BYLAWS
OF
WESTERN AUTOMOTIVE, INC.
ARTICLE I
OFFICES
1.01 PRINCIPAL OFFICE - The principal office and the registered office
of the Corporation shall be at such places in the State of Michigan as the Board
of Directors shall from time to time determine.
1.02 OTHER OFFICES - The Corporation may have offices at such other
places, either within or without the State of Michigan, as the Board of
Directors may from time to time determine.
ARTICLE II
STOCK
2.01 CAPITAL STOCK - Shares of capital stock of the Corporation shall
be issued in such amounts, at such times, for such consideration, under such
plans and upon such terms and conditions as the Board of Directors shall
determine, subject to any relevant restrictions and Provisions of the Articles
of Incorporation and these Bylaws.
2.02 CERTIFICATES FOR SHARES - Every Shareholder shall be entitled to a
certificate for his shares signed by the President or a Vice President and the
Secretary or an Assistant Secretary certifying the number and class of shares
represented by such certificates, and, in the event that more than one class of
stock is authorized, the certificate shall state that the Corporation will
furnish to the Shareholder, upon written request, a full statement of the terms,
provisions, preferences and limitations of all classes of stock. If such shares
are not fully paid, the certificate shall indicate the amount paid.
2.03 TRANSFER OF SHARES - Shares shall be transferred only on the books
of the Corporation by the person named in the certificate, or by attorney
lawfully authorized in writing, and upon surrender of the certificate. A record
shall be made of every such transfer.
2.04 REGISTERED SHAREHOLDERS - The Corporation shall have the right to
treat the registered holder of any shares as the absolute owner thereof, and
shall not be bound to recognize any claim to such shares, legal or equitable, on
the part of any other person.
2.05 CLOSING THE STOCK TRANSFER BOOKS - The Board of Directors shall
have power to close the stock transfer books of the Corporation for a period not
exceeding forty (40) days preceding the date fixed for any meeting of the
Shareholders, or for payment of any dividend or allotment of rights,
or for any change or conversion or exchange of capital stock to go into effect;
provided, however, that in lieu of closing the stock transfer books, the Board
of Directors may fix in advance a date not exceeding forty (40) days preceding
the date fixed for any of said events as a record date for the determination of
Shareholders entitled to notice of and to vote at any such meeting, or to
receive payment of any such dividend or to receive such allotment of rights or
to participate in any such change, conversion or exchange of capital stock, and
in such case only such Shareholders as shall be Shareholders of record on the
date so fixed shall be entitled to notice of, and to vote at such meeting, or to
receive payment of such dividend or to receive such allotment of rights, or to
participate in such change, conversion or exchange of capital stock, as the case
may be, notwithstanding any transfer of any stock on the books of the
Corporation, or otherwise, after any such record date. Nothing in this By-Law
shall affect the rights of a Shareholder and his transferee or transferor as
between themselves.
2.06 LOST OR DESTROYED CERTIFICATES - Upon the presentation to the
Corporation of a proper affidavit attesting the loss, destruction or mutilation
of any certificate or certificates for shares of stock of the Corporation, the
Board of Directors shall direct the issuance of a new certificate or
certificates to replace the certificates so alleged to be lost, destroyed or
mutilated. The Board of Directors may require as a condition precedent to the
issuances of new certificates any or all of the following (a) presentation of
additional evidence or proof of the loss, destruction or mutilation claimed; (b)
advertisement of loss in such manner as the Board of Directors may direct or
approve; (c) a bond or agreement of indemnity, in such form and amount and with
such sureties, or without sureties, as the Board of Directors may direct or
approve; (d) the order or approval of a court or judge.
2.07 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 the Corporation.
ARTICLE III
SHAREHOLDER MEETINGS
3.01 PLACE OF MEETINGS - All meetings of Shareholders shall be held at
the principal office of the Corporation in the State of Michigan, unless
otherwise directed or approved by the Board of Directors or by the Shareholders
holding a majority of the shares of stock of the Corporation outstanding and
entitled to vote.
