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EXHIBIT 3.3
BYLAWS
OF
MCE COMPANIES, INC.
ARTICLE I
OFFICES
1.01 Principal Office. The principal office of the corporation shall be at
such place within the State of Michigan as the Board of Directors shall
determine from time to time.
1.02 Other Offices. The corporation also may have offices at such other
places as the Board of Directors from time to time determines or the business of
the corporation requires.
ARTICLE II
SEAL
2.01 Seal. The corporation may, but is not required to, have a seal in such
form as the Board of Directors may from time to time determine. The seal may be
used by causing it or a facsimile to be impressed, affixed, reproduced or
otherwise.
ARTICLE III
CAPITAL STOCK
3.01 Issuance of Shares. The shares of capital stock of the corporation
shall be issued in such amounts, at such times, for such consideration and on
such terms and conditions as the Board shall deem advisable, subject to the
Articles of Incorporation and any requirements of the laws of the State of
Michigan.
3.02 Certificates for Shares. The shares of the corporation shall be
represented by certificates signed by the Chairman of the Board, President or a
Vice President and also may be signed 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 the State of Michigan, the name of the person to whom it is issued, the
number and class of shares, and the designation of the series, if any, which the
certificate represents, and such other provisions as may be required by the laws
of the State of Michigan.
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3.03 Transfer of Shares. The shares of the capital stock of the corporation
are transferable only on the books of the corporation upon surrender of the
certificate therefor, properly endorsed for transfer, and the presentation of
such evidences of ownership and validity of the assignment as the corporation
may require.
3.04 Registered Shareholders. The corporation shall be entitled to treat
the person in whose name any share of stock is registered as the owner thereof
for purposes of dividends and other distributions in the course of business, or
in the course of recapitalization, merger, plan of share exchange,
reorganization, sale of assets, liquidation or otherwise and for the purpose of
votes, approvals and consents by shareholders, and for the purpose of notices to
shareholders, and for all other purposes whatever, and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not the corporation shall have notice thereof,
save as expressly required by the laws of the State of Michigan.
3.05 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
issuance of new certificates 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.
ARTICLE IV
SHAREHOLDERS AND MEETINGS OF SHAREHOLDERS
4.01 Place of Meetings. All meetings of shareholders shall be held at the
principal office of the corporation or at such other place as shall be
determined by the Board of Directors and stated in the notice of meeting.
4.02 Annual Meeting. The annual meeting of the shareholders of the
corporation shall be held in the fourth calendar month after the end of the
corporation's fiscal year, or at such other date as the Board of Directors shall
determine from time to time, and shall be held at such place and time of day as
shall be determined by the Board of Directors from time to time. Directors shall
be elected at each annual meeting and such other business transacted as may come
before the meeting.
4.03 Special Meetings. Special meetings of shareholders may be called by
the Board of Directors, the Chairman of the Board (if such office is filled) or
the President and shall be called by the President or Secretary at the written
request of shareholders holding a 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.
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4.04 Notice of Meetings. Except as otherwise provided by statute, written
notice of the time, place and purposes of a meeting of shareholders shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each shareholder of record entitled to vote at the meeting,
either personally or by mailing such notice to his last address as it appears on
the books of the corporation. No notice need be given of an adjourned meeting of
the shareholders provided the time and place to which such meeting is adjourned
are announced at the meeting at which the adjournment is taken and at the
adjourned meeting only such business is transacted as might have been transacted
at the original meeting. However, if after the adjournment a new record date is
fixed for the adjourned meeting a notice of the adjourned meeting shall be given
to each shareholder of record on the new record date entitled to notice as
provided in this bylaw.
4.05 Record Dates. The Board of Directors may fix in advance a date as the
record date for the purpose of determining shareholders entitled to notice of
and to vote at a meeting of shareholders or an adjournment thereof, or to
express consent or to dissent from a proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of a dividend or
allotment of a right, or for the purpose of any other action. The date fixed
shall not be more than sixty (60) nor less than ten (10) days before the date of
the meeting, nor more than sixty (60) days before any other action. 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 adjournment
thereof, or to express consent or to dissent from such proposal, or to receive
payment of such dividend or to receive such allotment of rights, or to
participate in any other action, 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 bylaw shall affect the rights of a shareholder
and his transferee or transferor as between themselves.
4.06 List of Shareholders. The Secretary of the corporation or the agent of
the corporation having charge of the stock transfer records for shares of the
corporation shall make and certify a complete list of the shareholders entitled
to vote at a shareholders' meeting or any adjournment thereof. The list: shall
be arranged alphabetically within each class and series, with the address of,
and the number of shares held by, each shareholder; shall be produced at the
time and place of the meeting; shall be subject to inspection by any shareholder
during the whole time of the meeting; and shall be prima facie evidence as to
who are the shareholders entitled to examine the list or vote at the meeting.
