EXHIBIT 3.18
AMENDED & RESTATED BYLAWS OF
MIDLAND GROCERY OF MICHIGAN, INC.
(AS OF MARCH 30, 2000)
ARTICLE 1
Meetings of Shareholders
1.01 Annual Meeting. The annual meeting of the shareholders, for the
purpose of electing directors and transacting such other business as may come
before the meeting, shall be held on such date and at such time during the first
six months of each fiscal year of the Company as may be fixed by the board of
directors and stated in the notice of the meeting.
1.02 Special Meetings. A special meeting of the shareholders may be
called by the chairman of the board, or the president, or a majority of the
directors acting with or without a meeting, or the holders of shares entitling
them to exercise 25% of the voting power of the Company entitled to be voted at
the meeting. Upon delivery to the chairman, president, or secretary of a request
in writing for a special meeting of the shareholders by any persons entitled to
call such meeting, the officer to whom the request is delivered shall give
notice to the shareholders of such meeting. Any such request shall specify the
purposes and the date and hour for such meeting. The date shall be at least 14
and not more than 65 days after delivery of the request. If such officer does
not call the meeting within five days after any such request, the persons making
the request may call the meeting by giving notice as provided in (S).1.04 or by
causing it to be given by their designated representative.
1.03 Place of Meetings. All meetings of shareholders shall be held at
such place or places, within or without the State of Michigan, as may be fixed
by the board of directors or, if not so fixed, as shall be specified in the
notice of the meeting.
1.04 Notice of Meetings. Every shareholder shall furnish the secretary
of the Company with an address at which notices of meetings and all other
corporate notices may be served on or mailed to him. Except as otherwise
expressly required by law, notice of each shareholders' meeting, whether annual
or special, shall, not more than 60 days and at least 7 days before the date
specified for the meeting, be given by the chairman, president, or secretary or,
in case of their refusal or failure to do so, by the person or persons entitled
to call such meeting, to each shareholder entitled to notice of the meeting, by
delivering a written or printed notice to him personally or by mailing the
notice in a postage-prepaid envelope addressed to him at his address furnished
by him as above provided, or, if he shall not have furnished such address, at
his post office address last known to the sender. Except when expressly required
by law, no publication of any notice of a shareholders' meeting shall be
required. If shares are transferred after notice has been given, notice need not
be given to the transferee. A record date may be fixed for determining the
shareholders entitled to notice of any meeting of shareholders, in accordance
with the provisions of (S).1.12. Every notice of a shareholders' meeting,
besides stating the time and place of the meeting, shall state briefly the
purposes of the meeting as may be specified by the person or persons requesting
or calling the meeting. Only the business provided for in such notice shall be
considered at the meeting. Notice of the adjournment of a meeting need not be
given if the time and place to which it is adjourned are fixed and announced at
the meeting.
1.05 Waiver of Notice. Any shareholder, either before or after any
meeting, may waive any notice required by law, the articles, or these
regulations. Waivers must be in writing and filed with or
Page 1 of 16
entered upon the records of the meeting. Notice of a meeting will be deemed to
have been waived by any shareholder who attends the meeting either in person or
by proxy, and who does not, before or at the commencement of the meeting,
protest the lack of proper notice.
1.06 Quorum. The holders of shares entitling them to exercise a
majority of the voting power of the Company entitled to vote at a meeting,
present in person or by proxy, shall constitute a quorum for the transaction of
business, except when a greater number is required by law, the articles of
incorporation, or these regulations. In the absence of a quorum at any meeting
or any adjournment of the meeting, the holders of shares entitling them to
exercise a majority of the voting power of the shareholders present in person or
by proxy and entitled to vote may adjourn the meeting from time to time. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called.
1.07 Organization. At each shareholders' meeting the chairman of the
board, or, in his absence, the president, or, in the absence of both of them, a
chairman chosen by the holders of shares entitling them to exercise a majority
of the voting power of the shareholders present in person or by proxy and
entitled to vote, shall act as chairman, and the secretary of the Company, or,
in his absence, any assistant secretary, or, in the absence of all of them, any
person whom the chairman of the meeting appoints, shall act as secretary of the
meeting.
1.08 Order of Business. The order of business at each meeting of the
shareholders shall be fixed by the chairman of the meeting at the beginning of
the meeting but may be changed by the vote of the holders of shares entitling
them to exercise a majority of the voting power of the shareholders present in
person or by proxy and entitled to vote.
1.09 Voting. Each holder of a share or shares of the class or classes
entitled to vote by law or the articles of incorporation shall be entitled to
one vote in person or by proxy for each such share registered in his name on the
books of the Company. As provided in (S).1.12, a record date for determining
which shareholders are entitled to vote at any meeting may be fixed. Shares of
its own stock belonging to the Company shall not be voted directly or
indirectly. Persons holding voting shares in a fiduciary capacity shall be
entitled to vote the shares so held. A shareholder whose shares are pledged
shall be entitled to vote the shares standing in his name on the books of the
Company. Upon a demand by any shareholder present in person or by proxy at any
meeting and entitled to vote, any vote shall be by ballot. Each ballot shall be
signed by the shareholder or his proxy and shall state the number of shares
voted by him. Otherwise, votes shall be made orally.
