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EXHIBIT 3.2
BYLAWS
OF
MERCANTILE BANK CORPORATION
ARTICLE I.
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office shall be in the City of
Grand Rapids, State of Michigan.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Michigan as the board of
directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
SECTION 1. TIMES AND PLACES OF MEETINGS. All meetings of the shareholders
shall be held at such times and places, within or without the State of
Michigan, as may be fixed from time to time by the board of directors. If no
designation of the place of a meeting is made, such meeting shall be held at
the principal office of the Corporation in Grand Rapids, Michigan.
SECTION 2. ANNUAL MEETINGS. Annual meetings of the shareholders shall be
held each year at such time on such business day in the month of April as may
be designated by the board of directors, or if no such designation is made, at
10 a.m. on the third Tuesday in April, or if that day is a legal holiday, then
on the next succeeding business day at such place and hour as shall be fixed by
the board of directors.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders may be
called by resolution of a majority of the board of directors or by the Chairman
of the Board and shall be held on a date fixed by the board of directors or the
Chairman of the Board.
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SECTION 4. NOTICE OF MEETINGS. Written notice of each meeting of
shareholders, stating the time, place and purposes thereof, shall be given to
each shareholder entitled to vote at the meeting not less than ten (10) nor
more than sixty (60) days before the date fixed for the meeting. Notice of a
meeting need not be given to any shareholder who signs a waiver of notice
before or after the meeting. Attendance of a shareholder at a meeting shall
constitute both (a) a waiver of notice or defective notice except when the
shareholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to holding the meeting or transacting any business
because the meeting has not been lawfully called or convened, and (b) a waiver
of objection to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, except when the
shareholder objects to considering the matter when it is presented.
SECTION 5. SHAREHOLDER LIST. The officer or agent who has charge of the
stock ledger of the Corporation shall prepare and make a complete list of the
shareholders entitled to vote at each meeting, arranged by class or series of
shares in alphabetical order, showing the address of and the number of shares
registered in the name of each shareholder. The list shall be produced and
kept at the time and place of the meeting and may be inspected during the whole
time of the meeting by any shareholder who is present at the meeting.
SECTION 6. QUORUM. Unless a greater or lesser quorum is provided in the
Articles of Incorporation or by law, shares entitled to cast a majority of the
votes at a meeting constitute a quorum at the meeting. Except when the holders
of a class or series of shares are entitled to vote separately on an item of
business, shares of all classes and series entitled to vote shall be combined
as a single class and series for the purpose of determining a quorum. When the
holders of a class or series of shares are entitled to vote separately on an
item of business, shares of that class or series entitled to cast a majority of
the votes of that class or series at a meeting constitute a quorum of that
class or series at the meeting, unless a greater or lesser quorum is provided
in the Articles of Incorporation or by law. If there is no quorum, the officer
of the Corporation presiding as chairman of the meeting shall have the power to
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present, when any business may be transacted
which might have been transacted at the meeting as first convened had there
been a quorum. However, if the adjournment is for more than thirty (30) days,
or if after the adjournment the board fixes a new record date for the adjourned
meeting, notice of the time, place and purposes of such meeting shall be given
to each shareholder of record on the new record date. Once a quorum is
determined to be present, the shareholders present in person or by proxy at
such meeting may continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum. If a meeting is
adjourned solely for the purpose of receiving the results of voting by
shareholders, such meeting need not be reconvened. If not reconvened, such
meeting shall stand adjourned pending submission of the results of voting to
the Secretary of the Corporation, whereupon such meeting shall stand adjourned
until the next regular or special meeting of shareholders.
SECTION 7. VOTE REQUIRED. When a quorum is present at a meeting, any
action to be taken by a vote of the shareholders, other than the election of
directors, shall be authorized by a
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majority of the votes cast by the holders of shares entitled to vote on the
action, unless a greater vote is required by the Articles of Incorporation
or express provision of statute. Except as otherwise provided by the Articles
of Incorporation, directors shall be elected by a plurality of the votes cast
at an election.
SECTION 8. VOTING RIGHTS. Except as otherwise provided by the Articles of
Incorporation or the resolution or resolutions of the board of directors
creating any class of stock, each shareholder shall at every meeting of the
shareholders be entitled to one vote in person or by proxy for each share of
the capital stock having voting power held by such shareholder. Each proxy to
vote shall be in writing and signed by the shareholder or his or her duly
authorized representative, and no proxy shall be voted after three years from
its date, unless the proxy provides for a longer period.
