EXHIBIT 3.2
BYLAWS
OF
AMERICAN PHYSICIANS CAPITAL, INC.
ARTICLE I
OFFICES
1.01 Principal Office. The principal office of the corporation shall be
at such place within or without the State of Michigan as the Board of Directors
shall determine from time to time.
1.02 Other Offices. The corporation also may have offices at such other
places as the Board of Directors from time to time determines or the business of
the corporation requires.
ARTICLE II
SEAL
2.01 Seal. The corporation may have a seal in such form as the Board of
Directors may from time to time determine. The seal may be used by causing it or
a facsimile to be impressed, affixed or otherwise reproduced.
ARTICLE III
CAPITAL STOCK
3.01 Issuance of Shares. The shares of capital stock of the corporation
shall be issued in such amounts, at such times, for such consideration and on
such terms and conditions as the Board shall deem advisable, subject to the
Articles of Incorporation and any requirements of the laws of the State of
Michigan.
3.02 Certificates for Shares. The shares of the corporation shall be
represented by certificates signed by the Chairman of the Board, the President,
or a Vice President, and also may be signed by the Treasurer, Assistant
Treasurer, Secretary, or Assistant Secretary of the corporation, and may be
sealed with the seal of the corporation or a facsimile of it. A certificate
representing shares shall state on its face that the corporation is formed under
the laws of the State of Michigan and shall also state the name of the person to
whom it is issued, the number and class of shares and the designation of the
series, if any, that the certificate represents, and any other provisions that
may be required by the laws of the State of Michigan.
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3.03 Transfer of Shares. The shares of the capital stock of the
corporation are transferable only on the books of the corporation upon surrender
of the certificate therefore, properly endorsed for transfer, and the
presentation of such evidences of ownership and validity of the assignment as
the corporation may require.
3.04 Registered Shareholders. The corporation shall be entitled to
treat the person in whose name any share of stock is registered as the owner
thereof for purposes of dividends and other distributions in the course of
business, or in the course of recapitalization, merger, plan of share exchange,
reorganization, sale of assets, liquidation or otherwise and for the purpose of
votes, approvals and consents by shareholders, and for the purpose of notices to
shareholders, and for all other purposes whatever, and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not the corporation shall have notice thereof,
save as expressly required by the laws of the State of Michigan.
3.05 Lost or Destroyed Certificates. Upon the presentation to the
corporation of a proper affidavit attesting the loss, destruction or mutilation
of any certificate or certificates for shares of stock of the corporation, the
Board of Directors shall direct the issuance of a new certificate or
certificates to replace the certificates so alleged to be lost, destroyed or
mutilated. The Board of Directors may require as a condition precedent to the
issuance of new certificates a bond or agreement of indemnity, in such form and
amount and with such sureties, or without sureties, as the Board of Directors
may direct or approve.
ARTICLE IV
SHAREHOLDERS AND MEETINGS OF SHAREHOLDERS
4.01 Place of Meetings. All meetings of shareholders shall be held at
the principal office of the corporation or at such other place as shall be
determined by the Board of Directors and stated in the notice of meeting.
4.02 Annual Meeting. The annual meeting of the shareholders of the
corporation shall be held during the fifth month after the end of the
corporation's fiscal year, or at such time as the Board of Directors shall from
time to time determine. Directors shall be elected at each annual meeting and
such other business transacted as may come before the meeting.
4.03 Special Meetings. Special meetings of shareholders may be called
by the Board of Directors, the Chairman of the Board (if such office is filled)
or the President and shall be called by the President or Secretary at the
written request of shareholders holding two-thirds of the shares of stock of the
corporation outstanding and entitled to vote. The request shall state the
purpose or purposes for which the meeting is to be called.
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4.04 Notice of Meetings. Except as otherwise provided by statute,
written notice of the time, place and purposes of a meeting of shareholders
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each shareholder of record entitled to vote at the meeting, either
personally or by mailing such notice to the shareholder's last address as it
appears on the books of the corporation. No notice need be given of an adjourned
meeting of the shareholders provided the time and place to which such meeting is
adjourned are announced at the meeting at which the adjournment is taken and at
the adjourned meeting only such business is transacted as might have been
transacted at the original meeting. However, if after the adjournment a new
record date is fixed for the adjourned meeting a notice of the adjourned meeting
shall be given to each shareholder of record on the new record date entitled to
notice as provided in this Bylaw.
