1
EXHIBIT 3.3
BYLAWS
OF
CAPTEC FRANCHISE CAPITAL CORPORATION IV
(hereinafter referred to as the "Corporation")
ARTICLE I.
OFFICES
Section 1. LOCATION. The principal office of the Corporation in
the State of Michigan shall be located in the City of Ann Arbor, County of
Washtenaw.
Section 2. CHANGE. The Board of Directors (hereinafter referred
to as the "Board") may change the principal office of the Corporation from time
to time and may establish other offices, either within or without the State of
Michigan, as the business of the Corporation may require.
ARTICLE II.
SHAREHOLDERS AND SHAREHOLDERS' MEETINGS
Section 1. ANNUAL MEETING. The annual shareholders' meeting
shall be held at such time on such day as the Board shall annually determine,
for the purposes of electing directors, hearing reports of the affairs of the
Corporation and transacting any other business within the power of the
shareholders. If the election of directors shall not be held on the day
designated herein for an annual meeting, or at any adjournment thereof, the
Board may cause the election to be held at a special shareholders' meeting as
soon thereafter as one may be conveniently called and noticed for that purpose.
Section 2. SPECIAL MEETINGS. Special shareholders' meetings
shall be noticed by the Secretary whenever called by the President, Board or
requested by the shareholders holding not less than one-fifth (1/5) of any
class of the shares of capital 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, and the business transacted at any such meeting
shall be limited to the purpose or purposes stated in the notice thereof.
Section 3. PLACE OF MEETING. The Board may specifically
designate any place either within or without the State of Michigan as the place
of meeting for any annual or special shareholders' meeting. If no such
designation is made or if a special meeting is called other than
2
at the request of the Board, the place of meeting shall be the registered
office of the Corporation in the State of Michigan.
Section 4. WRITTEN NOTICE. Notice of any annual shareholders'
meeting shall specify in writing the place, day and hour thereof and shall be
given by the Secretary to each such shareholder entitled to vote thereat not
less than ten (10) nor more than sixty (60) days before each such meeting.
Such written notice shall constitute due, legal, and personal notice to each
such shareholder if it is given by:
(a) delivering it to such shareholder personally; or
(b) sending it to him by mail, telegraph, or other means
of written communication, charges prepaid, addressed to him at:
(i) his address as it appears on the stock
transfer books of the Corporation; or
(ii) such other address as he may have requested
in writing that the Corporation use for the purpose of giving
such notice; or
(iii) at the registered office of the Corporation
and by publishing it at least once in some newspaper of
general circulation in the county in which that office is
located if his address does not appear on the stock transfer
books of the Corporation and he has not requested in writing
that the Corporation use any address for such notice.
If mailed, such notice shall be deemed given when deposited in the United
States Mail postage prepaid and addressed to the shareholder at any such
address. Except in extraordinary circumstances where express provision is made
allowable by statute, notice of any special shareholders' meeting shall be
given in the same manner as for annual shareholders' meetings.
Attendance of a person at a meeting of shareholders, in person or by
proxy, constitutes (i) a waiver of notice of the meeting, except when the
shareholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened; and (ii) a waiver of objection to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
Section 5. ADJOURNED MEETINGS AND NOTICE THEREOF. Any annual or
special shareholders' meeting, whether or not a quorum is present, may be
adjourned from time to time by the vote of a majority of the shares, the
holders of which are either present in person or represented by proxy thereat;
in the absence of a quorum no other business may be transacted at such meeting.
- 2 -
3
A meeting may be adjourned to another time or place without giving
notice of the adjourned meeting if the time and place to which the 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. Provided, however, that after the
adjournment the Board may fix a new record date for the adjourned meeting and a
notice of the adjourned meeting shall be given to each shareholder of record on
the new record date entitled to notice.
Section 6. VOTING. Unless a record date for voting purposes is
fixed as provided in Section 1 of Article V of these Bylaws, only those persons
in whose names shares entitled to vote stand and are registered on the stock
transfer books of the Corporation on the day three (3) days prior to any
meeting of shareholders shall be entitled to vote at such meeting. Such vote
may be by voice or by ballot; however, all elections for directors must be by
ballot upon demand made by a shareholder at any election and before the voting
begins.
Each shareholder of the Corporation shall, at every shareholders'
meeting, be entitled to one (1) vote in person or by proxy for each share of
each class of capital stock of the Corporation outstanding and entitled to vote
and registered in his name on the record date or the date set forth herein.
Except as otherwise provided in the Corporation's Articles of Incorporation,
directors shall be elected by a plurality of the votes cast at an election.
Except as otherwise provided by law, the Corporation's Articles of
Incorporation, or these Bylaws, every act or decision done or made by vote of
the shareholders entitled to exercise a majority of the voting power present in
person or by proxy at any shareholders' meeting shall be regarded as an act or
decision done or made with the approval of the shareholders.
Section 7. QUORUM. Unless otherwise provided in this
Corporation's Articles of Incorporation, the presence in person or by proxy of
persons entitled to vote a majority of the voting shares of the capital stock
of the Corporation that are outstanding and entitled to vote shall constitute a
quorum for the transaction of business at any meeting. The shareholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum.
