1
EXHIBIT 3.2
RESTATED AND AMENDED
BYLAWS
OF
MERITAGE HOSPITALITY GROUP INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the City
of Grand Rapids, County of Kent, State of Michigan.
Section 2. Other Offices. The corporation may also have offices at such
other places both within and without the State of Michigan as the board of
directors may from time to time determine or the business of the corporation
may require.
ARTICLE II
SHAREHOLDERS
Section 1. Place of Meeting. All meetings of the shareholders of this
corporation shall be held at the registered office or such other place, either
within or without the State of Michigan, as may be determined from time to time
by the board of directors.
Section 2. Annual Meeting of Shareholders. The annual meeting of
shareholders for election of directors and for such other business as may
properly come before the meeting, commencing with the year 1987, shall be held
on the third Tuesday of May, if not a legal holiday, and if a legal holiday,
then on the next business day following, at 10:00 am., local time, or at such
other date and time as shall be determined from time to time by the board of
directors, unless such action is taken by written consent as provided in
Article II, Section 12 of these bylaws. If the annual meeting is not held on
the date designated therefor, the board shall cause the meeting to be held as
soon thereafter as convenient.
Section 3. Order of Business at Annual Meeting. The order of business at
the annual meeting of the shareholders shall be as follows:
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(a) Reading of notice and proof of mailing,
(b) Reports of Officers,
(c) Election of Directors,
(d) Transaction of other business mentioned in the notice,
(e) Adjournment,
provided that, in the absence of any objection, the presiding officer may vary
the order of business at his discretion.
Section 4. Notice of Meeting of Shareholders. Except as otherwise provided
in the Michigan Business Corporation Act (herein called the "Act"), written
notice of the time, place, and purpose of a meeting of shareholders shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting, either personally or by mail, to each shareholder of record
entitled to vote at the meeting. When a meeting is adjourned to another time or
place, it is not necessary to give notice of the adjourned meeting if 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 only such business
is transacted as might have been transacted at the original meeting. However,
if after the adjournment the board of directors fix a new record date for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record on the new record date entitled to vote at the meeting.
Section 5. List of Shareholders Entitled to Vote. The officer or agent
having charge of the stock transfer books for shares of the corporation shall
make and certify a complete list of the shareholders entitled to vote at a
shareholders' meeting or any adjournment thereof. The list shall:
(a) Be arranged alphabetically within each class and series, with the
address of, and the number of shares held by, each shareholder.
(b) Be produced at the time and place of the meeting.
(c) Be subject to inspection by any shareholder during the whole time
of the meeting.
(d) Be prima facie evidence as to who are the shareholders entitled to
examine the list or to vote at the meeting.
Section 6. Special Meeting of Shareholders. A special meeting of
shareholders may be called at any time by the chief executive officer of the
corporation (See Article V, Section 4) or by a majority of the members of the
board of directors then in office, or by shareholders owning, in the aggregate,
not less than ten percent (10%) of all the shares entitled to vote at such
special meeting. The method
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by which such meeting may be called is as follows: Upon receipt of a
specification in writing setting forth the date and objects of such proposed
special meeting, signed by the chief executive officer, or by a majority of the
members of the board of directors then in office, or by shareholders as above
provided, the secretary of this corporation shall prepare, sign, and mail the
notices requisite to such meeting.
Section 7. Quorum of Shareholders. Unless a greater or lesser quorum is
provided in the articles of incorporation, in a bylaw adopted by the
shareholders, or in the Act, shares entitled to cast a majority of the votes at
a meeting constitute a quorum at the meeting. The shareholders present in
person or by proxy at such meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave
less than a quorum. Whether or not a quorum is present, the meeting may be
adjourned by a vote of the shares present.
