EXHIBIT 3.5
BYLAWS
OF
CHAMPION ENTERPRISES, INC.
(As amended through December 2, 2003)
TABLE OF CONTENTS
ARTICLE I - Offices 1
1.01 Principal Office 1
1.02 Other Offices 1
ARTICLE II - Seal 1
2.01 Seal 1
ARTICLE III - Capital Stock 1
3.01 Issuance of Shares 1
3.02 Certificates for Shares 1
3.03 Transfer of Shares 2
3.04 Registered Shareholders 2
3.05 Lost or Destroyed Certificates 2
ARTICLE IV - Shareholders and Meetings of Shareholders 3
4.01 Place of Meetings 3
4.02 Annual Meeting 3
4.03 Special Meetings 3
4.04 Notice of Meetings 3
4.05 Record Dates 3
4.06 List of Shareholders 4
4.07 Quorum 4
4.08 Proxies 4
4.09 Inspectors of Election 4
4.10 Voting 5
4.11 Nomination and Shareholder Business Proposal 5
(A) Annual Meetings of Shareholders 5
(B) Special Meetings of Shareholders 6
(C) General 6
ARTICLE V - Directors 7
5.01 Number; Qualifications 7
5.02 Election, Resignation and Removal 7
5.03 Vacancies 7
5.04 Annual Meeting 7
5.05 Regular and Special Meetings 8
5.06 Notices 8
5.07 Quorum 8
5.08 Executive and Other Committees 8
5.09 Dissents 9
5.10 Compensation 9
5.11 Employment of Others 9
ARTICLE VI - Notices, Waivers of Notice and Manner of Acting 10
6.01 Notices 10
6.02 Waiver of Notice 10
6.03 Action Without a Meeting 10
ARTICLE VII - Officers 10
7.01 Number 10
7.02 Term of Office, Resignation and Removal 10
7.03 Vacancies 11
7.04 Authority 11
ARTICLE VIII - Duties of Officers 11
8.01 Chairman of the Board 11
8.02. Vice Chairman of the Board 11
8.03 President 11
8.04 Vice Presidents 11
8.05 Secretary 11
8.06 Treasurer 12
8.07 Assistant Secretaries and Treasurers 12
8.08 Bonds 12
ARTICLE IX - Special Corporate Acts 12
9.01 Orders for Payment of Money 12
9.02 Contracts and Conveyances 12
ARTICLE X - Books and Records 13
10.01 Maintenance of Books and Records 13
10.02 Reliance on Information, Opinions, Reports 13
10.03 Fiscal Year 13
ARTICLE XI - Indemnification 13
11.01 Right to Indemnification 13
11.02 Right of Claimant to Bring Suit 14
11.03 Non-Exclusivity of Rights 15
11.04 Insurance 15
ARTICLE XII - Amendments 15
12.01 Amendments 15
ARTICLE XIII - Control Shares and Control Share Acquisitions 15
13.01 Control Share Acquisitions 15
BYLAWS
OF
CHAMPION ENTERPRISES, INC.
(As amended through December 2, 2003)
ARTICLE I
Offices
1.01 Principal Office. The principal office of the Corporation shall be
at such place within the State of Michigan as the Board of Directors shall
determine from time to time.
1.02 Other Offices. The Corporation may also 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 shall 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, reproduced or otherwise.
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
provisions of the Articles of Incorporation of the Corporation and the further
provisions of these Bylaws, and subject also to any requirements or restrictions
imposed by 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, President or a
Vice President and 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 thereof. The signatures of the officers may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the Corporation itself or its employee. In case an officer who has
signed or whose facsimile signature has been placed upon a certificate ceases to
be such officer before the certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issuance. A certificate representing shares shall state upon its face that the
Corporation is formed under the laws of the State of Michigan; the name of the
person to whom it is issued; the number and class of shares, and the designation
of the series, if any, which the certificate represents; the par value of each
share represented by the
certificate, or a statement that the shares are without par value; and such
other provisions as may be required by the laws of the State of Michigan.