Section 8. CONSENT OF ABSENTEES. The transactions of any annual
or special shareholders' meeting, however called and noticed, shall be as valid
as though had at a meeting duly held after regular call and notice if a quorum
is present either in person or by proxy and if, either before or after the
meeting, each of the shareholders who was entitled to vote but was not present
in person or by proxy, signs a written waiver of notice and written consent to
the holding of such meeting or a written approval of the minutes thereof. All
such waivers and consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
- 3 -
4
Section 9. ACTION WITHOUT MEETING.
(a) If the Articles of Incorporation so provide, any
action required or permitted under any provision of the Michigan
Business Corporation Act, to be taken at an annual or special meeting
of shareholders may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action
so taken, is signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize or take the action at a meeting at which all shares entitled
to vote thereon were present and voted. If less than unanimous
written consent of the shareholders shall be given for any action to
be taken, the written consent shall bear the date of signature of each
shareholder who signs the consent and shall be delivered to the
Corporation within sixty (60) days after the record date set forth in
Section 6 of this Article II hereof. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written
consent shall be given to shareholders who have not consented in
writing.
(b) If the Articles of Incorporation do not provide as
described in subsection (a) hereof, any action which under any
provision of the Michigan Business Corporation Act is required or may
be taken at a shareholders' meeting may be taken without such a
meeting if authorized by a writing signed by all of the persons who
would be entitled to vote upon such action at such a meeting and filed
with the Secretary of the Corporation. Such consent shall have the
same effect as a unanimous vote of shareholders.
Section 10. PROXIES. Every person entitled to vote or execute
consents or dissents shall have the right to do so either in person or by one
or more agents authorized by a written proxy executed by such person or his
duly authorized agent and filed at or before the meeting at which they are
intended to be used with the Secretary of the Corporation. Proxies shall be
valid for the length of time which the person executing it specifies, which in
no case shall exceed three (3) years from the date of its execution. Any proxy
duly executed shall be deemed not to have been revoked and to be in full force
and effect and, in the absence of any limitation to the contrary contained in
the proxy, it shall extend to all shareholders' meetings, unless and until an
instrument revoking said proxy or a duly executed proxy bearing a later date is
filed with the Secretary of the Corporation. A proxy shall be deemed
sufficient if it appears on its face to confer the requisite authority and is
signed by the owner of the stock to be voted; no witnesses to the execution of
any proxy shall be required. Notwithstanding that a valid proxy may be
outstanding, except in the case of an irrevocable proxy coupled with an
interest which shall state that it is irrevocable on its face, the powers of
the proxy holder or holders shall be suspended if the person or persons
executing such proxy shall be present at the meeting and elect to vote in
person.
- 4 -
5
Section 11. ORDER OF BUSINESS AT ANNUAL MEETING. The Order of
business at the annual shareholders' meeting or at any adjourned annual
shareholders' meeting shall be as follows:
(a) Counting of shares and proxies present to determine
if a quorum exists;
(b) Reading of Notice and Proof of Mailing;
(c) Reading of Minutes of Previous Meeting or Meetings;
(d) Report of President;
(e) Report of Secretary;
(f) Report of Treasurer;
(g) Report of Board;
(h) Election of Directors;
(i) Transaction of such other business as may properly
come before the meeting; and
(j) Adjournment.
However, in the absence of any shareholder's objection, the presiding officer
at any such meeting may vary the order in his discretion.
Section 12. REMOVAL OF DIRECTORS. The shareholders may remove
any member of the Board at any special meeting called for that purpose or by
consent in the manner set forth in the Michigan Business Corporation Act, and
the shareholders may elect a Director to fill the vacancy thus created at that
meeting, at any other meeting called for the purpose of filling that vacancy,
or by consent.
Section 13. VOTING OF SHARES BY CERTAIN HOLDERS. Any other
Corporation that owns shares of stock of this Corporation outstanding and
entitled to vote may vote the same by the President of the shareholder
corporation or proxy appointed by him, unless some other person is appointed to
vote such shares by resolution of the Board of the shareholder corporation.
Shares held by an administrator, executor, guardian, conservator,
receiver, trustee, or other fiduciary may be voted by him, either in person or
by proxy, without a transfer of such shares into his name, provided the
Corporation is furnished satisfactory proof of the authority of such person to
vote those shares.
- 5 -
6
A shareholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer the pledgor has expressly empowered the pledgee
to vote such shares and had the same indicated on the books of the Corporation,
in which case only the pledgee or his proxy may represent and vote such shares.
Shares of this Corporation's own stock held by it in a fiduciary
capacity shall not be voted, directly or indirectly, at any meeting or for any
purpose and shall not be counted in determining the total number of shares
present for quorum purposes.
Section 14. INSPECTORS OF ELECTION. Whenever any person entitled
to vote at any shareholders' meeting shall request the appointment of persons
to inspect any election, the Board, prior to the meeting, or the person
presiding at such meeting shall appoint not more than three (3) inspectors, who
need not be shareholders. If the right of any person to vote at such meeting
shall be challenged, the inspectors shall determine such right. The inspectors
shall receive and count the votes for any election or for the decision of any
questions and shall determine the result. Their certificate of any vote shall
be prima facie evidence thereof.
Section 15. SHAREHOLDER MEETING BY CONFERENCE TELEPHONE OR
SIMILAR EQUIPMENT. A shareholder may participate in a meeting of shareholders
by a conference telephone or similar communications equipment by which all
persons participating in the meeting may hear each other if all participants
are advised of the communications equipment and the names of the participants
in the conference are divulged to all participants. Participation in a meeting
pursuant to this section constitutes presence in person at the meeting.