4.05 Record Dates. The Board of Directors may fix in advance a date as
the record date for the purpose of determining shareholders entitled to notice
of and to vote at a meeting of shareholders or an adjournment thereof, or to
express consent or to dissent from a proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of a dividend or
allotment of a right, or for the purpose of any other action. The date fixed
shall not be more than 60 nor less than 10 days before the date of the meeting,
nor more than 60 days before any other action. In such case only such
shareholders as shall be shareholders of record on the date so fixed shall be
entitled to notice of and to vote at such meeting or adjournment thereof, or to
express consent or to dissent from such proposal, or to receive payment of such
dividend or to receive such allotment of rights, or to participate in any other
action, as the case may be, notwithstanding any transfer of any stock on the
books of the corporation, or otherwise, after any such record date. Nothing in
this Bylaw shall affect the rights of a shareholder and the shareholder's
transferee or transferor as between themselves.
4.06 List of Shareholders. The Secretary of the corporation or the
agent of the corporation having charge of the stock transfer records 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 be arranged alphabetically within each class and series, with the address
of, and the number of shares held by, each shareholder; be produced at the time
and place of the meeting; be subject to inspection by any shareholder during the
whole time of the meeting; and be prima facie evidence as to who are the
shareholders entitled to examine the list or vote at the meeting.
4.07 Quorum. Unless a greater or lesser quorum is required in the
Articles of Incorporation or by the laws of the State of Michigan, the
shareholders present at a meeting in person or by proxy who, as of the record
date for such meeting, were holders of a majority of the outstanding shares of
the corporation entitled to vote at the meeting shall constitute a quorum at the
meeting. Whether or not a quorum is present, a meeting of shareholders may be
adjourned by a vote of the shares present in person or by proxy. When the
holders of a class or series of shares are entitled to vote separately on an
item of business, this Bylaw applies in determining the presence of a quorum of
such class or series for transaction of such item of business.
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4.08 Proxies. A shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
another person or persons to act for the shareholder by proxy. A proxy shall be
in writing and executed by the shareholder or the shareholder's authorized agent
or representative or shall be transmitted electronically to the person who will
hold the proxy or to a proxy solicitation firm, proxy support service
organization or similar agent fully authorized by the person who will hold the
proxy to receive that transmission, and include or be accompanied by information
from which it can be determined that the electronic transmission was authorized
by the shareholder. A complete copy, fax or other reliable reproduction of the
proxy may be substituted or used in lieu of the original proxy for any purpose
for which the original could be used. A proxy shall not be valid after the
expiration of three years from its date unless otherwise provided in the proxy.
A proxy is revocable at the pleasure of the shareholder executing it except as
otherwise provided by the laws of the State of Michigan.
4.09 Voting. Each outstanding share is entitled to one vote on each
matter submitted to a vote, unless the articles of incorporation provide
otherwise. Votes may be cast orally or in writing, but if more than 25
shareholders of record are entitled to vote, then votes shall be cast in writing
signed by the shareholder or the shareholder's proxy. When an action, other than
the election of directors, is to be taken by a vote of the shareholders, it
shall be authorized by a majority of the votes cast by the holders of shares
entitled to vote on it, unless a greater vote is required by the articles of
incorporation or by the laws of the State of Michigan. Except as otherwise
provided by the articles of incorporation, directors shall be elected by a
plurality of the votes cast at any election.
4.10 Conduct of Meeting. At each meeting of shareholders, a chair shall
preside. In the absence of a specific selection by the Board of Directors, the
chair shall be the Chairman of the Board as provided in these bylaws. The chair
shall determine the order of business and shall have the authority to establish
rules for the conduct of the meeting which are fair to shareholders. The chair
of the meeting shall announce at the meeting when the polls close for each
matter voted upon. If no announcement is made, the polls shall be deemed to have
closed upon the final adjournment of the meeting. After the polls close, no
ballots, proxies or votes, nor any revocations or changes thereto may be
accepted.
