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EXHIBIT 3.35
BYLAWS
OF
OASP II, INC.
ARTICLE I
Offices
1.01 Principal Office. The principal office of OASP II, Inc., a Michigan
corporation (the "Corporation") shall be at such place as the Board of Directors
of the Corporation (the "Board") shall from time to time determine.
1.02 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
2.01 Seal. The Corporation may have a seal in the form that the Board may
from time to time determine. The seal may be used by causing it or a facsimile
to be impressed, affixed or otherwise reproduced.
ARTICLE III
Capital Stock
3.01 Issuance of Shares. The shares of capital stock of the Corporation
shall be issued in the amounts, at the times, for the consideration, and on the
terms and conditions that the Board shall deem advisable, subject to the
Articles of Incorporation of the Corporation (the "Articles of Incorporation")
and any requirements of the laws of the State of Michigan.
3.02 Certificates for Shares. The shares of the capital stock of the
Corporation shall be represented by certificates signed by the chairperson of
the Board, the president, or a vice president, and also may be signed by the
treasurer, assistant treasurer, secretary, or assistant secretary, and may be
sealed with the seal of the Corporation, if any, or a facsimile of it. The
signatures of the officers may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar other than the Corporation
itself or its employee. In case an officer who has signed or whose facsimile
signature has been placed upon a certificate ceases to be such officer before
the certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer at the date of issuance. A certificate
representing shares shall state the name of the person to whom
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it is issued, the number and class of shares and the designation of the series,
if any, that the certificate represents, and any other provisions that may be
required by the laws of the State of Michigan.
3.03 Transfer of Shares. The shares of the capital stock of the
Corporation are transferable only on the books of the Corporation upon surrender
of the certificate for the shares, properly endorsed for transfer, and the
presentation of the evidences of ownership and validity of the assignment that
the Corporation may require.
3.04 Registered Shareholders. The Corporation shall be entitled to treat
the person in whose name any share of stock is registered as the owner of it for
the purpose of dividends and other distributions or for any recapitalization,
merger, plan of share exchange, reorganization, sale of assets, or liquidation,
for the purpose of votes, approvals, and consents by the shareholders of the
Corporation (the "Shareholders"), 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 the shares by any other person,
whether or not the Corporation shall have notice of it, except as expressly
required by the laws of the state of Michigan.
3.05 Lost or Destroyed Certificates. On the presentation to the
Corporation of a proper affidavit attesting to 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 the form and amount and with
or without sureties, as the Board may direct or approve.
ARTICLE IV
Shareholders and Meetings of Shareholders
4.01 Place of Meetings. All meetings of Shareholders shall be held at the
principal office of the Corporation or at any other place that shall be
determined by the Board and stated in the meeting notice.
4.02 Annual Meeting. The annual meeting of the Shareholders shall be held
on the first Thursday of April or at such other time as the Board may select.
Directors shall be elected at each annual meeting and such other business
transacted as may come before the meeting.
4.03 Special Meetings. Special meetings of Shareholders may be called by
the Board, the chairperson of the Board (if the 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 outstanding shares of stock of
the Corporation entitled to vote. The request shall state the purpose or
purposes for which the meeting is to be called.
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4.04 Notice of Meetings. Except as otherwise provided by statute, written
notice of the time, place, and purposes of a Shareholders meeting 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 the notice to his or her last address as it appears on the books of the
Corporation. The notice shall include notice of proposals from Shareholders that
are proper subjects for shareholder action and are intended to be presented by
Shareholders who have so notified the Corporation in accordance with Section
4.10. No notice need be given of an adjourned meeting of the Shareholders
provided that the time and place to which the meeting is adjourned are announced
at the meeting at which the adjournment is taken, and at the adjourned meeting
the only business to be transacted is business that 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 entitled to notice on the new record date as
provided in this bylaw.