1.10 Proxies. Any shareholder who is entitled to attend or vote at a
shareholders' meeting shall be entitled to exercise such right and any other of
his rights by proxy or proxies appointed by a writing signed by such
shareholder, which need not be witnessed or acknowledged. Except as otherwise
specifically provided in these regulations, actions taken by proxy shall be
governed by the provisions of (S)(S).421 to 423 of the Michigan Business
Corporation Act, or any similar statute which may hereafter be enacted,
including the provisions relating to the sufficiency of the writing, duration of
the validity of the proxy, power of substitution, revocation, and all other
provisions.
1.11 Inspectors of Elections. Inspectors of elections may be appointed
and act as provided in ss.481 of the Michigan Business Corporation Act, or any
future statute of like tenor or effect.
1.12 Record Date. The board of directors may fix a record date for any
lawful purpose, including without limitation the determination of shareholders
entitled to: (a) receive notice of or to vote at any meeting, (b) receive
payment of any dividend or other distribution, (c) receive or exercise rights of
purchase of, subscription for, or exchange or conversion of, shares or other
securities, subject to any
Page 2 of 16
contract right with respect thereto, or (d) participate in the execution of
written consents, waivers, or releases. Any such record date shall not be more
than 60 days preceding the date of such meeting, the date fixed for the payment
of any dividend or other distribution, or the date fixed for the receipt or the
exercise of rights, as the case may be.
1.13 List of Shareholders at Meeting. Upon request of any shareholder
at any meeting of shareholders, there shall be produced at the meeting an
alphabetically arranged list, or classified lists, of the shareholders of record
as of the applicable record date who are entitled to vote, showing their
respective addresses and the number and classes of shares held by them.
1.14 Action in Writing in Lieu of Meeting. Any action which may be
authorized or be taken at a meeting of the shareholders, may be authorized or
taken without a meeting with the affirmative vote or approval of, and in a
writing or writings signed by, all the shareholders who would be entitled to
notice of a meeting of the shareholders held for that purpose.
ARTICLE 2
Board of Directors
2.01 General Powers of Board. The powers of the Company shall be
exercised, its business and affairs shall be conducted, and its property shall
be controlled by the board of directors, except as otherwise provided bylaws of
the State of Michigan, the company's articles of incorporation, or these bylaws.
2.02 Number of Directors. Until changed in accordance with this
section, the number of directors of the Company, none of whom need be
shareholders, shall be not less than three nor more than seven, provided that
when all shares of the Company are owned of record by one or two shareholders,
the number of directors may be less than three but not less than the number of
shareholders. The number of directors may be fixed or changed at any annual
meeting of the shareholders, or at any special meeting of the shareholders
called for that purpose, by the affirmative vote of the holders of shares
entitling them to exercise a .majority of the voting power of the Company on
such proposal.
2.03 Compensation and Expenses. The directors shall be entitled to such
compensation, on a monthly or annual basis, or on the basis of meetings
attended, or on both bases, as the board of directors may from time to time
determine and establish. No director shall be precluded from serving the Company
as an officer or in any other capacity, or from receiving compensation for so
serving. Directors may be reimbursed for their reasonable expenses incurred in
the performance of their duties, including the expense of traveling to and from
meetings of the board, if such reimbursement is authorized by the board of
directors.
2.04 Election of Directors. At each meeting of the shareholders for the
election of directors at which a quorum is present, the persons receiving the
greatest number of votes shall be deemed elected directors. Any shareholder may
cumulate his votes at an election of directors upon fulfillment of the
conditions prescribed in (S).223 of the Michigan Business Corporation Act or any
similar statute which may hereafter be enacted.
2.05 Term of Office. Each director shall hold office until the annual
meeting of shareholders in the year of the expiration of his term of office, or,
if the election of directors shall not be held at that annual meeting, until a
special meeting of the shareholders for the purpose of electing directors is
held as provided in (S)1.02, or the taking of action by all the shareholders in
writing in lieu of either such meetings,
Page 3 of 16
and in any case until his successor is elected and qualified or until his
earlier resignation, removal from office, or death.
2.06 Resignations. Any director may resign by giving written notice to
the chairman, the president, or the secretary of the Company. Such resignation
shall take effect at the time specified therein. Unless otherwise specified
therein, the acceptance of a resignation shall not be necessary to make it
effective.
2.07 Removal of Directors. All directors or any individual director may
be removed from office, without assigning any cause, by the affirmative vote of
the holders of record of not less than 75% of the shares having voting power of
the Company with respect to the election of directors, provided that unless all
directors are removed, no individual director shall be removed in case the votes
of a sufficient number of shares are cast against his removal which, if
cumulatively voted at an election of all directors, would be sufficient to elect
at least one director. In case of any such removal, a new director may be
elected at the same meeting for the unexpired term of each director removed. Any
director may also be removed by the board of directors for any of the causes
specified in (S)511 of the Michigan Business Corporation Act or any similar
statute which may hereafter be enacted.
2.08 Vacancies. A vacancy in the board of directors may be filled by
majority vote of the remaining directors, even though they are less than a
quorum, until the shareholders hold an election to fill the vacancy.
Shareholders entitled to elect directors may elect a director to fill any
vacancy in the board (whether or not the vacancy has previously been temporarily
filled by the remaining directors) at any shareholders' meeting called for that
purpose.