ARTICLE III.
DIRECTORS AND MEETINGS OF THE BOARD OF DIRECTORS
Section 1. POWERS. All of the powers of this Corporation not
expressly reserved to or conferred upon the shareholders by statute, the
Articles of Incorporation, or these Bylaws shall be vested in the Board of
Directors of this Corporation which shall control and manage its business and
affairs.
Section 2. NUMBER OF DIRECTORS. The authorized number of
directors of the Corporation shall be two (2) until changed by a duly adopted
amendment of these Bylaws.
Section 3. ELECTION, TERM OF OFFICE AND QUALIFICATION OF
DIRECTORS.
(a) Directors need not be shareholders of this
Corporation. Except as provided in Subsection (b) below, the
directors, other than those serving on the first Board, shall be
elected at each annual shareholders' meeting or otherwise as provided
in Article II, Section 1, above. Each director shall hold office
until he resigns, dies, is removed from office, or his successor is
duly elected and qualified, whichever occurs first.
- 6 -
7
(b) The Articles of Incorporation or a bylaw adopted by
the shareholders may provide that in lieu of annual election of all
directors the directors be divided into two or three classes, each to
be as nearly equal in number as possible. The term of office of
directors in the first class shall expire at the first annual meeting
of shareholders after their election, that of the second class shall
expire at the second annual meeting after their election, and that of
the third class, if any, shall expire at the third annual meeting
after their election. At each annual meeting after such
classification, a number of directors equal to the number of the class
whose term expires at the time of the meeting shall be elected to hold
office until the second succeeding annual meeting if there are two
classes, or until the third succeeding annual meeting if there are
three classes.
Section 4. VACANCIES. A vacancy in the Board shall be deemed to
exist if any of the following events occurs:
(a) Any director dies;
(b) The authorized number of directors is greater than
the number of directors on the Board; or
(c) At any shareholders' meeting at which one or more
directors are to be elected, the shareholders then fail to elect the
full authorized number of directors.
Vacancies in the Board may be temporarily filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director making
such appointment, and each director so appointed shall hold office until his
successor is elected at an annual or special shareholders' meeting and is
qualified.
The shareholders may elect a director at any time to fill any vacancy
temporarily filled or not filled by the one or more remaining directors. If
the Board accepts the resignation of a director tendered to take effect at a
future time, the Board or the shareholders shall have the power to elect
immediately a successor to take office when such resignation is intended to
become effective.
Section 5. PLACE OF MEETING. Regular Board meetings shall be
held at any place within or without the State of Michigan which has been
designated from time to time by resolution of a majority of the Board or by
written consent of a majority of the members of the Board given either before
or after the meeting and filed with the Secretary of the Corporation. In the
absence of such designation, regular meetings shall be held at the registered
office of the Corporation. Any special Board meeting may be held at any place
designated with the written consent of a majority of the directors; otherwise
special Board meetings shall be held at the registered office of the
Corporation in the State of Michigan.
Section 6. ORGANIZATION MEETING. Immediately following each
annual shareholders' meeting and each adjourned annual and special
shareholders' meeting held for the purpose of
- 7 -
8
electing a new Board, the newly elected Board may hold a regular meeting for
the purpose of organization, election of officers, and the transaction of other
business. Notice of each such meeting need not be given and is hereby
dispensed with.
Section 7. OTHER REGULAR MEETINGS. Board meetings may be
regularly scheduled for dates, times and places as determined by the Board, and
in such case notice of such meetings need not be given and is hereby dispensed
with.
Section 8. SPECIAL MEETINGS AND NOTICE THEREOF. Special Board
meetings for any purpose or purposes, may be called at any time by any director
or by the President or, if he is absent or unable to act, by any Vice
President. The business transacted at any such meeting shall be limited to the
purpose or purposes stated in the notice thereof.
Written notice of the place, day, and hour of special Board meetings
shall be given to each director and constitute due, legal, and personal notice
to him if that notice is delivered personally to him or sent to him by mail,
telegraph, or other means of written communication, charges prepaid, addressed
to him at his address as it is shown upon the records or stock transfer books
of the Corporation or, if such address is not so shown on such records or is
not readily ascertainable, at the place in which the regular directors'
meetings are held. If delivered personally, such notice shall be so delivered
at least twenty-four (24) hours prior to the time of the holding of the
meeting. If mailed or telegraphed, such notice shall be deposited in the
United States Mail or delivered to the telegraph company in the place which the
principal office of the Corporation in the State of Michigan is located at
least forty-eight (48) hours prior to the time of holding the meeting; if
mailed, such notice shall be deemed given when deposited in the United States
Mail postage prepaid and addressed as set forth above.
Section 9. NOTICE OF ADJOURNMENT. Notice of the time and place
of holding an adjourned Board meeting need not be given to absent directors if
the time and place be fixed at the meeting adjourned provided that the meeting
is not adjourned for more than thirty (30) days.
Section 10. WAIVER OF NOTICE. The attendance of a director at
any Board meeting shall constitute a waiver of notice of such meeting, except
where a director attends for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called,
noticed, or convened.