4.11 Nominations and Shareholder Business.
(a) Annual Meetings of Shareholders. (i) Nominations of persons for
election to the Board of Directors of the corporation and the proposal of
business to be considered by the shareholders may be made at an annual meeting
of shareholders (A) pursuant to the corporation's notice of meeting, (B) by or
at the direction of the Board of Directors or (C) by any shareholder of the
corporation who was a shareholder of record at the time of giving of notice
provided for in this bylaw, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this bylaw. (ii) For
nominations or other business to be properly brought before an annual meeting by
a shareholder pursuant to clause (C) of paragraph (a) (i) of this bylaw, the
shareholder must have given timely notice thereof in writing to the Secretary of
the corporation. To be timely, a shareholder's notice shall be
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delivered to the Secretary at the principal executive offices of the corporation
not less than 75 days nor more than 100 days prior to the first anniversary of
the date of the proxy statement for the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the shareholder to be timely must be so delivered
not earlier than the 100th day prior to such annual meeting and not later than
the close of business on the later of the 75th day prior to such annual meeting
or the 10th day following the day on which public announcement of the date of
such meeting is first made. Such shareholder's notice shall set forth (A) as to
each person whom the shareholder proposes to nominate for election or reelection
as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the shareholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; (C) as to the
shareholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such shareholder,
as they appear on the corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the corporation which are owned beneficially
and of record by such shareholder and such beneficial owner. (iii)
Notwithstanding anything in the second sentence of paragraph (a) (ii) of this
bylaw to the contrary, in the event that the number of directors to be elected
to the Board of Directors of the corporation is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the corporation at least 70 days prior
to the first anniversary of the date of the proxy statement for the preceding
year's annual meeting, a shareholder's notice required by this bylaw shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the corporation.
(b) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareholders at which directors are to be elected pursuant to the
corporation's notice of meeting (i) by or at the direction of the Board of
Directors or (ii) by any shareholder of the corporation who is a shareholder of
record at the time of giving of notice provided hereunder, who shall be entitled
to vote at the meeting and who complies with the notice procedures set forth in
this bylaw. Nominations by shareholders of persons for election to the Board of
Directors may be made at such a special meeting of shareholders if the
shareholder's notice required by paragraph (a)(ii) of this bylaw shall be
delivered to the Secretary at the principal executive offices of the corporation
not earlier than the 100th day prior to such special meeting and not later than
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the close of business on the later of the 75th day prior to such special meeting
or the 10th day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(c) General. (i) Only such persons who are nominated in accordance with
the procedures set forth in this bylaw shall be eligible to serve as directors
and only such business shall be conducted at a meeting of shareholders as shall
have been brought before the meeting in accordance with the procedure set forth
in this bylaw. The Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this bylaw and,
if any proposed nomination or business is not in compliance with this bylaw, to
declare that such defective proposal shall be disregarded. (ii) For purposes of
this bylaw, "public announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the
Exchange Act. (iii) Notwithstanding the foregoing provisions of this bylaw, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this bylaw. Nothing in this bylaw shall be deemed to affect any rights
of shareholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE V
DIRECTORS
5.01 Number. The business and affairs of the corporation shall be
managed by or under the direction of the Board of Directors. The number of
directors shall be not less than three nor more than fifteen directors and shall
be determined from time to time by resolution of the Board of Directors. The
directors need not be residents of Michigan or shareholders of the corporation.
5.02 Election, Resignation and Removal. Except as otherwise provided in
the articles of incorporation, directors shall be elected at each annual meeting
of the shareholders, each to hold office until the next annual meeting of
shareholders and until the director's successor is elected and qualified, or
until the director's 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.
Except as otherwise provided in the articles of incorporation, a director or the
entire Board of Directors may be removed, with or without cause, by vote of the
holders of a majority of the shares entitled to vote at an election of
directors.
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5.03 Vacancies. Vacancies in the Board of Directors occurring by reason
of death, resignation, removal, increase in the number of directors or otherwise
shall be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors, unless filled by proper
action of the shareholders of the corporation. Except as otherwise provided in
the articles of incorporation, each person so elected shall be a director for a
term of office continuing only until the next election of directors by the
shareholders. A vacancy that will occur at a specific date, by reason of a
resignation effective at a later date or otherwise, may be filled before the
vacancy occurs, but the newly elected director may not take office until the
vacancy occurs.