2.09 Organization of Meetings. At each meeting of the board of
directors, the chairman of the board, or, in his absence, the president, or, in
his absence, a chairman chosen by a majority of the directors present, shall act
as chairman. The secretary of the Company, or, if the secretary shall not be
present, any person whom the chairman of the meeting shall appoint, shall act as
secretary of the meeting.
2.10 Place of Meetings. Meetings of the board shall be held at such
place or places, within or without the State of Michigan, as may from time to
time be fixed by the board of directors or as shall be specified or fixed in the
notice of the meeting.
2.11 Regular Meetings. Regular meetings of the board will not be held
unless these bylaws shall be amended to provide therefor.
2.12 Special Meetings. Special meetings of the board of directors shall
be held whenever called by the chairman of the board, if any, or by the
president, or by any two directors.
2.13 Notices of Meetings. Every director shall furnish the secretary of
the Company with an address at which notices of meetings and all other corporate
notices may be served on or mailed to him. Unless waived before, at, or after
the meeting as hereinafter provided, notice of each board meeting shall be given
by the chairman, the president, the secretary, an assistant secretary, or the
persons calling such meeting, to each director in any of the following ways:
(a) By orally informing him of the meeting in person or by
telephone not later than two days before the date of the meeting.
(b) By delivering written notice to him not later than two days
before the date of the meeting.
Page 4 of 16
(c) By mailing written notice to him, or by sending notice to him
by telegram, cablegram, or radiogram, postage or other costs prepaid, addressed
to him at the address furnished by him to the secretary of the Company, or to
such other address as the person sending the notice shall know to be correct.
Such notice shall be posted or dispatched a sufficient length of time before the
meeting so that in the ordinary course of the mail or the transmission of
telegrams, cablegrams, or radiograms, delivery would normally be made to him not
later than two days before the date of the meeting.
Unless otherwise required by the articles of incorporation, these
bylaws, or the laws of the State of Michigan (for example, see the provisions or
by general delegation, or by necessary implication) by the board of directors.
ARTICLE 3
Officers
3.01 Number and Titles. The officers of the Company shall be a chairman
of the board, if needed, a president, one or more vice presidents, if needed, a
secretary, one or more assistant secretaries, if needed, a treasurer, and one or
more assistant treasurers, if needed. The board shall have the discretion to
determine from time to time whether or not a chairman of the board is needed,
the number of vice presidents, if any, the Company shall have, whether or not
assistant secretaries and assistant treasurers are needed, and, if so, the
number of assistant secretaries and assistant treasurers the Company shall have.
If there is more than one vice president, the board may, in its discretion,
establish designations for the vice presidencies so as to distinguish among them
as to their functions or their order, or both. Any two or more offices may be
held by the same person, but no officer shall execute, acknowledge, or verify
any instrument in more than one capacity if such instrument is required by law,
the Company's articles of incorporation, or these regulations to be executed,
acknowledged, or verified by two or more officers.
3.02 Election, Terms of Office, Qualifications, and Compensation. The
officers shall be elected by the board of directors. Each shall be elected for
an indeterminate term and shall hold office during the pleasure of the board of
directors. The board of directors may hold annual elections of officers; in that
event, each such officer shall hold office until his successor is elected and
qualified unless he earlier is removed by the board of directors. The chairman
of the board, if one is elected, shall be a director, but no other officer need
be a director. The other qualifications of all officers shall be such as the
board of directors may establish from time to time. The board of directors shall
fix the compensation, if any, of each officer.
3.03 Additional Officers, Agents, Etc. In addition to the officers
mentioned in ss.3.01, the Company may have such other officers, agents, and
committees as the board of directors may deem necessary and may appoint, each of
whom or each member of which shall hold office for such period, have such
authority, and perform such duties as may be provided in these regulations or as
may be determined by the board from time to time. The board of directors may
delegate to any officer or committee the power to appoint any subordinate
officer, agents, or committees. In the absence of any officer, or for any other
reason the board of directors may deem sufficient, the board of directors may
delegate, for the time being, the powers and duties, or any of them, of such
officer to any other officer, or to any director.
3.04 Removal. Any officer may be removed, either with or without cause,
at any time, by the board of directors at any meeting, the notices (or waivers
of notices) of which shall have specified that such removal action was to be
considered. Any officer appointed by an officer or committee to which the board
shall have delegated the power of appointment may be removed, either with or
without cause, by
Page 5 of 16
the committee or superior officer (including successors) who made the
appointment, or by any committee or officer upon whom such power of removal may
be conferred by the board of directors.
3.05 Resignations. Any officer may resign at any time by giving written
notice to the board of directors, the chairman, the president, or the secretary.
Any such resignation shall take effect at the time specified therein. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
3.06 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or otherwise, shall be filled in the manner
prescribed for regular appointments or elections to such office.
3.07 Powers, Authority, and Duties of Officers. Officers of the Company
shall have the powers and authority conferred and the duties prescribed by law,
in addition to those specified or provided for in these regulations and such
other powers, authority, and duties as may be determined by the board of
directors from time to time.