The transactions of whatever kind or nature held at any Board meeting,
however called and noticed or wherever held, shall be as valid as though had at
a meeting duly held after regular call and notice if a quorum is present and
if, either before or after the meeting, each of the directors not present signs
a written waiver of notice of the meeting and a written consent to holding such
meeting, or a written approval of the minutes thereof. All such waivers and
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
- 8 -
9
In addition, any action required or permitted to be taken by the Board
under the Michigan Business Corporation Act may be taken without a meeting, if
all members of the Board shall individually and collectively consent in writing
to such action. Such written consents shall be filed with the minutes of the
proceedings of the Board. Such action by written consent shall have the same
force and effect as a unanimous vote of such directors at a duly called,
noticed, and held Board meeting. Any certificate or other document filed under
any provision of the Michigan Business Corporation Act which relates to action
so taken shall state that the action was taken by unanimous written consent of
the Board without a meeting and that these Bylaws authorized the directors so
to act, and such statement shall be prima facie evidence of such authority.
Section 11. QUORUM. Except to adjourn the meeting as hereinafter
provided, a majority of the Board without regard to the authorized number of
directors shall be necessary to constitute a quorum for the transaction of
business. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded
as the act of the Board unless a greater number be required by law, the
Articles of Incorporation, or these Bylaws.
Section 12. ADJOURNMENT. A quorum may adjourn any Board meeting
to meet again at a stated place, date, and hour; however, in the absence of a
quorum, a majority of the directors present at any regular or special Board
meeting may adjourn from time to time until the time fixed for the next regular
Board meeting.
Section 13. FEES AND COMPENSATION. By resolution of the Board,
the directors may be paid their expenses, if any, of attendance at each Board
meeting and a fixed sum for attendance at each Board meeting or a stated salary
as director. Nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity as an officer,
agent, employee or otherwise and receiving a separate compensation therefor.
Section 14. PRESUMPTION OF ASSENT. A director who is present at
any Board meeting at which action on any corporate matter is taken shall be
presumed to have assented to any action taken by the Board at that meeting
unless his dissent shall be entered in the minutes of the meeting or he shall
file his written dissent to such action with the person acting as the Secretary
of the meeting before the adjournment thereof or he shall forward such dissent
by registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall 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 assented to the action unless he
files his dissent with the Secretary of the Corporation within a reasonable
time after he has knowledge of the action.
Section 15. EXECUTIVE COMMITTEES. The Board, by resolution
passed by a majority of the whole Board, may provide for an Executive Committee
by appointing two (2) or more members thereto, each of whom shall be a director
and who shall serve during the pleasure of the Board. Unless one of the
members shall have been designated as Chairman of the Board,
- 9 -
10
the Executive Committee shall elect a Chairman from its own members. Except as
provided herein or otherwise by resolution of the Board, the Executive
Committee during the intervals between Board meetings shall possess and may
exercise all of the powers of the Board in the management of the business and
affairs of the Corporation. The Executive Committee shall keep full and fair
records and accounts of its proceedings and transactions. All actions taken by
the Executive Committee shall be reported to the Board at its meeting next
succeeding such action and shall be subject to revision and alteration by the
Board, except that no rights of third persons created in reliance thereon shall
be affected by any such revision or alteration. Vacancies in the Executive
Committee shall be filled by the Board.
Subject to provisions of these Bylaws, the Executive Committee shall
fix its own rules of procedure and shall meet as provided by such rules, by
resolution of the Board, or at the call of the President or Secretary of the
Corporation or of any two (2) members of the committee. Unless otherwise
provided by such rules, the provisions of the Bylaws relating to the notice
required to be given to directors shall apply to all meetings of the Executive
Committee. A majority of the Executive Committee shall be necessary to
constitute a quorum.
Section 16. OTHER COMMITTEES. The Board may by resolution
provide for such other standing or special committees as it deems desirable and
discontinue the same at its pleasure. Each such committee shall have such
powers and perform such duties not inconsistent with law, as may be assigned to
it by the Board. If provision be made for any such committee, the members
thereof shall be appointed by the Board, shall consist of one or more members
of the Board and shall serve during the pleasure of the Board. Vacancies in
such committees shall be filled by the Board.
ARTICLE IV.
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a
President, and a Secretary. The Corporation may also have in the discretion of
the Board, a Chairman of the Board, a Treasurer, one or more Vice Presidents,
one or more Assistant Secretaries, one or more Assistant Treasurers, and such
other officers as may be appointed in accordance with the provisions of Section
3 of this Article IV. One person may hold two or more offices. In no case
shall any officer execute, acknowledge or verify any instrument in more than
one capacity.
Section 2. ELECTION. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of Sections
3 or 5 of this Article IV, shall be chosen by the Board, and each shall hold
his office until he resigns, dies, is removed or otherwise disqualified to
serve, or until his successor is elected and qualified, whichever occurs first.
Section 3. SUBORDINATE OFFICERS AND AGENTS. The Board may
appoint such other officers and agents as the business of the Corporation may
require, each of whom shall hold
- 10 -
11
office for such period, have such authority, and perform such duties as may be
provided in these Bylaws or as the Board may from time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer or agent may be
removed by a majority of the whole Board at the time in office at any regular
or special Board meeting.
Any officer may resign at any time by giving written notice to the
Board, the President, or the Secretary. Any such resignation shall take effect
at the date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause shall be filled in
the manner prescribed in these Bylaws for regular appointments to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if
there shall be such an officer, shall, if present, preside at all meetings of
the Board and shall exercise and perform such other powers and duties as may
from time to time be assigned to him by the Board or prescribed by these
Bylaws.
