EXHIBIT 3(b)
AMENDED AND RESTATED
BYLAWS
OF
CREDIT ACCEPTANCE CORPORATION
ARTICLE I
OFFICES
1.01 Principal Office. The principal office of the corporation shall be at
such place within or outside 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, 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
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, Vice Chairman
of the Board, President or a Vice President of the corporation, and may be
sealed with the seal of the corporation or a facsimile thereof. 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 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 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,
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 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 on the last Monday of the fifth calendar month after
the end of the corporation's fiscal year at 2 o'clock in the afternoon, or on
such other date and at such other time as may be determined by the Board of
Directors. 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 a majority 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.
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 his 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
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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 the shareholder by proxy. A proxy shall be signed by the shareholder
or the shareholder's authorized agent or representative and 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 otherwise provided in the Articles of Incorporation.
Votes shall be cast in writing and 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 thereon, 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.
ARTICLE V
DIRECTORS
5.01 Number. The business and affairs of the corporation shall be managed
by a Board of not less than one nor more than eleven directors as shall be fixed
from time to time by the Board of Directors. The directors need not be residents
of Michigan or shareholders of the corporation.
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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 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. 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 (3)
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. Twenty-four
hours written notice, or by telephone or electronic transmission, 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. 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
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meeting can communicate with the other participants. 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 three 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, except that the 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 a dissolution;
(e) amend these Bylaws; (f) fill vacancies in the Board; or (g) 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 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 personally
or by mail to any shareholder, director, or committee member at his or her last
address as it appears on the books of the corporation or by electronic
transmission, but in the case of shareholders, only in the form consented to by
the shareholder. The notice shall be deemed to be given
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at the time it is mailed or otherwise dispatched or, if given by electronic
transmission, when electronically transmitted to the person entitled to the
notice, but in the case of shareholders only if sent in a manner authorized by
the shareholder. Telephonic notice may also be given for special meetings of the
board of directors or committees thereof as provided in Section 5.06.
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 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 or convened.
6.03 Action Without a Meeting. Except as may be provided otherwise in the
Articles of Incorporation for action to be taken by shareholders, 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 select a Chairman of the Board, a Vice
Chairman of the Board, a Chief Executive Officer, a Chief Operating Officer and
one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers. 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.
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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 shall preside at all
meetings of the shareholders and of the Board of Directors at which the Chairman
is present.
8.02 Chief Executive Officer. The Chief Executive Officer shall see that
all orders and resolutions of the Board are carried into effect and 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 organizations held by the corporation. The
Chief Executive Officer shall preside at all meetings of the shareholders and of
the Board of Directors at which the Chairman is not present, shall have the
power to act on behalf of and perform the duties and exercise the powers and
authorities of the Chairman in case of the Chairman's absence or disability, and
may execute any documents in the name of the corporation. The Chief Executive
Officer shall be ex officio a member of all management committees.
8.03 President. The President of the corporation shall direct and
coordinate the activities of the organization in accordance with policies, goals
and objectives established by the Chief Executive Officer. The President shall
assist the Chief Executive Officer in seeing that all orders and resolutions of
the Board are carried into effect. He may execute any documents in the name of
the corporation and shall have such other powers and duties as may be prescribed
by the Board or delegated by the Chief Executive Officer.
8.04 Chief Operating Officer. The Chief Operating Officer of the
corporation shall direct and coordinate the activities of the organization in
accordance with policies, goals and objectives established by the Chief
Executive Officer. The Chief Operating Officer shall assist the Chief Executive
Officer in seeing that all orders and resolutions of the Board are carried into
effect. The Chief Operating Officer may execute any documents in the name of the
corporation and shall have such other powers and duties as may be prescribed by
the Board or delegated by the Chief Executive Officer.
8.05 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, the Chief Executive Officer or the President may from time
to time prescribe.
8.06 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
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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 the Board
disapproves such delegation.
8.07 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 Chief Executive Officer 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 the
Board of Directors disapproves such delegation.
8.08 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 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
Chairman, Chief Executive Officer. 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 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.
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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 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 control 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, or (c) a committee of the Board of Directors 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 such
information if he or she has knowledge concerning the matter in question that
makes such reliance 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 is or was serving at the request of
the corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, against expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with 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
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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 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 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 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 expenses which the court considers proper.