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 therefor, 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, consolidation, merger, 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 any or all of the following:
(a) Presentation of additional evidence or proof of the loss,
destruction or mutilation claimed;
(b) Advertisement of loss in such manner as the Board of
Directors may direct or approve;
(c) 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;
(d) Payment of any expenses incurred by the Corporation in
processing the claim of loss, or in lieu thereof payment of a lost certificate
processing fee in such amount as the Board of Directors may authorize or
approve;
(e) The order or approval of a court or judge.
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 Shareholders of the
Corporation shall be held on such business day in the months of April or May of
each year, at such time, as the Board of Directors may fix. Directors
shall be elected at each Annual Meeting and such other business transacted as
may properly come before the meeting in accordance with these Bylaws. The Board
of Directors acting by resolution may postpone and reschedule any previously
scheduled Annual Meeting of Shareholders. Any Annual Meeting of Shareholders may
be adjourned by the Chairman of the meeting or pursuant to a resolution of the
Board of Directors.
4.03 Special Meetings. Special meetings of the shareholders may be
called by the Chairman of the Board, or by the President, or pursuant to
resolution of the Board of Directors. Business transacted at a special meeting
of shareholders shall be confined to the purpose or purposes of the meeting as
stated in the notice of the meeting. The Board of Directors acting by resolution
may postpone and reschedule any previously scheduled special meeting of
shareholders. Any special meeting of shareholders may be adjourned by the
Chairman of the meeting or pursuant to resolution of the Board of Directors.
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, by mailing such notice to his last address as it appears on the
books of the Corporation or by any other means permitted under the laws of the
State of Michigan. No notice need be given of an adjourned meeting of the
shareholders provided the time and place to which such meeting is adjourned is
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, the Chairman of the Board (if
such office is filled) or the President 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 his 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.
4.08 Proxies. A shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
other persons to act for him by proxy. A shareholder may authorize another
person or persons to act for him or her as proxy in any manner permitted under
the laws of the State of Michigan. 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 Inspectors of Election. The Board of Directors, 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 the shareholders' meeting may, and on request of a shareholder
entitled to vote thereat shall, appoint one or more inspectors. In case a person
appointed fails to appear or act, the vacancy may be filled by appointment made
by the Board of Directors in advance of the meeting or at the meeting by the
person presiding thereat. If appointed, 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 and the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine challenges and questions arising in connection with the right to vote,
count and tabulate votes, ballots or consents determine the result, and do such
acts as are proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting or a shareholder
entitled to vote thereat, the inspectors shall make and execute a written report
to the person presiding at the meeting of any of the facts found by them and
matters determined by them. The report shall be prima facie evidence of the
facts stated and of the vote as certified by the inspectors.
4.10 Voting. Each outstanding share is entitled to one vote on each
matter submitted to a vote, unless otherwise provided in the Articles of
Incorporation. Votes may be cast orally, in writing or by any other means
permitted under the laws of the State of Michigan as the Chairman of the meeting
may choose, except that upon the written request of a shareholder served on the
President or Secretary not less than forty-eight (48) hours prior to the time
fixed for the meeting, votes shall be cast in writing. Votes taken orally shall
be cast by, and votes cast in writing shall be signed by, the shareholder or his
proxy. Votes made by any other means shall be cast in a manner which is
reasonably designed to ensure authenticity. 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 thereon, unless a greater
plurality 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.
4.11 Nomination and Shareholder Business Proposal.
(A) Annual Meetings of Shareholders.
(1) 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.
(2) For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause (c) of
paragraph (A)(1) of this Bylaw, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
shareholders' notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 60 days nor more than 90 days
prior to the first anniversary of 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
90th day prior to such annual meeting and not later than the close of business
on the later of the 60th 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.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) 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 preceding
year's annual meeting, a shareholders' 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 (a) by or at the direction of the Board of
Directors or (b) 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)(2) of this Bylaw shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th 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.
(1) 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 procedures 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.
(2) For purposes of this Bylaw, "public announcement" shall
mean disclosures 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.