ARTICLE 4
Shares and Their Transfer
4.01 Certificates for Shares. Every owner of one or more shares in the
Company shall be entitled to a certificate or certificates, which shall be in
such form as may be approved by the board of directors, certifying the number
and class of shares in the Company owned by him. The certificates for the
respective classes of such shares shall be numbered in the order in which they
are issued and shall be signed in the name of the Company by the chairman, the
president, or a vice president and by the secretary, an assistant secretary, the
treasurer, or assistant treasurer; provided that, if such certificates are
countersigned by a transfer agent or registrar, the signatures of such officers
upon such certificates may be facsimiles, stamped, or printed. If an officer who
has signed or whose facsimile signature has been used, stamped, or printed on
any certificates ceases to be such officer because of death, resignation or
other reason before such certificates are delivered by the Company, such
certificates shall nevertheless be conclusively deemed to be valid if
countersigned by any such transfer agent or registrar. A record shall be kept of
the name of the owner or owners of the shares represented by each such
certificate and the number of shares represented thereby, the date thereof, and
in case of cancellation, the date of cancellation. Every certificate surrendered
to the Company for exchange or transfer shall be cancelled and no new
certificate or certificates shall be issued in exchange for any existing
certificates until such existing certificates shall have been so cancelled,
except in cases provided for in (S)4.04.
4.02 Transfer of Shares. Any certificate for shares of the Company shall
be transferable in person or by attorney upon the surrender of the certificate
to the Company or any transfer agent for the Company (for the class of shares
represented by the certificate surrendered) properly endorsed for transfer and
accompanied by such assurances as the Company or its transfer agent may require
as to the genuineness and effectiveness of each necessary endorsement. The
person in whose name any shares stand on the books of the Company shall, to the
fullest extent permitted by law, be conclusively deemed to be the unqualified
owner and holder of the shares and entitled to exercise all rights of ownership,
for all purposes relating to the Company. Neither the Company nor any transfer
agent of the Company shall be required to recognize any equitable interest in,
or any claim to, any such shares on the part of any other person, whether
disclosed on the certificate or any other way, nor shall they be required to see
to the performance of any trust or other obligation.
Page 6 of 16
4.03 Bylaws. The board of directors may make such rules and regulations as
it may deem expedient or advisable, not inconsistent with these bylaws,
concerning the issue, transfer, and registration of certificates for shares. It
may appoint one or more transfer agents or one or more registrars, or both, and
may require all certificates for shares to bear the signature of either or both.
4.04 Lost, Destroyed or Stolen Certificates. A new share certificate or
certificates may be issued in place of any certificate theretofore issued by the
Company which is alleged to have been lost, destroyed, or wrongfully taken upon:
(a) the execution and delivery to the Company by the person claiming the
certificate to have been lost, destroyed, or wrongfully taken of an affidavit of
that fact in form satisfactory to the Company, specifying whether or not the
certificate was endorsed at the time of such alleged loss, destruction or
taking, and (b) the receipt by the Company of a surety bond, indemnity
agreement, or any other assurances satisfactory to the Company and to all
transfer agents and registrars of the class of shares represented by the
certificate against any and all losses, damages, costs, expenses, liabilities or
claims to which they or any of them may be subjected by reason of the issue and
delivery of such new certificate or certificates or with respect to the original
certificate.
ARTICLE 5
Examination of Books by Shareholders
The board of directors may make reasonable rules and regulations
prescribing under what conditions the books, records, accounts, and documents of
the Company, or any of them, shall be open to the inspection of the
shareholders. No shareholder shall be denied any right which is conferred by
ss.487 of the Michigan Business Corporation Act or any other applicable law to
inspect any book, record, account, or document of the Company. An original or
duplicate stock ledger showing the names and addresses of the shareholders and
the number and class of shares issued or transferred of record to or by them
from time to time shall at all times during the usual hours for business be open
to the examination of every shareholder at the principal office or place of
business of the Company in the State of Michigan.
ARTICLE 6
Indemnification and Insurance
6.01 Costs Incurred. The Company shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, by reason of the fact that he is or was a director, officer,
employee, or agent of the Company, or is or was serving at the request of the
Company as a director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit, partnership, joint
venture, trust, or other enterprise, against expenses, including attorneys'
fees, judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding provided
that: (a) he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company; (b) with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful; and (c) in any action or suit by or in the right of the Company,
no indemnification shall be made with respect to any amounts paid in settlement
or with respect to any claim, issue, or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to the Company unless and only to the extent that the Circuit Court
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the circuit court or such other court shall deem
proper. The termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent,
shall
Page 7 of 16
not of itself, create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
6.02 Indemnification Procedure. Any indemnification under ss.6.01 shall be
made by the Company only if and as authorized in the specific case upon a
determination that indemnification of the director, trustee, officer, employee,
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in ss.6.01. Such determination shall be made by
one of the following methods: (a) by a majority vote of a quorum consisting of
directors of the Company who were not and are not parties to or threatened with
any such action, suit, or proceeding; or (b) if such a quorum is not obtainable
or if a majority vote of a quorum of disinterested directors so directs, in a
written opinion by independent legal counsel retained by the Company, other than
an attorney, or a firm having associated with it an attorney, who has been
retained by or who has performed services for the Company or any person to be
indemnified within the past five years; or (c) by the shareholders; or (d) by
the Circuit Court or the court in which such action, suit, or proceeding was
brought.
6.03 Advance Payment of Costs. Expenses, including attorneys' fees,
incurred in defending any action, suit, or proceeding referred to in ss.6.01 may
be paid by the Company in advance of the final disposition of such action, suit,
or proceeding as authorized by the directors in the specific case upon receipt
of an undertaking by or on behalf of the director, trustee, officer, employee,
or agent to repay such amount unless it shall ultimately be determined that he
is entitled to be indemnified by the Company as authorized in this Article.