Section 8. Vote of Shareholders. Each outstanding share is entitled to one
(1) vote on each matter submitted to a vote, unless otherwise provided in the
articles of incorporation. A vote may be cast either orally or in writing. When
an action, other than the election of directors, is to be taken by vote of the
shareholders, it shall be authorized by a majority of the votes cast by the
holders of shares entitled to vote thereon, unless a greater plurality is
required by the articles of incorporation or the Act. Directors shall be
elected by a plurality of the votes cast at an election.
Section 9. Record Date for Determination of Shareholders. For the purpose
of determining shareholders entitled to notice of and to vote at a meeting of
shareholders or an adjournment thereof, or to express consent or to dissent
from a proposal without a meeting, or for the purpose of determining
shareholders entitled to receive payment of a dividend or allotment of a right,
or for the purpose of any other action, the board may fix, in advance, a date
as the record date for any such determination of shareholders. The date shall
not be more than sixty (60) nor less than ten (10) days before the date of the
meeting, nor more than sixty (60) days before any other action. If a record
date is not fixed (a) the record date for determination of shareholders
entitled to notice of or to vote at a meeting of shareholders shall be the
close of business on the day next preceding the day on which notice is given,
or, if no notice is given, the day next preceding the day on which the meeting
is held, and (b) the record date for determining shareholders for any purpose
other than that specified in subdivision (a) shall be the close of business on
the day on which the resolution of the board relating thereto is adopted. When
a determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders has been made as provided in this Section, the
determination applies to any adjournment of the meeting, unless the board fixes
a new record date under this Section for the adjourned meeting.
Section 10. Proxies. A shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
one or more other persons to act for him by proxy. A proxy shall be signed by
the shareholder or his authorized agent or representative. A proxy is not valid
after the expiration of three (3) years from its date unless otherwise provided
in the proxy.
Section 11. Inspectors of Election. The board of directors, in advance of
a shareholders' meeting, may appoint one (1) or more inspectors of election to
act at the meeting or any adjournment
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thereof. If inspectors are not so appointed, the person presiding at a
shareholders' meeting may, and on request of a shareholder entitled to vote
thereat shall, appoint one (1) or more inspectors. In case a person appointed
fails to appear or act, the vacancy may be filled by appointment made by the
board of directors in advance of the meeting or at the meeting by the person
presiding thereat. 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, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine challenges and
questions arising in connection with the right to vote, count and tabulate
votes, ballots 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 or a shareholder entitled to
vote thereat, 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 is prima facie evidence of the facts stated and
of the vote as certified by the inspectors.
Section 12. Consent of Stockholders in Lieu of Meeting. The articles of
incorporation may provide that any action required or permitted by the Act to
be taken at an annual or special meeting of shareholders may be taken without a
meeting, without prior notice, and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take the action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to shareholders who have not consented in writing. Any action required
or permitted by the Act to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice, and without
a vote, if all the shareholders entitled to vote thereon consent thereto in
writing.
Section 13. Participation in Meeting by Telephone. By oral or written
permission of a majority of the shareholders, a shareholder may participate in
a meeting of shareholders by conference telephone or similar communications
equipment by which all persons participating in the meeting may hear each other
if all participants are advised of the communications equipment and the names
of the participants in the conference are divulged to all participants.
Participation in a meeting pursuant to this Section constitute presence in
person at the meeting.
Section 14. Nominations and Other Business.
(a) Annual Meeting of Shareholders. (1) Nominations of persons for
election to the Board of Directors of the corporation and proposals of business
to be considered by the shareholders may be made at an annual meeting of
shareholders (i) pursuant to the corporation's notice of meeting, (ii) by or at
the direction of the Board of Directors or (iii) by a shareholder of the
corporation who was a shareholder of record at the time of giving of notice
provided for in this bylaw, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this bylaw.
