directors present at any meeting at which a quorum is present shall be the acts
of the Board or of the committee except that amendment of the
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By-Laws requires the vote of not less than a majority of the members of the
Board then in office.
Section 10. Appointment of Committees. The Board may designate one (1)
or more committees, each committee to consist of one (1) or more of the
Directors of the Corporation. The Board may designate one (1) or more Directors
as alternate members of a committee, who may replace an absent or disqualified
member at a meeting of the committee. In the absence or disqualification of a
member of a committee, the members thereof present at a meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in place
of such an absent or disqualified member. A committee, and each member thereof,
shall serve at the pleasure of the Board.
Section 11. Powers of Committees. A committee to the extent provided in
the resolution of the Board, may exercise all powers and authority of the Board
in management of the business and affairs of the Corporation. However, such a
committee does not have power or authority to:
(a) Amend the Articles of Incorporation;
(b) Adopt an agreement of merger or consolidation;
(c) Recommend to shareholders the sale, lease or exchange of all
or substantially all of the Corporation's property and assets;
(d) Recommend to 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 of Directors;
(g) Fix compensation of the Directors for serving on the Board or
on a committee; or
(h) Declare a stock dividend or authorize the issuance of stock
(unless the resolution appointing the
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committee expressly provided that the committee may do so).
Section 12. Action by Unanimous Written Consent. Action required or
permitted to be taken pursuant to authorization voted at a meeting of the Board
or a committee thereof, may be taken without a meeting if, before or after the
action, all members of the Board or of the committee consent thereto in writing.
The written consents shall be filed with the minutes of the proceedings of the
Board or the committee. The consent has the same effect as a vote of the Board
or committee for all purposes.
Section 13. Election of Officers. The Board of Directors of the
Corporation shall select a President, a Secretary and a Treasurer and may elect
a Chairman of the Board. None of said officers, except the Chairman of the
Board, need be a Director. The Board of Directors shall have the power to
appoint such other officers and agents as the Board may deem necessary for the
trans-action of the business of the Corporation, including the power to appoint
one or more Vice Presidents and one or more attorneys-in-fact to convey or deal
with corporate real estate.
Section 14. Removal of Officers and Agents. Any officer or agent may be
removed by the Board of Directors at any time, with or without cause. The
removal of an officer shall be without prejudice to his contract rights, if any.
The election or appointment of an officer does not of itself create contract
rights.
Section 15. Compensation. Reasonable compensation of Directors and
officers may be fixed by the Board.
Section 16. Payments to be Reimbursed. Any payments made to an officer
or employee of the Corporation such as salary, commission, bonus, interest, or
rent, or entertainment expense incurred by him, which shall be disallowed in
whole or in part as a deductible expense by the Internal Revenue Service, shall
be
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reimbursed by such officer or employee to the Corporation to the full extent of
such disallowance. The Directors shall enforce payment of each amount
disallowed. In lieu of payment by the officer or employee, subject to the
determination of the Directors, proportionate amounts may be withheld from his
future compensation payments until the amount owed to the Corporation has been
recovered.
ARTICLE V
DIVIDENDS AND RESERVES
Section 1. Sources. The Board of Directors shall have power and
authority to declare dividends from the following sources:
(a) From Earned Surplus (including current earnings);
(b) From Capital Surplus (including from appreciation of the value
of the assets of the Corporation);
(c) From any other source or sources which may be permitted by
statute.
Section 2. Manner of Payment. Dividends may be paid in cash, in
property, in obligations of the Corporation, or in shares of the capital stock
of the Corporation.
Section 3. Reserves. The Board of Directors shall have power and
authority to set apart, out of any funds available for dividends, such reserve
or reserves for any proper purpose, as the Board in its discretion shall
approve; and the Board shall have power and authority to abolish any reserve
created by the Board.
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ARTICLE VI
TRANSACTIONS WITH THE CORPORATION:
LOANS TO DIRECTORS, OFFICERS OR EMPLOYEES
Section 1. Interested Directors. A contract or other transaction
between the Corporation and one or more of its Directors or officers, or between
the Corporation and a foreign or domestic corporation, firm or association of
any type or kind in which one or more of its directors or officers are directors
or officers, or are otherwise interested, is not void or voidable solely because
of such common directorship, officership or interest, or Solely because such
directors are present at the meeting of the Board or committee thereof which
authorizes or approves the contract or transaction, or soley because their votes
are counted for such purpose if any of the following conditions is satisfied:
(a) The contract or other transaction is fair and reasonable to
the Corporation when it is authorized, approved or ratified;
(b) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or known to the
Board or committee and the Board or committee authorizes,
approves or ratifies the contract or transaction by a vote
sufficient for the purpose without counting the vote of any
common or interested director;
(c) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or known to the
shareholders, and they authorize, approve or ratify the
contract or transaction.
Section 2. Loans to Directors, Officers, or Employees. The Corporation
may lend money to, or guarantee an obligation of, or otherwise assist an officer
or employee of the Corporation or of its subsidiary, including an officer or
employee who is a Director of the Corporation or its subsidiary, when, in the
judgments of the Board, the loan, guaranty or assistance may reasonably be
expected to benefit the Corporation. The loan, guaranty
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or assistance may be with or without interest, and may be unsecured or secured
in such manner as the Board approves, including without limitation, a pledge of
shares of stock of the Corporation. Nothing in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the Corporation at
common law or under any statute.