6.04 Non-Exclusive. The indemnification authorized in this Article shall
not be deemed exclusive of any other rights to which persons seeking
indemnification may be entitled under any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
6.05 Insurance. The Company may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee, or agent of the
Company, or is or was serving at the request of the Company as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust, or other
enterprise against any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such, whether or not the Company
would have the power to indemnify him against such liability under this Article
or under ss.ss.561 to 565 of the Michigan Business Corporation Act.
6.06 Survival. The indemnification authorized in this Article shall
continue as to a person who has ceased to be a director, trustee, officer,
employee, or agent.
6.07 Successors. The indemnification authorized in this Article shall
inure to the benefit of the heirs, executors, and administrators of any person
entitled to indemnification under this Article.
ARTICLE 7
Seal
The board of directors may adopt and alter a corporate seal and use the
same or a facsimile thereof, but failure to affix the corporate seal, if any,
shall not affect the validity of any instrument.
Page 8 of 16
ARTICLE 8
Fiscal Year
The fiscal year of the Company shall be the calendar year unless and until
changed by the board of directors.
ARTICLE 9
Amendment of Bylaws
These bylaws may be amended or new bylaws may be adopted: (a) at any
meeting of the shareholders held for such purpose, by the affirmative vote of
the holders of record of shares entitling them to exercise a majority of the
voting power on such proposal; or (b) without a meeting of the shareholders, by
the written consent of the holders of record of shares entitling them to
exercise a majority of the voting power on such proposal. If any amendment or
new bylaws are adopted without a meeting of the shareholders, the secretary
shall mail a copy of the amendment or new bylaws to each shareholder who would
have been entitled to vote on the proposal but who did not participate in the
adoption of the amendment or new bylaws.
ARTICLE 10
Officers and Directors Liability and
Indemnity; Transactions With Corporation
10.01. Definitions Applicable to Article 10.
(a) "Applicable Corporate Law" shall mean those statutes comprising
the general corporation law of the jurisdiction in which the Corporation is
incorporated, as amended from time to time.
(b) "Breach of Duty" shall mean conduct of a Director or Officer
constituting any one or more of the following:
(1) A willful failure to deal fairly with the Corporation or
its stockholders in connection with a matter in which the Director or Officer
has a material conflict of interest.
(2) A violation of criminal law, unless the Director or
Officer had reasonable cause to believe his or her conduct was lawful or had no
reasonable cause to believe his or her conduct was unlawful.
(3) A transaction from which the Director or Officer derived
an improper personal profit.
(4) Willful misconduct.
(5) With respect to any matter or decision being considered by
the Board of Directors or any other officer, such Director or Officer
intentionally or recklessly;
(i) makes any untrue statement or disclosure to the
Board or other Officer of known material information; or
Page 9 of 16
(ii) omits to state or otherwise disclose to the
Board or other Officer known material information necessary in order to make the
information known to have been communicated to the Board or other Officer not
misleading under the circumstances then existing; or
(iii) omits to state or otherwise disclose to the
Board or other Officer known material information which is (or reasonably should
be) known to the Director or Officer to be relevant to the matter or decision
under consideration, regardless of whether or not such information is
specifically requested by the Board or other Officer.
(c) "Claim" means any threatened or asserted claim or cause of
action involving actual or potential liability of a Director or Officer arising
from any act or omission of such person alleged or determined to have been
negligent, grossly negligent or intentionally tortious or to have violated any
state or federal securities laws (including any rule or regulation thereunder)
or the Employee Retirement Income Security Act of 1974 or any other foreign,
federal, state or local law, rule or regulation which is asserted or brought by
or in the right of the Corporation or by any governmental authority or any other
person or entity.
(d) "Director or Officer" means any of the following:
(1) A natural person who is or was: (i) a director
(elected or appointed by the stockholders or Board of Directors); or (ii) an
officer (elected or appointed by the Board of Directors) of the Corporation; or
(iii) a Trustee.
(2) A natural person who, while such a director or
officer of the Corporation, is or was serving either pursuant to the
Corporation's specific request or as a result of the nature of such person's
duties to the Corporation as a director, officer, partner, trustee, member of
any governing or decision making committee, employee or agent of another
corporation or foreign corporation, partnership, joint venture, trust or other
enterprise.
(3) A natural person who, while such a director or
officer of the Corporation, is or was serving an employee benefit plan because
his or her duties to the Corporation also impose duties on, or otherwise involve
services by, the person to the plan or to participants in or beneficiaries of
the plan.
(4) Unless the context requires otherwise, the estate or
personal representative of any such director, officer or Trustee.
This term is not intended to include any person who holds a
position of title of Vice President or other apparent office without formal
election or appointment by the Board of Directors.
(e) "Disinterested Majority" shall mean a majority of the
Board of Directors of the Corporation who are not Parties to the subject
Proceeding or any related Proceeding.
(f) "Expenses" includes all reasonable fees, costs, charges,
disbursements, attorneys' fees and any other expenses incurred by a Director or
Officer in connection with a Proceeding if such person was a Party because he or
she is or was a Director or Officer.