Section 7. PRESIDENT. Subject to such powers and duties, if
any, as may be given to the Chairman of the Board by the Board or prescribed by
these Bylaws, the President shall be the chief executive officer of the
Corporation and shall, subject to the control of the Board, have general
supervision, direction and control of the business and affairs of the
Corporation. He shall preside at all shareholders' meetings and, in the
absence of the Chairman of the Board or if there be no such Chairman, at all
Board meetings. He shall be ex officio a member of all the standing
committees, including the Executive Committee, if any; shall have the general
powers and duties of management usually vested in the office of President of a
corporation; shall see that all orders and resolutions of the Board are carried
into effect; and shall have such other powers and duties as may be prescribed
by the Board or these Bylaws.
Section 8. VICE PRESIDENTS. In the event of the President's
absence or disability, the Vice Presidents, if more than one, in order of their
rank as fixed by the Board or, if not ranked, the Vice President designated by
the Board shall perform all the duties of and shall be subject to all the
restrictions upon the President. The Vice Presidents shall have such other
powers and authority and shall perform such other duties as from time to time
may be prescribed for them respectively by the Board or these Bylaws.
Section 9. SECRETARY. The Secretary shall attend all
shareholders' meetings and all Board meetings and shall keep or cause to be
kept, in his custody at the principal or registered office of the Corporation
in the State of Michigan or such other place as the Board may order, a book
recording the minutes of all Board and shareholders' meetings setting forth:
the place, date, and hour of holding; whether regular or special, and, if
special, how authorized; the notice
- 11 -
12
thereof given; the names of those present at Board meetings; the number of
shares present or represented at shareholders' meetings; and the proceedings
thereof.
The Secretary shall keep or cause to be kept at the registered office
of the Corporation in the State of Michigan or at the office of the
Corporation's transfer agent, a share register or a duplicate share register or
a list showing the names of the shareholders and their addresses; the number
and classes of shares held by each; the number and date of certificates issued
for the same; and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall keep in safe custody the seal of the Corporation
and, when authorized by the Board, affix the same or cause the same to be
affixed to any instrument requiring it; when so affixed, the seal shall be
attested by his signature or by the signature of the Treasurer or the Assistant
Secretary. The Secretary shall perform such other duties and have such other
authorities as are delegated to him by the Board.
The Secretary shall give or cause to be given notice of all Board and
shareholders' meetings required by these Bylaws or by law.
Section 10. ASSISTANT SECRETARIES. In the event of the
Secretary's absence or disability, any Assistant Secretary shall act as
Secretary in all respects. The Assistant Secretaries shall exercise such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board, the President, the Secretary, or these Bylaws.
Section 11. TREASURER. The Treasurer shall, subject to the
direction of the Board, have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation.
The Treasurer shall deposit all monies and other valuables in the name
and to the credit of the Corporation with such depositaries as may be
designated by the Board; shall disburse the funds of the Corporation as may be
ordered by the Board; shall render to the President and the Board, whenever
either requests it, an account of all of his transactions as Treasurer and of
the financial condition of the Corporation; and shall have such other powers
and authority incident to the office of Treasurer and shall perform such other
duties as may be prescribed by the Board or these Bylaws.
Section 12. ASSISTANT TREASURERS. In the event of the
Treasurer's absence or disability, the Assistant Treasurer shall act as
Treasurer in all respects. The Assistant Treasurer shall exercise such other
powers and perform such other duties as from time to time may be prescribed for
him by the Board, the President, the Treasurer, or these Bylaws.
Section 13. SALARIES. The salaries of the officers shall be
fixed from time to time by the Board.
- 12 -
13
ARTICLE V.
MISCELLANEOUS
Section 1. FIXING OF RECORD DATE. For the purpose of
determining shareholders entitled to notice of and to vote at a meeting of
shareholders or an adjournment of a meeting, the Board may fix a record date
which shall not precede the date on which the resolution fixing the record date
is adopted by the Board and which shall be not more than 60 nor less than 10
days preceding the date of the meeting.
For the purpose of determining shareholders entitled to express
consent to or to dissent from a proposal without a meeting, the Board may fix a
record date, which shall not be more than 60 days before effectuation of the
action proposed to be taken.
For the purpose of determining shareholders entitled to receive
payment of a share dividend or distribution or allotment of a right, or for the
purpose of any other action, the Board may fix a record date which shall not
precede the date on which the resolution fixing the record date is adopted by
the Board and which shall not be more than 60 days preceding the date of the
payment of the share dividend or distribution or allotment of a right or other
action.
Section 2. ANNUAL REPORT. The Corporation shall cause a
financial report of the Corporation for the preceding fiscal year to be made
and distributed to each shareholder thereof within four (4) months after the
end of the fiscal year. The report shall include the Corporation's statement
of income, its year-end balance sheet and, if prepared by the Corporation, its
statement of source and application of funds.
Section 3. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board. Such authority may be general or
confined to specific instances. No loan or advance to or overdraft or
withdrawal by an officer, director, or shareholder of the Corporation other
than in the ordinary and usual course of the business of the Corporation shall
be made or permitted unless each such transaction shall be approved by a vote
of the majority of the members of the whole Board after excluding from any
deliberations about such transaction any director involved in it. A full and
detailed statement of all such transactions and any payments shall be submitted
at the next annual shareholders' meeting, and the aggregate amount of such
transaction less any repayments shall be stated in the next annual report to
shareholders.
