EXHIBIT 3.2
As amended and restated
on March 19, 1999
AMENDED AND RESTATED
BYLAWS
OF
COMERICA INCORPORATED
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in the City
of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS
SECTION 1. PLACE OF MEETING. All meetings of the shareholders of this
Corporation shall be held at such time and place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting.
SECTION 2. ANNUAL MEETING OF SHAREHOLDERS. The annual meeting of
shareholders shall be held on the third Friday of May, if not a legal holiday,
and if a legal holiday then the next secular day following, at 10:00 a.m., or at
such other date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting. At said meeting,
shareholders shall elect by a plurality vote the Directors to be elected at such
meeting, and shall transact such other business as may properly be brought
before the meeting.
SECTION 3. NOTICE OF MEETING OF SHAREHOLDERS. Written notice of
every meeting of shareholders stating the place, date and hour of the meeting,
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be given to each shareholder entitled to vote at such
meeting not less than ten (10) nor more than sixty (60) days before the date of
the meeting.
SECTION 4. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each shareholder and the number of shares registered
in the name of each shareholder. Such list shall be open to the examination of
any shareholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any shareholder who is present.
SECTION 5. SPECIAL MEETINGS OF SHAREHOLDERS. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman of
the Board of Directors or, during the absence or disability of the Chairman or
while that office is vacant, by the President and shall be called by the
President or Secretary at the request in writing of a majority of the Board of
Directors, or at the request in writing of shareholders owning, in the
aggregate, at least seventy-five percent (75%) in amount of the entire capital
stock of the Corporation issued and outstanding and entitled to vote at such
special meeting. Such request shall state the purpose or purposes of the
proposed meeting.
SECTION 6. QUORUM OF SHAREHOLDERS. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented 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 Certificate of Incorporation. If, however, such quorum shall
not be present or represented at any meeting of the shareholders, the
shareholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
SECTION 7. REQUIRED VOTE. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting power, present in
person or represented by proxy, shall decide any question brought before such
meeting, unless the question is one upon which a different vote is required by
statute or by the Certificate of
Incorporation.
SECTION 8. VOTING. Unless otherwise provided in the Certificate of
Incorporation or in a certificate filed pursuant to Section 151(g) of the
General Corporation Law of Delaware, as amended, each shareholder shall at every
meeting of the shareholders be entitled to one vote, in person or by proxy, for
each share of the capital stock having voting power held by such shareholder,
but no proxy shall be voted on after three (3) years from its date, unless the
proxy provides for a longer period.
SECTION 9. NATURE OF BUSINESS. At any meeting of shareholders, only such
business shall be conducted as shall have been brought before the meeting by or
at the direction of the Board of Directors or by any shareholder who complies
with the procedures set forth in this Section 9. No business may be transacted
at any meeting of shareholders, other than business that is either:
(a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors (or any duly authorized
committee thereof);
(b) otherwise properly brought before such meeting of shareholders by
or at the direction of the Board of Directors (or any duly authorized committee
thereof); or
(c) in the case of an annual meeting of shareholders, otherwise
properly brought before such meeting by any shareholder (i) who is a shareholder
of record on the date of the giving of the notice provided for in this Section 9
and on the record date for the determination of shareholders entitled to vote at
such annual meeting of shareholders; and (ii) who complies with the notice
procedures set forth in this Section 9.
In addition to any other applicable requirements, such as the requirements set
forth in Article III, Section 12 of the Corporation's Bylaws regarding director
candidate nominations, for business to be properly brought before an annual
meeting of shareholders by a shareholder, such shareholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation. To be timely, a shareholder's notice to the Secretary of the
Corporation must be delivered to or mailed and received at the principal
executive offices of the Corporation not later than the close of business on the
ninetieth (90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the first anniversary of the immediately
preceding year's annual meeting of shareholders; provided, however, that in the
event that the date of the annual meeting of shareholders is more than thirty
(30) days before or more than sixty 60 days after such anniversary date, notice
by the shareholder in order to be timely must be so received not earlier than
the close of business on the one hundred twentieth (120th) day prior to such
annual meeting and not later than the close of business on the later of the
ninetieth (90th) day prior to such annual meeting or the tenth (10th) day
following the day on which public announcement of the date of such meeting of
shareholders was first made. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. For purpose of this Section 9, "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding anything in the second sentence of the immediately preceding
paragraph to the contrary, in the event that 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 100
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder'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 or mailed and received 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.