SECTION 9. CONDUCT OF MEETINGS. Meetings of shareholders generally shall
follow accepted rules of parliamentary procedure, subject to the following:
(a) The chairman of the meeting shall have absolute authority over
matters of procedure, and there shall be no appeal from the ruling of the
chairman. If, in his or her absolute discretion, the chairman deems it
advisable to dispense with the rules of parliamentary procedure as to any
meeting of shareholders or part thereof, he or she shall so state and
shall clearly state the rules under which the meeting or appropriate part
thereof shall be conducted.
(b) If disorder should arise which, in the absolute discretion of
the chairman, prevents the continuation of the legitimate business of the
meeting, the chairman may quit the chair and announce the adjournment of
the meeting, and upon his or her so doing, the meeting is immediately
adjourned without the necessity of any vote or further action of the
shareholders.
(c) The chairman may require any person who is not a bona fide
shareholder of record on the record date, or a validly appointed proxy of
such a shareholder, to leave the meeting.
(d) The chairman may introduce nominations, resolutions or motions
submitted by the board of directors for consideration by the shareholders
without a motion or second. Except as the chairman shall direct, a
resolution or motion not submitted by the board of directors shall be
considered for a vote only if proposed by a shareholder of record on the
record date or a validly appointed proxy of such a shareholder, and
seconded by such a shareholder or proxy other than the individual who
proposed the resolution or motion.
(e) Except as the chairman shall direct, no matter may be presented
to the meeting which has not been submitted in writing to the Secretary
for inclusion in the agenda at least 10 days before the date of the
meeting.
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(f) When all shareholders present at a meeting in person or by proxy
have been offered an opportunity to vote on any matter properly before a
meeting, the chairman may at his or her discretion declare the polls to
be closed, and no further votes may be cast or changed after such
declaration. If no such declaration is made by the chairman, the polls
shall remain open and shareholders may cast additional votes or change
votes until the inspectors of election have delivered their final report
to the chairman.
(g) When the chairman has declared the polls to be closed on all
matters then before a meeting, the chairman may declare the meeting to be
adjourned pending determination of the results by the inspectors of
election. In such event, the meeting shall be considered adjourned for
all purposes, and the business of the meeting shall be finally concluded
upon delivery of the final report of the inspectors of election to the
chairman at or after the meeting.
(h) When the chairman determines that no further matters may
properly come before a meeting, he or she may declare the meeting to be
adjourned, without motion, second, or vote of the shareholders.
(i) When the chairman has declared a meeting to be adjourned, unless
the chairman has declared the meeting to be adjourned until a later date,
no further business may properly be considered at the meeting even though
shareholders or holders of proxies representing a quorum may remain at
the site of the meeting.
SECTION 10. INSPECTORS OF ELECTION. The board of directors or, if they
shall not have so acted, the chairman, may appoint at or prior to any meeting
of shareholders one or more persons (who may be directors or employees of the
Corporation) to serve as inspectors of election. The inspectors so appointed
shall determine the number of shares outstanding and the voting power of each,
the shares represented at the meeting, the existence of a quorum, the validity
and effect of proxies, and shall receive votes or ballots, hear and determine
challenges and questions arising in connection with the right to vote, count
and tabulate votes or ballots, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all shareholders.
SECTION 11. VOTING. When any vote is taken by written ballot at any
meeting of shareholders, an unrevoked proxy submitted in accordance with its
terms shall be accepted in lieu of, and shall be deemed to constitute, a
written ballot marked as specified in such proxy.
ARTICLE III.
RECORD DATE
SECTION 1. FIXING OF RECORD DATE BY BOARD. For the purpose of
determining the shareholders entitled to notice of or to vote at any meeting of
shareholders, or any adjournment thereof, or to express consent to or dissent
from any corporate action in writing without a meeting, or for the purpose of
determining shareholders entitled to receive payment of any dividend or the
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distribution or allotment of any rights or evidences of interests arising out
of any change, conversion or exchange of capital stock, or for the purpose of
any other action, the board of directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than sixty (60) days nor less than ten (10) days before the date of any
such meeting, nor more than sixty (60) days prior to the effectuation of any
other action proposed to be taken. Only shareholders of record on a record
date so fixed shall be entitled to notice of, and to vote at, such meeting or
to receive payment of any dividend or the distribution or allotment of any
rights or evidences of interests arising out of any change, conversion or
exchange of capital stock.
SECTION 2. PROVISION FOR RECORD DATE IN THE ABSENCE OF BOARD ACTION. If
a record date is not fixed by the board of directors: (a) the record date for
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders shall be the close of business on the day next preceding the day
on which notice is given, or, if no notice is given, the day next preceding the
day on which the meeting is held; and (b) the record date for determining
shareholders entitled to express consent to corporate action in writing,
without a meeting, when no prior action by the board of directors is necessary,
shall be the day on which the first written consent is expressed; and (c) the
record date for determining shareholders for any other purpose shall be the
close of business on the day on which the resolution of the board relating
thereto is adopted.