Section 4. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
President or by a proxy appointed by him; or, in the absence of the President
and his proxy, the Treasurer or by a proxy appointed by him; or, in the absence
of both the President and the Treasurer and their proxies, the Secretary or by
a proxy appointed by him are authorized in that order to vote, represent, and
exercise on behalf of this Corporation all rights incident to any and all
shares of other Corporations standing in the name of this Corporation. The
Board, however, may by resolution appoint some other person to vote such
shares.
- 13 -
14
Section 5. INDEMNIFICATION.
(a) The Corporation shall indemnify a person who was or
is a party or is threatened to be made a party to a threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or
informal, other than an action by or in the right of the Corporation,
by reason of the fact that he or she is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, whether for
profit or not, against expenses, including attorneys' fees, judgments,
penalties, fines, and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the action, suit,
or proceeding, if the person acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests
of the Corporation or its shareholders, and with respect to a criminal
action or proceeding, if the person had no reasonable cause to believe
his or her conduct was unlawful. The termination of an action, suit,
or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, does not, of itself, create
a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation or its shareholders, and, with
respect to a criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
(b) The Corporation shall indemnify a person who was or
is a party to or is threatened to be made a party to a threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact
that he or she is or was a director, officer, employee, or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership, joint
venture, trust, or other enterprise, whether for profit or not,
against expenses, including actual and reasonable attorneys' fees, and
amounts paid in settlement incurred by the person in connection with
the action or suit, if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the best
interests of the Corporation or its shareholders. However,
indemnification shall not be made for a claim, issue, or matter in
which the person has been found liable to the Corporation unless and
only to the extent that the court in which the action or suit was
brought has determined upon application that, despite the adjudication
of liability but in view of all circumstances of the case, the person
is fairly and reasonably entitled to indemnification for the expenses
which the court considers proper.
(c) Indemnification against expenses:
(1) To the extent that a director, officer, employee, or
agent of the Corporation has been successful on the merits or
otherwise in defense of an action, suit, or proceeding referred to
above in Subsections (a) or (b), or in defense of a claim, issue, or
matter in
- 14 -
15
the action, suit, or proceeding, he or she shall be indemnified
against expenses, including actual and reasonable attorneys' fees,
incurred by him or her in connection with the action, suit, or
proceeding and an action, suit, or proceeding brought to enforce the
mandatory indemnification provided in this Subsection.
(2) An indemnification under Subsections (a) and (b)
above, unless ordered by a court, shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee, or agent is proper
in the circumstances because he or she has met the applicable standard
of conduct set forth in Subsections (a) and (b) above. This
determination shall be made in any of the following ways:
(i) By a majority vote of a quorum of the board
consisting of directors who were not parties to the action,
suit, or proceeding.
(ii) If the quorum described in subdivision (i) is
not obtainable, then by a majority vote of a committee of
directors who are not parties to the action. The committee
shall consist of not less than 2 disinterested directors.
(iii) By independent legal counsel in a written
opinion.
(iv) By the shareholders.
(3) If a person is entitled to indemnification under
Subsection (a) or (b) 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.
(d) Expenses incurred in defending a civil or criminal
action, suit, or proceeding described in Subsections (a) or (b) above
may be paid by the Corporation in advance of the final disposition of
the action, suit, or proceeding upon receipt of an undertaking by or
on behalf of the director, officer, employee, or agent to repay the
expenses if it is ultimately determined that the person is not
entitled to be indemnified by the Corporation. The undertaking shall
be by unlimited general obligation of the person on whose behalf
advances are made but need not be secured.
(e) Nonexclusivity:
(1) The indemnification or advancement of expenses
provided under Subsections (a) to (d) is not exclusive of other rights
to which a person seeking indemnification or advancement of expenses
may be entitled under the articles of incorporation, bylaws, or a
contractual agreement. However, the total amount of expenses
- 15 -
16
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.
(2) The indemnification provided for in Subsections (a)
to (e) continues as to a person who ceases to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of the person.
(f) The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under Subsections (a) to (e).
(g) For purposes of Subsections (a) to (f) above,
"corporation" includes all constituent corporations absorbed in a
consolidation or merger and the resulting or surviving corporation, so
that a person who is or was a director, officer, employee, or agent of
the constituent corporation or is or was serving at the request of the
constituent corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise whether for
profit or not shall stand in the same position under the provisions of
this Subsection with respect to the resulting or surviving corporation
as the person would if he or she had served the resulting or surviving
corporation in the same capacity.
(h) For the purposes of Subsections (a) to (f) above,
"other enterprises" shall include employee benefit plans; "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and "serving at the request of the Corporation"
shall include any service as a director, officer, employee, or agent
of the Corporation which imposes duties on, or involves services by,
the director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to
be in the interest of the participants and beneficiaries of an
employee benefit plan shall be considered to have acted in a manner
"not opposed to the best interests of the Corporation or its
shareholders" as referred to in Subsections (a) and (b) above.
Section 6. PERSONAL LIABILITY OF DIRECTORS. If the Articles of
Incorporation of the Corporation so provide, a director of the Corporation
shall not be personally liable to the Corporation or its shareholders for
monetary damages for a breach of the directors fiduciary duty to the extent
that the breach does not involve or constitute:
(a) A breach of the director's duty of loyalty to the
Corporation or its shareholders.
- 16 -
17
(b) Acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of law.
(c) A violation of Section 551(1) of the Michigan
Business Corporation Act.
(d) A transaction from which the director derived an
improper personal benefit.