4.05 Record Dates. The Board may fix in advance a record date for the
purpose of determining shareholders entitled to notice of and to vote at a
meeting of Shareholders or an adjournment of the meeting or to express consent
to or to dissent from a proposal without a meeting; for the purpose of
determining shareholders entitled to receive payment of a dividend or an
allotment of a right; or for the purpose of any other action. The date fixed
shall not be more than 60 nor less than 10 days before the date of the meeting,
nor more than 60 days before any other action. In such case only the
Shareholders that shall be shareholders of record on the date so fixed shall be
entitled to notice of and to vote at the meeting or an adjournment of the
meeting or to express consent to or to dissent from the proposal; to receive
payment of the dividend or the allotment of rights; or to participate in any
other action, notwithstanding any transfer of any stock on the books of the
Corporation, after any such record date. Nothing in this bylaw shall affect the
rights of a Shareholder and his or her transferee or transferor as between
themselves.
4.06 List of Shareholders. The secretary 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 of it. The list shall be arranged
alphabetically within each class and series and include 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 of which shareholders are entitled
to examine the list or vote at the meeting.
4.07 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 the
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 a vote of the shares present in person or by proxy. When the holders of a
class or series of shares are entitled to vote separately on an item of
business, this bylaw applies in determining the presence of a quorum of the
class or series for transacting the item of business.
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4.08 Proxies. A Shareholder entitled to vote at a Shareholders meeting or
to express consent or to dissent without a meeting may authorize other persons
to act for the Shareholder by proxy. A proxy shall be signed by the Shareholder
or the Shareholder's authorized agent or representative and shall not be valid
after the expiration of three years from its date unless otherwise provided in
the proxy. A proxy is revocable at the pleasure of the Shareholder executing it
except as otherwise provided by the laws of the state of Michigan.
4.09 Voting. Each outstanding share is entitled to one vote on each matter
submitted to a vote, unless the Articles of Incorporation provide otherwise.
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 on it, 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.
4.10 Notice of Shareholder Proposals. A Shareholder may cause the
Corporation to include in the notice for any meeting of Shareholders, notice of
proposals under Section 4.04, by giving timely written notice to the secretary
at the principal executive offices of the Corporation. To be timely, (a) with
respect to an annual meeting of Shareholders pursuant to Section 4.02 (an
"Annual Meeting"), a Shareholder's notice must be delivered or mailed and
received by the secretary not less than 90 days prior to the date set for the
Annual Meeting in such Section 4.02; and (b) with respect to a meeting which is
a special meeting pursuant to Section 4.03 (a "Special Meeting"), not less than
five days after the earlier of (i) the announcement by the Corporation of the
intention to call a Special Meeting; or (ii) if no such announcement is made,
the date that notice of such meeting Special Meeting is given personally or is
mailed by the Corporation pursuant to Section 4.04, in which event, the
Corporation shall promptly provide or mail a revised notice of such Special
Meeting that includes the Shareholder's proposal if it qualifies for inclusion
therein as set forth in Section 4.04 and this Section 4.10. A Shareholder's
notice to the secretary shall set forth, as to each matter the Shareholder
proposes to bring before such meeting, (x) a brief description of the business
to be brought before the meeting; (y) the name and address, as they appear on
the Corporation's books, of the Shareholder(s) proposing the business; and (z)
any material interest of such Shareholder(s) in such business. All
determinations under this Section 4.10 shall be made by the Board, which
determinations shall be conclusive. This Section 4.10 shall be of no force and
effect during any time when the Corporation has a class of securities registered
under Section 12 of the Securities Exchange Act of 1934, as amended.
4.11 Conduct of Meeting. At each meeting of Shareholders, a chairperson
shall preside. In the absence of a specific selection by the Board, the chair
shall be the Chairperson of the Board as provided in Section 8.01. The chair
shall determine the order of business and shall have the authority to establish
rules for the conduct of the meeting which are fair to Shareholders. The chair
of the meeting shall announce at the meeting when the polls close for each
matter voted upon. If no announcement is made, the polls shall be deemed to have
closed upon the final adjournment of the
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meeting. After the polls close, no ballots, proxies or votes, nor any
revocations or changes thereto may be accepted.