SECTION 3. ADJOURNMENTS. When a determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders has been made as
provided in this Article, the determination applies to any adjournment of the
meeting, unless the board fixes a new record date for the adjourned meeting.
ARTICLE IV.
DIRECTORS
SECTION 1. NUMBER AND QUALIFICATION OF DIRECTORS. Each director shall be
at least twenty-one (21) years of age. A director need not be a shareholder, a
citizen of the United States, or a resident of the State of Michigan. The
number of directors shall be fixed by resolution of the board of directors as
provided in the Articles of Incorporation.
SECTION 2. VACANCIES. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors shall be filled in the
manner provided in the Articles of Incorporation.
SECTION 3. POWERS. The business and affairs of the Corporation shall be
managed by its board of directors which 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 these Bylaws directed or required to be
exercised or done by the shareholders.
SECTION 4. FEES AND EXPENSES. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may
be paid a fixed sum for attendance at
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each meeting of the board of directors or a stated salary as director. No
such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
SECTION 5. RESIGNATION AND REMOVAL. Any director may resign at any time
and such resignation shall take effect upon receipt of written notice thereof
by the Corporation, or at such subsequent time as set forth in the notice of
resignation. Directors may be removed only as provided by statute or the
Articles of Incorporation.
ARTICLE V.
MEETINGS OF DIRECTORS
SECTION 1. PLACE OF MEETINGS. The board of directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Michigan.
SECTION 2. FIRST MEETING OF NEWLY ELECTED BOARD. The first meeting of
each newly elected board of directors shall be held immediately following the
annual meeting of shareholders, and no notice of such meeting shall be
necessary to the newly elected directors to legally constitute the meeting,
provided a quorum shall be present. In the event such meeting is not held
immediately following the annual meeting of shareholders, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the board of directors, or as
shall be specified in a written waiver signed by all of the directors.
SECTION 3. REGULAR MEETINGS. Regular meetings of the board of directors
may be held with or without notice at such time and at such place as shall from
time to time be determined by the board.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board may be called
by the Chairman of the Board or the President on two (2) days' notice to each
director, either personally, by mail, by telegram or by facsimile transmission;
special meetings shall be called by the Chairman of the Board or the President
in like manner and on like notice on the written request of two (2) directors.
SECTION 5. PURPOSE NEED NOT BE STATED. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the board
of directors need be specified in the notice of such meeting.
SECTION 6. QUORUM. At all meetings of the board of directors a majority
of the total number of directors shall constitute a quorum for the transaction
of business, and the acts 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, except
as may be otherwise specifically provided by statute or by the Articles of
Incorporation. If a quorum is not present at any meeting of the board of
directors, the directors
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present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
SECTION 7. ACTION WITHOUT A MEETING. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting if, before or after the action, all members of
the board or of such committee, as the case may be, consent thereto in writing
and such written consent is filed with the minutes or proceedings of the board
or committee.
SECTION 8. MEETING BY TELEPHONE OR SIMILAR EQUIPMENT. Members of the
board of directors or any committee designated by the board of directors may
participate in a meeting of such board, or committee, by means of conference
telephone or similar communications equipment by means through which all
persons participating in the meeting can communicate with each other.
Participation in a meeting pursuant to this Section shall constitute presence
in person at the meeting.
SECTION 9. WAIVER OF NOTICE. Attendance of a director at or participation
in a meeting of the board of directors or any committee constitutes a waiver of
notice of the meeting, except where a director attends a meeting for the
express purpose of objecting, at the beginning of the meeting or upon his or
her arrival, to the meeting or the transaction of any business because the
meeting has not lawfully been called or convened, and the person does not
thereafter vote for or assent to any action taken at the meeting. Notice of
any meeting of the board or a committee need not be given to any person
entitled thereto who waives such notice in writing, either before or after the
meeting.
ARTICLE VI.
COMMITTEES OF DIRECTORS
SECTION 1. COMMITTEES. The board of directors may from time to time
appoint committees, whose membership shall consist of such members of the board
of directors as it may deem advisable, to serve at the pleasure of the board.
The board of directors may also appoint directors to serve as alternates for
members of each committee in the absence or disability of regular members. The
board of directors may fill any vacancies in any committee as they occur.
SECTION 2. EXECUTIVE COMMITTEE. The Executive Committee, if there is
one, shall have and may exercise the full powers and authority of the board of
directors in the management of the business affairs and property of the
Corporation during the intervals between meetings of the board of directors.
The Executive Committee shall also have the power and authority to declare
distributions and dividends and to authorize the issuance of stock.
SECTION 3. AUDIT COMMITTEE.