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 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 Definitions. 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;
"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.
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11.06 Determination That Indemnification is Proper. Any indemnification
under Section 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
Section 11.01 or 11.02, whichever is applicable. Such determination shall be
made in any of the following ways:
(i) By a majority vote of a quorum of the Board consisting of
directors who were not parties to such action, suit or proceeding.
(ii) If the quorum described in clause (i) above is not
obtainable, then by a committee of directors who are not parties to
the action, suit or proceeding. The committee shall consist of not
less than two disinterested directors.
(iii) By independent legal counsel in a written opinion. Legal
counsel for this purpose shall be chosen by the Board or its
committee prescribed in clauses (i) or (ii), or if a quorum of the
Board cannot be obtained under clause (i) and a committee cannot be
designated under clause (ii), by the Board.
(iv) By the shareholders. Shares held by directors or officers
who are parties or threatened to be made parties to the action, suit
or proceeding may not be voted.
11.07 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.
11.08 Expense Advance. Expenses incurred in defending a civil or criminal
action, suit or proceeding described in Section 11.01 or 11.02 of these Bylaws
shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding if the corporation receives from the person
requesting such advance the following: (i) a written affirmation of the person's
good faith belief that the person has met the applicable standard of conduct in
Section 11.01 or 11.02 and (ii) a written undertaking by or on behalf of the
person to repay the expenses if it is ultimately determined that the person is
not entitled to be indemnified by the corporation. The undertaking shall be an
unlimited general obligation of the person on whose behalf advances are made but
need not be secured.
11.09 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
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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.
11.10 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.
11.11 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.
11.12 Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against 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.
11.13 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 11.14, the Board of Directors is
authorized to amend these Bylaws to conform to any such changed statutory
provisions.
11.14 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.
ARTICLE XII
AMENDMENTS
12.01 Amendments. Subject to Section 11.14, 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.
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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 therefor.
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CREDIT ACCEPTANCE CORPORATION
BYLAW AMENDMENTS
Adopted June 6, 2003
Effective June 6, 2003
ARTICLE XI
INDEMNIFICATION
11.01 Nonderivative Actions. Subject to all of the other provisions of
this Article XI, the corporation shall, to the fullest extent permitted by
applicable law, 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, 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 attorney 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 on a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person (i) did not act in
good faith and in a manner that the person reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders, (ii) with
respect to any criminal action or proceeding, had reasonable cause to believe
that his or her conduct was unlawful, or (iii) received a financial benefit to
which he or she is not entitled, intentionally inflicted harm on the corporation
or its shareholders, violated Section 551 of the Michigan Business Corporation
Act or intentionally committed a criminal act.
11.02 Derivative Actions. Subject to all of the provisions of this Article
XI, the corporation shall, to the fullest extent permitted by applicable law,
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 actual
and reasonable attorney fees) and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action or suit, if the
person acted in good faith and in a
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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 the person has been found
liable to the corporation unless and only to the extent that the court in which
the action or suit was brought has determined on application that, despite the
adjudication of liability but in view of all circumstances of the case, the
person is fairly and reasonably entitled to indemnification for the reasonable
expenses incurred. The termination of any action or suit by settlement shall
not, of itself, create a presumption that the person (i) did not act in good
faith and in a manner that the person reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders, or (ii)
received a financial benefit to which he or she is not entitled, intentionally
inflicted harm on the corporation or its shareholders, violated Section 551 of
the Michigan Business Corporation Act or intentionally committed a criminal act.
11.03 Expenses of Successful Defense. To the extent that a director or
officer of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 11.01 or
11.02, or in defense of any claim, issue, or matter in the action, suit or
proceeding, the corporation shall indemnify such director or officer against
actual and reasonable expenses (including attorney fees) incurred by the 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 Definitions. 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 that imposes duties on,
or involves services by, the director or officer with respect to an employee
benefit plan, its participants or its 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 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 the person's capacity as a director or officer. Except
as otherwise expressly provided in this Article XI, the corporation shall have
no obligation under this Article XI to indemnify any person in connection with
any proceeding, or part thereof, initiated by the person without authorization
by the Board of Directors.