To be in proper written form, a shareholder's notice to the Secretary of the
Corporation must set forth as to each matter such shareholder proposes to bring
before the annual meeting of shareholders: (i) a brief description of the
business desired to be brought before the annual meeting of shareholders and the
reasons for conducting such business at the annual meeting of shareholders; (ii)
the name and address of such shareholder and beneficial owner, if any, as they
appear on the Corporation's books; (iii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such shareholder as of the record date for the meeting (if such date
shall then have been made publicly available and shall have occurred); (iv) as
of the date of such notice, a description of all arrangements or understandings
between such shareholder and any other person or persons (including their names)
in connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business; (v) any other
information which would be required to be disclosed in a proxy statement or
other filings required to be made in connection with the solicitation of proxies
for the proposal pursuant to Section 14 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder if such shareholder were engaged in such a solicitation; and (vi) a
representation that such shareholder intends to appear in person or by proxy at
the annual meeting of shareholders to bring such business before the meeting.
No business shall be conducted at the annual meeting of shareholders except
business brought before the annual meeting of shareholders in accordance with
the procedures set forth in this Section 9, provided however, that once business
has been properly brought before the annual meeting of shareholders in
accordance with such procedures, nothing in this Section 9 shall be deemed to
preclude discussion by any shareholder of any such business. If the Chairman of
an annual meeting of shareholders determines that business was not properly
brought before the annual meeting of shareholders in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall not
be transacted. When a meeting is adjourned to another time or place, notice of
the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the
adjournment is taken, unless the adjournment is for more than 30 days, or unless
after the adjournment a new record date is fixed for the adjourned meeting, in
which case notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the original meeting as originally notified.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. The business of the Corporation shall be managed by or
under the direction of its Board of Directors which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the Certificate of Incorporation or by these Bylaws directed or required
to be exercised or done by the shareholders.
SECTION 2. LOCATION OF MEETINGS. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware.
SECTION 3. 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 4. REGULAR MEETINGS 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 5. SPECIAL MEETINGS OF BOARD. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors or, during the
absence or disability of the Chairman or while that office is vacant by the
President on one (1) day's notice to each director; and special meetings shall
be called by the President or Secretary on like notice on the written request of
five or more Directors.
SECTION 6. QUORUM AND REQUIRED VOTE. At all meetings of the Board of
Directors a majority of the total number of Directors shall constitute a quorum
for the transaction of business and the act of a majority of the Directors
present at any meeting at which there is a quorum shall be the act of the Board
of Directors, except as may be
otherwise specifically provided by statute or by the Certificate of
Incorporation. 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 7. CONSENT OF DIRECTORS IN LIEU OF MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any Committee thereof may be taken without a meeting if all members of the Board
or Committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
Committee.
SECTION 8. COMMITTEES OF DIRECTORS.
(a) General Authority. The Board of Directors may, to the
fullest extent permitted by Section 141(c)(2) of the Delaware General
Corporation Law as the same may be hereinafter amended from time to time,
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 any Committee, who may replace any absent or
disqualified member at any meeting of the Committee. In the absence or
disqualification of a member of a Committee, the member or members present at
any meeting and not disqualified from voting, whether or not he or 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, or in these Bylaws shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such Committee shall have
the power or authority in reference to the following matters (except as
permitted by Delaware General Corporation Law as the same may be hereinafter
amended from time to time): (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required to be submitted to
stockholders for approval; or (ii) adopting, amending or repealing any Bylaw of
the Corporation.
(b) Directors Committee. The Board of Directors may establish a
Directors Committee of the Board of Directors. The Directors Committee may:
(i) nominate candidates for election as Directors of the Corporation at any
meeting of shareholders called for election of Directors (an "Election
Meeting"); (ii) nominate candidates to fill any vacancies on the Board of
Directors which may exist from time to time; and (iii) have such other powers
and authority as the Board of Directors may delegate to it from time to time.