(g) "Liability" includes the obligation to pay any sums or
perform any acts pursuant to a settlement, penalty, assessment, forfeiture,
fine, or judgment, including (without limitation) any excise tax assessed with
respect to any employee benefit plan, punitive damages, costs, and expenses.
Page 10 of 16
(h) "Party" includes a natural person who was or is, or who is
threatened to be made, a named defendant or respondent to a Claim in a
Proceeding.
(i) "Proceeding" means any threatened, pending or completed civil,
criminal, administrative or investigative action, suit, arbitration or other
proceeding of any kind, whether formal or informal, in which a Claim is or may
be asserted against a Director or Officer or in which the Director or Officer is
a witness.
10.02 Director and Officer Liability Limitations.
(a) No Director or Officer shall be liable to the Corporation, its
shareholders or any person asserting rights on behalf of the Corporation or its
shareholders, for damages, settlements, fines, penalties or other monetary
liabilities arising from a breach of, or failure to perform, any duty resulting
solely from his or her status as a Director or Officer, regardless of whether
constituting negligence or other tortious or otherwise culpable conduct, unless
the person asserting liability proves that the breach or failure to perform
constitutes a Breach of Duty. In addition to and not in limitation of the
foregoing, no Officer shall have any liability for acts or omissions
constituting business judgment within the business judgment rule.
(b) The provisions of this Section 10.02 shall not be exclusive of
any other defenses such a Director or Officer may have with respect to any Claim
asserting a Liability.
(c) The Board of Directors (by majority vote or consent) may grant
similar limitations on the Liability of any employee of the Corporation
(relating to performance of his or duties as an employee) by written agreement
with such employee executed by the President.
10.03 Mandatory Indemnification.
(a) Indemnification for Expenses. The Corporation shall indemnify a
Director or Officer for all Expenses incurred (i) in the successful defense of
any Claim (on the merits or otherwise) in a Proceeding and/or (ii) as a
non-Party witness in any Proceeding.
(b) Indemnification for Liability and Expenses. The Corporation
shall indemnify a Director or Officer for all Liability and Expenses with
respect to any Claim against such person in a Proceeding to which such person
was a Party because he or she is or was a Director or Officer, unless such
Liability and Expenses were incurred because the Director or Officer is
determined to have engaged in conduct constituting a Breach of Duty.
(c) Indemnification Exclusion for Collateral Sources.
Notwithstanding the foregoing provision of this Section 10.03, indemnification
shall not be required for any Liability or Expenses to the extent the same have
been paid or are covered under any collectible insurance policy or are otherwise
paid or reimbursed by any third party under a legal or contractual obligation to
do so.
(d) Reliance on Applicable Corporation Law or Bylaw. Without
intending to limit the generality of the indemnification rights provided under
subsections 10.03(a) and (b) above, the Corporation shall indemnify a Director
or Officer for all Liability and Expenses with respect to any Claim against such
person in a Proceeding which is based, in whole or in part, on such person's
reliance on the validity of any provision of the Applicable Corporation Law or
these Bylaws, even though it is thereafter determined that such provision was
invalid or otherwise could not have justifiably been relied upon.
Page 11 of 16
10.04 Procedural Requirements for Determination That Indemnification is
Proper.
(a) Written Request for Indemnification. A Director or Officer who
seeks indemnification shall make a written request therefor to the Corporation,
selecting a means for determining his or her right to indemnification as
provided under subsection 10.04(b) hereof.
(b) Determination of Indemnification. Within 60 days of receipt by
the Corporation of the Director's or Officer's request for indemnification, a
determination shall be made as to whether or not the Director or Officer
requesting indemnification engaged in conduct constituting a Breach of Duty and,
as a result, is or is not entitled to indemnification under this Article. Such
determination shall be made:
(i) by majority vote of a Disinterested Majority if so
designated by the Director or Officer seeking indemnification. If a
Disinterested Majority cannot be obtained, the Director or Officer may designate
that such determination be made by a majority vote of a committee duly appointed
by the Board of Directors and consisting solely of two or more directors not at
the time Parties to the same or related Proceedings. Directors who are Parties
to the same or related Proceedings may participate in the designation of members
of the committee;
(ii) by independent legal counsel if so designated by the
Director or Officer; provided that such counsel shall be mutually selected by
such Director or Officer and by a Disinterested Majority or, if a Disinterested
Majority cannot be obtained, then by a majority vote of the Board of Directors,
including Directors who are Parties to the same or related Proceedings;
(iii) by a panel of three arbitrators if so designated by the
Director or Officer, which shall be selected from the panel of arbitrators of
the American Arbitration Association in Milwaukee, Wisconsin; provided, that
(xx) one arbitrator shall be selected by such Director or Officer, the second
arbitrator shall be selected by a Disinterested Majority or, if a Disinterested
Majority cannot be obtained, then by a majority vote of the Board of Directors,
including Directors who are Parties to the same or related Proceedings, and the
third arbitrator shall be selected by the two previously selected arbitrators,
and (yy) in all other respects, such panel shall be governed by the American
Arbitration Association's then existing Commercial Arbitration Rules, except the
fees of all arbitrators shall be shared equally by the Corporation and the
Director or Officer; or
(iv) by a court if so designated by the Director or Officer,
pursuant to and in accordance with the Applicable Corporation Law.
The results and basis of the determination made hereunder shall be
submitted in writing to the Corporation and the Director or Officer (the
"Indemnity Decision").