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(a) Function. The Audit Committee shall perform the function of an audit
committee for the Corporation and may perform such function for any
subsidiary of the Corporation. The Audit Committee, except as otherwise
specified by the board of directors, shall have the following duties and
responsibilities:
(i) causing a suitable examination of the financial records
and operations of the Corporation and each of its subsidiaries to
be made by the internal auditor of the Corporation;
(ii) recommending to the board of directors the employment of
independent public accountants who fulfill the requirements
established by Section 36 of the Federal Deposit Insurance Act, as
amended, and any regulations issued pursuant to such act by the
Federal Deposit Insurance Corporation or any successor of such
corporation;
(iii) reviewing with the independent public accountants and
management of the Corporation and its subsidiaries the bases for
reports required by Section 36 of the Federal Deposit Insurance
Act, as amended, and any regulations issued pursuant to such act by
the Federal Deposit Insurance Corporation or any successor of such
corporation;
(iv) reviewing examination reports of the Corporation prepared
by regulatory authorities and such other information concerning
examination reports of the Corporation's subsidiaries as the
committee deems advisable; and
(v) reporting to the board of directors at least once each
calendar year concerning the results of examinations made and such
conclusions and recommendations as the Audit Committee deems
advisable.
(b) Eligibility of Members. Directors who fulfill all of the following
conditions shall be eligible to serve on the Audit Committee:
(i) members may not be current employees of the Corporation or
any of its subsidiaries; and
(ii) members must satisfy the requirements established by
Section 36 of the Federal Deposit Insurance Act, as amended, and
any regulations issued pursuant to such act by the Federal Deposit
Insurance Corporation or any successor of such corporation.
(c) Authorized Actions. The Audit Committee shall have the power to take
and effect such actions as it deems necessary or advisable in the
performance of its duties. The committee may engage counsel and other
consultants to assist the committee in performing its duties. Such
counsel and other consultants may but need not be otherwise engaged by
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the Corporation unless otherwise prohibited by applicable laws or
regulations.
SECTION 4. COMPENSATION COMMITTEE.
(a) Function. The Compensation Committee shall perform the function of a
compensation committee for the Corporation. The Compensation Committee, except
as otherwise specified by the board of directors, shall have the following
duties and responsibilities:
(i) making recommendations to the board of directors regarding
benefit plans of the Corporation;
(ii) submitting recommendations to the board of directors
regarding compensation and personnel policies and programs of the
Corporation;
(iii) submitting recommendations to the board of directors
regarding the compensation of the Chief Executive Officer, and
individual salaries of other executive officers; and
(iv) preparing an annual report that may be submitted to the
Corporation's shareholders concerning the compensation policy of
the Corporation and the committee's compensation decisions during
the previous fiscal year.
(b) Eligibility of Members. Directors who are not current employees of
the Corporation or any of its subsidiaries shall be eligible to serve on the
Compensation Committee.
SECTION 5. NOMINATING COMMITTEE. The Nominating Committee, if there is
one, shall consider candidates for the board of directors, propose to the board
of directors candidates for directors for submission to the shareholders at the
annual meeting, and review the retirement policy for directors and make
recommendations to the board of directors concerning this policy.
SECTION 6. OTHER COMMITTEES. The board of directors may designate such
other committees as it may deem appropriate, and such committees shall exercise
the authority delegated to them.
SECTION 7. MEETINGS. Each committee provided for above shall meet as
often as its business may require and may fix a day and time for regular
meetings, notice of which shall not be required. Whenever the day fixed for a
meeting shall fall on a holiday, the meeting shall be held on the following
business day or on such other day as the chairman of the committee may
determine. Special meetings of committees may be called by any member, and
notice thereof may be given to the members by telephone, telegram, letter or
facsimile transmission. A majority of the members of a committee shall
constitute a quorum for the transaction of the business of the committee. A
record of the proceedings of each committee shall be kept and presented to the
board of directors.
SECTION 8. SUBSTITUTES. In the absence or disqualification of a member of
a committee,
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the members thereof present at a meeting and not disqualified from voting,
whether or not they constitute a quorum, may unanimously appoint another member
of the board to act at the meeting in place of such absent or disqualified
member.
ARTICLE VII.
OFFICERS AND TITLED POSITIONS
SECTION 1. APPOINTMENT OF OFFICERS. The board of directors at its first
meeting after the annual meeting of shareholders, or as soon as practicable
after the election of directors in each year, shall appoint from its number a
Chairman of the Board. The board of directors shall also appoint a President,
a Secretary, and a Treasurer, all of whom shall be officers of the Corporation.