4.12 Inspectors of Election. The Board, or the chairperson of the Board
presiding at any Shareholders' meeting, may appoint one or more inspectors. If
appointed, the inspectors shall determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting, the existence
of a quorum and the validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine challenges or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all Shareholders. On request of the person presiding at the meeting,
the inspectors shall make and execute a written report to the person presiding
at the meeting of any of the facts found by them and matters determined by them.
The report shall be prima facie evidence of the facts stated and of the vote as
certified by the inspectors.
ARTICLE V
Directors
5.01 Number. The business and affairs of the Corporation shall be managed
by or under the direction of a board of not less than one nor more than nine
directors, as shall be fixed from time to time by the Board. The directors need
not be residents of Michigan or Shareholders.
5.02 Election, Resignation, and Removal. Directors shall be elected at
each annual Shareholders meeting, each director to hold office until the next
annual Shareholders meeting 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 on its
receipt by the Corporation or at 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 vote of the holders of a majority of the shares entitled to vote at an
election of directors.
5.03 Vacancies. Vacancies in 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. 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.
5.04 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 the later time is deemed advisable, at the place
where the Shareholders meeting has been held or any other place that the Board
may determine, for the purpose of electing officers and considering 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 the annual
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meeting shall not be required and the matters that might have been taken up in
it may be taken up at any later special or annual meeting, or by consent
resolution.
5.05 Regular and Special Meetings. Regular meetings of the Board may be
held at the times and places that 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 chairperson of the Board (if the office is filled) or the
president, and shall be called by the president or secretary on the written
request of any two directors.
5.06 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 or 24-hour telephonic notice shall be given for special meetings
of the Board, and the notice shall state the time, place, and purpose or
purposes of the meeting.
5.07 Quorum. A majority of the members of the Board then in office, or of
the members of a board committee, 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 constitutes the action of the Board or of the committee,
except when 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 conference telephone or similar communications equipment through
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.
5.08 Dissents. A director who is present at a meeting of the Board, or a
board committee of which the director is a member, at which action on a
corporate matter is taken, is presumed to have concurred in that action unless
the director's dissent is entered in the minutes of the meeting or unless the
director files a written dissent to the action with the person acting as
secretary of the meeting before the adjournment of it or forwards the dissent by
registered mail to the secretary of the Corporation promptly after the
adjournment of the meeting. The right to dissent does not apply to a director
who voted in favor of the action. A director who is absent from a meeting of the
Board or a board committee of which the director is a member, at which any such
action is taken, is presumed to have concurred in the action unless he or she
files a written dissent with the secretary within a reasonable time after the
director has knowledge of the action.
5.09 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.
5.10 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
managing the business and affairs of the Corporation, except that the committee
shall not have power or authority to (a) amend the Articles of Incorporation,
except that a committee may prescribe the relative rights and preferences of the
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shares of a series if the Articles of Incorporation authorize the Board to do
so; (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 on the Board; or (g) declare a dividend or authorize the issuance
of stock, unless expressly authorized by the Board.
The Board from time to time may, by like resolution, appoint any other
committees of one or more directors to have the authority that shall be
specified by the Board in the resolution making the appointments. The Board may
designate one or more directors as alternate members of any committee to replace
an absent or disqualified member at any committee meeting.
ARTICLE VI
Notices, Waivers of Notice, and Manner of Acting
6.01 Notices. All notices of meetings required to be given to
Shareholders, directors, or any committee of directors may be given by mail,
telecopy, telegram, radiogram, or cablegram to any Shareholder, director, or
committee member at his or her last address as it appears on the books of the
Corporation. The notice shall be deemed to be given at the time it is mailed or
otherwise dispatched. Telephonic notice may be given for special meetings of the
Board as provided in Section 5.06.
