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EFFECTIVE 7/26/93
EXHIBIT 3.5
BYLAWS
OF
LDM INDUSTRIES, INC.
ARTICLE I
OFFICES
SECTION 1. The principal and registered offices of the Corporation shall
be in the County of Oakland, State of Michigan.
SECTION 2. The Corporation may also have offices at such other places as
the Board of Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS AND STOCKHOLDERS' MEETINGS
SECTION 1. The stockholders of this Corporation shall be those who appear
on the books of the Corporation as holders of one or more shares of the capital
stock.
SECTION 2. Any and all meetings of stockholders, and of the Board of
Directors, may be held within or without the State of Michigan, provided that no
meeting of the stockholders shall be held at a place other than the registered
office in the State of Michigan, except pursuant to Bylaw, or resolution adopted
by the Board of Directors.
SECTION 3. The annual meeting of stockholders for the election of the
Directors and for transacting such other business as may properly come before
such meeting shall be held each year on a date selected at the discretion of the
Board of Directors. In lieu of any date specified in the first sentence of this
sub-paragraph, such annual meeting in any year may be held on another date which
is not a Sunday or legal holiday, and which is not earlier than three (3) months
before and not later than eight (8) months after the ending of the Corporation's
fiscal year.
SECTION 4. Notice of meetings, written or printed, for every annual
meeting or special meeting of stockholders shall be prepared by the Secretary
and by him mailed to the last known post office address of each stockholder
having voting rights, not less than ten (10) nor more than sixty (60) days prior
to the date of such meeting. Such notice shall state the time, place and
purposes thereof; provided, however, that any annual or special meeting of
stockholders may be held without notice when all stockholders having voting
rights are represented in person or by proxy at such
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meeting, except when the stockholder 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. In no case
shall a failure to mail the notice required in this paragraph, or any
irregularity in such notice, affect the validity of any annual meeting of
stockholders, or of any proceedings had at such meetings.
SECTION 5. The holders of a majority of the stock issued and outstanding,
and entitled to vote thereat, present in person, or represented by proxy, shall
be requisite and shall constitute a quorum at all meetings of the stockholders
for the transaction of business except as otherwise provided by law. If,
however, such majority shall not be present or represented at any meeting of
stockholders, the stockholders (entitled to vote thereat) present in person or
by proxy shall have the power to adjourn the meeting from time to time without
notice other than announcement at the meeting, until the requisite amount of
voting stock shall be present. At such adjourned meeting, at which the
requisite amount of voting stock shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 6. At such meeting of stockholders every stockholder having the
right to vote shall be entitled to vote in person, or by proxy appointed by an
instrument in writing and subscribed by such stockholder or his authorized
agent or representative and bearing a date not more than three (3) months prior
to the said meeting. The vote for Directors shall be by ballot. All elections
shall be had and all questions decided by a plurality vote, unless otherwise
provided by statute or the Bylaws.
SECTION 7. A complete list of stockholders entitled to vote at a
stockholders' meeting or any adjournment thereof, arranged alphabetically,
within each class and series, with the address of, and the number of shares held
by, each stockholder, shall be prepared and certified by the Secretary, shall be
produced at the time and place of the meeting, shall be subject to inspection by
any stockholder during the whole time of the meeting, and shall be prima facie
evidence as to who are the stockholders entitled to examine the list or to vote
at the meeting.
SECTION 8. A special meeting of stockholders may be called at any time by
the Chairman of the Board, President, by a majority of the Board of Directors,
or by stockholders entitled to vote, upon not less than an aggregate of 50% of
the outstanding shares of the Corporation having the right to vote at such
meeting. Upon receipt of a specification in writing setting forth the date and
objects of such proposed special meeting, signed by the Chairman of the Board,
President, a majority of the Board of Directors or by stockholders as above
provided, the Secretary of this Corporation shall prepare, sign and call the
notice requisite to such meeting.
SECTION 9. The order of business at all stockholders' meetings shall be:
A. Roll Call.
B. Proof of proper notice of meetings.
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C. Reports of Officers.
D. Reports of committees.
E. Transaction of business set forth in the Notice.
F. Adjournment.
In the absence of any objection, the presiding officer may vary the order of
business at his discretion.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. The affairs of this Corporation shall be managed by a Board of
not less than one (1) or more than five (5) Directors, who need not be
stockholders. They shall be elected by stockholders at each regular annual
meeting and shall hold office for one (1) year or until their successors have
been elected and seated, unless sooner displaced. A majority of the Directors
shall constitute a quorum for transacting business.