The board of directors may also appoint and expressly designate such other
individuals as it may deem proper to be officers of the Corporation, with such
titles as the board of directors may deem appropriate. If the offices of
Chairman of the Board and President are held by a single person, that officer
shall be the Chief Executive Officer of the Corporation; if not, the board of
directors shall designate either the Chairman of the Board or the President to
be the Chief Executive Officer of the Corporation. The dismissal of an
officer, the appointment of an officer to fill the office of one who has been
dismissed or has ceased for any reason to be an officer, the appointment of any
additional officers, and the change of an officer to a different or additional
office, may be made by the board of directors at any later meeting. Any two or
more offices may be filled by the same person.
SECTION 2. APPOINTMENTS TO TITLED POSITIONS. The board of directors or
the Chief Executive Officer may from time to time appoint individuals to fill
titled positions. Holders of titled positions who may from time to time be
appointed pursuant to this Section shall hold such titles as are assigned by
the board of directors or the Chief Executive Officer and shall perform such
duties and exercise such authority as may be assigned by the board of directors
or the Chief Executive Officer. Dismissal of the holder of a titled position,
appointment of a replacement for a holder of a titled position, appointment of
any additional titled position holders, and change of a titled position holder
to a different or additional position, may be made by the board of directors or
the Chief Executive Officer. Any two or more titled positions may be filled by
the same person.
SECTION 3. AUTHORITY OF OFFICERS. The Chairman of the Board, the Chief
Executive Officer, the President, the Secretary, the Treasurer, and such other
persons as the board of directors shall have appointed and expressly designated
as officers shall be the only officers of the Corporation. Only the officers
of the Corporation shall have discretionary authority to determine the
fundamental policies of the Corporation. Holders of titled positions who have
not been expressly designated as officers of the Corporation in this Section or
by the board of directors shall not be officers of the Corporation regardless
of their titles.
SECTION 4. AUTHORITY OF TITLED POSITIONS. Holders of titled positions who
are not officers shall not have discretionary authority to determine
fundamental policies of the Corporation and shall not, by reason of holding
such titled positions, be entitled to have access to any files, records or
other information relating or pertaining to the Corporation, its business and
finances, or
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to attend or receive the minutes of any meetings of the board of directors or
any committee of the Corporation, except as and to the extent expressly
authorized and permitted by the board of directors or the Chief Executive
Officer.
SECTION 5. TERM OF SERVICE. Each officer and holder of a titled position
shall serve at the pleasure of the board. The board of directors may remove
any officer or holder of a titled position from that office or position for
cause or without cause. Any officer or holder of a titled position may resign
his or her office or position at any time, such resignation to take effect upon
receipt of written notice thereof by the Corporation unless otherwise specified
in the resignation.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside
at all meetings of the shareholders and all meetings of the board of directors.
SECTION 7. PRESIDENT. The President shall, subject to the direction of
the board of directors, see that all orders and resolutions of the board are
carried into effect, and shall perform all other duties necessary or
appropriate to his or her office, subject, however, to his or her right and the
right of the directors to delegate any specific powers to any other officer or
officers of the Corporation. In case of the absence or inability to act of the
Chairman of the Board, the President shall exercise all of the duties and
responsibilities of the Chairman until the board shall otherwise direct.
SECTION 8. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer, in
addition to his or her duties as Chairman of the Board or President, as the
case may be, shall have final authority, subject to the control of the board of
directors, over the general policy and business of the Corporation. The Chief
Executive Officer shall have the power, subject to the control of the board of
directors, to appoint, suspend or discharge and to prescribe the duties and to
fix the compensation of such agents and employees of the Corporation, other
than the officers appointed by the board, as he or she may deem necessary.
SECTION 9. VICE CHAIRMEN OF THE BOARD. Each Vice-Chairman of the Board
shall have such powers and perform such duties as may be assigned to him or her
from time to time by the board of directors or the Chief Executive Officer. In
case of the absence or inability to act of the Chairman of the Board and the
President, the duties of his or her office shall, unless otherwise specified by
these Bylaws, be performed by the Vice-Chairmen of the Board in the order of
their seniority or such other priority as may be established by the board or by
the Chief Executive Officer, unless and until the board shall otherwise direct,
and, when so acting, the duly authorized Vice-Chairman of the Board shall have
all the powers of, and shall be subject to the restrictions upon, the Chairman
of the Board or the President.