4.07 Quorum. Unless a greater or lesser quorum is required by the laws of
the State of Michigan, the shareholders present at a meeting in person or by
proxy who, as of the record date for such meeting, were holders of a majority of
the outstanding shares of the corporation entitled to vote at the meeting shall
constitute a quorum at the meeting. Whether or not a quorum is present, a
meeting of shareholders may be adjourned by a vote of a majority of the shares
present in person or by proxy. When the holders of a class or series of shares
are entitled to vote separately on an item of business, this bylaw applies in
determining the presence of a quorum of such class or series for transaction of
such item of business.
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4.08 Proxies. A shareholder entitled to vote at a meeting of shareholders
or to express consent or dissent without a meeting may authorize other persons
to act for the shareholder by proxy. A proxy shall be signed by the shareholder
or the shareholder's authorized agent or representative and shall not be valid
after the expiration of three years from its date unless otherwise provided in
the proxy. A proxy is revocable at the pleasure of the shareholder executing it
except as otherwise provided by the laws of the State of Michigan.
4.09 Voting. Each outstanding share is entitled to one vote on each matter
submitted to a vote, unless otherwise provided in the Articles of Incorporation.
Votes may be cast orally or in writing, but if more than 25 shareholders of
record are entitled to vote, then votes shall be cast in writing signed by the
shareholder or the shareholder's proxy. When an action, other than the election
of directors, is to be taken by the vote of the shareholders, it shall be
authorized by a majority of the votes cast by the holders of shares entitled to
vote thereon, unless a greater plurality is required by the Articles of
Incorporation or by the laws of the State of Michigan. Except as otherwise
provided by the Articles of Incorporation, directors shall be elected by a
plurality of the votes cast at any election.
4.10 Participation via Communications Equipment. A shareholder may
participate in a meeting of shareholders by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can communicate with each other if all participants are advised of
the communications equipment and the names of the participants in the conference
are divulged to all participants. Participation in a meeting in this manner
constitutes presence in person at the meeting.
4.11 Action Without a Meeting.
(a) Unanimous Consent. Except as may be provided otherwise in the
Articles of Incorporation, any action required or permitted by the Michigan
Business Corporation Act ("MBCA") 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 before or after the action all the shareholders entitled to vote
consent in writing.
(b) Less than Unanimous Consent. Except as may be provided otherwise
in the Articles of Incorporation, any action required or permitted by the MBCA
to be taken at an annual or special meeting of shareholders may be taken without
a meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take the action at a meeting at which all shares entitled to vote
thereon were present and voted. The written consents shall bear the date of
signature of each shareholder who signs the consent. No written consents shall
be effective to take the corporate action referred to unless, within 60 days
after the record date for determining shareholders entitled to express consent
to or dissent from a proposal without a meeting, written consents dated not more
than ten (10) days before the record date and signed by a sufficient number of
shareholders to take the action are delivered to the corporation. Delivery shall
be to the corporation's registered office, its principal place of business, or
an officer or agent of the corporation having custody of the minutes of the
proceedings of its shareholders. Delivery made to a corporation's registered
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office shall be by hand or by certified or registered mail, return receipt
requested. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to shareholders would have
been entitled to notice of the shareholder meeting if the action had been taken
at a meeting and who have not consented in writing.
ARTICLE V
DIRECTORS
5.01 Number and Eligibility. The business and affairs of the corporation
shall be managed by a Board comprised of not less than one (1) nor more than
eleven (11) directors as shall be determined from time to time by the
shareholders or by the Board of Directors. The directors need not be residents
of Michigan or shareholders of the corporation. [Amended 7.16.96 and 11.16.99.]
5.02 Election, Resignation and Removal. The Board of Directors shall be
classified into three classes with staggered terms of office. Each class shall
be as nearly equal in number as possible. Each class of directors shall be
elected for a term of three years and until the director's successor is elected
and qualified, or until the director's resignation or removal. At each annual
meeting of the shareholders, successors to the directors whose terms expire in
that year shall be elected to hold office for a term of three years. A director
may resign by written notice to the corporation. The resignation is effective
upon its receipt by the corporation or at a subsequent time as set forth in the
notice of resignation. Except as otherwise provided in the Articles of
Incorporation, a director or the entire Board of Directors may be removed, with
or without cause, by vote of the holders of a majority of the shares entitled to
vote at an election of directors. [Amended 3.18.98]
5.03 Vacancies. Vacancies in the Board of Directors occurring by reason of
death, resignation, removal, increase in the number of directors or otherwise
shall be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors, unless filled by proper
action of the shareholders of the corporation. Each person so elected shall be a
director for a term of office continuing only until the next election of
directors by the shareholders. A vacancy that will occur at a specific date, by
reason of a resignation effective at a later date or otherwise, may be filled
before the vacancy occurs, but the newly elected director may not take office
until the vacancy occurs.