SECTION 2. In addition to the powers and authorities expressly conferred
upon it by the Bylaws, the Board may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the Articles
of Incorporation or by the Bylaws directed or required to be exercised or done
by the stockholders.
SECTION 3. In the event of a vacancy or vacancies in the Board of
Directors, however caused, the remaining Directors, though less than a majority
of the whole authorized number of Directors, may, by the vote of a majority of
their number, fill any such vacancy until the next annual meeting of
stockholders, at which time the stockholders shall fill the vacancy.
SECTION 4. Any Director may resign at any time by an oral statement made
at a meeting of the Board of Directors or in a writing to that effect delivered
to the Secretary. Such resignation may take effect immediately or at such other
time as the Director may specify.
SECTION 5. Immediately after each annual meeting of stockholders, the
newly-elected Directors shall hold an organizing meeting to elect officers and
to transact any other appropriate business. Notice of such meeting need not be
given.
SECTION 6. Regular meetings of the Board of Directors shall be held at
such times and places within or without the State of Michigan as may be
determined by the Board of Directors.
SECTION 7. Special meetings of the Board of Directors may be held at any
time within or without the State of Michigan upon call by the Chairman of the
Board, President or any two
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Directors. Written notice of the time and place of such meeting shall be given
to each Director either by personal delivery or by mail, telegram or cablegram
at least three (3) days before the meeting. The notice need not specify the
purpose of the meeting; provided, however, that attendance of any Director at
such meeting, without protesting, prior to or at the commencement of the
meeting, the lack of proper notice, shall be deemed to be a waiver by him of
notice of such meeting. Such notice may be waived in writing by any Director
either before or after such meeting, which waiver shall be filed with or
entered upon the records of the meeting. Unless otherwise indicated in the
notice, any business may be transacted at any organizational, regular or special
meeting.
SECTION 8. A quorum of the Board of Directors shall consist of a majority
of the Directors then in office; provided, that a majority of the Directors
present at a meeting duly held, whether or not a quorum present, may adjourn
such meeting from time to time. If a meeting is adjourned, notice of such
adjournment need not be given if the time and place to which such meeting is
adjourned are fixed and announced at such meeting. At each meeting of the Board
of Directors at which a quorum is present, all of the questions and business
shall be decided by a majority vote of those present except as otherwise
specifically provided by statute, the Articles of Incorporation or the Bylaws.
SECTION 9. Any action which may be authorized or taken at a meeting of the
Board of Directors may be authorized or taken without a meeting in a writing or
writings approved and signed by all of the Directors. Such writing or writings
shall be filed with or entered upon the records of the Corporation.
SECTION 10. The Board of Directors may, at any time, appoint from its
members an executive, finance or other committee or committees, consisting of
such number of members, but not less than two (2), as the Board of Directors may
deem advisable, together with such alternates as the Board of Directors may deem
advisable, to take the place of any absent member, all of whom shall hold office
at the pleasure of the Board of Directors. Any such committee shall act only in
the intervals between meetings of the Board of Directors and shall have such
authority of the Board of Directors as may, from time to time, be delegated by
the Board of Directors, except the authority to amend the Articles of
Incorporation, adopt an agreement of merger or consolidation, recommend to
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommend to Stockholders the dissolution of
the Corporation or a revocation of dissolution, amend the Bylaws of the
Corporation, fill vacancies in the Board of Directors or in any committee of the
Board of Directors, fix compensation of the Board of Directors for serving on
the Board, or on a committee, declare a dividend or authorize the insurance of
stock. Subject to the aforesaid exceptions, any person dealing with the
Corporation shall be entitled to rely upon any act or authorization of any act
by any such committee, to the same extent as an act or authorization of the
Board of Directors. Each committee shall keep full and complete records of all
dealings and actions, which shall be open to inspection by the Directors. Unless
otherwise determined by the Board of Directors, such committee may adopt its own
methods of procedure. Such committee may act at a meeting by a majority of its
members or without a meeting by a writing or writings signed by all of its
members.
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SECTION 11. The compensation of Directors and officers shall be fixed by
the Board. Compensation of employees and agents may be fixed by the Board.
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Corporation (who need not be stockholders)
shall be appointed by the Directors and shall be a Chairman of the Board,
President, Secretary and Treasurer. The Board of Directors may also appoint an
Assistant Secretary, Assistant Treasurer and one or more Vice-Presidents at its
discretion. Any two offices except for those of Chairman of the Board,
President and Vice-President may be held by the same person simultaneously. No
officer except the Chairman of the Board and the President need be a Director,
but no person who is not a Director may succeed to or fill the office(s) of
Chairman of the Board or President.
