EXHIBIT 3.62
BY-LAWS
OF
CMI-TECH CENTER, 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.
Section 3. Special Meetings. A Special Meeting of the
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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
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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 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 of proxies, and shall receive votes, ballots or
consents, hear
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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 other person, whether or not the Corporation shall
have express
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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) members who need not be shareholders. The number of Directors for the
initial Board of Directors shall be determined by the shareholders, and
thereafter, the number of Directors shall be determined from time to time by
resolution adopted by a majority of the Board. At
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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
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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
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acts of the Board or of the committee except that amendment of the 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
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stock (unless the resolution appointing the 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
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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 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
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be expected to benefit the Corporation. The loan, guaranty 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
LIMITATION OF PERSONAL LIABILITY OF DIRECTORS
AND
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
Section 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 a breach of the director's fiduciary duty.
However, this by-law provision does not eliminate or limit the liability of a
director for any of the following:
(i) A breach of the director's duty of loyalty to the Corporation
or its shareholders.
(ii) Acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of the law.
(iii) A violation of Section 551(1) of the Michigan Business
Corporation Act.
(iv) A transaction from which the director derived an improper
personal benefit.
(v) An act or omission occurring before March 1, 1987.
[So that the reader may understand the above
reference to Section 551(1) of the Michigan Business
Corporation Act, it is
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extracted as follows:
"(1) In addition to any other liability
imposed by this act or other law upon
directors of a corporation, directors who
vote for, or concur in, any of the following
corporate actions are jointly and severally
liable to the corporation for the benefit of
its creditors or shareholders, to the extent
of any legally recoverable injury suffered
by such persons as a result of the action
but not to exceed the amount unlawfully paid
or distributed:
(a) Declaration of a dividend or
other distribution of assets to shareholders
contrary to this act or contrary to any
restriction in the articles of incorporatin
or by-laws.
(b) Purchase of shares of the
corporation contrary to this act or contrary
to any restriction in the articles or
by-laws.
(c) Distribution of assets to
shareholders during or after dissolution of
the corporatin without paying, or adequately
providing for, all known debts, obligations
and liabilities of the corporation.
(d) Making of a loan to an officer,
director or employee of the corporation or
of a subsidiary thereof contrary to this
act.
(2) A director is not liable under this
section if he has complied with section 541.
(3) A shareholder who accepts or receives a
dividend or distribution with knowledge of
facts indicating it is not authorized by
this act is liable to the corporation in the
amount accepted or received by him."
So that the reader may understand the above reference
to Section 541 of the Michigan Business Corporation
Act, it is extracted as follows:
"A director or an officer shall discharge
the duties of that position in good faith
and with that degree of diligence, care, and
skill which an
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ordinarily prudent person would exercise
under similar circumstances in a like
position. In discharging his or her duties,
a director or officer, when acting in good
faith, may rely upon the opinion of counsel
for the corporation, upon the report of an
independent appraiser selected with
reasonable care by the board, or upon
financial statements of the corporation
represented to him or her as correct by the
president or the officer of the corporation
having charge of its books of account, or as
stated in a written report by an independent
public or certified public accountant or
firm of accountants fairly to reflect the
financial condition of the corporation."]
Section 2. Indemnification; Actions by Third Parties (Other Than by
Stockholders). The Corporation hereby indemnifies a person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether formal or informal, other than an action by or in the
right of the Corporation, by reason of the fact that 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 a action, suit or proceeding by judgment,
order, settlement, conviction or upon
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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.
Section 3. Indemnification; 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 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 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 of the case, the
person is fairly and reasonably entitled to indemnification for the expenses
which the court consider proper.
Section 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
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agent of the Corporation has been successful on the merits or otherwise in
defense of an action, suit or proceeding referred to in sections 2 or 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 Article IX.
(b) An indemnification under section 2 or 3, 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 section 2 and 3. 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 were not parties to the
action, suit or proceeding.
(ii) If the quorum described in subdivision (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.
(c) If a person is entitled to indemnification under said section
2 or 3 for a portion of expenses including 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.
Section 5. Advance Payment; Expense of Director, Officer,
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Employee, or Agent in Defending Action or Proceeding. Expenses incurred in
defending a civil or criminal action, suit or proceeding described in sections 2
or 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.
Section 6. Indemnification not Exclusive.
(a) The indemnification or advancement of expenses provided under
sections 2 to 5 is not exclusive of other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation, by-laws, 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 sections 2 to 6 continues
as to a person who ceasesd to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of the
person.
Section 7. Merger. For purposes of sections 2 to 6, "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, partnrship, joint venture, trust or other enterprise whether for
profit or not
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shall stand in the same position under the provisions of this section 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.
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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BY-LAWS
OF
CMI-TECH CENTER, INC.
A Michigan Corporation
(Including All Amendments as of 1/14/94)
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 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.
1.3 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".
1.4 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.
1.5 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.
1.6 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 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/her transferee or transferor as between
themselves.
1.7 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.
1.8 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 of such corporation.
1.9 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.
1.10 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
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conference shall be divulged to all participants. Participation in a meeting
pursuant to this Section constitutes presence in person at the meeting.
2. SHARES
2.1 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.
3. BOARD OF DIRECTORS
3.1 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.
3.2 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.
3.3 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.
3.4 REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such time and place as the Board of
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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.
3.5 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.
3.6 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.
3.7 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.
3.8 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.
3.9 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.
3.10 ACTION BY UNANIMOUS WRITTEN CONSENT. Action required or
permitted to be taken pursuant to authorization voted at a
4
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.
3.11 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. OFFICERS
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 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.
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4.6 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, 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.
4.7 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.
5. EXECUTION OF INSTRUMENTS
5.1 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.
5.2 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.
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6. INDEMNIFICATION OF OFFICERS, DIRECTORS AND EMPLOYEES
6.1 THIRD-PARTY PROCEEDING. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he/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, 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/her in connection with
such action, suit or proceeding if he/she acted in good faith and in a manner
he/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 no reasonable cause to believe his/her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he/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/her
conduct was unlawful.
6.2 DERIVATIVE SHAREHOLDER LIABILITY. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he/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) and amounts paid in settlement
actually and reasonably 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; except that no indemnification shall be made for any claim, issue
or matter in which the person has been found liable to the Corporation except
to the extent ordered by a court of competent jurisdiction.
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7. 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.
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