5.04 Annual Meeting. The Board of Directors shall meet each year
immediately after the annual meeting of the shareholders, or within three days
of such time excluding Sundays and legal holidays if such later time is deemed
advisable, at the place where such meeting of the shareholders has been held or
such other place as the Board may determine, for the purpose of election of
officers and consideration of such business that may properly be brought before
the meeting; provided, that if less than a majority of the directors appear for
an annual meeting of the Board of Directors the holding of such annual meeting
shall not be required and the matters which might have been taken up therein may
be taken up at any later special or annual meeting, or by consent resolution.
5.05 Regular and Special Meetings. Regular meetings of the Board of
Directors may be held at such times and places as the majority of the directors
may from time to time determine at a prior meeting or as shall be directed or
approved by the vote or written consent of all the directors. Special meetings
of the Board may be called by any director.
5.06 Notices. No notice shall be required for annual or regular
meetings of the Board or for adjourned meetings, whether regular or special.
Written notice shall be given for special meetings of the Board at least three
days in advance of such meeting, and such notice shall state the time, place and
purpose or purposes of the meeting.
5.07 Quorum and Voting. A majority of the Board of Directors then in
office, or of the members of a committee thereof, constitutes a quorum for the
transaction of business. The vote of a majority of the directors present at any
meeting at which there is a quorum shall be the acts of the Board or of the
committee, except as a larger vote may be required by the laws of the State of
Michigan. A member of the Board or of a committee designated by the Board may
participate in a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can communicate with each other. Participation in a meeting in this
manner constitutes presence in person at the meeting.
5.08 Executive and Other Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint one or more members
of the Board as an executive committee to exercise all powers and authorities of
the Board in management of the business and affairs of the corporation. The
Board of Directors from time to time may, by like resolution, appoint such other
committees consisting of one or more directors and any qualified non-directors,
provided that directors shall always constitute a majority of any
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such committee. Committees other than the executive committee shall have such
authority as shall be specified by the Board in the resolution making such
appointments. The Board of Directors may designate one or more directors as
alternate members of any committee who may replace an absent or disqualified
member at any meeting thereof. Notwithstanding the foregoing, no committee of
the Board shall have the power or authority to (a) amend the Articles of
Incorporation except as otherwise permitted by applicable law; (b) adopt an
agreement of merger or share exchange; (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
revocation of a dissolution; (e) amend these Bylaws; or (f) fill vacancies in
the Board. The Board of Directors may delegate to a committee the power to
declare a distribution or dividend or to authorize the issuance of shares.
5.09 Dissents. A director who is present at a meeting of the Board of
Directors, or a committee thereof of which the director is a member, at which
action on a corporate matter is taken is presumed to have concurred in that
action unless the director's dissent is entered in the minutes of the meeting or
unless the director files a written dissent to the action with the person acting
as secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the corporation promptly after
the adjournment of the meeting. Such right to dissent does not apply to a
director who voted in favor of such action. A director who is absent from a
meeting of the Board, or a committee thereof of which the director is a member,
at which any such action is taken is presumed to have concurred in the action
unless the director files a written dissent with the Secretary of the
corporation within a reasonable time after the director has knowledge of the
action.
5.10 Compensation. The Board of Directors, by affirmative vote of a
majority of directors in office and irrespective of any personal interest of any
of them, may establish reasonable compensation of directors for services to the
corporation as directors or officers.
ARTICLE VI
NOTICES, WAIVERS OF NOTICE AND MANNER OF ACTING
6.01 Notices. All notices of meetings required to be given to
shareholders, directors or any committee of directors may be given in person or
by mail, telecopy, telegram, radiogram or cablegram to any shareholder, director
or committee member at the addressee's last address as it appears on the books
of the corporation. Such notice shall be deemed to be given at the time when the
same shall be mailed or otherwise dispatched.
6.02 Waiver of Notice. Notice of the time, place and purpose of any
meeting of shareholders, directors or committee of directors may be waived by
telecopy, telegram, radiogram, cablegram or other writing, either before or
after the meeting, or in such other manner as may be permitted by the laws of
the State of Michigan. Attendance of a person at any meeting of shareholders, in
person or by proxy, or at any meeting of directors or of a
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committee of directors, constitutes a waiver of notice of the meeting except as
follows:
(a) In the case of a shareholder, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, or unless with respect to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, the shareholder objects to considering the matter when it is
presented.