(2) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (iii) of paragraph (a) (1)
of this bylaw, the shareholder must have given timely notice thereof in writing
to the Secretary of the corporation. To be timely, a shareholder's
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notice shall be delivered to the Secretary at the principal executive offices
of the corporation not less than 60 days prior to the annual meeting. Such
shareholder's notice shall set forth (i) as to each person whom the shareholder
proposes to nominate for election or reelection as a director, all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); (ii) as to any other business that the shareholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting,
and any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; (iii) as to the
shareholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (A) the name and address of such
shareholder, as it appears on the corporation's books, and of such beneficial
owner, and (B) the class and number of shares of the corporation owned
beneficially and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)
(2) of this bylaw to the contrary, if the number of directors to be elected to
the Board of Directors of the corporation is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the corporation at least 70 days prior
to the annual meeting, a shareholder's notice required by this bylaw shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the corporation.
(b) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of shareholders at which directors are to be elected pursuant to the
corporation's notice of meeting (i) by or at the direction of the Board of
Directors or (ii) by any shareholder of the corporation who is a shareholder of
record at the time of giving of notice provided for in this bylaw, who shall be
entitled to vote at the meeting and who complies with the notice procedures set
forth in this bylaw. Nominations by shareholders of persons for election to
the Board of Directors may be made at such a special meeting of shareholders if
the shareholder's notice required by paragraph (a) (2) of this bylaw shall be
delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the later of the 60th day
prior to such special meeting or the10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(c) General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this bylaw shall be eligible to serve as directors
and only such shareholder proposals shall be considered at a meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this bylaw. The chairman of the meeting shall have
the power and duty to determine whether a nomination or any business proposed
to be brought before the meeting was
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made in accordance with the procedures set forth in this bylaw and, if any
proposed nomination or business is not in compliance with this bylaw, to
declare that such defective proposal shall be disregarded.
(2) For purposes of this bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national new service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant
to Sections 13, 14, or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this bylaw, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this bylaw. Nothing in this bylaw shall be deemed to affect any rights
of a shareholder to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 of the Exchange Act.
ARTICLE III
DIRECTORS
Section 1. Number and Term. The business and affairs of the corporation
shall be managed by a Board of Directors comprised of not less than 5 nor more
than 15 directors, as shall be fixed from time to time by the Board of
Directors. The directors shall be elected at each annual meeting of
shareholders. A director shall hold office until the director's successor is
elected and qualified, or until the director's resignation or removal.
Section 2. Vacancies. Vacancies in the Board of Directors occurring by
reason of death, resignation, removal, increase in the number of directors or
otherwise, shall be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the Board of Directors, unless
otherwise filled by proper action of the shareholders of the corporation. Each
person so elected shall be a director for a term of office continuing only
until the next election of directors by the shareholders.
Section 3. Removal. A director may be removed, with or without cause, by
vote of the holders of a majority of the shares entitled to vote an election of
directors.
Section 4. Resignation. A director may resign by written notice to the
corporation. The resignation is effective upon its receipt by the corporation
or a subsequent time as set forth in the notice of resignation.
Section 5. Powers. The business and affairs of the corporation shall be
managed by its board of directors except as otherwise provided in the Act or in
the articles of incorporation.
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Section 6. Location of Meetings. Regular or special meetings of the board
of directors may be held either within or without the State of Michigan.
Section 7. Organization Meeting of Board. The first meeting of each
newly elected board of directors shall be held at the place of holding the
annual meeting of shareholders, and immediately following the same, for the
purpose of electing officers and transacting any other business properly
brought before it, provided that the organization meeting in any year may be
held at a different time and place than that herein provided by a consent of a
majority of the directors of such new board. No notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, unless said meeting is not held at
the place of holding and immediately following the annual meeting of
shareholders.
Section 8. Regular Meeting of Board. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board.
Section 9. Special Meeting of Board. Special meetings of the board of
directors may be called by the chief executive officer, or by a majority of the
persons then comprising the board of directors, at any time by means of notice
of the time and place thereof to each director, given not less than twenty-four
(24) hours before the time such special meeting is to be held.