SECTION 2. The Board may appoint such other officers and agents as it shall
deem necessary. They shall hold office for such terms and shall exercise such
powers and duties as determined by the Board.
SECTION 3. The officers of the Corporation shall hold office until their
successors are elected. Any officer elected by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of
Directors. If any office becomes vacant for any reason, the vacancy shall be
filled by the affirmative vote of a majority of the Board of Directors.
SECTION 4. The Chairman of the Board shall preside at all meetings of
stockholders, and of the Board of Directors in the absence of the President. In
the absence of the President, he shall assume such other powers and duties of
the President as are delegated to him by a majority of the Board of Directors.
SECTION 5. The President shall be the chief executive officer of the
Corporation. He shall preside at all meetings of the Board of Directors. The
President shall perform all of the duties usually appertaining to the office of
president and chief executive officer of a Corporation. He shall have general
charge, subject to the Board of Directors, of the business affairs of the
Corporation. He shall have such other powers and duties as may be given him by
the Board of Directors.
SECTION 6. The Vice-President shall perform all the duties usually
appertaining to that office, and shall exercise the duties of the President in
the absence of the President, other than those powers and duties assumed by the
Chairman of the Board of Directors in accordance with Article IV, Section 4, of
these Bylaws.
SECTION 7. The Secretary shall keep the minutes of the stockholders' and
Directors' meetings. He shall have custody of the corporate seal and all
records, papers, books and files of the Corporation, except the books of
account. He shall issue notice of all meetings required by the
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Bylaws, affix the corporate seal to all instruments of the company requiring the
same and attest the same by his signature whenever such attestation shall be
required. He shall perform all of the duties usually appertaining to the office
of Secretary of a Corporation.
SECTION 8. The Treasurer shall have the custody of all corporate funds and
securities. He shall keep in books belonging to the Corporation, full and
accurate accounts of all receipts and disbursements. He shall deposit all
monies, securities and other valuable effects in the name of the Corporation, in
such depositories as may be designated for that purpose by the Board of
Directors. He shall disburse funds of the Corporation as ordered by the Board,
taking vouchers for such disbursements, and shall render to the President and
Directors at the regular meetings of the Board, and whenever requested by them,
an account of his transactions as Treasurer and of the financial condition of
the Corporation. If required by the Board, he shall deliver to the President of
the Company and shall keep in force a bond in form and amount and with surety or
sureties satisfactory to the Board. Such bond shall be conditioned upon the
faithful performance of the duties of his office and the restoration to the
Corporation in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and property of whatever kind in
his possession or under his control belonging to the Corporation.
SECTION 9. The Assistant Secretary shall possess the powers and perform the
duties of the Secretary in the absence or disability of the latter. He shall at
all times act as an assistant to the Secretary and have such powers and perform
such duties of the Secretary as shall be assigned to him by the Board of
Directors or by the Secretary. In case both the Secretary and Assistant
Secretary are at the same time absent or unable to perform their duties, the
Board of Directors may appoint a Secretary pro tempore with powers and duties to
act as Secretary during the absence and disability of both the Secretary and
Assistant Secretary.
SECTION 10. The Assistant Treasurer shall possess the powers and perform
the duties of the Treasurer in the absence or disability of the latter and he
shall at all times act as an assistant to the Treasurer. He shall have such
powers to perform such duties of the Treasurer as shall be assigned to him by
the Board of Directors or the Treasurer.
SECTION 11. When the execution of any contract, conveyance, or other
instrument has been authorized without specification of the officers authorized
to execute, the Chairman of the Board, President or the Vice-President and the
Secretary or the Treasurer may execute the same in the name and on behalf of the
Corporation and may affix the corporate seal thereto. The Board of Directors
shall have the power to designate the officers and agents who shall have the
authority to execute any instrument on behalf of the Corporation.
SECTION 12. In case of the absence of any officer of the Corporation, or
for any other reason that the Board may deem sufficient, the Board may delegate,
for the time being, the powers or duties, or any of them, of such officer to any
other officer, or to any Director, provided a majority of the Board concur
therein.
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SECTION 13. The several officers of the Corporation are empowered and
authorized to perform such other and further duties as from time to time may be
assigned to their respective offices by action of the Board of Directors.
SECTION 14. The Directors may by resolution require any and all
officers of the Corporation and any and all employees of the Corporation to give
bond to the Corporation with sufficient sureties conditioned upon the faithful
performance of the duties of their respective offices or employment.