11.06 Determination That Indemnification Is Proper. (a) Any
indemnification under Sections 11.01 or 11.02 (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
15
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:
(1) by a majority vote of a quorum of the Board of Directors consisting of
directors who are not parties or threatened to be made parties to the action,
suit or proceeding;
(2) if a quorum cannot be obtained under clause (1), 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;
(3) if the corporation has one or more "independent directors" (as defined
in Section 107(3) of the Michigan Business Corporation Act ("MBCA")) who are not
parties or threatened to be made parties to the action, suit or proceeding, by a
unanimous vote of all such directors;
(4) by independent legal counsel in a written opinion, which counsel is
selected by the Board or a committee as provided in clauses (1) or (2) above, or
if a quorum cannot be obtained under clause (1) and a committee cannot be
designated under clause (2), by the Board of Directors; or
(5) 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 determination.
(b) To the extent that the Articles of Incorporation include a provision
eliminating or limiting the liability of a director pursuant to MBCA Section
209, the corporation shall 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 MBCA Sections 561 and 562, 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 11.06(b) 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 11.06(b) 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. If this Section 11.06(b) requires indemnification of a
director without a determination that the director has met the standard of
conduct set forth in MBCA Sections 561 and 562, the corporation hereby waives
its right to raise the director's failure to meet such standard of conduct as a
defense to an action brought by the director or as grounds for a claim to
recover advances made by the corporation pursuant to this Article XI and any
such failure shall not be raised by or on behalf of the corporation.
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11.07 Authorizations of Payment.
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:
(1) 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);
(2) 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;
(3) if the corporation has one or more "independent directors" (as defined
in MBCA Section 107(3)) who are not parties or threatened to be made parties to
the action, suit or proceeding, by a majority vote of all such directors who are
not parties or threatened to be made parties, a majority of whom shall
constitute a quorum for this purpose; or
(4) if there are no "independent directors" and less 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 of Directors provided
in 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.
11.08 Proportionate Indemnity. If a person is entitled to indemnification
under Sections 11.01 or 11.02 for a portion of expenses, including attorney
fees, judgments, penalties, fines and amounts paid in settlement, but not for
the total amount, 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 shall pay or reimburse the
reasonable expenses incurred by a person referred to in Sections 11.01 or 11.02
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 the person furnishes the
corporation a written undertaking executed personally, or on his or her behalf,
to repay the advance if it is ultimately determined that he or she did not meet
the standard of conduct, if any, required by the MBCA for the indemnification of
the person under the circumstances. An evaluation of reasonableness 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, unless the advance is
mandatory. A provision in the articles of incorporation, these bylaws, a
resolution by the Board of Directors or the shareholders or an agreement making
indemnification
17
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.
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 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
Article XI continues for a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors, and administrators of the
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 the liability under these bylaws or
applicable law. If the articles of incorporation include a provision eliminating
or limiting the liability of a director pursuant to MBCA Section 209(1)(c), such
insurance may be purchased from an insurer owned by the corporation, but such
insurance may insure against monetary liability to the corporation or its
shareholders only to the extent to which the corporation could indemnify the
director under Section 11.06(b).
11.14 Changes in Michigan Law. If there is 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 under this Article XI shall be determined by the changed provisions,
but only to the extent that the change permits the corporation to provide
broader indemnification rights than the provisions permitted the corporation to
provide before the 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 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 the director or
officer occurring before the amendment or repeal.
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CREDIT ACCEPTANCE CORPORATION
BYLAW AMENDMENTS
Adopted February 24, 2005
Effective February 24, 2005
ARTICLE III
CAPITAL STOCK
3.02 Certificates for Shares; Uncertificated Shares.
(a) The Board of Directors may authorize the issuance of some or all of
the shares of any or all classes or series without certificates. Any such
authorization will not affect shares already represented by certificates until
the certificates are surrendered to the corporation.
(b) Within a reasonable time after the issuance or transfer of shares
without certificates, the corporation shall send the shareholder a written
statement of the information that would have been required on certificates under
the applicable provisions of the Michigan Business Corporation Act if the shares
had been represented by certificates.
(c) Except for shares authorized to be issued without certificates
pursuant to Section 3.02(a), shares of the corporation shall be represented by
certificates signed by the Chairman of the Board, Vice Chairman of the Board,
President or a Vice President of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof. 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, the designation of the series, if any, which the
certificate represents, and such other provisions as may be required by the laws
of the State of Michigan.
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