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EXHIBIT 3.12
BYLAWS
of
LOBDELL EMERY CORPORATION
Effective January 10, 1997
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BYLAWS OF
LOBDELL EMERY CORPORATION
Article I
Offices
1.1 Principal Office. The principal office of Lobdell Emery
Corporation (the "Corporation") shall be at such place within the State of
Michigan as the Board of Directors of the Corporation (the "Board") shall
determine from time to time.
1.2 Other Offices. The Corporation also may have offices at such
other places as the Board from time to time determines or the business of the
Corporation requires.
Article II
Seal
2.1 Seal. The Corporation may have a seal in such form as the
Board may from time to time determine. The seal may be used by causing it or a
facsimile to be impressed, affixed, or reproduced in any other manner
Article III
Capital Stock
3.1 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.
3.2 Certificates for Shares. The shares of the Corporation shall
be represented by certificates signed by the Chairman of the Board, President
or a Vice President and 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. 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 pro visions as may be
required by the laws of the State of Michigan.
3.3 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
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for transfer, and the presentation of such evidence of ownership and validity
of the assignment as the Corporation may require
3.4 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.
3.5 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 shall direct the issuance of a new certificate or certificates to replace
the certificates so alleged to be lost, destroyed or mutilated. The Board may
require as a condition precedent to the issuance of new certificates a bond or
agreement of indemnity, in such form and amount and with such sureties, or
without sureties, as the Board may direct or approve.
Article IV
Shareholders and Meetings of Shareholders
4.1 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 and stated in the notice of meeting.
4.2 Annual Meeting. The annual meeting of the shareholders of the
Corporation shall be held on the last Monday of the fourth calendar month after
the end of the Corporation's fiscal year at 2 o'clock in the afternoon.
Directors shall be elected at each annual meeting and such other business
transacted as may come before the meeting.
4.3 Special Meetings. Special meetings of shareholders may be
called by the Board, the Chairman of the Board (if such office is filled) or
the President and shall be called by the President or Secretary at the written
request of shareholders holding a majority of the shares of common stock of the
Corporation outstanding and entitled to vote. The request shall state the
purpose or purposes for which the meeting is to be called.
4.4 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 the shareholder's last address as it
appears on the books of the Corporation. No notice need be given of an
adjourned meeting of the shareholders
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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.
4.5 Record Dates. The Board 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 rights 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 the shareholder's
transferee or transferor as between themselves.
4.6 List of Shareholders. The Secretary of the Corporation or the
agent of the Corporation having charge of the stock transfer records for shares
of the Corporation shall make and certify a complete list of the shareholders
entitled to vote at a shareholders meeting or any adjournment thereof. The
list shall be arranged alphabetically within each class and series, with the
address of, and the number of shares held by, each shareholder; be produced at
the time and place of the meeting, be subject to inspection by any shareholder
during the whole time of the meeting, and be prima facie evidence as to who are
the shareholders entitled to examine the list or vote at the meeting.
4.7 Quorum. Unless a greater or lesser quorum is required in the
Articles of Incorporation or by the laws of the State of Michigan, the
shareholders present at a meeting in person or by proxy who, as of the record
date for such meeting, were holders of a majority of the outstanding shares of
the Corporation entitled to vote at the meeting shall constitute a quorum at
the meeting. Whether or not a quorum is present, a meeting of shareholders may
be adjourned by the affirmative vote of a majority of the votes cast by the
holders of 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.
4.8 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
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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.
4.9 Voting. Each outstanding share is entitled to one vote on
each matter submitted to a vote, unless otherwise provided in the Articles of
Incorporation. Votes may be cast orally or in writing, but if more than 25
shareholders of record are entitled to vote, then votes shall be cast in
writing signed by the shareholder or the shareholder's proxy. When an action,
other than the election of directors, is to be taken by a vote of the
shareholders, it shall be authorized by a majority of the votes cast by the
holders of shares entitled to vote thereon, unless a greater vote is required
by the Articles of Incorporation or by the laws of the State of Michigan.
Except as otherwise provided by the Articles of Incorporation, directors shall
be elected by a plurality of the votes cast at any election.
Article V
Directors
5.1 Number. The business and affairs of the corporation shall be
managed by a Board of not less one (1) nor more than seven (7) directors as
shall be fixed from time to time by the Board. The directors need not be
residents of Michigan or shareholders of the Corporation.
5.2 Election, Resignation and Removal. Subject to the provisions
of the Articles of Incorporation, directors shall be elected at each annual
meeting of the shareholders, each to hold office until the next annual meeting
of shareholders and until the director's successor is elected and qualified, or
until the director's resignation or removal. A director may resign by written
notice to the Corporation. The resignation is effective upon its receipt by
the Corporation or a subsequent time as set forth in the notice of resignation.