3.02 ANNUAL MEETING - The annual meeting of Shareholders shall be held
on the second Tuesday in September of each year at 11 A.M.
3.03 SPECIAL MEETINGS - Special meetings of Shareholders may be called
by the President and shall be called by the President or Secretary at the
written request of Shareholders holding a
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majority of the shares of stock of the Corporation outstanding and entitled to
vote. The request shall state the purpose or purposes for which the meeting is
to be called.
3.04 NOTICE - Written notice of every Shareholder meeting shall be
delivered personally or mailed to each Shareholder entitled to vote thereat, at
his or her address as the same appears on the stock records of the Corporation,
at least ten (10) days prior to any meeting, and any notice of a special meeting
shall state the purpose or purposes thereof. Notice of the time, place and
purpose of any Shareholder meeting may be waived by telegram, radiogram,
cablegram or other writing by those not present and entitled to vote thereat,
either before or after the holding thereof, and whenever all the Shareholders
shall meet in person or by proxy, such meeting shall be valid for all purposes,
without call or notice.
3.05 ACTION WITHOUT A MEETING - Any action required or permitted to be
taken at a meeting of the Shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by
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.
3.06 QUORUM - At any meeting of Shareholders, the holders of a majority
of all the voting shares of the Corporation then outstanding, present in person
or by proxy, shall constitute a quorum. Any meeting, including those at which
less than a quorum is present, may be adjourned from time to time by vote of a
majority of voting shares of those who attend, and such adjourned meeting may be
held without notice other than the announcement at the meeting at which
adjournment is voted. When a quorum shall be present upon any such adjourned
day, any business may be transacted which might have been transacted at the
meeting as originally called.
3.07 VOTING - Each Shareholder shall be entitled to one (1) vote for
each share of voting stock registered in his or her name on the books of the
Corporation. A Shareholder may vote in person or by proxy duly appointed by an
instrument in writing filed with the Secretary of the meeting. Election of the
Directors shall be by cumulative voting.
3.08 CHAIRMAN AND SECRETARY OF MEETINGS - The President or Vice
President and the Secretary or Assistant Secretary, if present, shall act as
Chairman and Secretary, respectively, of every meeting of Shareholders unless
otherwise directed by the Shareholders present at such meeting.
3.09 OTHER CORPORATION - Any other corporation owning voting shares in
this Corporation may vote upon the same by the president of such stockholder
corporation, or by proxy appointed by him or her, unless some other person shall
be appointed to vote upon such shares by resolution of the board of directors of
such stockholder corporation.
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ARTICLE IV
DIRECTORS
4.01 NUMBER, TERM OF OFFICE AND REMOVAL - The affairs of this
Corporation shall be managed by a Board of Directors consisting of not less than
one Director. Said Directors shall hold office until the next annual meeting of
Shareholders and until their respective successors are elected and qualified.
The Shareholders may, at any special meeting called for that purpose, remove any
member of the Board of Directors, with or without cause, and at such meeting or
any other meeting called for that purpose, may elect a Director to fill the
vacancy thus created.
4.02 VACANCIES - Vacancies in the Board of Directors occurring by
reason of death, resignation, removal, increase in the number of Directors, or
otherwise, may be filled by the remaining members of the Board by a majority
vote, unless, in the case of removal, the vacancy is filled by the Shareholders
of the Corporation, and such Directors so elected shall hold office until their
respective successors are elected and qualified at the next annual meeting of
Shareholders or at any special meeting of Shareholders called for such purpose.
4.03 ORGANIZATIONAL MEETING - At the place of holding the annual
meeting of Shareholders or any special meeting called for the purpose of
election of the Board of Directors, and immediately following the same, the
Board of Directors, as constituted upon final adjournment of said meeting shall
convene without other or further notice than this By-Law for the purpose of
electing Officers and transacting other business properly brought before it. The
organizational meeting in any year may be held at a different time and place if
so designated by the Directors of such new Board.