6.02 Waiver of Notice. Notice of the time, place, and purpose of any
meeting of Shareholders, directors, or committee of directors may be waived by
telecopy, telegram, radiogram, cablegram, or other writing, either before or
after the meeting, or in any other manner that may be permitted by the laws of
the state of Michigan. Attendance of a person at any Shareholders meeting, 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; or
(b) In the case of a director, unless he or she at the beginning of
the meeting, or upon his or her arrival, objects to the meeting or the
transacting of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting.
6.03 Action Without a Meeting. Except as the Articles of Incorporation may
otherwise provide for action to be taken by shareholders, any action required or
permitted at any meeting of Shareholders, directors, or a committee of directors
may be taken without a meeting, without prior
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notice, and without a vote, if all of the Shareholders, directors, or committee
members entitled to vote on it consent to it in writing, before or after the
action is taken.
ARTICLE VII
Officers
7.01 Number. The Board shall elect or appoint a president, a secretary,
and a treasurer, and may select a chairperson of the Board and one or more vice
presidents, assistant secretaries, or assistant treasurers. Any two or more of
the preceding offices, except those of president and vice president, may be held
by the same person. No officer shall execute, acknowledge, or verify an
instrument in more than one capacity if the instrument is required by law, the
Articles of Incorporation, or these bylaws to be executed, acknowledged, or
verified by one or more officers.
7.02 Term of Office, Resignation, and Removal. An officer shall hold
office for the term for which he or she is elected or appointed and until his or
her 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 on 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 or her contract rights, if any. The election or
appointment of an officer does not of itself create contract rights.
7.03 Vacancies. The Board may fill any vacancies in any office occurring
for whatever reason.
7.04 Authority. All officers, employees, and agents of the Corporation
shall have the authority and perform the duties to conduct and manage the
business and affairs of the Corporation that may be designated by the Board and
these bylaws.
ARTICLE VIII
Duties of Officers
8.01 Chairperson of the Board. The chairperson of the Board, if the office
is filled, shall preside at all meetings of the Shareholders and of the Board at
which the chairperson is present.
8.02 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 chairperson of the Board, or if that office has not been
filled, the president also shall perform the duties of the chairperson of the
Board as set forth in these bylaws.
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8.03 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 any other duties that the
Board or the president may from time to time prescribe.
8.04 Secretary. The secretary shall attend all meetings of the Board and
Shareholders and shall record all votes and minutes of all proceedings in a book
to be kept for that purpose; shall give or cause to be given notice of all
meetings of the Shareholders and the Board; and shall keep in safe custody the
seal of the Corporation, if any, and, when authorized by the Board, affix it to
any instrument requiring it, and when so affixed it shall be attested to 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 the delegation is
disapproved by the Board.
8.05 Treasurer. The treasurer shall have the custody of the corporate
funds and securities, shall keep full and accurate accounts of receipts and
disbursements in the books of the Corporation, and shall deposit all moneys and
other valuable effects in the name and to the credit of the Corporation in the
depositories that 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 the delegation is disapproved by the
Board.
8.06 Assistant Secretaries and Treasurers. The assistant secretaries, in
order of their seniority, shall perform the duties and exercise the powers and
authorities of the secretary in case of the secretary's absence or disability.
The assistant treasurers, in the order of their seniority, shall perform the
duties and exercise the powers and authorities of the treasurer in case of the
treasurer's absence or disability. The assistant secretaries and assistant
treasurers shall also perform the duties that may be delegated to them by the
secretary and treasurer, respectively, and also the duties that the Board may
prescribe.
ARTICLE IX
Special Corporate Acts
9.01 Orders for Payment of Money. All checks, drafts, notes, bonds, bills
of exchange, and orders for payment of money of the Corporation shall be signed
by the officer or officers or any other person or persons that the Board may
from time to time designate.
