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Exhibit 3.2
BYLAWS
OF
STANDARD FEDERAL BANCORPORATION, INC.
(as amended and restated through November 21, 1996)
ARTICLE I
OFFICES
1.01 PRINCIPAL OFFICE. The principal office of the
corporation shall be at such place as the Board of Directors shall from time to
time determine.
1.02 OTHER OFFICES. The corporation also may have offices
at such other places as the Board of Directors from time to time determines or
the business of the corporation requires.
ARTICLE II
SEAL
2.01 SEAL. The corporation may have a seal in such form as
the Board of Directors may from time to time determine. The seal may be used by
causing it or a facsimile to be impressed, affixed or otherwise reproduced.
ARTICLE III
CAPITAL STOCK
3.01 ISSUANCE OF SHARES. The shares of capital stock of the
corporation shall be issued in such amounts, at such times, for such
consideration and on such terms and conditions as the Board shall deem
advisable, subject to the Articles of Incorporation and any requirements of the
laws of the State of Michigan.
3.02 CERTIFICATES FOR SHARES. The shares of the corporation
shall be represented by certificates signed by the Chairman of the Board of
Directors (if such office is filled), President or a Vice President of the
corporation, and also may be signed by the Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof. The signatures of the officers
may be facsimiles if the certificate is countersigned by a transfer agent or
registered by a registrar other than the corporation itself or its employee.
In case an officer who has signed or whose facsimile signature has been placed
upon a certificate ceases to be such officer before the certificate is issued,
it may be issued by the corporation with the same effect as if he were such
officer at the date of issuance. A certificate representing shares shall state
upon its face that the corporation is formed under the laws of the State of
Michigan, the name of the person to whom it is issued, the number and class of
shares, and the designation of the series, if any, which the certificate
represents, and such other provisions as may be required by the laws of the
State of Michigan.
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3.03 TRANSFER OF SHARES. The shares of the capital stock of
the corporation are transferable only on the books of the corporation upon
surrender of the certificate therefor, properly endorsed for transfer, and the
presentation of such evidences of ownership and validity of the assignment as
the corporation may require.
3.04 REGISTERED SHAREHOLDERS. The corporation shall be
entitled to treat the person in whose name any share of stock is registered as
the owner thereof for purposes of dividends and other distributions in the
course of business, or in the course of recapitalization, merger, plan of share
exchange, reorganization, sale of assets, liquidation or otherwise and for the
purpose of votes, approvals and consents by shareholders, and for the purpose
of notices to shareholders, and for all other purposes whatever, and shall not
be bound to recognize any equitable or other claim to or interest in such
shares on the part of any other person, whether or not the corporation shall
have notice thereof, save as expressly required by the laws of the State of
Michigan.
3.05 LOST OR DESTROYED CERTIFICATES. Upon the presentation
to the corporation of a proper affidavit attesting the loss, destruction or
mutilation of any certificate or certificates for shares of stock of the
corporation, the Board of Directors shall direct the issuance of a new
certificate or certificates to replace the certificates so alleged to be lost,
destroyed or mutilated. The Board of Directors may require as a condition
precedent to the issuance of new certificates any or all of the following: (a)
presentation of additional evidence or proof of the loss, destruction or
mutilation claimed; (b) advertisement of loss in such manner as the Board of
Directors may direct or approve; (c) a bond or agreement of indemnity, in such
form and amount and with such sureties, or without sureties, as the Board of
Directors may direct or approve; or (d) the order or approval of a court or
judge.
ARTICLE IV
SHAREHOLDERS AND MEETINGS OF SHAREHOLDERS
4.01 PLACE OF MEETINGS. All meetings of shareholders shall
be held at the principal office of the corporation or at such other place as
shall be determined by the Board of Directors and stated in the notice of
meeting.