4.04 REGULAR MEETINGS - Regular meetings of the Board of Directors
shall be held at such time and at such place or places as the Directors shall
from time to time determine. If the time and place of the next regular meeting
of the Board is determined at any meeting of the Board, no notice of the meeting
shall be required. If the time and place is changed after a prior determination,
the Secretary shall give such notice to the Directors as is provided in the case
of a special meeting.
4.05 SPECIAL MEETINGS - Special meetings of the Board of Directors
shall be called by the Secretary upon the written request of any Director. The
Secretary shall convene a special meeting not later than thirty (30) days after
receipt of the written request and shall give notice of the time, place and
purpose thereof to each Director, by mail, telegram or other writing, at least
forty-eight (48) hours before the date fixed for such meeting. At any meeting,
regular or special, at which every Director shall be present, even though
without notice, any business may be transacted. Notice of the time, place and
purpose of any meeting, regular or special, of the Board of Directors may be
waived by telegram, radiogram, cablegram or other writing by those not present
and entitled to vote thereat, either before or after the holding thereof.
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4.06 ACTION WITHOUT A MEETING - Any action required or permitted to be
taken at a meeting of the Board of Directors may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all
the Directors.
4.07 QUORUM - At all meetings of the Board of Directors, a Majority
shall constitute a quorum for the transaction of business. Any meeting,
including those at which less than a quorum is present, may be adjourned by
majority vote of those who attend, and the adjourned, meeting may be held
without notice except the announcement at the meeting at which adjournment is
voted. If the Directors shall consent in writing to any action to be taken by
the Corporation, such action shall be as valid corporate action as though it had
been authorized at a meeting of the Board of Directors.
4.08 MANAGEMENT - The Directors shall have exclusive authority to make
management decisions necessary to the conduct of the business of the Corporation
either directly or through Officers and agents selected by them. Independent
business decisions made by the Directors or pursuant to their direction shall
not require ratification by the Shareholders or their successors in interest.
4.09 EXECUTIVE COMMITTEE - The Board of Directors may designate two or
more of their number to constitute an executive committee which shall have and
exercise the authority of the Board of Directors in the management of the
business of the Corporation between meetings of the Board, subject to such
limitations and restrictions as the Board may impose. This provision is
discretionary and may be adopted in the future from time to time.
4.10 COMPENSATION OF DIRECTORS - Directors may receive salaries, fees
and/or expenses for their attendance and services at meetings of the Board and
of committees thereof. This provision is discretionary and may be adopted in the
future from time to time.
ARTICLE V
OFFICERS
5.01 TITLE, APPOINTMENT AND REMOVAL - The Board of Directors may select
a President, one or more vice Presidents, a Secretary and a Treasurer, and such
other Officers, including a Chairman of the Board, as the Board shall deem
advisable. Officers shall hold their offices for such terms as shall be
determined by the Board. An Officer need not be a Director of the Corporation.
Any two of the above offices, except those of President and Vice President, may
be held by the same person, but no Officer shall execute, acknowledge or verify
any instrument in more than one capacity. The Board of Directors may fix the
salaries of the Officers of the Corporation. Any Officer or agent may be
removed, for or without cause, or any vacancies filled, by the Board of
Directors whenever, in its judgment, the business interests of the Corporation
will be served thereby.
5.02 EXECUTION OF INSTRUMENTS - The Board of Directors of the
Corporation may in any instance designate the Officers and agents who shall have
authority to execute any contract,
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conveyance or other instrument on behalf of the Corporation or may ratify or
confirm any execution. When the execution of any instrument has been authorized
without specification of the executing Officers or agents, the Chairman of the
Board or the President or Vice President and the Secretary or Assistant
Secretary or Treasurer or Assistant Treasurer may execute the same in the name
and on behalf of this Corporation.
ARTICLE VI
DUTIES OF OFFICERS
6.01 CHAIRMAN OF THE BOARD - The Chairman of the Board, if such office
is filled, shall preside at all meetings of the Shareholders and Directors at
which he or she is present. He or she shall serve as liaison between the Board
and the President during the intervals between duly convened meetings.