ARTICLE V
Directors
5.01 Number; Qualifications. The business and affairs of the Corporation
shall be managed by a Board of not less than three nor more than nine directors
as shall be fixed from time to time by the Board of Directors. Directors need
not be residents of Michigan or shareholders of the Corporation. No person who
has reached age 72 shall be eligible for election to the Board of Directors (but
an incumbent director who reaches age 72 during his term of office shall
continue to serve until the next Annual Meeting of Shareholders and until his
successor is elected and shall have qualified).
5.02 Election, Resignation and Removal. Directors shall be elected at
each annual meeting of the shareholders, each to hold office until the next
annual meeting of shareholders 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. 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.
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. Each person so elected shall be a
director for a term of office continuing only until the next election of
directors by the shareholders.
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 the Chairman of the Board (if such office is
filled) or the President and shall be called by the President or Secretary upon
the written request of any two directors.
5.06 Notices. No notice shall be required for annual or regular meetings
of the Board or for adjourned meetings, whether regular or special. Three days
written notice shall be given for special meetings of the Board, and such notice
shall state the time, place and purpose or purposes of the meeting.
5.07 Quorum. When the Board of Directors or any committee thereof
consists of seven or less persons, 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. When the Board of Directors or any committee thereof
consists of eight or more persons, less than a majority but in no event less
than one-third of the members may constitute a quorum. 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 hear 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 two 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;
provided, however, that such committee shall 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 revocation of dissolution;
(e) amend these Bylaws;
(f) fill vacancies in the Board;
(g) fix the compensation of the directors for serving on the
Board or on a committee; or
(h) unless expressly authorized by the Board, declare a
dividend or authorize the issuance of stock.
The Board of Directors from time to time may, by like resolution,
appoint such other committees of one or more directors to 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.
5.09 Dissents. A director who is present at a meeting of the Board of
Directors, or a committee thereof of which he is a member, at which action on a
corporate matter is taken is presumed to have concurred in that action unless
his dissent is entered in the minutes of the meeting or unless he files his
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 he is a member, at which any such action is taken is
presumed to have concurred in the action unless he files his written dissent
with the Secretary of the Corporation within a reasonable time after he 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.
5.11 Employment of Others. To assist in the performance of its duties,
the Board of Directors or any committee thereof may employ any other
corporation or any association, syndicate, trust, firm or individual, or any
group or combination thereof, to serve, assist, advise or inform it, and may
confer thereon such powers and authorities as it may deem advisable, and make or
contract to make such payments, fees or other remuneration for services rendered
as the Board may deem desirable.
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 by mail,
telegram, cablegram or any other means permitted under the laws of the State of
Michigan to any shareholder, director or committee member at his or her last
address as it appears on the books of the Corporation.
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
telegram, facsimile transmission, 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 directors or a
committee of directors, constitutes a waiver of notice of the meeting except
when the person attends the 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 and convened.
6.03 Action Without a Meeting. Any action required or permitted at any
meeting of shareholders or directors or committee of directors may be taken
without a meeting, without prior notice and without a vote, if all of the
shareholders or directors or committee members entitled to vote thereon consent
thereto in writing.
ARTICLE VII
Officers
7.01 Number. The Board of Directors shall elect or appoint a President,
a Secretary and a Treasurer, and may elect a Chairman of the Board, a Vice
Chairman of the Board, and one or more Vice Presidents, Assistant Secretaries
and/or Assistant Treasurers and such other officers as it shall deem advisable.
Any two or more of the above offices may be held by the same person, but no
officer shall execute, acknowledge or verify an instrument in more than one
capacity. The Board of Directors shall designate a chief executive officer and
may, from time to time, but shall not be required to do so, designate a chief
operating officer, a chief financial officer and/or a chief administrative
officer.
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.
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 he is present. The Chairman of the Board shall perform such
other duties as the Board of Directors may from time to time prescribe. The
Chairman of the Board shall serve as the chief executive officer unless
designated otherwise by the Board of Directors. Subject to the direction of the
Board of Directors, the chief executive officer 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 which are held by the Corporation.
8.02. Vice Chairman of the Board. The Vice Chairman of the Board, if
such office is filled, shall perform such duties as the Board of Directors may
from time to time prescribe.