(e) Any other act or omission as to which the Michigan
Business Corporation Act does not permit a director's liability to be
so limited.
ARTICLE VI.
EXECUTION OF INSTRUMENTS
Section 1. BANK ACCOUNTS. Each bank account of the Corporation
shall be established and continued only by order of the Board.
Section 2. CHECKS, ETC. All checks, drafts, and orders for the
payment of money shall be signed in the name of the Corporation in such manner
and by such officers or agents as the Board shall from time to time designate
for that purpose. No check or other instrument for the payment of money to the
Corporation shall be endorsed otherwise than for deposit to the credit of the
Corporation. All checks of the Corporation shall be drawn to the order of the
payee.
Section 3. CONTRACTS, CONVEYANCES, ETC. When the execution of
any contract, conveyance or other instrument has been authorized without
specification of the executing officers, the President or any Vice President
and the Secretary or Treasurer may execute the same in the name and on behalf
of this Corporation and may affix the corporate seal thereto. The Board shall
have power to designate the officers and agents who shall have authority to
execute any instrument on behalf of the Corporation in more than one capacity.
Notwithstanding anything contained herein to the contrary, no officer,
agent or employee of this Corporation shall have the authority to disburse
monies or other property to other persons, to obligate the Corporation to do or
perform any act, to make any payments of money or property, or to execute any
of the instruments described herein on behalf of this Corporation other than in
the ordinary course of business unless he shall have previously obtained the
approval of the Board and unless such approval or ratification shall appear in
the minutes of this Corporation.
- 17 -
18
ARTICLE VII.
RIGHT OF INSPECTION
Section 1. INSPECTION OF BY-LAWS. The Corporation shall keep in
its registered or principal office the original or a copy of these Bylaws and
the Articles of Incorporation as amended or otherwise altered to date,
certified by the Secretary, which shall be open to inspection by all
shareholders during regular business hours.
Section 2. INSPECTION OF RECORDS. A person who is a shareholder
of record of the Corporation, upon at least ten (10) days' written demand may
examine for any proper purpose in person or by agent or attorney, during usual
business hours, its minutes of shareholders' meetings and record of
shareholders' and make extracts therefrom, at the places where the said records
are kept.
ARTICLE VIII.
DIVIDENDS
Section 1. DIVIDENDS OF CASH OR OTHER PROPERTY. The Board may,
from time to time, declare dividends on its outstanding shares to be paid in
cash or other property, other than the Corporation's shares, subject to the
following:
(a) Such dividends may not be declared if, after giving
effect to the dividend, the Corporation would not be able to pay its
debts as they become due in the usual course of business, or the
Corporation's total assets would be less than the sum of the total
liabilities.
Section 2. DIVIDENDS OF STOCK. The Board may, from time to
time, declare dividends on its outstanding shares to be paid in the
Corporation's stock, subject to the following:
(a) Shares of one class or series may not be issued as a
share dividend in respect of shares of another class or series unless
a majority of the votes entitled to be cast by the class or series to
be issued approve the issue, or there are no outstanding shares of the
class or series to be issued.
ARTICLE IX.
CAPITAL STOCK
Section 1. ISSUANCE OF SHARES. The shares of capital stock of
the Corporation shall be issued by the Board in such amounts, at such times,
for such consideration, and on such terms
- 18 -
19
and conditions as the Board shall deem advisable, subject to the provisions of
the Articles of Incorporation and these Bylaws.
Section 2. CERTIFICATES FOR SHARES. The shares of the
Corporation shall be represented by certificates and every shareholder of this
Corporation shall be entitled to have a certificate. The certificate shall be
signed by the Chairman of the Board, President or a Vice President and may also
be signed by another officer of the Corporation; shall certify the number and
class of shares represented by such certificate; shall state, if such shares
are not fully paid, the amount paid; and may be sealed with the seal of the
Corporation or a facsimile thereof. The signatures of the officers of the
Corporation upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or an employee of the Corporation. If an officer who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be an officer before the certificate is issued, it may be issued
by the Corporation with the same effect as if he were the officer at the date
of its issue.
Certificates of stock shall in all other respects be in such form as
shall be determined by the Board and shall be consecutively numbered or
otherwise identified.
If the Corporation is authorized to issue shares of more than one
class, every certificate of stock shall set forth on its face or back, or state
on its face or back that the Corporation will furnish to a shareholder upon
request and without charge, a full statement of the designation, relative
rights, preferences and limitations of the shares of each class authorized to
be issued, and if the Corporation is authorized to issue any class of shares in
series, the designation, relative rights, preferences, and limitations of each
series so far as the same have been prescribed and the authority of the Board
to designate and prescribe the relative rights, preferences, and limitations of
other series.
Section 3. TRANSFER OF SHARES. Transfer of shares of the
Corporation shall be made only on the stock transfer books of the Corporation
by the holder of record thereof or by his legal representative who shall
furnish satisfactory evidence of his authority, file it with the Secretary of
the Corporation, and surrender for cancellation the certificate for such
shares. All certificates surrendered to the Corporation for transfer shall be
canceled and no new certificate shall be issued until the former certificate
for a like number of shares shall have been surrendered and canceled, except as
otherwise provided in Section 6 of this Article IX of these Bylaws. The
Secretary of the Corporation shall record each such transfer on the stock
transfer books and shall record the fact that a transfer is made for collateral
security and not absolutely when such is stated in the instrument of transfer.