(b) In the case of a director, 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.
6.03 Action By Directors Without a Meeting. Any action required or
permitted at any meeting of directors or committee of directors may be taken
without a meeting, without prior notice and without a vote, if all of the
directors or committee members entitled to vote thereon consent thereto in
writing, before or after the action is taken.
ARTICLE VII
OFFICERS
7.01 Number. The Board of Directors shall elect or appoint a President,
a Secretary and a Treasurer, and may select a Chairman of the Board, and one or
more Vice Presidents, Assistant Secretaries or Assistant Treasurers. The
President and Chairman of the Board, if any, shall be members of the Board of
Directors. Any two or more of the above offices, except those of President and
Vice President, may be held by the same person. No officer shall execute,
acknowledge or verify an instrument in more than one capacity if the instrument
is required by law, the Articles of Incorporation or these Bylaws to be
executed, acknowledged, or verified by one or more officers.
7.02 Term of Office, Resignation and Removal. An officer shall hold
office for the term for which he is elected or appointed and until his successor
is elected or appointed and qualified, or until his resignation or removal. 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. An officer may be removed by the Board 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.
7.03 Vacancies. The Board of Directors may fill any vacancies in any
office occurring for whatever reason.
7.04 Authority. All officers, employees and agents of the corporation
shall have such authority and perform such duties in the conduct and management
of the business and affairs of the corporation as may be designated by the Board
of Directors and these Bylaws.
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ARTICLE VIII
DUTIES OF OFFICERS
8.01 Chairman of the Board. The Chairman of the Board, if such office
is filled, shall preside at all meetings of the shareholders and of the Board of
Directors at which the Chairman is present.
8.02 President. The President shall be the chief executive officer of
the corporation and may be referred to as the President and Chief Executive
Officer. The President shall see that all orders and resolutions of the Board
are carried into effect, and the President shall have the general powers of
supervision and management usually vested in the chief executive officer of a
corporation, including the authority to vote all securities of other
corporations and business organizations held by the corporation. In the absence
or disability of the Chairman of the Board, or if that office has not been
filled, the President also shall perform the duties of the Chairman of the Board
as set forth in these Bylaws.
8.03 Vice Presidents. The Vice Presidents, in order of their seniority,
shall, in the absence or disability of the President, perform the duties and
exercise the powers of the President and shall perform such other duties as the
Board of Directors or the President may from time to time prescribe.
8.04 Secretary. The Secretary shall attend all meetings of the Board of
Directors and of shareholders and shall record all votes and minutes of all
proceedings in a book to be kept for that purpose, shall give or cause to be
given notice of all meetings of the shareholders and of the Board of Directors,
and shall keep in safe custody the seal of the corporation and, when authorized
by the Board, affix the same to any instrument requiring it, and when so affixed
it shall be attested by the signature of the Secretary, or by the signature of
the Treasurer or an Assistant Secretary. The Secretary may delegate any of the
duties, powers and authorities of the Secretary to one or more Assistant
Secretaries, unless such delegation is disapproved by the Board.
8.05 Treasurer. The Treasurer shall have the custody of the corporate
funds and securities; shall keep full and accurate accounts of receipts and
disbursements in books of the corporation; and shall deposit all moneys and
other valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
render to the President and directors, whenever they may require it, an account
of his or her transactions as Treasurer and of the financial condition of the
corporation. The Treasurer may delegate any of his or her duties, powers and
authorities to one or more Assistant Treasurers unless such delegation is
disapproved by the Board of Directors.
8.06 Assistant Secretaries and Treasurers. The Assistant Secretaries,
in order of their seniority, shall perform the duties and exercise the powers
and authorities of the Secretary in case of the Secretary's absence or
disability. The Assistant Treasurers, in the
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order of their seniority, shall perform the duties and exercise the powers and
authorities of the Treasurer in case of the Treasurer's absence or disability.
The Assistant Secretaries and Assistant Treasurers shall also perform such
duties as may be delegated to them by the Secretary and Treasurer, respectively,
and also such duties as the Board of Directors may prescribe.