ARTICLE V
INDEMNIFICATION
SECTION 1. Every person who is or has been a Director or officer of the
Corporation or an agent of the Corporation serving on any committee
administering the Corporation's employee benefit plans, or any other agent of
the Corporation designated by resolution of the Board of Directors to be
entitled to indemnification, including the personal representatives of any such
deceased person, of the Corporation, or of any other corporation which he serves
or served as such at the request of the Corporation because of the Corporation's
interest, direct or indirect, as owner of shares of capital stock or as a
creditor, shall to the full extent now or hereafter permitted by law, be
indemnified by the Corporation against any and all liability and reasonable
expense (including but not limited to, counsels' and accountants fees,
investigation cost, travel, transcripts, disbursements, settlement amounts,
judgments, fines or penalties) paid by or incurred by him in connection with, in
settlement of or resulting from any claim, action, suit or proceeding (whether
by or in the name of the Corporation or such other corporation, or otherwise),
civil, criminal, administrative or investigative, including any appeals relating
thereto, in which he may be involved or threaten to be involved, as a party or
otherwise, by reason of his being or having been a Director, officer or
employee of the Corporation or such other corporation, or by reason of any
action taken or not taken in the course and scope of his function as such
officer or employee or in his capacity as such Director.
The Corporation shall indemnify, insure and save harmless all officers,
Directors and advisory committees, past, present and future, and all other
persons now or hereafter involved, or deemed to be, in a fiduciary capacity in
connection with the Company's pension plan or other plans governed by, subject
to and/or covered by the Employee Retirement Income Security Act of 1974; said
self-insurance is to indemnify, insure and save harmless all such officers,
Directors, advisory committees and other persons from and against all loss,
cost, damage or expense, including attorney fees and any other expenses incurred
as a result of or arising out of their activity, jointly and/or severally, in
connection with such pension plan or other plan covered by the Employee
Retirement Income Security Act of 1974, as amended, pertaining to any such
fiduciary liability.
The foregoing rights of indemnification shall be in addition to any other
rights to which any such director or officer may be entitled as a matter of law.
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SECTION 2. The Board of Directors (whether or not a quorum of disinterested
Directors), in granting indemnification, may rely upon the written advice of
legal counsel that in the latter's opinion such indemnification is permitted by
law. Any Director, officer or employee who has been refused indemnification by
the Corporation shall, nevertheless, be indemnified if a court of competent
jurisdiction determines such indemnification is permitted by law.
SECTION 3. The Corporation may advance funds to cover expenses incurred
with respect to any claim, action, suit or proceeding of the character, actual
or threatened, described in Section 1 of this Bylaw, prior to the final
disposition thereof, upon receipt of an undertaking by such person to repay the
amount so advanced if and to the extent it should ultimately be determined by a
court of competent jurisdiction that he was not entitled to indemnification
under this Bylaw.
SECTION 4. The intention of this Bylaw is to provide indemnification with
the broadest and most inclusive coverage permitted by law (a) at the time of the
act or omission to be indemnified against or (b) so permitted at the time of
carrying out such indemnification, whichever of (a) and (b) may be the broader
or more inclusive, and permitted by law to be applicable. If the
indemnification, permitted by law at this present time, or any future time,
shall be broader or more inclusive than the provisions contained in this Bylaw,
then indemnification shall nevertheless extend to the broadest and most
inclusive permitted by the law at any time, and this Bylaw shall be deemed to
have been amended accordingly. If any provision or portion of this Article
shall be found in any action, suit or proceeding to be invalid or ineffective,
the validity and effect of the remaining parts shall not be affected.
ARTICLE VI
CAPITAL STOCK
SECTION 1. Every stockholder shall be entitled to a stock certificate
signed by the Chairman of the Board, President or Vice President and by the
Secretary, Assistant Secretary or Treasurer (except that where any such
certificate is signed by a transfer agent, and by a registrar, the signatures of
such Chairman of the Board, President, Vice-President, Secretary, Assistant
Secretary or Treasurer may be facsimiles, engraved or printed) and sealed with
the seal of the Corporation (or bearing a facsimile of such seal), certifying
the number of shares represented by such certificates.
SECTION 2. Shares shall be transferable on the books of the Corporation by
the persons named in the certificate or by power of attorney lawfully
constituted in writing, upon surrender of the certificate thereof. A record
shall be made of every transfer and issue. Whenever any transfer is made for
collateral security only and not absolutely, that fact shall be noted in the
entry of such transfer.