Section 10. Committees of Directors. The board of directors may designate
one (1) or more committees, each committee to consist of one or more of the
directors of the corporation. The board may designate one or more directors as
alternate members of any committee, who may replace an absent or disqualified
member at a meeting of the committee. In the absence or disqualification of a
member of a committee, the members thereof present at a meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors
creating such committee, may exercise all the powers and authority of the board
of directors in the management of the business and affairs of the corporation.
However, such a committee does not have the power or authority to amend the
articles of incorporation, adopt an agreement of merger or consolidation,
recommend to the shareholders the sale, lease, or exchange of all or
substantially all of the corporation's property and assets, recommend to the
shareholders a dissolution of the corporation or a revocation of a dissolution,
amend the bylaws of the corporation, fill vacancies in the board of directors,
or fix compensation of the directors serving on the board or on a committee;
and, unless the resolution of the board of directors creating such committee or
the articles of incorporation expressly so provides, such a committee does not
have the power or authority to declare a dividend or to authorize the issuance
of stock. Any such committee, and each member thereof, shall serve at the
pleasure of the board of directors.
Section 11. Quorum and Required Vote of Board and Committees. At all
meetings of the board of directors, or of a committee thereof, a majority of
the members of the board then in office, or of the members of a committee
thereof, constitutes a quorum for transaction of business. The vote of the
majority of members present at a meeting at which a quorum is present
constitutes the action of the board or of the committee unless the vote of a
larger number is required by the Act. Amendment of
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these bylaws by the board requires the vote of not less than a majority of the
members of the board then in office. If a quorum shall not be present at any
meeting of the board of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 12. Action by Written Consent. Action required or permitted to be
taken pursuant to authorization voted at a meeting of the board of directors or
a committee thereof, may be taken without a meeting if, before or after the
action, all members of the board or of the committee consent thereto in
writing. The written consents shall be filed with the minutes of the
proceedings of the board or committee. The consent has the same effect as a
vote of the board or committee for all purposes.
Section 13. Compensation of Directors. The board of directors, by
affirmative vote of a majority of directors in office and irrespective of any
personal interest of any of them, may establish reasonable compensation of
directors for services to the corporation as directors or officers, but
approval of the shareholders is required if the articles of incorporation,
these bylaws or any provisions of the Act so provide.
Section 14. Participation in Meeting by Telephone. By oral or written
permission of a majority of the board of directors, a member of the board of
directors or of a committee designated by the board may participate in a
meeting by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this Section constitutes presence in
person at the meeting.
ARTICLE IV
NOTICES
Section 1. Notice. Whenever any notice or communication is required to be
given by mail to any director or shareholder under any provision of the Act, or
of the articles of incorporation or of these bylaws, it shall be given in
writing, except as otherwise provided in the Act, to such director or
shareholder at the address designated by him for that purpose or, if none is
designated, at his last known address. The notice or communication is given
when deposited, with postage thereon prepaid, in a post office or official
depository under the exclusive care and custody of the United States postal
service. The mailing shall be registered, certified, or other first class mail
except where otherwise provided in the Act. Written notice may also be given in
person or by telegram, telex, radiogram, cablegram, or mailgram, and such
notice shall be deemed to be given when the recipient receives the notice
personally, or when the notice, addressed as provided above, has been delivered
to the company, or to the equipment transmitting such notice. Neither the
business to be transacted at, nor the purpose of, a regular or special meeting
of the board of directors need be specified in the notice of the meeting.