SECTION 9. COMMITTEE MINUTES. Each Committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when required.
SECTION 10. COMPENSATION OF DIRECTORS. Unless otherwise restricted by
the Certificate of Incorporation, the Board of Directors shall have authority to
fix the compensation of Directors. The Directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
Committee meetings.
SECTION 11. PARTICIPATION IN MEETING BY TELEPHONE OR OTHER ELECTRONIC
MEDIA. Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, members of the Board of Directors or any Committee designated by the
Board of Directors may participate in a meeting of the Board of Directors or
Committee by means of conference telephone, internet conferencing or similar
communications equipment by means of which all persons participating in the
meeting can hear or otherwise communicate with each other, and such
participation in a meeting shall constitute presence in person at such meeting.
SECTION 12. NOMINATIONS OF DIRECTOR CANDIDATES. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the Corporation, except as may be otherwise provided in
the Certificate of Incorporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board of Directors may be made at any annual meeting of shareholders, or at any
special meeting of shareholders called for the purpose of electing directors,
shall be made:
(a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof, including the Directors' Committee); or
(b) by any shareholder of the Corporation: (i) who is a shareholder
of record on the date of the giving of the notice provided for in this Section
12 and on the record date for the determination of shareholders entitled to vote
at such meeting; and (ii) who complies with the notice procedures set forth in
this Section 12.
In addition to any other applicable requirements, for a nomination to be made by
a shareholder, such shareholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a shareholder's
notice to the Secretary of the Corporation must be delivered to or mailed and
received at the principal executive offices of the Corporation (a) in the case
of an annual meeting of shareholders, not later than the close of business on
the ninetieth (90th) day nor earlier than the close of business on the one
hundred twentieth (120th) day prior to the first anniversary of the immediately
preceding year's annual meeting of shareholders; provided, however, that in the
event that the date of the annual meeting of shareholders is more than thirty
(30) days before or more than sixty (60) days after such anniversary date,
notice by the shareholder in order to be timely must be so received not earlier
than the close of business on the one hundred twentieth (120th) day prior to
such annual meeting and not later than the close of business
on the later of the ninetieth (90th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the date of
such meeting of shareholders was first made; and (b) in the case of a special
meeting of shareholders called for the purpose of electing directors, not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such special meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such special meeting or the 10th 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. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
stockholder's notice as described above. For purpose of this Section 12, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
To be in proper written form, a shareholder's notice to the Secretary of the
Corporation must set forth:
(a) as to each person whom the shareholder proposes to nominate for
election as a director: (i) the name, age, business address and residence
address of the person; (ii) the principal occupation or employment of the
person; (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person as of the
record date for the meeting (if such date shall then have been made publicly
available and shall have occurred) and as of the date of such notice; and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder; and
(b) as to the shareholder giving the notice: (i) the name and address
of such shareholder and beneficial owner, if any, as they appear on the
Corporation's books; (ii) the class or series and number of shares of capital
stock of the Corporation which are owned beneficially or of record by such
shareholder as of the record date for the meeting (if such date shall then have
been made publicly available and shall have occurred) and as of the date of such
notice; (iii) a description of all arrangements or understandings between such
shareholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nominations are to be made by such
shareholder; (iv) a representation that such shareholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice;
and (v) any other information relating to such shareholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by the written consent
to such nomination of each person proposed as a nominee and such person's
written consent to serve as a director if elected.
No person shall be eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 12. If
the Chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
ARTICLE IV
NOTICES
SECTION 1. NOTICE. Whenever any notice is required to be given to any
director or shareholder under any provision of statute or of the Certificate of
Incorporation or of these Bylaws, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or shareholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to Directors may also be given orally in person or by electronic mail to
the electronic mail address, if any, provided by such director, telegram, telex,
radiogram or cablegram, and such notice shall be deemed to be given when the
recipient receives the notice personally, by telephone or internet or when the
notice, addressed as provided above, has been delivered to the company, or to
the equipment transmitting such notice.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be given
under any provision of statute or of the Certificate of Incorporation or of
these Bylaws, a written waiver thereof, signed (manually or electronically by
electronic mail) by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, Directors, or members of a Committee of
Directors need be specified in any written waiver of notice unless so required
by the Certificate of Incorporation or these Bylaws. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting, except when the
person 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 may appoint such officers 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. The officers so appointed may include a
Chairman of the Board, President, one or more Vice Chairmen, one or more Vice
Presidents (including Executive, Senior, First, regular and Assistant Vice
Presidents), a Secretary and a Treasurer, and one or
more lesser officers as may be deemed appropriate. The Chief Executive Officer
also may appoint officers of the level of Senior Vice President and below as he
shall deem necessary, at any time, which officers 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 or the Chief Executive Officer. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation otherwise provides.