8.03 President. The President shall perform such duties as the Board of
Directors may from time to time prescribe, and shall have authority to execute
on behalf of the Corporation any and all contracts, agreements, bonds, deeds,
mortgages, leases or other obligations of the Corporation.
8.04 Vice Presidents. The Vice Presidents shall perform such duties as
the Board of Directors or the President may from time to time prescribe, and
shall have authority to execute on behalf of the Corporation any and all
contracts, agreements, bonds, deeds, mortgages, leases or other obligations of
the Corporation.
8.05 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. He shall give or cause to be
given notice of all meetings of the shareholders and of the Board of Directors.
He 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 his signature, or by the signature of the Treasurer or
an Assistant Secretary. The Secretary may delegate any of his duties, powers and
authorities to one or more Assistant Secretaries, unless such delegation is
disapproved by the Board.
8.06 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 affects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. He shall render to
the President and Directors, whenever they may require it, an account of his
transactions as Treasurer and of the financial condition of
the Corporation. The Treasurer may delegate any of his duties, powers and
authorities to one or more Assistant Treasurers unless such delegation be
disapproved by the Board of Directors.
8.07 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 his absence or disability. The Assistant
Treasurers, in the order of their seniority, shall perform the duties and
exercise the powers and authorities of the Treasurer in case of his 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 from time to
time prescribe.
8.08 Bonds. The Board of Directors may require any officer, agent or
employee of the Corporation to give bond for the faithful discharge of his duty
and for the protection of the Corporation, in such sum and with such surety or
sureties as the Board may deem advisable.
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 or any
Vice President, and the Secretary or Assistant Secretary or 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 Information, Opinions, Reports. In discharging his or
her duties, a director or officer is entitled to rely on 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 or common control, whom
the director or officer reasonably believes to be reliable and competent in the
matters presented;
(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; and
(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 in
this Section 10.02 if he or she has knowledge concerning the matter in question
that makes reliance otherwise permitted by this Section 10.02 unwarranted.
10.03 Fiscal Year. The fiscal year of the Corporation shall be on a
"52-53 week" basis. This fiscal year shall end with the Saturday which is
closest to the last day of December of each year and the next fiscal year shall
begin with the Sunday immediately following the Saturday on which the preceding
fiscal year ended.
ARTICLE XI
Indemnification
11.01 Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Michigan Business Corporation Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said Act permitted the Corporation to provide prior to such
amendment) against all expenses, liability and loss (including attorney's fees,
judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be
paid in settlement) reasonably incurred or suffered by such person in connection
therewith; provided, however, that the Corporation shall indemnify any such
person seeking indemnity in connection with an action, suit or proceeding (or
part thereof) initiated by such person only if such action, suit or proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
Such right shall be a contract right and shall include the right to be paid by
the Corporation expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of such
proceeding shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it should be determined ultimately that such director or officer
is not entitled to be indemnified under this Section or otherwise.
11.02 Right of Claimant to Bring Suit. If a claim under Section 11.01 is
not paid in full by the Corporation within ninety days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking has been tendered to the Corporation) that the claimant has not met
the standards of conduct which make it permissible under the Michigan Business
Corporation Act for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the Michigan Business Corporation Act, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or it shareholders) that the claimant had not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant had not met the applicable standard of conduct.
11.03 Non-Exclusivity of Rights. The right conferred on any person by
Sections 11.01 and 11.02 shall not be exclusive or any other rights which such
person may have or hereafter acquire under any statute, provision of the
Articles of Incorporation, bylaw, agreement, vote of shareholders or
disinterested directors or otherwise.
11.04 Insurance. The Corporation may maintain insurance, at its expense,
to protect itself or any such director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise, or both, against any such expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Michigan Business Corporation Act.
ARTICLE XII
Amendments
12.01 Amendments. The Bylaws of the Corporation may be amended, altered
or repealed, in whole or in part, by the shareholders or by the Board of
Directors at any meeting duly held in accordance with these Bylaws, provided
that 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. The
Corporation became subject to Chapter 7B effective as of May 31, 1988, pursuant
to the adoption of a resolution by the Board of Directors that was filed with
the Michigan Department of Commerce. Under 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 Corporation in
accordance with Chapter 7B.