4.02 ANNUAL MEETING. The annual meeting of shareholders of
the corporation shall be held on such date, and at such times as the Board of
Directors may select. Directors shall be elected at each annual meeting and
such other business, as may properly come before the meeting, shall be
considered. The Board of Directors acting by resolution may postpone and
reschedule any previously scheduled annual meeting of shareholders. Any annual
meeting of shareholders may be adjourned by the Chairman of the meeting or
pursuant to a resolution of the Board of Directors.
4.03 SPECIAL MEETINGS. Special meetings of the shareholders
may be called by the Board of Directors, the Chairman of the Board of Directors
(if such office is filled), or by the
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President. At any special meeting of shareholders, the business which may be
transacted shall be limited to that which was specifically stated in the notice
of such special meeting provided to shareholders.
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 or her last address
as it appears on the books of the corporation. No notice need be given of an
adjourned meeting of the shareholders provided the time and place to which such
meeting is adjourned are announced at the meeting at which the adjournment is
taken and at the adjourned meeting only such business is transacted as might
have been transacted at the original meeting. However, if after the adjournment
a new record date is fixed for the adjourned meeting a notice of the adjourned
meeting shall be given to each shareholder of record on the new record date
entitled to notice as provided in this Bylaw.
4.05 RECORD DATES. The Board of Directors may fix in
advance a date as the record date for the purpose of determining shareholders
entitled to notice of and to vote at a meeting of shareholders or an
adjournment thereof, or to express consent or to dissent from a proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of a dividend or allotment of a right, or for the purpose of
any other action. The date fixed shall not be more than 60 nor less than 10
days before the date of the meeting, nor more than 60 days before any other
action. In such case only such shareholders as shall be shareholders of record
on the date so fixed shall be entitled to notice of and to vote at such meeting
or adjournment thereof, or to express consent or to dissent from such proposal,
or to receive payment of such dividend or to receive such allotment of rights,
or to participate in any other action, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation, or otherwise, after any
such record date. Nothing in this Bylaw shall affect the rights of a
shareholder and 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; produced at the time and place of the meeting; subject to
inspection by any shareholder during the whole time of the meeting; and prima
facie evidence as to who are the shareholders entitled to examine the list or
vote at the meeting.
4.07 QUORUM. Except in circumstances requiring a greater
quorum by 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
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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 INSPECTORS OF ELECTION. The Board of Directors, or the
Chairman presiding at any shareholders' meeting, may appoint one or more
inspectors. If appointed, the inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum and the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine challenges or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all shareholders. On request of the person
presiding at the meeting, the inspectors shall make and execute a written
report to the person presiding at the meeting of any of the facts found by them
and matters determined by them. The report shall be prima facie evidence of
the facts stated and of the vote as certified by the inspectors.
4.10 CONDUCT OF BUSINESS. The Chairman of the Board of
Directors, or such other person who shall be designated by him or her or by the
Board of Directors to preside at a meeting of the shareholders, shall determine
the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
or her to be proper.
At any annual meeting of shareholders, only such business shall
be conducted as shall have been brought before the meeting (a) by or at the
direction of the Board of Directors or (b) by any shareholder of the
corporation who is entitled to vote with respect thereto and who complies with
the notice procedures set forth in this Section 4.10. For business to be
properly brought before an annual meeting by a shareholder, the shareholder
must submit written notice to the Secretary of the corporation either by
personal delivery or by U.S. mail, certified or registered. To be timely, a
shareholder's notice must be delivered to or received by the Secretary not less
than sixty (60) days prior to the anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than twenty (20) days, notice by the shareholder to
be timely must be so delivered or received not later than the close of business
on the later of the sixtieth (60th) day prior to such annual meeting or the
tenth (10th) day following the day on which notice of the annual meeting was
first mailed. A shareholder's notice to the Secretary shall set forth as to
each matter such shareholder intends to bring before the annual meeting (i) a
brief description of the business desired to be brought
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before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and address, as they appear on the corporation's
books, of the shareholder proposing such business, (iii) the class and number
of shares of voting stock that are beneficially owned by such shareholder, and
(iv) any material interest of such shareholder in the proposed business to be
brought before the annual meeting. Notwithstanding anything to the contrary
contained in these Bylaws, no business shall be brought before or conducted at
an annual meeting except in accordance with the provisions of this Section
4.10. The person presiding at the annual meeting shall, if the facts so
warrant, determine and declare to the meeting in accordance with the provisions
of this Section 4.10 whether or not the proposed business is properly brought
before the meeting, and, if he or she should so determine that it is not
properly brought before the meeting, the proposed business shall not be
transacted.