SECTION 3. The Board of Directors shall set a record date, which shall be
not less than ten (10) nor more than sixty (60) days prior to (a) the date of
any meeting of stockholders, (b) the date for the payment of any dividends, (c)
the date for the allotment of rights, (d) the date when any change of conversion
or exchange of capital stock shall go into effect, as the record date for
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determination of the stockholders entitled to notice of, and to vote at, any
such meeting, or entitled to receive payment of any such dividend, or to any
such allotment of rights or to exercise the rights in respect of any such
change, conversion, or exchange of capital stock. In such case such stockholders
and only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to notice of, and to vote at, such meeting, or to
receive payment of such dividend, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of stock
on the books of the Corporation or otherwise after the record date is fixed as
aforesaid. Nothing in this Section shall affect the rights of the stockholder
and his transferee or transferor as between themselves.
SECTION 4. The Corporation shall have the right to treat the registered
holder of any share as the absolute owner thereof, and shall not be bound to
recognize any equitable or other claim to, or interest in, such share on the
part of any other person, whether or not the Corporation shall receive actual or
other notice thereof, save as may be otherwise provided by the statutes of
Michigan.
SECTION 5. The Board of Directors shall have power and the authority to
make such rules and regulations as the Board shall deem expedient regulating the
issue, transfer and registration of certificates for shares of stock of this
Corporation.
SECTION 6. No certificates for shares of the capital stock of the
Corporation shall be issued in place of any certificate alleged to have been
lost, stolen or destroyed, except by consent of the Board of Directors. The
Board of Directors may at its discretion require the owner of the lost or
destroyed certificates, or his legal representative, to give the Corporation a
bond sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such
certificate. The Board of Directors, in its discretion, may refuse to issue
such new certificate, save upon the order of a court having jurisdiction in such
matters.
ARTICLE VII
VOTING STOCK IN OTHER CORPORATIONS
Unless otherwise voted by the Board of Directors, the President shall have
full power and authority, on behalf of this Corporation, to attend, to act and
to vote at any meetings of stockholders of any corporation in which this
Corporation may hold stock, and at any such meeting, shall possess and may
exercise any and all rights and powers incident to the ownership of such stock
and which, as the owner thereof, the Corporation might have possessed and
exercised if present. The Board of Directors, by resolution, may confer like
powers upon any other person or persons.
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ARTICLE VIII
CHECKS
All checks, drafts, orders for the payment of money, notes or evidences of
indebtedness issued in the name of the Corporation shall be signed by such
officer, officers, agent or agents of the Corporation, and in such manner, as
shall be determined by action of the Board of Directors.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall end on the last Sunday in
September of each year.
ARTICLE X
DIVIDENDS
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Articles of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting pursuant to law. Dividends
may be paid in cash, in property or in shares of capital stock, from earned
surplus or capital surplus. In determining earned surplus the judgment of the
Board of Directors shall be conclusive, in the absence of bad faith or gross
negligence.
The Board of Directors shall have authority to set apart, out of any funds
available for dividends, such reserve or reserves, for any purpose, as the Board
in its discretion shall approve. The Board shall have power and authority to
abolish any reserve created by the Board.
ARTICLE XI
NOTICES
SECTION 1. Whenever under the provisions of these Bylaws, notice is
required to be given to any Director, officer or stockholder, it shall not be
construed to mean personal notice. Such notice, unless otherwise provided by
these Bylaws or by statute, may be given in writing by depositing the same in
the Post Office or letterbox in a postpaid sealed wrapper, addressed to such
stockholder, officer or Director at his address as it appears on the records of
the Corporation.
SECTION 2. Whenever any notice is required to be given by statute or under
the provisions of the Articles of Incorporation or Bylaws of this Corporation, a
waiver thereof, in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE XII
SEAL
The Board of Directors may, in their discretion, obtain a corporate seal
for this Corporation which shall be an impression upon paper or wax of a
circular device, within which shall be the words "Corporate Seal" surrounded by
the name of the Corporation and the word "Michigan" within containing
circumferential lines. Said seal may be used by causing it or a facsimile
thereof to be impressed, affixed or reproduced.
ARTICLE XIII
AMENDMENT OF BYLAWS
These Bylaws may be amended, altered, changed, added to or repealed by the
affirmative vote of a majority of shares entitled to vote at any regular or
special meeting of the stockholders if notice of the proposed amendment,
alteration, change, addition or repeal be contained in the notice of the
meeting, or by the affirmative vote of a majority of the Board of Directors at a
regular or special meeting of the Board; provided that, any Bylaws made by the
affirmative vote of a majority of the Board of Directors as provided herein may
be amended, altered changed, added to or repealed by the affirmative vote of a
majority of the shares entitled to vote at any regular or special meeting of the
stockholders.
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