SECTION 2. COMPENSATION. The salaries of all executive officers of the
Corporation shall be fixed by the Board of Directors.
SECTION 3. TERM, REMOVAL AND VACANCIES. Each officer of the Corporation
shall hold office until his or her successor is elected and qualified or until
his or her earlier resignation or removal from office. Any officer elected or
appointed by the Board of Directors may be removed from office at any time by
the affirmative vote of a majority of the Board of Directors. Any officer also
may be removed from office at any time by the Chief Executive Officer. Any
vacancy occurring in any office of the Corporation may be filled by the Board of
Directors or by the Chief Executive Officer.
SECTION 4. CHIEF EXECUTIVE OFFICER AND CHIEF OPERATING OFFICER.
(a) 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 same as the designation for the preceding year; provided,
further, that the designation of the chief executive officer may be changed at
any regular or special meeting of the Board of Directors. 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. 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.
(b) Chief Operating Officer. At any meeting of the Board of
Directors, the Board may designate a chief operating officer of the Corporation.
The chief operating officer shall perform such duties as may be delegated to him
or her by the Board of Directors, the Executive Committee of the Board or the
Chairman of the Board.
SECTION 5. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors shall be selected by, and from among the membership of, the Board
of Directors. He or she shall preside at all meetings of the shareholders and
of the Board of Directors. He or she shall perform such other duties and
functions as shall be assigned to him or her from time to time by the Board of
Directors. He or she shall be, ex officio, a member of all standing committees
except the Select Compensation Committee and the Audit and Legal Committee.
Except where by law the signature of the President of this Corporation is
required, the Chairman of the Board of Directors shall possess the same
power and authority as the President to sign all certificates, contracts,
instruments, papers and documents of every conceivable kind and character
whatsoever, in the name of and on behalf of this Corporation, which may be
authorized by the Board of Directors. During the absence or disability of the
President, 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 selected by, and from among
the membership of, the Board of Directors. During the absence or disability of
the Chairman of the Board of Directors, or while such office is vacant, the
President shall perform all duties and functions, and while so acting shall have
all of the powers and authority, of the Chairman of the Board of Directors. The
President shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors. The President
shall be, ex officio, a member of all standing committees except the Select
Compensation Committee and the Audit and Legal Committee.
SECTION 7. VICE CHAIRMEN. One or more Vice Chairmen may be chosen from the
membership of the Board. Unless the Board of Directors shall otherwise provide
by resolution duly adopted by it, such of the Vice Chairmen who 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 Chairmen 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 Board
of Directors and all meetings of the stockholders and shall record all the
proceedings thereof in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. The Secretary shall give, or
cause to be given, all notices required by statute, Bylaw or resolution, and
shall perform such other duties as may be prescribed by the Board of Directors
or President. The Secretary shall have custody of the corporate seal of the
Corporation and the Secretary and Assistant Secretaries shall have authority to
affix the same to any instrument when its use is required or appropriate.
SECTION 9. ASSISTANT SECRETARIES. The Assistant Secretary or Assistant
Secretaries shall, in the absence of the Secretary or in the event of his or her
inability or refusal to act, 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.
SECTION 10. 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 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. The Treasurer 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 or
her transactions as Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the Treasurer shall deliver to the
Corporation, and shall keep in force, a bond, in such form, amount, and with
such surety or sureties as shall be satisfactory to the Board of Directors, for
the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
SECTION 11. ASSISTANT TREASURERS. The Assistant Treasurer or Assistant
Treasurers shall, in the absence of the Treasurer or in the event of his or her
inability or refusal to act, 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.