ARTICLE IX
SPECIAL CORPORATE ACTS
9.01 Orders for Payment of Money. All checks, drafts, notes, bonds,
bills of exchange and orders for payment of money of the corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
9.02 Contracts and Conveyances. The Board of Directors of the
corporation may in any instance designate the officer and/or agent who shall
have authority to execute any contract, conveyance, mortgage or other instrument
on behalf of the corporation, or may ratify or confirm any execution. When the
execution of any instrument has been authorized without specification of the
executing officers or agents, the Chairman of the Board, the President, any Vice
President, the Secretary or Assistant Secretary or the Treasurer or Assistant
Treasurer, may execute the same in the name and on behalf of this corporation
and may affix the corporate seal thereto.
ARTICLE X
BOOKS AND RECORDS
10.01 Maintenance of Books and Records. The proper officers and agents
of the corporation shall keep and maintain such books, records, and accounts of
the corporation's business and affairs, minutes of the proceedings of its
shareholders, Board and committees, if any, and such stock ledgers and lists of
shareholders, as the Board of Directors shall deem advisable, and as shall be
required by the laws of the State of Michigan and other states or jurisdictions
empowered to impose such requirements. Books, records and minutes may be kept
within or without the State of Michigan in a place which the Board shall
determine.
10.02 Reliance on Books and Records. In discharging his or her duties,
a director or an officer of the corporation, when acting in good faith, may rely
upon information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by any of the
following:
(a) One or more directors, officers, or employees of the corporation,
or of a business organization under joint control or common control, whom the
director or officer reasonably believes to be reliable and competent in the
matters presented.
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(b) Legal counsel, public accountants, engineers, or other persons as
to matters the director or officer reasonably believes are within the person's
professional or expert competence.
(c) A committee of the board of which he or she is not a member if the
director or officer reasonably believes the committee merits confidence.
A director or officer is not entitled to rely on the information set forth above
if he or she has knowledge concerning the matter in question that makes reliance
otherwise permitted unwarranted.
ARTICLE XI
INDEMNIFICATION
11.01 Non-Derivative Actions. Subject to all of the other provisions of
this Article XI, 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 and whether formal or informal (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director or officer of the corporation, or, while serving as a director or
officer of the corporation, is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, against expenses (including actual and reasonable
attorneys' fees), judgments, penalties, fines, and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders, and with respect to any criminal action or
proceeding, if the person had no reasonable cause to believe his or 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 the person reasonably believed to be in
or not opposed to the best interests of the corporation or its shareholders,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
11.02 Derivative Actions. Subject to all of the provisions of this
Article XI, the corporation shall indemnify 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 the person is or was a director or officer
of the corporation, or, while serving as a director or officer of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, whether for
profit or not, against expenses (including attorneys' fees) and amounts paid in
settlement actually and
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reasonably incurred by the person in connection with such action or suit if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation or its shareholders.
However, indemnification shall not be made for any claim, issue or matter in
which such person has been found liable to the corporation unless and only to
the extent that the court in which such action or suit was brought has
determined 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 indemnification for the reasonable expenses incurred.
11.03 Expenses of Successful Defense. To the extent that a person has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 11.01 or 11.02 of these Bylaws, or in defense
of any claim, issue or matter in the action, suit or proceeding, the person
shall be indemnified against actual and reasonable expenses (including
attorneys' fees) incurred by such person in connection with the action, suit or
proceeding and any action, suit or proceeding brought to enforce the mandatory
indemnification provided by this Section 11.03.
11.04 Definition. For the purposes of Sections 11.01 and 11.02, "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 or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
considered to have acted in a manner "not opposed to the best interests of the
corporation or its shareholders" as referred to in Sections 11.01 and 11.02.
11.05 Contract Right; Limitation on Indemnity. The right to
indemnification conferred in this Article XI shall be a contract right, and
shall apply to services of a director or officer as an employee or agent of the
corporation as well as in such person's capacity as a director or officer.
Except as provided in Section 11.03 of these Bylaws, the corporation shall have
no obligations under this Article XI to indemnify any person in connection with
any proceeding, or part thereof, initiated by such person without authorization
by the Board of Directors.