Section 2. Waiver of Notice. When, under the Act or the articles of
incorporation or these bylaws, or by the terms of an agreement or instrument, a
corporation or the board or any committee
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thereof may take action after notice to any person or after lapse of a
prescribed period of time, the action may be taken without notice and without
lapse of the period of time, if at any time before or after the action is
completed the person entitled to notice or to participate in the action to be
taken or, in case of a shareholder, by his attorney-in-fact, submits a signed
waiver of such requirements. Neither the business to be transacted at, nor the
purpose of, a regular or special meeting of the board of directors need be
specified in the waiver of notice of the meeting. Attendance of a person at a
meeting of shareholders, in person or by proxy, or of a director at a meeting
constitutes a waiver of notice of such meeting, except when the person or
director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
ARTICLE V
OFFICERS
Section 1. Selection. The board of directors, at its first meeting and at
each meeting following the annual meeting of shareholders, shall elect or
appoint a president, a secretary, and a treasurer. The board of directors may
also elect or appoint a chairman of the board, one (1) or more vice presidents
and such other officers, employees, and agents as it shall deem necessary who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the board. Two
(2) or more offices may be held by the same person but an officer shall not
execute, acknowledge, or verify an instrument in more than one (1) capacity.
Section 2. Compensation. The salaries of all officers, employees, and
agents of the corporation shall be fixed by the board of directors; provided,
however, that the board may delegate to the officers the fixing of compensation
of assistant officers, employees, and agents.
Section 3. Term, Removal, and Vacancies. Each officer of the corporation
shall hold office for the term for which he is elected or appointed and until
his successor is elected or appointed and qualified, or until his resignation
or removal. An officer elected or appointed by the board of directors may be
removed by the board with or without cause at any time. An officer may resign
by written notice to the corporation. The resignation is effective upon its
receipt by the corporation or at a subsequent time specified in the notice of
resignation. Any vacancy occurring in any office of the corporation shall be
filled by the board of directors.
Section 4. Chief Executive Officer. At the first meeting of each
newly-elected board of directors, the board shall designate the chairman of the
board or president as the chief executive officer of the corporation; provided,
however, that if a motion is not made and carried to change the designation,
the designation shall be the same as the designation for the preceding year;
provided, further, that the designation of the chief executive officer may be
changed at any special meeting of the board of directors. The president shall
be the chief executive officer whenever the office of chairman of the board is
vacant. The chief executive officer shall be responsible to the board of
directors for the general supervision and management of the business and
affairs of the corporation and shall see that all
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orders and resolutions of the board are carried into effect. The chairman of
the board or president who is not the chief executive officer shall be subject
to the authority of the chief executive officer, but shall exercise all of the
powers and discharge all of the duties of the chief executive officer, during
the absence or disability of the chief executive officer.
Section 5. Chairman of the Board of Directors. If the board of directors
elects or appoints a chairman of the board, he shall be elected or appointed
by, and from among, the membership of, the board of directors. He shall preside
at all meetings of the shareholders, of the board of directors and of any
executive committee. He shall perform such other duties and functions as shall
be assigned to him from time to time by the board of directors. He shall be, ex
officio, a member of all standing committees. Except where by law the signature
of the president of the corporation is required, the chairman of the board of
directors shall possess the same power and authority to sign all certificates,
contracts, instruments, papers, and documents of every conceivable kind and
character whatsoever in the name of and on behalf of the corporation which may
be authorized by the board of directors. During the absence or disability of
the president, or while that office is vacant, the chairman of the board of
directors shall exercise all of the powers and discharge all of the duties of
the president.
Section 6. President. The president shall be elected or appointed by, and
from among the membership of, the board of directors. During the absence or
disability of the chairman of the board, or while that office is vacant, the
president shall preside over all meetings of the board of directors, of the
shareholders and of any executive committee, and shall perform all of the
duties and functions, and when so acting shall have all powers and authority,
of the chairman of the board. He shall be, ex officio, a member of all standing
committees. The president shall, in general, perform all duties incident to the
office of president and such other duties as may be prescribed by the board of
directors.
Section 7. Vice Presidents. The board of directors may elect or appoint
one or more vice presidents. The board of directors may designate one or more
vice presidents as executive or senior vice presidents. Unless the board of
directors shall otherwise provide by resolution duly adopted by it, such of the
vice presidents as shall have been designated executive or senior vice
presidents and are members of the board of directors in the order specified by
the board of directors (or if no vice president who is a member of the board of
directors shall have been designated as executive or senior vice president,
then such vice presidents as are members of the board of directors in the order
specified by the board of directors) shall perform the duties and exercise the
powers of the president during the absence or disability of the president. The
vice presidents shall perform such other duties as may be delegated to them by
the board of directors, any executive committee, or the president.