(c) No Presumption Created. The termination of a Proceeding by
judgment, order, settlement or conviction, or upon a plea of no contest or an
equivalent plea, does not, by itself, create a presumption that indemnification
of the requested amount of Liabilities and Expenses of the Director or Officer
is not required.
(d) Payment of Liabilities and Expenses; Waiver of Claims.
(1) If it is determined that indemnification is required
hereunder, the Corporation shall pay the Director or Officer the entire
requested amount of Liabilities and Expenses (net of any Expenses previously
advanced pursuant to Section 10.05), within 10 days of receipt of the Indemnity
Decision, provided, that if it is determined that a Director or Officer is
entitled to
Page 12 of 16
indemnification against Liabilities and Expenses incurred in connection with
some Claims, but not as to others (such as if Claims are asserted to involve
some conduct constituting a Breach of Duty and other conduct which does not),
payment of the Liability and Expenses shall be apportioned by applying the
following:
If the Director or Officer sustains Liability for equal dollar
amounts to a given party or person under two or more Claims arising
from the same general conduct, transaction or series of events (even
though divisible for purposes of establishing Liability), one of
which would require indemnification and the other of which would
not, it shall be conclusively presumed that the Liability and all
Expenses related thereto were sustained and incurred solely with
respect to the Claim for which indemnification is required; and if
the Director or Officer sustains Liability and Expenses for
different dollar amounts to a given party or person under two or
more Claims arising from the same general conduct, transaction or
series of events (even though divisible for purposes of establishing
Liability), one of which would require indemnification and the other
of which would not, it shall be conclusively presumed that the
Liability for which indemnification is required is the sole
Liability up to the dollar amount thereof (the "covered Liability")
and the Liability for which indemnification is not required (the
"Non-Covered Liability") is reduced by the amount of the Covered
Liability (resulting in a "Net Non-Covered Liability") and the
Expenses shall be apportioned on the basis of the respective amounts
of the Covered Liability and the Net Non-Covered Liability such that
the Director or Officer shall be entitled to indemnification for the
Covered Liability and the apportioned Expenses attributable to such
Covered Liability. The foregoing shall apply regardless of whether
the Claim for the Non-Covered Liability and the resulting Expenses
in defense thereof occurs prior to or following assertion of the
Claim for the Covered Liability and regardless of the actual time,
effort and Expenses involved in defense of the respective Claims.
(2) The Corporation waives all right and claims against each
Director and Officer for indemnification which may otherwise exist or arise
under common law principles for Liabilities and/or Expenses incurred by the
Corporation as a result of the negligence or alleged negligence of the Director
or Officer, except in instances where such Liabilities and/or Expenses are
incurred as a result of activities by the Director or Officer constituting a
Breach of Duty.
(e) Binding Effect. An Indemnity Decision finding that
indemnification is required hereunder shall be binding upon the Corporation,
unless unsupported by any credible or resulting from a clearly erroneous
application of substantive law.
10.05 Advancement of Expenses.
(a) Procedure. Upon written request by a Director or Officer who is
a non-Party witness or a Party to a Proceeding, the Corporation shall pay or
reimburse from time to time prior to completion of such Proceeding his or her
Expenses as incurred within 10 days after receipt of such request accompanied
by: (i) an executed written certificate affirming the Director's or Officer's
good faith belief that (s)he has not breached or failed to perform his or her
duties to the Corporation by engaging in conduct constituting a Breach of Duty;
(ii) an executed written undertaking by the Director or Officer to repay any
advances made under this Section if it is ultimately determined that the
Director or Officer is not entitled to be indemnified by the Corporation; and
(iii) written evidence of the Expenses incurred.
(b) Ability to Repay; Undertaking to be Unsecured. The undertaking
provided in this Section shall be accepted by the Corporation without reference
to the Directors' or Officers' ability to
Page 13 of 16
repay the allowance. The undertaking shall be unsecured and the Director or
Officer shall not be required to pay interest on such amounts prior to a final
determination that repayment is required.
10.06 Right of Director or Officer to Bring Suit. If an Indemnity Decision
is not issued within the time specified or such Indemnity Decision finds that
the Director or Officer is not entitled to indemnification or the Corporation
fails to make prompt payment pursuant to an Indemnity Decision, or a request for
an advancement of Expenses under Section 10.05 is refused, the Director or
Officer may at any time thereafter bring suit against the Corporation to recover
the unpaid Liability and/or Expense. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement or
Expenses pursuant to the terms of an undertaking, the Director or Officer shall
be entitled to recover the expense of successfully prosecuting or defending such
suit. If the Director or Officer engaged in conduct constituting a Breach of
Duty, such fact: (i) shall be a defense to any claim for indemnification against
the Corporation (except for advancement of Expenses prior to completion of a
Proceeding); and (ii) shall entitle the Corporation to recover all Expenses
advanced prior to completion of the Proceeding pursuant to the terms of the
undertaking once such fact has been established or admitted by the Director or
Officer.
An Indemnity Decision finding that indemnification of the Director or
Officer is not required shall not be binding on the Director or Officer and
shall not create a presumption that the Director or Officer has engaged in
conduct constituting a Breach of Duty. In any suit brought by the Director or
Officer to enforce a right to indemnification or to an advancement of Expenses
hereunder or as otherwise provided in the Applicable Corporation Law, or by the
Corporation to recover an advancement of Expenses pursuant to the terms of an
undertaking, the burden of proving that the Director or Officer is not entitled
to be indemnified, or to such advancement of Expenses, under this Article or
otherwise shall be on the Corporation.