6.02 PRESIDENT - The President shall be the chief executive and
operational Officer of the Corporation. He or she shall see that all orders and
resolutions of the Board are carried into effect, and he or she shall have the
general powers of supervision and management as are usually vested in the chief
executive officer of a corporation.
6.03 VICE PRESIDENTS - The Vice Presidents, in the order of their
seniority (official capacity and designation) shall, in the absence or
disability of the President, perform his or her duties and exercise his or her
powers, and shall perform such other duties as the Board of Directors may
prescribe.
6.04 SECRETARY - The Secretary shall attend all sessions of the Board
and all meetings of the Shareholders and shall record all votes and the minutes
of all proceedings in a book to be kept for that purpose. He or she shall give
or cause to be given notice of all meetings of the Shareholders and of the Board
of Directors and shall perform such other duties as may be delegated by the
Board of Directors or the President. The Secretary may delegate any of his or
her duties, powers, and authorities to one or more Assistant Secretaries, unless
such delegation be disapproved by the Board of Directors.
6.05 TREASURER - The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. He or she shall
render to the President and Directors, whenever they may require it, an account
of his or her transactions as Treasurer and of the financial condition of the
Corporation. The Treasurer may delegate any of his or her duties, powers and
authorities to one or more Assistant Treasurers unless such delegation be
disapproved by the Board of Directors.
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6.06 BONDS - The Board of Directors of the Corporation may require any
officer, agent or employee to give bond for the faithful discharge of his duty
and for the protection of the Corporation, in such sum and with such surety or
sureties as the Board may deem advisable.
ARTICLE VII
CONTRACTS WITH DIRECTORS
7.01 CONTRACTS WITH DIRECTORS - In the absence of fraud, no contract or
other transaction between the Corporation and any other corporation shall be
affected or invalidated by the fact that any Director of this Corporation is
interested in or is a director or officer of such other corporation, and any
Director may be a party or may be interested in any contract or transaction of
this Corporation or in which this Corporation is interested; and in the absence
of fraud, no contract, act or transaction of the Corporation with any person or
persons, firm or corporation, shall be affected or invalidated by the fact that
any Director of this Corporation is a party to or interested in such contract,
act or transaction, or in any way connected with such person or persons, firm or
corporation and in the absence of fraud, each and every person who may become a
Director of this Corporation is hereby relieved from any liability that might
otherwise exist from thus contracting with the Corporation for the benefit of
himself or herself or any firm, association or corporation in which he or she
may be in any way interested.
ARTICLE VIII
INDEMNIFICATION
8.01 THIRD PARTY ACTIONS - The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to a threatened,
pending, or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, other than an
action by or in the right of the Corporation, by reason of the fact that he or
she is or was a Director, Officer, Employee or Agent of the Corporation, or is
or was serving at the request of the Corporation as a Director, Officer,
Partner, Trustee, Employee or Agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, whether for profit or
not, against expenses including attorneys, fees, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with the action, suit, or proceeding, if he or she acted in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation or its Shareholders, and with
respect to a criminal action or proceeding, if he had no reasonable cause to
believe that his or her conduct was unlawful. The termination of an action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, does 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 a criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
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8.02 DERIVATIVE ACTION - The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to a 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 f act that he or she is or was a
Director, Officer, Employee or Agent of the Corporation, or is or was serving at
the request of the Corporation as a Director, officer, Partner, Trustee,
Employee or Agent of another foreign or domestic corporation, partnership, joint
venture, trust, or other enterprise, whether for profit or not, against
expenses, including actual and reasonable attorneys' fees and amounts paid in
settlement incurred by him or her in connection with the action or suit, if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Corporation or its Shareholders.
However, indemnification shall not be made for a claim, issue, or matter in
which the person has been found liable to the Corporation unless and only to the
extent that the court in which the action or suit was brought has determined
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
indemnification for the expenses which the court considers proper.