9.02 Contracts and Conveyances. The Board may in any instance designate
the officer and/or agent who shall have authority to execute any contract,
conveyance, 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
chairperson of the Board, the president or any vice president, and the
secretary, assistant
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secretary, treasurer, or assistant treasurer may execute the instrument in the
name and on behalf of the Corporation and may affix the corporate seal, if any,
to it.
ARTICLE X
Books and Records
10.01 Maintenance of Books and Records. The proper officers and agents of
the Corporation shall keep and maintain the books, records, and accounts of the
Corporation's business and affairs, minutes of the proceedings of its
Shareholders, the Board, and committees, if any, and the 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 that the Board shall determine.
10.02 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
on information, opinions, reports, or statements, including financial statements
and other financial data, if prepared or presented by any of the following:
(a) One or more directors, officers, or employees of the
Corporation, or of a business organization under joint control or common
control, whom the director or officer reasonably believes to be reliable and
competent in the matters presented;
(b) Legal counsel, public accountants, engineers, or other persons
as to matters the director or officer reasonably believes are within the
person's professional or expert competence; or
(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
11.01 Nonderivative Actions. Subject to all of the other provisions of
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, suit, or proceeding, whether civil, criminal, administrative, or
investigative, 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,
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or, while serving as a director or officer of the Corporation, 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 attorney 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 the Shareholders, and with
respect to any criminal action or proceeding, if the person had no reasonable
cause to believe his or her conduct was unlawful. The termination of any action,
suit, or proceeding by judgment, order, settlement, conviction, or on 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 that the person
reasonably believed to be in or not opposed to the best interests of the
Corporation or the Shareholders and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
11.02 Derivative Actions. Subject to all of the provisions of 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, while serving as a director or officer of the Corporation, 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 attorney fees) and amounts paid in settlement
actually and reasonably incurred by the person in connection with the action or
suit, if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the Corporation or the
Shareholders. However, indemnification shall not be made for any claim, issue,
or matter in which the person has been found liable to the Corporation unless
and only to the extent that the court in which the action or suit was brought
has determined on application that, despite the adjudication of liability but in
view of all circumstances of the case, the person is fairly and reasonably
entitled to indemnification for the reasonable expenses incurred.
11.03 Expenses of Successful Defense. To the extent that a person has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in Sections 11.01 or 11.02, 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 attorney fees)
incurred by the 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 11.03.
11.04 Definition. For the purposes of Sections 11.01 and 11.02, "other
enterprises" shall include employee benefit plans; "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
"serving at the request of the Corporation" shall include any service as a
director, officer, employee, or agent of the Corporation that imposes duties on,
or involves services by, the director or officer with respect to an employee
benefit plan, its participants,
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or its 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 the
Shareholders" as referred to in Sections 11.01 and 11.02.
11.05 Contract Right; Limitation on Indemnity. The right to
indemnification conferred in 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 the person's capacity as a director or officer. Except
as provided in Section 11.03, the Corporation shall have no obligations under
Article XI to indemnify any person in connection with any proceeding, or part
thereof, initiated by the person without authorization by the Board.
11.06 Determination That Indemnification Is Proper. Any indemnification
under Sections 11.01 or 11.02 (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 Sections 11.01 or 11.02,
whichever is applicable, and upon an evaluation of the reasonableness of expense
and amounts paid in settlement. The 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 the action,
suit, or proceeding;
(b) If the quorum described in clause (a) above is not obtainable,
then by 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; or
(d) By the Shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties to the
action, suit, or proceeding may not be voted.