Section 8. Secretary. The secretary shall attend all meetings of the
stockholders, and of the board of directors and of any executive committee, and
shall preserve in the books of the corporation true minutes of the proceedings
of all such meetings. He shall safely keep in his custody the seal of the
corporation and shall have authority to affix the same to all instruments where
its use is required or permitted. He shall give all notice required by the Act,
these bylaws or resolution. He shall perform such other duties as may be
delegated to him by the board of directors, any executive committee, or the
president.
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Section 9. Treasurer. The treasurer shall have custody of all corporate
funds and securities and shall keep in books belonging to the corporation full
and accurate accounts of all receipts and disbursements; he shall deposit all
moneys, securities, and other valuable effects in the name of the corporation
in such depositories as may be designated for that purpose by the board of
directors. He shall disburse the funds of the corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and
shall render to the president and the board of directors whenever requested an
account of all his transactions as treasurer and of the financial condition of
the corporation. If required by the board of directors he shall keep in force a
bond in form, amount, and with a surety or sureties satisfactory to the board
of directors, conditioned for faithful performance of the duties of his office,
and for restoration to the corporation in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and
property of whatever kind in his possession or under his control belonging to
the corporation. He shall perform such other duties as may be delegated to him
by the board of directors, any executive committee, or the president.
Section 10. Assistant Secretaries and Assistant Treasurers. The assistant
secretary or assistant secretaries, in the absence or disability of the
secretary, shall perform the duties and exercise the powers of the secretary.
The assistant treasurer or assistant treasurers, in the absence or disability
of the treasurer, shall perform the duties and exercise the powers of the
treasurer. Any assistant treasurer, if required by the board of directors,
shall keep in force a bond as provided in Section 9, Article V. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or by the treasurer, respectively,
or by the board of directors, any executive committee, or the president.
Section 11. Delegation of Authority and Duties by Board of Directors. All
officers, employees, and agents shall, in addition to the authority conferred,
or duties imposed, on them by these bylaws, have such authority and perform
such duties in the management of the corporation as may be determined by
resolution of the board of directors not inconsistent with these bylaws.
ARTICLE VI
INDEMNIFICATION
Section 1. Third Party Actions. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of
the corporation) by reason of the fact that he 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, employee, or agent of another
corporation, 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 if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment,
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order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
Section 2. Actions in the Right of the Corporation. 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 he 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, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation or its shareholders and except that no indemnification shall be
made in respect of 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 corporation unless and only to the extent that 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 circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
Section 3. Mandatory and Permissive Payments.
(a) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in Sections 1 or 2 of this
Article VI, or in defense of any claim, issue, or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(b) Any indemnification under Sections 1 or 2 of this Article VI
(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 director, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard of conduct set
forth in Sections 1 and 2 of this Article VI. Such determination shall be
made in either of the following ways:
(1) By the board of a majority vote of a quorum consisting of
directors who were not parties to such action, suit, or proceeding.
(2) If such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors, so directs, by independent legal
counsel who may be the regular counsel of the corporation in a written
opinion.
(3) By the shareholders.
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Section 4. Expense Advances. Expenses incurred in defending a civil or
criminal action, suit, or proceeding described in Sections 1 or 2 of this
Article VI may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding as authorized in the manner provided in
subsection (b) of Section 3 of this Article VI upon receipt of an undertaking
by or on behalf of the director, officer, employee, or agent to repay such
amount unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation.
