Exhibit 3.4
ACTION WHOLESALE SERVICE, INC.
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AMENDED AND RESTATED
B Y - L A W S
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ARTICLE I
OFFICES
Section 1. The registered office shall be in Bingham Farms, Michigan.
Section 2. 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
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Grand Rapids, State of Michigan, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written notice of the time, place and purposes of a meeting
of shareholders shall be given not less than ten nor more than sixty days before
the date of the meeting, either personally or by mail, to each shareholder of
record entitled to vote at the meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Michigan as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of shareholders may be called at any time,
for any purpose or purposes, by the board of directors or by such other persons
as may be authorized by law.
Section 3. Written notice of the time, place and purposes of a special
meeting of shareholders shall be given not less than ten nor more than sixty
days before the date of the meeting, either personally or by mail, to each
shareholder of record entitled to vote at the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the
shareholders for the transaction of business except as otherwise provided by
statute or by the articles of incorporation. 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. When the holders of a class or series of shares, are
entitled to vote separately on an item of business, this section applies in
determining the presence of a quorum of such class or series for transaction of
the item of business.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required or permitted 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.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Michigan nor shareholders of the corporation. The
first board of directors shall hold office until the
first annual meeting of shareholders. The directors, other than the first board
of directors, shall be elected at the annual meeting of the shareholders, and
shall hold office for the term for which he is elected and until his successor
is elected and qualified.
Section 2. Any vacancy occurring in the board of directors may be filled
by the affirmative vote of a majority of the remaining directors though less
than a quorum of the board of directors. A directorship to be filled because of
an increase in the number of directors or to fill a vacancy may be filled by the
board for a term of office continuing only until the next election of directors
by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its board except as otherwise provided by statute or in the articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, outside
of the State of Michigan, at such place or places as they may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors in office, and irrespective of any personal interest of any of
them, may establish reasonable compensation of directors for services to the
corporation as directors or officers.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Regular or special meetings of the board of directors may be
held either within or without the State of Michigan.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and 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, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at a meeting constitutes a waiver of
notice of the meeting, except where a director attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, a regular or special meeting need be specified in the notice or
waiver of notice of the meeting.
Section 6. A majority of the members of the board then in office
constitutes a quorum for transaction of business, unless the articles of
incorporation provide for a larger or smaller number. The vote of the majority
of members present at a meeting at which a quorum is present constitutes
the action of the board unless the vote of a larger number is required by
statute, the articles or these by-laws. If a quorum shall not be present at any
meeting 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 7. Unless otherwise provided by the articles of incorporation
action required or permitted to be taken pursuant to authorization voted at a
meeting of the board, may be taken without a meeting if, before or after the
action, all members of the board consent thereto in writing. The written
consents shall be filed with the minutes of the proceedings of the board. The
consent has the same effect as a vote of the board for all purposes.
ARTICLE VII
COMMITTEES
Section 1. Unless otherwise provided in the articles of incorporation,
the board may designate one 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 a 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 to act at the
meeting in place of such an absent or disqualified member. A committee, and each
member thereof, shall serve at the pleasure of the board. A committee, to the
extent provided in the resolution of the board or in the by-laws, may exercise
all
powers and authority of the board in management of the business and affairs
of the corporation subject to any limitations by statute or in the articles of
incorporation.
ARTICLE VIII
NOTICES
Section 1. When a notice or communication is required or permitted by
this act to be given by mail, it shall be mailed, except as otherwise provided
in this act, to the person to whom it is directed 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 by statute.
Section 2. When, under statutory requirements or the articles of
incorporation or these by-laws or by the terms of an agreement or instrument, a
corporation or the board or any committee 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.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be appointed by the
board of directors and shall be a chairman of the board, a president, one or
more vice-presidents, secretary, treasurer and such other officers as may be
determined by the board.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents,
secretary, and treasurer, none of whom need be a member of the board.
Section 3. The board of directors may appoint such other officers,
assistant officers, employees and agents as it deems necessary and prescribe
their powers and duties.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. An officer elected or appointed 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 may be removed by the board with or without cause.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by
his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. 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, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the chairman of the board, vice-chairman of the board,
president or a vice-president and by the treasurer, assistant treasurer,
secretary or assistant secretary of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof. A certificate representing
shares shall state upon its face that the corporation is formed under the laws
of this state, the name of the person to whom issued, the number and class of
shares, and the designation of the series, if any, which the certificate
represents, the par value of each share represented by the certificate, or a
statement that the shares are without par value and 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 2. The signatures of the officers may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the corporation itself or its employee. In case any officer who has
signed or whose facsimile signature has been placed upon a certificate ceases to
be such officer before the certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed, and the board 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 a new certificate.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession,
assignment or authority to transfer, a new certificate shall be issued to the
person entitled thereto, and the old certificate cancelled and the transaction
recorded upon the books of the corporation.
FIXING OF RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or 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 of
directors may fix, in advance, a date as the record date for any such
determination of shareholders. The date shall not be more than sixty nor less
than ten days before the date of the meeting, not more than sixty days before
any other action. If a record date is not fixed, 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 the record date for determining shareholders
for any purpose 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, the determination applies to any adjournment of the
meeting, unless the board fixes a new record date for the adjourned meeting.
REGISTERED SHAREHOLDERS
Section 6. For the purpose of determining shareholders entitled to vote
or receive payment of a dividend or allotment of a right, the corporation shall
be authorized to accept the list of
shareholders made and certified by the officer or agent having charge of the
stock transfer books as prima facie evidence as to who are such shareholders on
the designated record date.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the stock transfer
books for shares of a corporation shall make and certify a complete list of the
shareholders entitled to vote at a shareholders' meeting or any adjournment
thereof. The list shall be arranged alphabetically within each class and series,
with the address of, and the number of shares held by each shareholder, produced
at the time and place of the meeting, subject to inspection by any shareholder
during the whole time of the meeting and be prima facie evidence as to who are
the shareholders entitled to examine the list or to vote at the meeting. A
person who is a shareholder of record of a corporation, upon at least ten days'
written demand may examine for any proper purpose in person or by agent or
attorney, during usual business hours, its minutes of shareholders' meetings and
record of shareholders and make extracts therefrom, at the places where they are
kept.
ARTICLE XI
DIVIDENDS
Section 1. The board of directors may declare and pay dividends or make
other distributions in cash, bonds or property of the corporation, 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 statutory restriction or restriction contained in the articles
of incorporation.
Section 2. Before payment of any dividend, the board of directors may
create reserves from its earned surplus or capital surplus for any proper
purpose and may increase, decrease or abolish such reserve.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Michigan". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
These by-laws may be amended or repealed or new by-laws may be adopted
by the shareholders or board of directors except as may be provided in the
articles of incorporation. The shareholders may prescribe in these by-laws that
any by-law made by them shall not be altered or repealed by the board of
directors. Amendment of the by-laws by the board requires a vote of not less
than a majority of the members of the board then in office.
ARTICLE XIII
DIRECTORS' ANNUAL STATEMENT
Section 1. At least once in each year the board of directors shall cause
a financial report of the corporation for the preceding fiscal year to be made
and distributed to each shareholder thereof within four months after the end of
the fiscal year. The report shall include the corporation's statement of income,
its year-end balance sheet and, if prepared by the corporation, its statement of
source and application of funds and such other information as may be required by
statute.
FINANCIAL STATEMENT TO SHAREHOLDERS
Section 2. Upon written request of a shareholder, the corporation shall
mail to the shareholder its balance sheet as at the end of the preceding fiscal
year; its statement of income for such fiscal year; and, if prepared by the
corporation, its statement of source and application of funds for such fiscal
year.