A director or the entire Board may be removed, with or without cause, by a
majority of the votes cast by the holders of shares entitled to vote at an
election of directors.
5.3 Vacancies. Subject to the provisions of the Articles of
Incorporation, vacancies on the Board 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, unless filled by proper action of the
shareholders of the corporation. Each person so elected shall be a director
for a term of office continuing only until the next election of directors by
the shareholders. 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.
5.4 Annual Meeting. The Board shall meet each year immediately
after the annual meeting of the shareholders, or within three days of such time
excluding Sundays and legal holidays if such later time is deemed advisable, at
the place where such meeting of the shareholders has been held or such other
place as the Board may determine, for the purpose of election of officers and
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consideration of such business that may properly be brought before the meeting,
provided, that if less than a majority of the directors appear for an annual
meeting of the Board the holding of such annual meeting shall not be required
and the matters which might have been taken up therein may be taken up at any
later special or annual meeting, or by consent resolution.
5.5 Regular and Special Meetings. Regular meetings of the Board
may be held at such times and places as the majority of the directors may from
time to time determine at a prior meeting or as shall be directed or approved
by the vote or written consent of all the directors. Special meetings of the
Board may be called by the Chairman of the Board 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.
5.6 Notices. No notice shall be required for annual or regular
meetings of the Board or for adjourned meetings, whether regular or special.
Three days written notice shall be given for special meetings of the Board, and
such notice shall state the time, place and purpose or purposes of the meeting.
5.7 Quorum. A majority of the Directors then in office, or of the
members of a committee thereof, constitutes a quorum for the transaction of
business. The vote of a majority of the directors present at any meeting at
which there is a quorum shall be the acts of the Board or of the committee,
except as a larger vote may be required by the laws of the State of Michigan.
A member of the Board or of a committee designated by the Board may participate
in a meeting by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
communicate with each other. Participation in a meeting in this manner
constitutes presence in person at the meeting.
5.8 Executive and Other Committees. The Board 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 plan of share exchange; (c)
recommend to shareholders the sale, lease or exchange of all or substantially
all of the Corporation s property and assets; (d) recommend to shareholders a
dissolution of the Corporation or revocation of a dissolution; (e) amend these
Bylaws; (f) fill vacancies in the Board; or (g) unless expressly authorized by
the Board, declare a distribution or dividend or authorize the issuance of
stock.
The Board from time to time may, by like resolution, appoint such
other committees of one or more directors to have such authority as shall be
specified by the Board in the resolution making such appointments. The Board
may designate one or more directors as alternate members of any committee who
may replace an absent or disqualified member at any meeting thereof.
5.9 Dissents. A director who is present at a meeting of the
Board, or a committee thereof of which the director is a member, at which
action on a corporate matter is taken is presumed to have
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concurred in that action unless the director's dissent is entered in the
minutes of the meeting or unless the director files a written dissent to the
action with the person acting as secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation promptly after the adjournment of the meeting.
Such right to dissent does not apply to a director who voted in favor of such
action. A director who is absent from a meeting of the Board, or a committee
thereof of which the director is a member, at which any such action is taken is
presumed to have concurred in the action unless the director files a written
dissent with the Secretary of the Corporation within a reasonable time after
the director has knowledge of the action.
5.10 Compensation. The Board, 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
6.1 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 the addressee's 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.
6.2 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; and
(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.
6.3 Action Without a Meeting. Except as may be provided otherwise
in the Articles of Incorporation for action to be taken by shareholders, any
action required or permitted at any meeting
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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.
Article VII
Officers
7.1 Number. The Board shall elect or appoint a President, a
Secretary and a Treasurer, and may elect a Chairman of the Board, and one or
more Vice Presidents, Assistant Secretaries or Assistant Treasurers. The
President and Chairman of the Board, if any, shall be members of the Board.
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.
7.2 Term of Office, Resignation and Removal. An officer shall
hold office for the term for which he or she is elected or appointed and until
his successor is elected or appointed and qualified, 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 removal of an officer shall
be without prejudice to his contract rights, if any. The election or
appointment of an officer does not of itself create contract rights.
7.3 Vacancies. The Board may fill any vacancies in any office
occurring for whatever reason.
7.4 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 and these Bylaws.
Article VIII
Duties of Officers
8.1 Chairman of the Board. The Chairman of the Board, if such
office is filled, shall preside at all meetings of the shareholders and of the
Board at which the Chairman is present.
8.2 President. The President shall be the chief executive officer
of the Corporation. The President shall see that all orders and resolutions of
the Board are carried into effect, and the President 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. In the
absence or disability of the Chairman of
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the Board, 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.