8.03 DETERMINATION OF RIGHT TO INDEMNIFICATION
(1) To the extent that a Director, Officer, Employee or Agent
of the Corporation has been successful on the merits or otherwise in
defense of an action, suit, or proceeding referred to in Sections 8.01
or 8.02 above, or in defense of a claim, issue, or matter in the
action, suit or proceeding, he or she shall be indemnified against
expenses, including actual and reasonable attorneys' fees, incurred by
him or her in connection with the action, suit or proceeding and an
action, suit or proceeding brought to enforce the mandatory
indemnification provided in this Section 8.03.
(2) Any indemnification under Sections 8.01 or 8.02 above,
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 as set forth in Sections 8.01 or 8.02 above. This determination
shall be made in any of the following ways:
(a) By a majority vote of a quorum of the Board of
Directors consisting of Directors who were not parties to the
action, suit or proceeding;
(b) If the quorum described in subdivision (a) is not
obtainable, then by a majority vote of a committee of
Directors who are not parties to the action. The committee
shall consist of not less than two (2) disinterested
Directors;
(c) if the majority described in subdivision (b) is
not obtainable, then by a majority vote of the Shareholders
who are not parties to the action, suit or proceeding;
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(d) If the majority vote of Shareholders described in
subdivision (c) is not obtainable, then by independent legal
counsel in a written opinion.
(3) If a person is entitled to indemnification under Sections
8.01 or 8.02 above, for a portion of expenses including attorney's
fees, judgments, penalties, fines, and amounts paid in settlement, but
not for the total amount thereof, the Corporation shall indemnify the
person for the portion of the expenses, judgments, penalties, fines or
amounts paid in settlement for which the person is entitled to be
indemnified.
8.04 ADVANCE PAYMENT - Expenses incurred in defending a civil or
criminal action, suit, or proceeding described in Sections 8.01 and 8.02 above,
may be paid by the Corporation in advance of the final disposition of such
action, suit, or proceeding upon receipt of an undertaking by or on behalf of
the Director, Officer, Employee or Agent to repay the expenses if it is
ultimately determined that he is not entitled to be indemnified by the
Corporation. The undertaking shall be by unlimited general obligation of the
person on whose behalf advances are made but need not be secured.
8.05 VALIDITY OF PROVISIONS
(1) The indemnification or advancement of expenses provided
under Sections 8.01 to 8.04 is not exclusive of other rights to which a
person seeking indemnification or advancement of expenses may be
entitled under the Articles of Incorporation, Bylaws, or a contractual
agreement. However, the total amount of expenses advanced or
indemnified from all sources combined shall not exceed the amount of
actual expenses incurred by the person seeking indemnification or
advancement of expenses.
(2) The indemnification provided for in Sections 8.01 to 8.05
continues as to a person who ceases to be a Director, Officer, Employee
or Agent and shall inure to the benefit of the heirs, executors, and
administrators of the person.
8.06 PURCHASE OF INSURANCE - The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
Director, Officer, Employee or Agent of the Corporation, or is or was serving at
the request of the Corporation as a Director, Officer, Partner, Trustee,
Employee or Agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under Sections 8.01 to 8.05.
8.07 DEFINITION OF CORPORATION - For purposes of Sections 8.01 to 8.06
above, "Corporation" includes 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 the constituent
corporation or is or was serving at the request of the constituent corporation
as a Director, Officer, Partner, Trustee, Employee or Agent of another foreign
or domestic
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corporation, partnership, joint venture, trust or other enterprise, whether for
profit or not, shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving corporation as the
person would if he had served the resulting or surviving corporation in the same
capacity.
ARTICLE IX
SEAL
9.01 SEAL - The Corporation shall not be required to have a seal.
ARTICLE X
AMENDMENTS
10.01 AMENDMENTS - The Shareholders or the Board of Directors may
alter, amend, add to or repeal these Bylaws, including fixing and altering the
number of Directors, provided that the Board of Directors shall not make or
alter any Bylaws fixing their qualifications, classifications or term of office,
and provided further that notice of any meeting of Shareholders or Board of
Directors called for the purpose of amending these Bylaws shall include notice
of the proposed amendments.
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