At any special meeting of the shareholders, only such business
shall be conducted as shall have been brought before the meeting by or at the
direction of the Board of Directors.
4.11 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, signed by the shareholder or
shareholder's proxy. 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 Directors. The Board of Directors shall consist
of not less than seven nor more than twenty-five persons, and the number of
directors shall be fixed by the Board of Directors from time to time. The
directors need not be residents of Michigan or shareholders of the corporation.
5.02 NOMINATIONS. Nominations for the election of directors
may be made by the Board of Directors, the Nominating Committee of the Board of
Directors (if constituted), or by any shareholder entitled to vote in the
election of directors generally. However, any such shareholder may nominate
one or more persons for election as directors at a meeting only if written
notice of such shareholder's intent to make such nomination or nominations has
been given, either by personal delivery or by United States certified or
registered mail, postage prepaid, to the Secretary of the corporation not later
than (i) with respect to an election to be held at an annual meeting, 90 days
in advance of such meeting, and (ii) with respect to an election to be held at
a special meeting of shareholders for the election of directors, the close of
business on the seventh day following the date on which notice of such meeting
is first given to shareholders. Each such notice by a shareholder shall set
forth:
(a) the name and address of the person or persons to be
nominated and of the shareholder who intends to make the nomination;
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(b) a representation that the shareholder is a holder of
record of stock of the corporation entitled to vote at such meeting;
(c) a description of all arrangements or understandings
between the shareholder and each nominee and any other person (naming such
person) pursuant to which the nomination or nominations are to be made by the
shareholder;
(d) such other information regarding each nominee proposed
by such shareholder as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
the nominee been nominated by the Board of Directors; and
(e) the consent of each nominee to serve as a director of
the corporation if so elected.
The person presiding at the meeting may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing procedures.
5.03 ELECTION, RESIGNATION AND REMOVAL. Directors shall be
elected at each annual meeting of the shareholders, each to hold office for the
term specified in the Articles of Incorporation and until the director's
successor is elected, 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 Secretary of the corporation or at such
subsequent time as may be set forth in the notice of resignation. A director
or the entire Board of Directors may be removed, with cause, by vote of the
holders of a majority of outstanding shares entitled to vote at an election of
directors.
5.04 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.
Each person so elected shall serve as a director for a term of office
continuing until the next election of the class of directors for which such new
director was elected. A vacancy that will occur at a specific date, by reason
of a resignation effective at a later date or otherwise, may be filled before
the vacancy occurs, but the newly elected director may not take office until
the vacancy occurs.
5.05 ANNUAL MEETING. The Board of Directors shall meet each
year for the purpose of electing officers and considerating such other business
that may properly be brought before the meeting; provided that, if less than a
majority of the directors appear at the 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 written consent.
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5.06 REGULAR AND SPECIAL MEETINGS. Regular meetings of the
Board of Directors may be held at such times and places as the Board of
Directors may from time to time determine. Special meetings of the Board may
be called by the Chairman of the Board of Directors (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.
5.07 NOTICES. No notice shall be required for annual or
regular meetings of the Board of Directors or for adjourned meetings, whether
regular or special. Two days' written notice, or 24-hour telephonic notice,
shall be given for special meetings of the Board of Directors, and such notice
shall state or recite the time, place and purpose or purposes of the meeting.