Section 4. RECORD OWNER. The Corporation shall be entitled to
treat the person in whose name any share of stock is registered as the owner
thereof for the following purposes: recapitalization, consolidation, merger,
reorganization, sale of assets, liquidation or otherwise; for votes, approvals,
and consents by shareholders; for notices to shareholders; and for all other
purposes whatever. The Corporation shall not be bound to recognize any
equitable or other claim
- 19 -
20
to or interest in such shares on the part of any other person, whether or not
the Corporation shall have notice thereof, except as expressly required by law
or these Bylaws.
Section 5. LIEN BY CORPORATION. The Corporation shall have a
lien upon the capital stock of the Corporation for debts due to the Corporation
from the owners thereof pursuant to such owner's subscription agreement for
such capital stock.
Section 6. LOST, MUTILATED, OR DESTROYED STOCK CERTIFICATES.
Upon the presentation to the Corporation of a proper affidavit attesting the
loss, destruction or mutilation of any certificate for shares of stock of the
Corporation, the Board may direct the issuance of a new certificate in lieu of
and to replace the certificate so alleged to be lost, destroyed or mutilated.
The Board may require as a condition precedent to the issuance of a new
certificate any or all of the following:
(a) Additional evidence of the loss, destruction or
mutilation claimed;
(b) Advertisement of the loss in such manner as the Board
may direct or approve;
(c) A bond or agreement of indemnity in such form and
amount, with or without such sureties as the Board may approve; or
(d) The order or approval of a court.
The Corporation may recognize the person in whose name the new certificate, or
any certificate thereafter issued as owner of the shares described therein for
all purposes until the owner of the original certificate or a transferee
thereof without notice and for value shall enjoin the Corporation and the
holder of any new certificate, or any certificate issued in exchange or
substitution therefor, from so acting.
Section 7. TRANSFER AGENT AND REGISTRAR. The Board may appoint
a transfer agent and/or a registrar of transfers and may require all
certificates of shares to bear the signature of such transfer agent and of such
registrar of transfers, or as the Board may otherwise direct.
Section 8. REGULATIONS. The Board shall have power and
authority to make all such rules and regulations as the Board shall deem
expedient regulating the issue, transfer, and registration of certificates for
shares in this Corporation.
Section 9. CANCELED CERTIFICATES. All certificates for shares
exchanged or surrendered to the Corporation for transfer or cancellation shall
be marked with the date of cancellation by the Secretary and shall be
immediately fastened to the stubs in the certificate books from which they were
detached when issued.
- 20 -
21
Section 10. PAYMENT. Where stock is issued in exchange for a
promissory note, draft, obligation or promise of future services of the
purchaser, certificates therefor shall be delivered to the purchaser and the
stock shall be deemed to be fully paid and non-assessable, unless the Board,
upon authorization of the issuance of such stock, declares that such stock will
not be deemed to be fully paid and non-assessable until such time as the
promissory note or draft is paid, or obligation or promise performed.
ARTICLE X.
FISCAL YEAR
The Board of Directors shall determine the fiscal year of the
Corporation.
ARTICLE XI.
SEAL
The Corporation may have a seal which shall have inscribed thereon the
name of the Corporation, the state of incorporation, and the words "Corporate
Seal." The seal may be used by causing it or a facsimile to be imprinted,
affixed, reproduced, or otherwise.
ARTICLE XII.
POLICY AS TO COMPENSATION OF EMPLOYEES
Section 1. COMPENSATION POLICY. It is the policy of this
Corporation to fairly and adequately compensate its employees, to reimburse its
employees only for expenses reasonably incurred for and on behalf of this
Corporation to further this Corporation's business, to pay its employees
reasonable rental for any property this Corporation may lease from its
employees and to pay only a fair and proper rate of interest on any loans made
by an employee to this Corporation. However, in recognition of the fact that
the Internal Revenue Code and the regulations issued thereunder provide that
the Internal Revenue Service has the power to determine that some portion of
compensation paid to an employee or some portion of interest or rental payments
made to an employee or some portion of expense reimbursement paid to an
employee is not deductible by the Corporation as a business expense under the
Internal Revenue Code, notwithstanding the fact that such compensation,
interest payment, rental payment and/or expense reimbursement is based upon a
good faith determination by the directors and the officers of the Corporation
as to the worth of an employee and/or the propriety of such interest payment,
rental payment and/or expense reimbursement, it is hereby declared that any
payment made to an employee of this Corporation such as salary, commission,
bonus, interest, rent or reimbursement of expenses incurred by him which is
disallowed in whole or in part as a
- 21 -
22
deductible expense by the Internal Revenue Service shall be reimbursed by such
employee to this Corporation to the full extent of such disallowance. Each
employee shall agree to such reimbursement as a condition of his employment.
In lieu of payment by the employee, the Board may, in its discretion, withhold
an appropriate amount from the employee's future compensation payments until
the amount owed to this Corporation has been recovered.
ARTICLE XIII.
AMENDMENTS
These Bylaws may be added to, altered, amended, or repealed:
(1) By the vote of not less than a majority of the
members of the Board then in office at any regular or special meeting,
if written notice of the proposed addition, alteration, amendment, or
repeal shall have been given to each director at least five (5) days
before the meeting, or waived in writing; or
(2) By the shareholders at any annual or special meeting
if notice of the proposed addition, alteration, amendment, or repeal
shall have been included in the notice of such special meeting or
waived in writing.
- 22 -