11.06 Determination that Indemnification is Proper. Any indemnification
under sections 11.01 or 11.02 of these bylaws (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 person is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
sections 11.01 or 11.02, whichever is applicable, and upon an evaluation of the
reasonableness of expenses and amounts paid in settlement. The determination and
evaluation shall be made in any of the following ways:
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(a) 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.
(b) If the quorum described in clause (a) above is not obtainable,
then by majority vote of a committee of directors duly
designated by the Board and consisting solely of two or more
directors who are not at the time parties or threatened to be
made parties to the action, suit, or proceeding.
(c) By independent legal counsel in a written opinion, which
counsel shall be selected in one of the following ways: (i) by
the Board or its committee in the manner prescribed in
subparagraph (a) or (b); or (ii) if a quorum of the Board
cannot be obtained under subparagraph (a) and a committee
cannot be designated under subparagraph (b), by the Board.
(d) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made
parties to the action, suit, or proceeding may not be voted.
11.07 Authorizations of Payment.
(1) Authorizations of payment under sections 11.01 and 11.02 of these
bylaws shall be made in any of the following ways:
(a) by the Board of Directors:
(i) if there are two or more directors who are not parties or
threatened to be made parties to the action, suit or proceeding, by a majority
vote of all such directors (a majority of whom shall for this purpose constitute
a quorum) or by a majority of the members of a committee of two or more
directors who are not parties or threatened to be made parties to the action,
suit or proceeding; or
(ii) if the corporation has one or more independent directors who
are not parties or threatened to be made parties to the action, suit or
proceeding, by a majority vote of all such directors (a majority of whom shall
for this purpose constitute a quorum); or
(iii) if there are no independent directors and fewer than two
directors who are not parties or threatened to be made parties to the action,
suit or proceeding, by the vote necessary for action by the Board in accordance
with section 5.08 of these bylaws, in which authorization all directors may
participate; or
(b) by the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties to the
action, suit, or proceeding may not be voted on the authorization.
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(2) To the extent that the articles of incorporation include a
provision eliminating or limiting the liability of a director pursuant to
Section 209 of the Michigan Business Corporation Act ("MBCA"), the corporation
may indemnify a director for the expenses and liabilities described below
without a determination that the director has met the standard of conduct set
forth in sections 11.01 and 11.02, but no indemnification may be made except to
the extent authorized in MBCA Section 564c, if the director received a financial
benefit to which he or she was not entitled, intentionally inflicted harm on the
corporation or its shareholders, violated MBCA Section 551, or intentionally
violated criminal law. In connection with an action or suit by or in the right
of the corporation, as described in section 11.02, indemnification under this
section 11.07(2) may be for expenses, including attorneys' fees, actually and
reasonably incurred. In connection with an action, suit or proceeding other than
one by or in the right of the corporation, as described in section 11.02,
indemnification under this section 11.07(2) may be for expenses, including
attorneys' fees, actually and reasonably incurred, and for judgments, penalties,
fines, and amounts paid in settlement actually and reasonably incurred.
11.08 Proportionate Indemnity. If a person is entitled to
indemnification under Section 11.01 or 11.02 of these Bylaws 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.
11.09 Expense Advance. The corporation may pay or reimburse the
reasonable expenses incurred by a person referred to in sections 11.01 or 11.02
of these bylaws who is a party or threatened to be made a party to an action,
suit, or proceeding in advance of final disposition of the proceeding if both of
the following apply: (a) the person furnishes the corporation a written
affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct set forth in sections 11.01 or 11.02; and (b) the
person furnishes the corporation a written undertaking executed personally, or
on his or her belief, to repay the advance if it is ultimately determined that
he or she did not meet the standard of conduct. Such undertaking shall be an
unlimited general obligation of the person on whose behalf advances are made but
need not be secured and may be accepted without reference to the financial
ability of the person to make repayment. Determinations and evaluations under
this section 11.09 shall be made as specified in section 11.06, and
authorizations shall be made in the manner specified in section 11.07. A
provision in the articles of incorporation, these bylaws, a resolution by the
Board or the shareholders, or an agreement making indemnification mandatory
shall also make advancement of expenses mandatory unless the provision
specifically provides otherwise.