SECTION 12. INDEMNIFICATION AND INSURANCE.
(a) To the fullest extent permitted by applicable law and
regulation, as presently existing or hereafter amended, the Corporation shall
indemnify any person who is or was 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 or she is or was a
director, officer or employee 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 or her in connection with
such action, suit or proceeding, 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, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Any person who is or was an agent of the Corporation may be indemnified to the
same extent as provided above. In addition, in the event any such action, suit
or proceeding is threatened or instituted against a spouse to whom a director or
officer is legally married at the time the director or officer is covered under
the indemnification provided herein, which action, suit or proceeding arises
solely out of his or her status as the spouse of a director or officer,
including, without limitation, an action, suit or proceeding that seeks damages
recoverable from marital community property of the director or officer and his
or her spouse, property owned jointly by them or property purported to have been
transferred from the director or officer to his or her spouse, then the spouse
of the director or officer shall be indemnified to the same extent as provided
above. The termination of any action, suit or proceeding by judgment, 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 or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, raise any inference that he or she had reasonable
cause to believe that his or her conduct was unlawful.
(b) To the fullest extent permitted by applicable law and regulation,
as presently existing or hereafter amended, the Corporation shall indemnify any
person who is or was a party 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 or
she is or was a director or officer or employee 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 or her in connection with the defense or settlement of such
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, 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 to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Any person who is or was an agent of the Corporation may be
indemnified to the same extent as provided above. In addition, in the event any
such action or suit is threatened or instituted against a spouse to whom a
director or officer is legally married at the time the director or officer is
covered under the indemnification provided herein, which action or suit arises
solely out of his or her status as the spouse of a director or officer,
including, without limitation, an action or suit that seeks damages recoverable
from marital community property of the director or officer and his or her
spouse, property owned jointly by them or property purported to have been
transferred from the director or officer to his or her spouse, then the spouse
of the director or officer shall be indemnified to the same extent as provided
above.
(c) To the extent that a present or former director, officer, spouse
of the director or officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this Section, or in defense
of any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Section
(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 present or
former director, officer, spouse of the director or officer, employee or agent
is proper in the circumstances because the person has met the applicable
standard of conduct set forth in subsections (a) and (b) of this Section. Such
determination shall be made with respect to a person who is a director or
officer or the spouse of a director or officer at the time of the determination
(i) by a majority vote of Directors who were not parties to the action, suit or
proceeding, even if they constitute less than a quorum, (ii) by a committee of
such disinterested directors designated by a majority vote of such directors,
even if they constitute less than a quorum, (iii) if there are no such
disinterested directors, or if a majority of such
disinterested directors so directs, in a written opinion by independent legal
counsel chosen by the entire Board of Directors, subject to the reasonable
satisfaction of the party seeking indemnification, or (iv) by the shareholders.
Such determination may be made with respect to any other person seeking
indemnification under subsections (a) and (b) of this Section by the
Corporation's Chairman, President, Vice Chairman or General Counsel, or by their
designees.
(e) Expenses (including attorney's fees) incurred by an officer,
director or spouse of an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding 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 or spouse to repay such amount if it shall ultimately be determined that
he or she is not entitled to be indemnified by the Corporation as authorized in
this Section. Such expenses (including attorneys' fees) incurred by former
directors or officers, their spouses or other employees and agents may be so
paid upon such terms and conditions, if any, as the Corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
(g) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, spouse of a director or 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 such person and incurred by such person 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 such person against such liability under the
provisions of this Section.
(h) For the purposes of this Section, references to "the Corporation"
include, in addition to the resulting or surviving corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had the power and authority to indemnify its directors, officers, spouses
of directors or officers, and employees or agents, so that any person who is or
was a director, officer, spouse of a director or 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 Section with respect to the
resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent, and with respect to any spouse of a director or
officer, shall continue following the time the director or officer spouse ceases
to be a director or officer even if the marriage of the individuals terminates
prior to the end of the period of coverage, and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(k) The Court of Chancery shall have exclusive jurisdiction to hear
and determine all actions for advancement of expenses or indemnification brought
under this Section or under any agreement, vote of shareholders or disinterested
directors, or otherwise. The Court of Chancery may summarily determine the
Corporation's obligation to advance expenses (including attorneys' fees).