11.07 Authorizations of Payment.
(a) Authorizations of payment under Sections 11.01 and 11.02 shall
be made in any of the following ways:
(i) by the Board:
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(A) if there are two or more directors who are not
parties or threatened to be made parties to the action, suit or
proceeding, by a majority vote of all such directors (a majority of whom
shall for this purpose constitute a quorum)or by a majority of the members
of a committee of two or more directors who are not parties or threatened
to be made parties to the action, suit or proceeding;
(B) if the Corporation has one or more independent
directors who are not parties or threatened to be made parties to the
action, suit or proceeding, by a majority vote of all such directors (a
majority of whom shall for this purpose constitute a quorum); or
(C) if there are no independent directors and fewer than
two directors who are not parties or threatened to be made parties to the
action, suit or proceeding, by the vote necessary for action by the Board
in accordance with Section 3.07, in which authorization all directors may
participate; or
(ii) by the Shareholders, but shares held by directors,
officers, employees, or agents who are parties or threatened to be made parties
to the action, suit, or proceeding may not be voted on the authorization.
(b) To the extent that the Articles of Incorporation include a
provision eliminating or limiting the liability of a director pursuant to MCLA
450.1209(1)(c), MSA 21.200(209)(1), the Corporation may indemnify a director for
the expenses and liabilities described below without a determination that the
director has met the standard of conduct set forth in Sections 11.01 and 11.02,
but no indemnification may be made except to the extent authorized in MCLA
450.1564c, MSA 21.200(564c), if the director received a financial benefit to
which he or she was not entitled, intentionally inflicted harm on the
Corporation or the Shareholders, violated MCLA 450.1551, MSA 21.200(551), or
intentionally violated criminal law. In connection with an action or suit by or
in the right of the Corporation, as described in Section 11.02, indemnification
under this Section 11.07(b) may be for expenses, including attorneys' fees,
actually and reasonably incurred. In connection with an action, suit or
proceeding other than one by or in the right of the Corporation, as described in
Section 11.01, indemnification under this Section 11.07(b) may be for expenses,
including attorneys' fees, actually and reasonably incurred, and for judgments,
penalties, fines, and amounts paid in settlement actually and reasonably
incurred.
11.08 Proportionate Indemnity. If a person is entitled to indemnification
under Sections 11.01 or 11.02 for a portion of expenses, including attorney
fees, judgments, penalties, fines, and amounts paid in settlement, but not for
the total amount, 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.
11.09 Expense Advance. The Corporation may pay or reimburse the reasonable
expenses incurred by a person referred to in Sections 11.01 or 11.02 who is a
party or threatened to be made
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a party to an action, suit, or proceeding in advance of final disposition of the
proceeding if both 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 Sections 11.01 or 11.02;
and (b) the person furnishes the Corporation a written undertaking executed
personally, or on his or her belief, to repay the advance if it is ultimately
determined that he or she did not meet the standard of conduct. Determinations
and evaluations under this Section 11.09 shall be made as specified in Section
11.06, and authorizations shall be made in the manner specified in Section
11.07. A provision in the Articles of Incorporation, these bylaws, a resolution
by the Board or the Shareholders, or an agreement making indemnification
mandatory shall also make advancement of expenses mandatory unless the provision
specifically provides otherwise.
11.10 Non-Exclusivity of Rights. The indemnification or advancement of
expenses provided under this article 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.
11.11 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 Article XI
with respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
11.12 Former Directors and Officers. The indemnification provided in
Article XI continues for a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors, and administrators of the
person.
11.13 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 the liability under these bylaws or
the laws of the state of Michigan.
11.14 Changes in Michigan Law. If there is any change of the Michigan
statutory provisions applicable to the Corporation relating to the subject
matter of Article XI, then the indemnification to which any person shall be
entitled under this article shall be determined by the changed provisions, but
only to the extent that the change permits the Corporation to provide broader
indemnification rights than the provisions permitted the Corporation to provide
before the change. Subject to Section 11.15, the Board is authorized to amend
these bylaws to conform to any such changed statutory provisions.
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11.15 Amendment or Repeal of Article XI. No amendment or repeal of 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 the director or
officer occurring before the amendment or repeal.
ARTICLE XII
Amendments
12.01 Amendments. The bylaws of the Corporation 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.
Effective: November ____, 1998
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