Section 5. Validity of Provisions. A provision made to indemnify directors
or officers of any action, suit, or proceeding referred to in Sections 1 or 2
of this Article VI whether contained in the articles of incorporation, these
bylaws, a resolution of shareholders or directors, an agreement or otherwise,
shall be invalid only insofar as it is in conflict with Sections 1 to 5 of this
Article VI. Nothing contained in Sections 1 to 5 of this Article VI shall
affect any rights to indemnification to which persons other than directors and
officers may be entitled by contract or otherwise by law. The indemnification
provided in Sections 1 to 5 of this Article VI continues as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors, and administrators of such person.
Section 6. 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, employee, or agent of another corporation, 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 corporation would have power to indemnify
him against such liability under Sections 1 to 5 of this Article VI.
Section 7. Constituent Corporation. For the purposes of this Article VI,
references to the corporation include all constituent corporations absorbed in
a consolidation or merger and the resulting or surviving corporation, so that a
person who is or was a director, officer, employee, or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise shall stand
in the same position under the provisions of this Article VI with respect to
the resulting or surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity.
ARTICLE VII
STOCK AND TRANSFERS
Section 1. Share Certificates: Required Signatures. The shares of the
corporation shall be represented by certificates signed by the chairman of the
board of directors, vice chairman of the board of directors, president or a
vice president and which also may be signed by another officer of the
corporation. The certificates may be sealed with the seal of the corporation
or a facsimile of the seal. 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. If an officer who
has signed
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or whose facsimile signature has been placed upon a certificate ceases to be an
officer before the certificate is issued, it may be issued by the corporation
with the same effect as if he were the officer at the date of issue.
Section 2. Share Certificates: Required Provisions. A certificate
representing shares of the corporation shall state upon its face:
(a) That the corporation is formed under the laws of this state.
(b) The name of the person to whom issued.
(c) The number and class of shares, and the designation of the series,
if any, which the certificate represents.
(d) The par value of each share represented by the certificate, or a
statement that the shares are without par value.
A certificate representing shares issued by a corporation which is authorized
to issue shares of more than one class shall set forth on its face or back or
state that the corporation will furnish to a shareholder upon request and
without charge a full statement of the designation, relative rights,
preferences, and limitations of the shares of each class authorized to be
issued, and if the corporation is authorized to issue any class of shares in
series, the designation, relative rights, preferences, and limitations of each
series so far as the same have been prescribed and the authority of the board
to designate and prescribe the relative rights, preferences, and limitations of
other series.
Section 3. Replacement of Lost or Destroyed Share Certificates. The
corporation may issue a new certificate for shares or fractional shares in
place of a certificate theretofore issued by it, alleged to have been lost or
destroyed, and the board of directors may require the owner of the lost or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged lost or destroyed certificate or the
issuance of such new certificate.
Section 4. Registered Shareholders. The corporation shall have the right
to treat the registered holder of any share as the absolute owner thereof, and
shall not be bound to recognize any equitable or other claim to, or interest
in, such share on the part of any other person, whether or not the corporation
shall have express or other notice thereof, save as may be otherwise provided
by the statutes of Michigan.
Section 5. Transfer Agent and Registrar. The board of directors may
appoint a transfer agent and a registrar in the registration of transfers of
its securities.
Section 6. Regulations. The board of directors shall have power and
authority to make all such rules and regulations as the board shall deem
expedient regulating the issue, transfer, and registration of certificates for
shares in this corporation.
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ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends or other Distributions in Cash or Property. By action
of the board of directors, the corporation may declare and pay dividends or
make other distributions in cash, bonds, or property, including the shares or
bonds of other corporations, on its outstanding shares, except when currently
the corporation is insolvent or would thereby be made insolvent, or when the
declaration, payment, or distribution would be contrary to any restriction
contained in the articles of incorporation. Dividends may be declared or paid
and other distributions may be made out of surplus only. A dividend paid or any
other distribution made, in any part, from sources other than earned surplus,
shall be accompanied by a written notice (a) disclosing the amounts by which
the dividend or distribution affects stated capital, capital surplus, and
earned surplus, or (b) if such amounts are not determinable at the time of the
notice, disclosing the approximate effect of the dividend or distribution upon
stated capital, capital surplus and earned surplus and stating that the amounts
are not yet determinable.