SECTION 13. OFFICER APPOINTED PURSUANT TO MERGER AGREEMENT.
During the period in which the Employment Agreement, entered into as of February
20, 1992, between the Corporation and Mr. Eugene A. Miller (the "Employment
Agreement") is in effect, any modification, amendment or failure to honor the
terms of the Employment Agreement shall require the affirmative vote of 75% of
the members of the entire Board of Directors.
ARTICLE VI
STOCK AND TRANSFERS
SECTION 1. CERTIFICATES OF STOCK. Shares of the Corporation's stock may be
certificated or uncertificated, as provided under Delaware law at any time. All
holdings of shares of stock of the Corporation shall be numbered and shall be
entered into the books of the Corporation as they are issued. All certificated
shares of stock shall exhibit the holder's name and number of shares and shall
be signed by, or in the name of the Corporation by, the Chairman or a Vice
Chairman of the Board of Directors, or the President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation. If the Corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation may
issue to represent such class or series of stock or, in the case of
uncertificated shares, contained in the notice sent pursuant to Delaware law,
provided that, except as otherwise provided in Section 202 of the General
Corporation Law of Delaware, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the Corporation may issue
to represent such class or series of stock or, in the case of uncertificated
shares, contained in the notice sent pursuant to Delaware law, a statement that
the Corporation will furnish without charge to each stockholder who so requests
the designations, preferences and relative, participating optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. Any of or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
SECTION 2. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in the place of any certificate theretofore issued by
the Corporation, alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing the issuance of a new
certificate the Board of Directors may, in its discretion and as a condition
present to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise the same in
such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against it
with respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 3. TRANSFERS OF STOCK. The Corporation shall make transfers of
stock on the Corporation's books only by the record holder of such stock or by
his or her duly authorized agent or attorney-in-fact, and, in the case of stock
represented by a certificate, upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer.
SECTION 4. FIXING RECORD DATE. In order that the Corporation may determine
the shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
SECTION 5. REGISTERED SHAREHOLDERS. The Corporation shall have the right
to treat the person registered on its books as the owner of shares as the
absolute owner thereof, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. The Board of Directors, subject to any restrictions
contained in its Certificate of Incorporation, may declare and pay any dividends
upon the shares of its capital stock either (a) out of surplus as defined in and
computed in accordance with the provisions of the governing statute, or (b) in
case there shall be no such surplus, out of its net profits for the fiscal year
in which the dividend is declared and/or the preceding fiscal year. Dividends
may be paid in cash, in property, or in shares of the Corporation's capital
stock, subject to the provisions of the statute and of the Certificate of
Incorporation.
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 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 instruments 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.
SECTION 6. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
SECTION 7. SEAL. The corporate seal shall have inscribed thereon the name
of the Corporation and the words "Corporate Seal" and "Delaware". The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
SECTION 8. MICHIGAN CONTROL SHARE STATUTE. Pursuant to Section 794 of the
Michigan Business Corporation Act ("MBCA"), Chapter 7B of the MBCA shall not
apply to the Corporation or control share acquisitions (as such term is defined
in Section 791 of the MBCA) of the shares of the Corporation's capital stock.
ARTICLE VIII
AMENDMENTS
SECTION 1. AMENDMENT BY REGULAR VOTE. These bylaws may be altered, amended
or repealed or new Bylaws may be adopted by the shareholders or by the Board of
Directors, when such power is conferred upon the Board of Directors by the
Certificate of Incorporation, at any regular meeting of the shareholders or of
the Board of Directors or at any special meeting of the shareholders or of the
Board of Directors if notice of such alteration, amendment, repeal or adoption
of new Bylaws be contained in the notice of such special meeting.
SECTION 2. AMENDMENT BY 75% VOTE. The affirmative vote of 75% of the
total Board of Directors is required to alter, amend, repeal, add to or
otherwise change the effects of Article III, Section 8(b); Article V, Section
13; or this Article VIII, Section 2 of the Corporation's Bylaws.