SECTION 10. VICE PRESIDENTS. Each Executive Vice President, Senior Vice
President, Vice President, Assistant Vice President and such other vice
presidents as may be designated by the board of directors shall have such
powers and perform such duties as may be assigned to him or her from time to
time by the board of directors or the Chief Executive Officer. In case of the
absence or inability to act of the President, and in the absence or inability
to act of the Vice-Chairmen of the
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Board, the duties of the President shall, unless otherwise specified by these
Bylaws, be performed by the Executive Vice Presidents, the Senior Vice
Presidents, the Vice Presidents, the Assistant Vice Presidents and then such
other vice presidents as may be designated by the board in the order of their
seniority or such other priority as may be established by the board or by
the Chief Executive Officer, unless and until the board shall otherwise direct,
and, when so acting, the duly authorized Executive Vice President, Senior Vice
President, Vice President or Assistant Vice President shall have all the powers
of, and shall be subject to the restrictions upon, the President. Executive
Vice Presidents, Senior Vice Presidents, Vice Presidents and Assistant - Vice
Presidents have the authority to sign or execute contracts and other documents
which shall be binding on the Corporation and to fulfill the terms thereof, but
such Executive Vice Presidents, Senior Vice Presidents, Vice Presidents and
Assistant Vice Presidents shall not have the discretionary policy-making
authority conferred upon the officers by these Bylaws unless expressly
designated as an officer by the board of directors.
SECTION 11. SECRETARY. The Secretary shall attend all sessions of the
board of directors and all meetings of the shareholders and shall record all
votes and the minutes of all proceedings in a book to be kept for that purpose.
The Secretary shall perform like duties for committees when required. He or
she shall give, or cause to be given, notice of all meetings of the
shareholders and meetings of the board of directors. He or she shall keep in
safe custody the seal of the Corporation and shall see that it is affixed to
all documents the execution of which, on behalf of the Corporation under its
seal, is necessary or appropriate, and when so affixed may attest the same. He
or she shall perform such other duties as may be prescribed by the board of
directors or the Chief Executive Officer.
SECTION 12. TREASURER. The Treasurer shall have custody of the corporate
funds and securities, except as otherwise provided by the board, shall cause to
be kept full and accurate accounts of receipts and disbursements in books
belonging to 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. He or she shall disburse the
funds of the Corporation as may be ordered by the board or directors, taking
proper vouchers for such disbursements, and shall render to the directors, at
the regular meetings of the board or whenever they may require it, an account
of all his or her transactions as Treasurer and of the financial condition of
the Corporation.
SECTION 13. ABSENCE. In the case of the absence or inability to act of
any officer or holder of any titled position, or for any other reason that the
board may deem sufficient, the board of directors or the Chief Executive
Officer may delegate for the time being the powers or duties of such officer or
holder of any titled position, to any other director or officer. To the extent
that the enumerated powers or duties do not involve participation in major
policy-making functions of the Corporation or the exercise of discretionary
authority to that end, said powers or duties may be delegated for the time
being to the holder of a titled position, but shall be exercised under the
supervision of an officer.
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ARTICLE VIII.
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OTHER THAN IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. 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 (other than an action
by or in the right of the Corporation) by reason of the fact that he or she is
or was a director or officer of the Corporation or a subsidiary, or, while
serving as such a director or officer, is or was serving at the request of the
Corporation or a subsidiary as a director, officer, partner, trustee, employee
or agent of another foreign or domestic Corporation, partnership, joint
venture, trust or other enterprise, whether for profit or not, shall be
indemnified by the Corporation against expenses (including attorneys' fees),
judgments, penalties, fees and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation or its shareholders, and, with respect to any criminal action or
proceeding, 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 he or she reasonably believed to be in or not
opposed to the best interests of the Corporation or its shareholders, or with
respect to any criminal action or proceeding, that he or she had reasonable
cause to believe that his or her conduct was unlawful. Persons who are not
directors or officers of the Corporation or a subsidiary may be similarly
indemnified in respect of such service to the extent authorized at any time by
the board of directors, except as otherwise provided by statute or the Articles
of Incorporation.
SECTION 2. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact
that he or she is or was a director or officer of the Corporation or a
subsidiary, or, while serving as such a director or officer, is or was serving
at the request of the Corporation or a subsidiary as a director, officer,
partner, trustee, employee or agent of another foreign or domestic Corporation,
partnership, joint venture, trust or other enterprise, whether for profit or
not, shall be indemnified by the Corporation against expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably
incurred by him or her in connection with the action or suit if he or she acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Corporation or its shareholders.
Indemnification shall not be made for any claim, issue or matter in which such
person has been found liable to the Corporation except to the extent authorized
in Section 6 of this Article. Persons who are not directors or officers of the
Corporation or a subsidiary may be similarly indemnified in respect of such
service to the extent authorized at any time by the board of directors, except
as otherwise provided by statute or the Articles of Incorporation.
SECTION 3. EXPENSES. To the extent that a director or officer, or other
person whose
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indemnification is authorized by the board of directors, has been successful on
the merits or otherwise, including the dismissal of an action without
prejudice, in the defense of any action, suit or proceeding referred to in
Section 1 or 2 of this Article, or in the defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith
and any action, suit or proceeding brought to enforce the mandatory
indemnification provided in this Section.