5.08 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 of Directors
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 of Directors or of a committee
designated by the Board of Directors may participate in a meeting by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can communicate with each other.
Participation in a meeting in this manner constitutes presence in person at the
meeting.
5.09 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 of Directors; or (g)
unless expressly authorized by the Board of Directors, 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 of Directors 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.
5.10 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
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by registered mail to the Secretary of the corporation promptly after the
adjournment of the meeting. Such right to dissent does not apply to a director
who voted in favor of such action. A director who is absent from a meeting of
the Board, or a committee thereof of which he is a member, at which any such
action is taken is presumed to have concurred in the action unless he files his
written dissent with the Secretary of the corporation within a reasonable time
after he has knowledge of the action.
5.11 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 by mail,
telecopy, telegram, radiogram or cablegram to any shareholder, director or
committee member at his or her last address as it appears on the books of the
corporation. Such notice shall be deemed to be given at the time when the same
shall be mailed or otherwise dispatched. Telephonic notice may be given for
special meetings of the Board as provided in Section 5.07.
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 as
follows:
(a) In the case of a shareholder, unless the shareholder at
the beginning of the meeting objects to holding the meeting or transacting
business at the meeting, or unless with respect to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, the shareholder objects to considering the
matter when it is presented.
(b) In the case of a director, unless he or she at the
beginning of the meeting, or upon his or her arrival, objects to the meeting or
the transacting of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting.
6.03 ACTION WITHOUT A MEETING. Any action required or
permitted at any meeting of shareholders or directors or committee of directors
may be taken without a meeting, without prior notice and without a vote, if all
of the shareholders or directors or committee members entitled to vote thereon
consent thereto in writing before or after the action is taken.
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ARTICLE VII
OFFICERS
7.01 NUMBER. The Board of Directors shall appoint a
President, a Secretary and a Treasurer and may appoint a Chairman of the Board
of Directors, 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 or she is appointed and until his
or her successor is appointed, or until his or her 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 appointment of a person to serve as an officer of the
corporation 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 and at whatever time.
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 OF DIRECTORS. The Chairman of
the Board of Directors, if such office is filled, shall be the chief executive
officer of the corporation and shall preside at all meetings of the
shareholders and of the Board of Directors at which the Chairman is present.
The Chairman shall see that all orders and resolutions of the Board of
Directors are carried into effect, and the Chairman shall have the general
powers of supervision and management usually vested in the chief executive
officer of a corporation, including the authority to vote all securities of
other corporations and business organizations held by the corporation.
8.02 PRESIDENT. If the office of Chairman is filled, the
President shall be the chief operating officer of the corporation and shall
have the general powers of supervision and management over the day-to-day
operations of the corporation. In the absence or disability of the Chairman of
the Board of Directors, or if that office has not been filled, the President
also shall perform the duties of the Chairman of the Board as set forth in
these Bylaws.
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8.03 VICE PRESIDENTS. The Vice Presidents, in order of
seniority, as determined by the Board of Directors, shall, in the absence or
disability of the President perform the duties and exercise the powers of the
President and shall perform such other duties as the Board of Directors or the
President may from time to time prescribe.
8.04 SECRETARY. The Secretary shall attend all meetings of
the Board of Directors and of shareholders and shall record all votes and
minutes of all proceedings in a book to be kept for that purpose, shall give or
cause to be given notice of all meetings of the shareholders and of the Board
of Directors, and shall keep in safe custody the seal of the corporation and,
when authorized by the Board of Directors, affix the same to any instrument
requiring it, and when so affixed it shall be attested by the signature of the
Secretary, or by the signature of the Treasurer or an Assistant Secretary. The
Secretary may delegate any of the duties, powers and authorities of the
Secretary to one or more Assistant Secretaries, unless such delegation is
disapproved by the Board of Directors.