Section 2. Reserves. The board of directors shall have power and authority
to set apart, out of any funds available for dividends, such reserve or
reserves, for any proper purpose, as the board in its discretion shall approve,
and the board shall have the power and authority to abolish any reserve created
by the board.
Section 3. Voting Securities. Unless otherwise directed by the board, the
chairman of the board or president, or in the case of their absence or
inability to act, the vice presidents, in order of their seniority, shall have
full power and authority on behalf of the corporation to attend and to act and
to vote, or to execute in the name or on behalf of the corporation a consent in
writing in lieu of a meeting of shareholders or a proxy authorizing an agent or
attorney-in-fact for the corporation to attend and vote at any meetings of
security holders of corporations in which the corporation may hold securities,
and at such meetings he or his duly authorized agent or attorney-in-fact shall
possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the corporation
might have possessed and exercised if present. The board by resolution from
time to time may confer like power upon any other person or persons.
Section 4. Checks. All checks, drafts, and orders for the payment of money
shall be signed in the name of the corporation in such manner and by such
officer or officers or such other person or persons as the board of directors
shall from time to time designate for that purpose.
Section 5. Contracts, Conveyances, Etc. When the execution of any
contract, conveyance, or other instrument has been authorized without
specification of the executing officers, the chairman of the board, president
or any vice president, and the secretary or assistant secretary, may execute
the same in the name and on behalf of this corporation and may affix the
corporate seal thereto. The board of directors shall have power to designate
the officers and agents who shall have authority to execute any instrument in
behalf of this corporation.
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Section 6. Corporate Books and Records. The corporation shall keep books
and records of account and minutes of the proceedings of its shareholders,
board of directors and executive committees, if any. The books, records, and
minutes may be kept outside this state. The corporation shall keep at its
registered office, or at the office of its transfer agent within or without
this state, records containing the names and addresses of all shareholders, the
number, class, and series of shares held by each and the dates when they
respectively became holders of record thereof. Any of such books, records, or
minutes may be in written form or in any other form capable of being converted
into written form within a reasonable time. The corporation shall convert into
written form without charge any such record not in such form, upon written
request of a person entitled to inspect them.
Section 7. Fiscal Year. The fiscal year of the corporation shall be fixed
by resolution of the board of directors.
Section 8. Seal. If the corporation has a corporate seal, it shall have
inscribed thereon the name of the corporation and the words "Corporate Seal"
and "Michigan." The seal may be used by causing it or a facsimile to be
affixed, impressed, or reproduced in any other manner.
ARTICLE IX
AMENDMENTS
Section 1. The shareholders or the board of directors may amend or repeal
the bylaws or adopt new bylaws unless power to do so is reserved exclusively to
the shareholders by the articles of incorporation. Such action may be taken by
written consent or at any meeting of shareholders or the board of directors;
provided that if notice of any such meeting is required by these bylaws, the
notice of the meeting shall contain notice of the proposed amendment, repeal,
or new bylaws. Any bylaw hereafter made by the shareholders shall not be
altered or repealed by the board.
ARTICLE X
CONTROL SHARE ACQUISITION
Pursuant to Section 794 of the Michigan Business Corporation Act, as
amended ("MBCA"), Chapter 7B of the MBCA (being Sections 790 through 799 of the
MBCA) shall not apply to any "control share acquisition" (as that term is
defined in Section 791 of the MBCA) of the shares of common stock of the Company
occurring after the effective date of this Article X. So long as Donald W.
Reynolds owns, of record and beneficially, title to 20% or more of the Company's
outstanding common stock, this Article X may be amended only with the approval
of the holders of 80% or more of the outstanding common stock entitled to vote.
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