11.10 Non-Exclusivity of Rights. The indemnification or advancement of
expenses provided under this Article XI is not exclusive of other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under a contractual arrangement with the corporation. However, the
total amount of expenses advanced or indemnified from all sources combined shall
not exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses.
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11.11 Indemnification of Employees and Agents of the Corporation. The
corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the corporation to the fullest extent of the provisions
of this Article XI with respect to the indemnification and advancement of
expenses of directors and officers of the corporation.
11.12 Former Directors and Officers. The indemnification provided in
this Article XI continues as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
11.13 Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against the person and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation would
have power to indemnify the person against such liability under these Bylaws or
the laws of the State of Michigan.
11.14 Changes in Michigan Law. In the event of any change of the
Michigan statutory provisions applicable to the corporation relating to the
subject matter of this Article XI, then the indemnification to which any person
shall be entitled hereunder shall be determined by such changed provisions, but
only to the extent that any such change permits the corporation to provide
broader indemnification rights than such provisions permitted the corporation to
provide prior to any such change. Subject to Section 11.15, the Board of
Directors is authorized to amend these Bylaws to conform to any such changed
statutory provisions.
11.15 Amendment or Repeal of Article XI. No amendment or repeal of this
Article XI shall apply to or have any effect on any director or officer of the
corporation for or with respect to any acts or omissions of such director or
officer occurring prior to such amendment or repeal.
11.16 Enforcement of Rights. Any indemnification or payment in advance
of final disposition under this Article XI shall be made promptly, and in any
event within 30 days, after written request to the corporation by the person
seeking such indemnification or payment. The rights granted by this Article XI
shall be enforceable by such person in any court of competent jurisdiction.
ARTICLE XII
AMENDMENTS
12.01 Amendments. Unless otherwise provided herein or in the Articles
of Incorporation, the Bylaws of the corporation may be amended, altered or
repealed, in whole
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or in part, by the shareholders or by the Board of Directors at any meeting duly
held in accordance with these Bylaws, provided that any notice of the meeting
includes notice of the proposed amendment, alteration or repeal.
ARTICLE XIII
CONTROL SHARES AND CONTROL SHARE ACQUISITIONS
13.01 Control Share Acquisitions. The corporation is subject to Chapter
7B, "Control Share Acquisitions," of the Michigan Business Corporation Act,
effective on the first day on which the corporation has 100 or more shareholders
of record. As long as the corporation is subject to Chapter 7B, shares of
capital stock of the corporation constituting "control shares" acquired in
"control share acquisitions" (as defined in Chapter 7B) have the same voting
rights as were accorded the shares before the "control share acquisition" only
to the extent granted by resolution approved by the shareholders of the Company
in accordance with Chapter 7B.
13.02 Redemption of Control Shares. Control shares as to which all of
the following conditions are met may be redeemed by the corporation, upon
approval by the Board of Directors, at any time after such conditions have been
met:
(a) (i) An acquiring person statement has been filed with the
corporation, a meeting of the shareholders of the corporation has been held at
which the voting rights of the control shares have been submitted to the
shareholders for a vote, and the shareholders do not grant full voting rights to
the control shares; or
(ii) If an "acquiring person statement" (as such term appears in
Section 795 of the Michigan Business Corporation Act) has not been filed with
the corporation with respect to a control share acquisition and the redemption
is completed during the period ending 60 days after the last acquisition of
control shares, or the power to direct the exercise of voting power of control
shares, by the acquiring persons; and
(b) The consideration to be paid for the control shares consists of
cash, property or securities of the corporation, or any combination thereof,
including shares of capital stock of the corporation or debt obligations of the
corporation; and
(c) The price to be paid for the control shares does not exceed the
fair value of the shares, as determined by the Board of Directors, which value
shall not be less than the highest price paid per share by the acquiring person
in the control share acquisition.
13.03 Procedures. The Board of Directors may, by resolution, adopt
procedures for the giving of notice of such redemption to the "acquiring person"
and for the delivery of certificates representing the control shares to be
acquired in exchange for the corporation's payment of fair value therefore.
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Dated: July 10, 2000
Amended: 6/13/01 - Section 5.08 by APC board.
Amended: 3/09/02 - Section 3.02, 3.03 and 4.11 by APC board.
Amended: 5/7/03 - Section 4.08 by APC board.
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