8.05 TREASURER. The Treasurer shall have the custody of the
corporate funds and securities; shall keep full and accurate accounts of
receipts and disbursements in books of the corporation; and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall render to the President and directors, whenever
they may require it, an account of his or her transactions as Treasurer and of
the financial condition of the corporation. The Treasurer may delegate any of
his or her duties, powers and authorities to one or more Assistant Treasurers,
unless such delegation is disapproved by the Board of Directors.
8.06 ASSISTANT SECRETARIES AND TREASURERS. The Assistant
Secretaries, in order of their seniority, shall perform the duties and exercise
the powers and authorities of the Secretary in case of the Secretary's absence
or disability. The Assistant Treasurers, in the order of their seniority, shall
perform the duties and exercise the powers and authorities of the Treasurer in
case of the Treasurer's absence or disability. The Assistant Secretaries and
Assistant Treasurers shall also perform such duties as may be delegated to them
by the Secretary and Treasurer, respectively, and also such duties as the Board
of Directors may prescribe.
ARTICLE IX
SPECIAL CORPORATE ACTS
9.01 ORDERS FOR PAYMENT OF MONEY. All checks, drafts,
notes, bonds, bills of exchange and orders for payment of money of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
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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, proxy 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 of
Directors, the President or any Vice President, and the Secretary or Assistant
Secretary or Treasurer or Assistant Treasurer, may execute the same in the name
and on behalf of this corporation and may affix the corporate seal thereto.
ARTICLE X
BOOKS AND RECORDS
10.01 MAINTENANCE OF BOOKS AND RECORDS. The proper officers
and agents of the corporation shall keep and maintain such books, records and
accounts of the corporation's business and affairs, minutes of the proceedings
of its shareholders, Board and committees, if any, and such stock ledgers and
lists of shareholders, as the Board of Directors shall deem advisable, and as
shall be required by the laws of the State of Michigan and other states or
jurisdictions empowered to impose such requirements. Books, records and minutes
may be kept within or without the State of Michigan in a place which the Board
shall determine.
10.02 RELIANCE ON BOOKS AND RECORDS. In discharging his
duties, a director or an officer of the corporation, when acting in good faith,
may rely upon information, opinions, reports, or statements (including
financial statements and other financial data) if prepared or presented by any
of the following:
(a) One or more directors, officers, or employees of the
corporation, or of a business organization under joint control or common
control, whom the director or officer reasonably believes to be reliable and
competent in the matters presented.
(b) Legal counsel, public accountants, engineers, or other
persons as to matters the director or officer reasonably believes are within
the person's professional or expert competence.
(c) A committee of the Board of 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 the information set forth
above if he or she has knowledge concerning the matter in question that makes
reliance otherwise permitted unwarranted.
ARTICLE XI
INDEMNIFICATION
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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 actual and reasonable attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if
the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation or its
shareholders, and with respect to any criminal action or proceeding, if the
person had no reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in or not opposed to the best
interests of the corporation or its shareholders, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
11.02 DERIVATIVE ACTIONS. Subject to all of the provisions
of this Article XI, the corporation shall indemnify any person who was or is a
party to or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, against expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation or its shareholders.
However, indemnification shall not be made for any claim, issue or matter in
which such person has been found liable to the corporation unless and only to
the extent that the court in which such action or suit was brought has
determined upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnification for the reasonable expenses incurred.
11.03 EXPENSES OF SUCCESSFUL DEFENSE. To the extent that a
person has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Section 11.01 or 11.02 of these Bylaws, or in
defense of any claim, issue or matter in the action, suit or proceeding, the
person shall be indemnified against actual and reasonable expenses (including
attorneys' fees) incurred by such person in connection with the action, suit or
proceeding and any action, suit or proceeding brought to enforce the mandatory
indemnification provided by this Article XI.
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11.04 DEFINITION. For the purposes of Sections 11.01 and
11.02, "other enterprises" shall include employee benefit plans; "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and "serving at the request of the corporation" shall include any
service as a director, officer, employee, or agent of the corporation which
imposes duties on, or involves services by, the director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner the person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be considered to have acted in a manner "not opposed to the
best interests of the corporation or its shareholders" as referred to in
Sections 11.01 and 11.02.