10.07 Permissible Considerations. A Director or Officer, in the discharge
of his or her duties to the Corporation and in making any decision or performing
any other act in such capacity, is not limited to considering only the economic
interests of shareholders in determining what is best for the Corporation, but
may also consider the following: (a) the effects of the action on employees,
suppliers and customers of the Corporation; (b) effects on the community in
which the Corporation operates; and (c) any other factors the Director or
Officer considers pertinent.
10.08 Reliance by Directors or Officers. A Director or Officer (absent
actual knowledge to the contrary) may rely in the discharge of his or her duties
to the Corporation on information, opinions, reports or statements (any of which
may be written or oral, formal or informal, including financial statements) and
other financial data if prepared or presented by any of the following: (a) an
Officer or employee of the Corporation whom the Director or Officer believes in
good faith is reliable and competent as to the matters presented or as to which
the Director or Officer has no compelling reason to believe is not reliable or
competent; (b) legal counsel, public accountants or other persons as to matters
the Director or Officer believes in good faith are within the person's
professional or expert competence; and (c) information presented to the Board of
Directors by any person, officer, employee or committee of the Board where it is
believed in good faith the report merits confidence or where the Director or
Officer has no compelling reason to believe it does not merit confidence.
10.09 Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a Director or Officer against any Liability
asserted against or incurred by the individual in any such capacity or arising
out of his status as such, regardless of whether the Corporation is required or
authorized to indemnify such person for Liability or Expenses under this
Article.
Page 14 of 16
10.10 Severability and Intent. If any provision of this Article shall be
deemed invalid or inoperative, or if a court of competent jurisdiction
determines that any of the provisions of this Article contravene public policy,
this Article shall be construed so that the remaining provisions shall not be
affected, but shall remain in full force and effect, and any such provisions
which are invalid or inoperative or which contravene public policy shall be
deemed, without further action, by or on behalf of the Corporation, to be
modified, amended and/or limited, but only to the extent necessary to render the
same valid and enforceable; it being understood that it is the Corporation's
intention to provide the Directors and Officers with the broadest possible
protection against personal liability allowable under the Applicable Corporation
Law, and this Bylaw shall be liberally construed in order to fulfill this
intent, and in no event shall a Director's or Officer's reliance on any of the
provisions of this Article which may be held to be invalid, inoperative or in
contravention of public policy render such conduct a Breach of Duty.
10.11 Notice to the Corporation. A Director or Officer shall promptly
notify the Corporation in writing when he or she has actual knowledge of a
Proceeding which may result in a claim of indemnification against Liabilities or
allowance of Expenses hereunder, but the failure to do so shall not relieve the
Corporation of any liability to the Director or Officer hereunder unless the
Corporation shall have been irreparably prejudiced by such failure.
10.12 Indemnification and Allowance of Expenses of Certain Others.
(a) Employee of Authorized Agent. The Board of Directors may, in
its sole and absolute discretion, by majority vote or consent, indemnify against
Liabilities incurred by, and/or provide for the advance of reasonable Expenses
of, an employee or authorized agent of the Corporation acting within the scope
of his or her duties as such, even if such employee or agent is not a Director
or Officer.
(b) Indemnity Agreements. The Board of Directors, by majority vote
or consent, may authorize the Corporation to enter written indemnity agreements
with: (i) any Director or Officer of the Corporation, which may further expand
the indemnification rights provided under these Bylaws or the Applicable
Corporation Law; and (ii) any employee or agent of the Corporation, which may
extend to such person the same, greater or lesser rights of indemnification and
reliance as those afforded to Directors and Officers under this Article.
10.13 Amendment. This Article may only be altered, amended or repealed by
a vote of not less than two-thirds of the Corporation's outstanding Class A
common stock entitled to vote; provided, however, that the Board of Directors
may alter or amend this Article without such stockholder approval if any such
alteration or amendment is (a) made in order to conform to any amendment or
revision of the Applicable Corporation Law, which (i) expands or permits the
expansion of a Director's or Officer's right to indemnification thereunder; (ii)
limits or eliminates, or permits the limitation or elimination of, the liability
of a Director or Officer; or (iii) is otherwise beneficial to the Directors and
Officers or (b) an alteration or amendment which is otherwise deemed by the
Board of Directors to be an immaterial modification. No amendment of this
Article shall terminate, reduce or impair a Director's or Officer's rights to
indemnification for any act, occurrence or event taking place prior to the
effective date of such amendment and delivery of notice thereof to such Director
or Officer, regardless of when any Claim relating thereto is actually asserted.
10.14 Nonexclusivity of Article 10. The rights of a Director or Officer
(or any other person) granted under this Article shall not be deemed exclusive
of any other rights to indemnification against Liabilities or allowance of
Expenses which the Director or Officer (or such other person) may be entitled to
under any written agreement, Board of Directors resolution, vote of shareholders
of the Corporation or under the Applicable Corporation Law or otherwise. Nothing
contained in this Article shall be deemed to
Page 15 of 16
limit the Corporation's obligations to indemnify against Liabilities or allow
expenses to a Director or Officer under the Applicable Corporation Law.
Page 16 of 16