ARTICLE VII
OFFICERS
Section 1. Chairman of the Board. The Chairman of the Board shall be
selected by and from the membership of the Board of Directors. He shall preside
at all meetings of the shareholders and of the Board of Directors.
Section 2. President. The president shall be the chief executive
officer of the Corporation. He shall, subject to the control of the Board of
Directors, have general and active management of the business of the
Corporation, with such general powers and duties of supervision and management
as are usually vested in the office of president of a corporation. He shall see
that all orders and resolutions of the Board of Directors are carried into
effect, and shall have such other powers and duties as may be assigned to him by
the Board of Directors.
Section 3. Vice Presidents. The Board of Directors may select one or
more vice presidents who, subject to the control of the President, shall have
such powers and duties as may be assigned to each of them by the Board of
Directors.
Section 4. Secretary. The Secretary shall be selected by the Board of
Directors. Subject to the control of the Chairman of the Board, he shall attend
all meetings of shareholders and of
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the Board of Directors, and shall preserve in books of the Corporation, true
minutes of the proceedings of all such meetings. He shall have such additional
powers and duties as may be assigned to him by the Board of Directors.
Section 5. Treasurer. The Treasurer shall be selected by the Board of
Directors. Subject to the control of the President, he shall have custody of all
corporate funds and securities, and shall keep in books belonging to the
Corporation full and accurate accounts of all receipts and disbursements. He
shall deposit all moneys, securities and other valuable effects in the name of
the Corporation in such depositories as may be designated for the purpose by the
Board of Directors. He shall disburse the funds of the Corporation as may be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the Chairman of the Board and the Directors at regular meetings of the
Board and whenever requested by them and to the President, an account of all his
transactions as Treasurer. He shall in general perform all duties incident to
the office of Treasurer, and shall have such additional powers and duties as may
be assigned to him by the Board of Directors.
ARTICLE VIII
EXECUTION OF INSTRUMENTS
Section 1. Money Instruments. All checks, drafts and orders for payment
of money shall be signed in the name of the Corporation, and shall be
countersigned by such officers or agents and in such manner including the use of
facsimile signatures as the Board of Directors shall from time to time designate
for that purpose.
Section 2. Other Instruments. The Board of Directors shall have power
to designate the officers and agents who shall
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have authority to execute any contract, conveyance or other instrument or
document on behalf of the Corporation. When the execution of any contract,
conveyance or other instrument or document has been authorized without
specification of the executing officers, the Chairman of the Board or President
may execute the same in the name and on behalf of the Corporation, or any Vice
President, and the Secretary or Assistant Secretary may execute the same in the
name and on behalf of the Corporation.
ARTICLE IX
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
Section 1. Indemnification; Actions by Third Parties. The Corporation
hereby indemnifies any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation), by reason of the fact that he is or was
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid
in 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 or its
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shareholders, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Indemnification; Actions by or in Right of the Corporation.
The Corporation hereby indemnifies any person who was or is a party to OR is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation or its shareholders and except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
Section 3. Indemnification Against Expenses; Directors, Officers,
Employees, or Agents Successful in Defense of Proceedings or Claims.
1. To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in sections 1 or 2 or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including
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attorneys' fees) actually and reasonably incurred by him in connection
therewith.
2. Any indemnification under sections 1 or 2 (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in sections 1 and 2. Such determination shall be made in
either of the following ways:
(a) By the board by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding.
(b) If such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion.
(c) By the shareholders.
Section 4. Advance Payment; Expense of Director, Officer, Employee, or
Agent in Defending Action or Proceeding. Expenses incurred in defending a civil
or criminal action, suit or proceeding described in sections 1 or 2 may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided in subsection (2) of section 3
upon receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation.
Section 5. Validity of Indemnification Provisions in Articles, Bylaws,
Resolutions, or Agreements. A provision made to indemnify directors or officers
in any action, suit or proceeding referred to in sections 1 or 2, whether
contained in the articles of incorporation, the bylaws, a resolution of
shareholders or directors, an agreement or otherwise, shall be invalid only
insofar as it is in conflict with sections 1 to 5.
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Nothing contained in sections 1 to 5 shall affect any rights to indemnification
to which persons other than directors and officers may be entitled by contract
or otherwise by law. The indemnification provided in sections l to 5 continues
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
person.
Section 6. Liability Insurance for Directors, Officers. Employees, or
Agents. The Corporation shall have power to 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 his status as such,
whether or not the Corporation would have power to indemnify him against such
liability under sections 1 to 5.
Section 7. Definitions. For the purposes of sections 1 to 6 "other
enterprises" shall include employee benefit plans; "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
"serving at the request of the Corporation" shall include any service as a
director, officer, employee, or agent of the Corporation which imposes duties
on, or involves services by, the 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 of an employee benefit
plan shall be considered to have acted in a manner "not opposed to the best
interests of the Corporation or its shareholders" as referred to in sections 1
and 2.
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ARTICLE X
CORPORATE SEAL
There shall be no corporate seal.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall end on such date as the Board
of Directors shall specify.
ARTICLE XII
AMENDMENT OF BY-LAWS
The Board of Directors of the Corporation shall have power to alter,
amend, add to, rescind or repeal the By-Laws of the Corporation by the
affirmative vote of the majority of the Directors in office.
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