11.05 CONTRACT RIGHT; LIMITATION ON INDEMNITY. The right to
indemnification conferred in this Article XI shall be a contract right, 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 from
the date he became or becomes such director or officer, and any repeal or
modification of this section shall not adversely affect any right or protection
existing at the time of such repeal or modification. Except as provided in
Section 11.03 of these Bylaws, the corporation shall have no obligations under
this Article XI to indemnify any person in connection with any proceeding, or
part thereof, initiated by such person without authorization by the Board of
Directors.
11.06 DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification under 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, and upon an
evaluation of the reasonableness of expenses and amount paid in settlement.
Such determination and evaluation shall be made in any of the following ways:
(a) by a majority vote of a quorum of the Board consisting of
directors who are not parties or threatened to be made parties to such action,
suit or proceeding;
(b) if the quorum described in clause (a) above is not
obtainable, then by a majority vote of a committee of directors duly designated
by the Board of Directors and consisting solely of two or more directors who
are not at the time parties or threatened to be made parties to the action,
suit or proceeding;
(c) by independent legal counsel in a written opinion which
counsel shall be selected in one of the following ways: (i) by the Board of
Directors or its committee in the manner prescribed in subparagraph (a) or (b);
or (ii) if a quorum of the Board of Directors cannot be obtained under
subparagraph (a) and a committee cannot be designated under subparagraph (b),
by the Board of Directors; or
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(d) by the shareholders, but 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 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. The corporation shall pay or
reimburse the reasonable expenses incurred by a person referred to in Section
11.01 or 11.02 of these bylaws who is a party or threatened to be made a party
to an action, suit, or proceeding in advance of final disposition of the
proceeding if all of the following apply: (a) the person furnishes the
corporation a written affirmation of his or her good faith belief that he or
she has met the applicable standard of conduct set forth in Section 11.01 or
11.02; (b) 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; (c) the
authorization of payment is made in the manner specified in Section 11.06; and
(d) a determination is made that the facts then known to those making the
determination would not preclude indemnification under Section 11.01 or 11.02.
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 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, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability
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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 power to
indemnify him 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 of these Bylaws, then the indemnification
to which any person shall be entitled hereunder shall be determined by such
changed provisions, but only to the extent that any such change permits the
corporation to provide broader indemnification rights than such provisions
permitted the corporation to provide prior to any such change. Subject to
Section 11.15, the Board of Directors is authorized to amend these Bylaws to
conform to any such changed statutory provisions.
11.14 ENFORCEMENT OF RIGHTS. Any indemnification or payment
in advance of final disposition under this Article XI shall be made promptly,
and in any event within 30 days, after written request to the corporation by
the person seeking such indemnification or payment. The rights granted by this
Article XI shall be enforceable by such person in any court of competent
jurisdiction.
11.15 AMENDMENT OR REPEAL OF ARTICLE XI. No amendment or
repeal of this Article XI shall apply to or have any effect on any director or
officer of the corporation for or with respect to any acts or omissions of such
director or officer occurring prior to such amendment or repeal.
ARTICLE XII
CONTROL SHARES AND CONTROL SHARE ACQUISITIONS
12.01 CONTROL SHARE. Pursuant to to Section 794 of the
Michigan Business Corporation Act ("MBCA"), Chapter 7B of the MBCA does not
apply to any "control share acquisition" (as that term is defined in Section
791 of the MBCA) of the shares of capital stock of the corporation.
ARTICLE XIII
AMENDMENTS
13.01 AMENDMENTS. The Bylaws of the corporation and any
Article or provision thereof may be amended or repealed, in whole or in part,
by majority vote of the Board of Directors provided that notice of the meeting
at which such amendment or repeal is to be acted upon includes notice of the
proposed amendment or repeal.
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