SECTION 4. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under
Section 1 or 2 of this Article (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the person has met the
applicable standard of conduct set forth in this Article and upon an evaluation
of the reasonableness of expenses and amounts paid in settlement. Such
determination shall be made (a) by the board of directors by a majority vote of
a quorum consisting of directors who are not parties or threatened to be made
parties to such action, suit or proceeding, or if such a quorum cannot be
obtained, by a majority vote of a committee duly designated by the board
consisting solely of two or more directors not at the time parties or
threatened to be made parties to such action, suit or proceeding; (b)by
independent legal counsel (who may be the regular counsel of the Corporation)
in a written opinion, which counsel shall be selected as provided in (a) above,
provided that if a committee cannot be designated as provided in (a) above,
then the board shall select such independent counsel; (c) by all Independent
Directors (as that term is defined in the Michigan Business Corporation Act)
who are not parties or threatened to be made parties to such action, suit or
proceeding; or (d) by the shareholders, but shares held by directors, officers,
employees or agents who are parties or threatened to be made parties to such
action, suit or proceeding may not be voted. In designating a committee under
(a) above, or in the selection of independent legal counsel in the event a
committee cannot be designated pursuant to (b)above, all directors may
participate. The Corporation may indemnify a person for a portion of expenses
(including reasonable attorneys' fees), judgments, penalties, fees and amounts
paid in settlement for which the person is entitled to indemnification under
Section 1 or 2 of this Article, even though the person is not entitled to
indemnification for the total amount of such expenses, judgments, penalties,
fees and amounts paid in settlement.
SECTION 5. ADVANCING OF EXPENSES. Expenses incurred by any person who is
or was serving as a director or officer of the Corporation or a subsidiary in
defending a civil or criminal action, suit or proceeding described in Section 1
or 2 of this Article shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding if (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 1 or 2 of
this Article; (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 applicable standard of
conduct; and (c) a determination is made that the facts then known to those
making the determination would not preclude indemnification under the Michigan
Business Corporation Act. Persons who are or were not serving as a director or
officer of the Corporation or a subsidiary may receive similar advances of
expenses to the extent authorized at any time by the board of directors, except
as otherwise provided by statute or the Articles of Incorporation.
Determinations under this Section shall be
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made in the manner specified in Section 4 of this Article. Notwithstanding the
foregoing, in no event shall any advance be made in instances where the board
or independent legal counsel reasonably determines that such person
deliberately breached his or her duty to the Corporation or its shareholders.
SECTION 6. RIGHT TO INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION. A director, officer or other person who is a party or threatened
to be made a party to an action, suit or proceeding may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court may order
indemnification if it determines that the person is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not he or she met the applicable standard of conduct set forth in Section 1
or 2 of this Article or was adjudged liable as described in Section 2 of this
Article, provided, however, that if he or she was adjudged liable, his or her
indemnification shall be limited to reasonable expenses incurred.
SECTION 7. INDEMNIFICATION UNDER BYLAWS NOT EXCLUSIVE. The
indemnification or advancement of expenses provided by this Article shall not
be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under the Articles of Incorporation,
any bylaw, agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his or her official capacity and as to action
in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent, and shall
inure to the benefit of the heirs, executors and administrators of such a
person. The total amount of expenses advanced or indemnified from all sources
shall, not exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses. All rights to indemnification
under this Article shall be deemed to be provided by a contract between the
Corporation and the director, officer, employee or agent who serves in such
capacity at any time while these Bylaws and other relevant provisions of the
general corporation law and other applicable law, if any, are in effect. Any
repeal or modification thereof shall not affect any rights or obligations then
existing.
SECTION 8. 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 him or her 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 the power to indemnify him or her against such liability under the
provisions of this Article.
SECTION 9. MERGERS. For the purposes of this Article, references to the
"Corporation" include all constituent Corporations absorbed in a consolidation
or merger, as well as the resulting or surviving Corporation, so that any
person who is or was a director, officer, employee or agent of such constituent
Corporation, or is or was serving at the request of such constituent
Corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic Corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, shall stand in the same
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position under the provisions of this Article with respect to the resulting or
surviving Corporation as if he or she had served the resulting or
surviving Corporation in the same capacity.
SECTION 10. SAVINGS CLAUSE. If this Article or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer or other person
whose indemnification is authorized by the board of directors as to expenses
(including attorneys' fees), judgments, fees and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including a grand jury proceeding and an
action by the Corporation, to the full extent permitted by any applicable
portion of this Article that shall not have been invalidated or by any other
applicable law.