8.3 Vice Presidents. The Vice Presidents, in order of their
seniority, shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President and shall perform such other
duties as the Board or the President may from time to time prescribe.
8.4 Secretary. The Secretary shall attend all meetings of the
Board and of shareholders and shall record all votes and minutes of all
proceeding 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, and shall
keep in safe custody the seal of the corporation and, when authorized by the
Board, affix the same to any instrument requiring it, and when so affixed it
shall be attested by the signature of the Secretary, or by the signature of the
Treasurer or an Assistant Secretary. The Secretary may delegate any of the
duties, powers and authorities of the Secretary to one or more Assistant
Secretaries, unless such delegation is disapproved by the Board.
8.5 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. 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.
8.6 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 may prescribe.
Article IX
Special Corporate Acts
9.1 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 may from time to time designate.
9.2 Contracts and Conveyances. The Board of the Corporation may
in any instance designate the officer and/or agent who shall have authority to
execute any contract, conveyance,
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mortgage or other instrument on behalf of the Corporation, or may ratify or
confirm any execution. When the execution of any instrument has been
authorized without specification of the executing officers or agents, the
Chairman of the Board, the President or any Vice President, and the Secretary
or Assistant Secretary or Treasurer or Assistant Treasurer, may execute the
same in the name and on behalf of the Corporation and may affix the corporate
seal thereto.
Article X
Books and Records
10.1 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 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.
10.2 Reliance on Books and Records. In discharging his or her
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 persons professional or expert competence.
(c) A committee of the board of which he or she is not a
member if the director or officer reasonably believes the committee merits
confidence.
A director or officer is not entitled to rely on the information set forth
above if he or she has knowledge concerning the matter in question that makes
reliance otherwise permitted unwarranted.
Article XI
Indemnification
11.1 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,
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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 proceedings, 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.
11.2 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 actual and reasonable
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.
11.3 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 11.1 or 11.2 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 Section 11.3.
11.4 Definition. For the purposes of Sections 11.1 and 11.2,
"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
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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 11.1 and 11.2.
11.5 Contract Right; Limitation on Indemnity. The right to
indemnification conferred in this Article XI shall be a contract right, and
shall apply to services of a director or officer as an employee or agent of the
Corporation as well as in such person s capacity as a director or officer.
Except as provided in Section 11.3 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.
11.6 Determination That Indemnification is Proper. Any
indemnification under Section 11.1 or 11.2 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 11.1 or 11.2, 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 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
or its committee in the manner prescribed in subparagraph (a) or (b); or (ii)
if a quorum of the Board cannot be obtained under subparagraph (a) and a
committee cannot be designated under subparagraph (b), by the Board;
(d) By all directors who are independent directors as
defined in Section 107(3) of the Michigan Business Corporation Act and who are
not parties or threatened to be made parties to the action, suit or proceeding;
or
(e) 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.
11.7 Proportionate Indemnity. If a person is entitled to
indemnification under Section 11.1 or 11.2 of these Bylaws for a portion of
expenses, including attorneys' fees, judgments, penalties,
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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.
11.8 Expense Advance. The Corporation may pay or reimburse the
reasonable expenses incurred by a person referred to in Section 11.1 or 11.2 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 11.1 or 11.2; (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 11.6; and (d) a
determination is made that the facts then known to those making the
determination would not preclude indemnification under Section 11.1 or 11.2.
The undertaking shall be an unlimited general obligation of the person on whose
behalf advances are made but need not be secured.
11.9 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,
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 asserted against the person and incurred by him or her in
any such capacity or arising out of his or her status as such, whether or not
the Corporation would have power to indemnify the person against such liability
under these Bylaws or the laws of the State of Michigan.
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11.13 Changes in Michigan Law. In the event of any change of the
Michigan statutory provisions applicable to the Corporation relating to the
subject matter of this Article XI, then the indemnification to which any person
shall be entitled hereunder shall be determined by such changed provisions, but
only to the extent that any such change permits the Corporation to provide
broader indemnification rights than such provisions permitted the Corporation
to provide prior to any such change. Subject to Section 11.14, the Board is
authorized to amend these Bylaws to conform to any such changed statutory
provisions.
11.14 Amendment or Repeal of Article XI. No amendment or repeal of
this Article XI shall apply to or have any effect on any director or officer of
the Corporation for or with respect to any acts or omissions of such director
or officer occurring prior to such amendment or repeal.
Article XII
Amendments
12.1 Amendments. The Bylaws may be amended, altered or repealed,
in whole or in part, by the shareholders or by the Board at any meeting duly
held in accordance with these Bylaws, provided that notice of the meeting
includes notice of the proposed amendment, alteration or repeal.
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