ARTICLE IX.
SUBSIDIARIES
SECTION 1. SUBSIDIARIES. The board of directors, the Chairman of the
Board, the Chief Executive Officer, the President, or any other officer
designated by the board of directors may vote the shares of stock owned by the
Corporation in any subsidiary, whether wholly or partly owned by the
Corporation, in such manner as they may deem in the best interests of the
Corporation, including, without limitation, for the election of directors of
any subsidiary corporation, or for any amendments to the charter or bylaws of
any such subsidiary corporation, or for the liquidation, merger or sale of
assets of any such subsidiary corporation. The board of directors, the Chief
Executive Officer, or any other officer designated by the board of directors
may cause to be elected to the board of directors of any such subsidiary
corporation such persons as they shall designate, any of whom may, but need not
be, directors, officers, or other employees or agents of the Corporation.
SECTION 2. SUBSIDIARY OFFICERS NOT EXECUTIVE OFFICERS. The officers of
any subsidiary corporation shall not, by virtue of holding such title and
position, be deemed to be officers of the Corporation, nor shall any such
officer of a subsidiary corporation, unless he or she is also a director or
officer of the Corporation, be entitled to have access to any files, records or
other information relating or pertaining to the Corporation, its business and
finances, or to attend or receive the minutes of any meetings of the board of
directors or any committee of the Corporation, except as and to the extent
expressly authorized and permitted by the board of directors or the Chief
Executive Officer.
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ARTICLE X.
CERTIFICATES OF STOCK
SECTION 1. FORM. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation
by, the Chairman of the Board, a Vice Chairman of the Board, the President, an
Executive Vice President, a Senior Vice President, or a Vice President and the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Corporation, certifying the number of shares owned by him or her in the
Corporation. The certificate may but need not be, sealed with the seal of the
Corporation, or a facsimile thereof.
SECTION 2. FACSIMILE SIGNATURES. Where a certificate is signed (a) by a
transfer agent or an assistant transfer agent, or (b) by a transfer clerk
acting on behalf of the Corporation and a registrar, the signatures of the
Chairman of the Board, Vice Chairman of the Board, President, Executive Vice
President, Senior Vice President, Vice President, Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary may be facsimiles. In case any
officer(s) or any holder(s) of a titled position who has signed, or whose
facsimile signature(s) has been used on, any certificate shall cease to be such
officer(s) or holder(s) before such certificate has been delivered by the
Corporation, such certificate may nevertheless be issued and delivered as
though the person(s) who signed such certificate or whose facsimile
signature(s) appears thereon continued to be such officer(s) or holder(s) of
such titled position.
SECTION 3. LOST CERTIFICATES. The officers may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
the officers may, in their discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or-his or her legal representative, to advertise the same in such
manner as it shall require and/or to give the Corporation a bond in such sum as
they may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
SECTION 4. REGISTERED OWNER. The Corporation shall be entitled to
recognize the exclusive rights of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares; the Corporation shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Michigan.
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ARTICLE XI.
GENERAL PROVISIONS
SECTION 1. CHECKS. Any signature on any check, demand or note may be
signed by the facsimile signature of any person authorized by the board of
directors to sign under this Section 1 of Article XI. If any officer who has
signed or whose facsimile signature has been used shall cease to be such
officer, such document may nevertheless be signed by means of such facsimile
signature and delivered as though the person who signed such document or whose
facsimile signature has been used thereon had not ceased to be such officer.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the board of directors.
SECTION 3. SEAL. The corporate seal shall have inscribed thereon the name
of the Corporation and the words "Corporate Seal, Michigan." The seal may be
used by causing it or a facsimile thereof to be impressed, affixed, reproduced
or otherwise.
SECTION 4. VOTING SECURITIES. The Chairman of the Board, the Chief
Executive Officer, the President, or any officer designated by the board of
directors shall have full power and authority on behalf of the Corporation to
attend and to act and to vote, or to execute in the name or on behalf of the
Corporation a proxy authorizing an agent or attorney-in-fact for the
Corporation to attend and to act and to vote, at any meetings of security
holders of corporations in which the Corporation may hold securities, and at
such meetings he or she and his or her duly authorized agent or
attorney-in-fact shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof,
the Corporation might have possessed and exercised if present.
SECTION 5. 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, subject to the provisions of the Articles of
Incorporation.
SECTION 6. RESERVES. Before payment of any dividends, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interests
of the Corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
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ARTICLE XII.
AMENDMENTS
These Bylaws may be amended, altered, changed, added to or repealed by the
shareholders at any regular or special meeting of the shareholders if notice of
such action be contained in the notice of such meeting, or by the board of
directors at any regular or special meeting of the board of directors.
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