5.04 Annual Meeting. The Board of Directors shall meet each year
immediately after the annual meeting of the shareholders, or within three (3)
days of such time excluding Sundays and legal holidays if such later time is
deemed advisable, at the place where such meeting of the shareholders has been
held or such other place as the Board may determine, for the purpose of election
of officers and consideration of such business that may properly be brought
before the meeting; provided, that if less than a majority of the directors
appear for an annual meeting of the Board of Directors the holding of such
annual meeting shall not be required and the matters which might have been taken
up therein may be taken up at any later special or annual meeting, or by consent
resolution.
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5.05 Regular and Special Meetings. Regular meetings of the Board of
Directors may be held at such times and places as the majority of the directors
may from time to time determine at a prior meeting or as shall be directed or
approved by the vote or written consent of all the directors. Special meetings
of the Board may be called by the Chairman of the Board (if such office is
filled) or the President and shall be called by the President or Secretary upon
the written request of any two directors.
5.06 Notices. No notice shall be required for annual or regular meetings of
the Board or for adjourned meetings, whether regular or special. Three (3) days'
written notice shall be given for special meetings of the Board, and such notice
shall state the time, place and purpose or purposes of the meeting.
5.07 Quorum and Voting. A majority of the Board of Directors then in
office, or of the members of a committee thereof, constitutes a quorum for the
transaction of business. The vote of a majority of the directors present at any
meeting at which there is a quorum shall be the acts of the Board or of a
committee, except as a larger vote may be required by the laws of the State of
Michigan or by the Articles of Incorporation.
5.08 Participation via Communications Equipment. A member of the Board or
of a committee designated by the Board may participate in a meeting by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can communicate with each other.
Participation in a meeting in this manner constitutes presence in person at the
meeting.
5.09 Committees.
(a) Executive Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint three or more members of the
Board as an executive committee to exercise all powers and authorities of the
Board in management of the business and affairs of the corporation, except that
the committee shall not have power or authority to: (i) amend the Articles of
Incorporation; (ii) adopt an agreement of merger or consolidation; (iii)
recommend to shareholders the sale, lease or exchange of all or substantially
all of the corporation's property and assets; (iv) recommend to shareholders a
dissolution of the corporation or revocation of a dissolution; (v) amend these
Bylaws; (vi) fill vacancies in the Board; or (vii) unless expressly authorized
by the Board, declare a dividend or authorize the issuance of stock.
(b) Other Committees. The Board of Directors from time to time may, by
like resolution, appoint such other committees of one or more directors to have
such authority as shall be specified by the Board in the resolution making such
appointments. The Board of Directors may designate one or more directors as
alternate members of any committee who may replace an absent or disqualified
member at any meeting thereof.
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5.10 Dissents. A director who is present at a meeting of the Board of
Directors, or a committee thereof of which the director is a member, at which
action on a corporate matter is taken is presumed to have concurred in that
action unless the director's dissent is entered in the minutes of the meeting or
unless the director files a written dissent to the action with the person acting
as secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the corporation promptly after
the adjournment of the meeting. Such right to dissent does not apply to a
director who voted in favor of such action. A director who is absent from a
meeting of the Board, or a committee thereof of which the director is a member,
at which any such action is taken is presumed to have concurred in the action
unless the director files a written dissent with the Secretary of the
corporation within a reasonable time after the director has knowledge of the
action.
5.11 Compensation. The Board of Directors may establish reasonable
compensation of directors for services to the corporation as directors or
officers.
5.12 Action Without a Meeting -- Unanimous Consent. Except as may be
provided otherwise in the Articles of Incorporation, action required or
permitted to be taken under authorization voted at any meeting of the board of
directors or a committee of the board may be taken without a meeting, if, before
or after the action, all members of the board then in office or of the
committee, as the case may be, consent to the action in writing. The written
consents shall be filed with the minutes of the proceedings of the board or
committee. The consent has the same effect as a vote of the board or committee
for all purposes.
ARTICLE VI
NOTICES AND WAIVERS OF NOTICE
6.01 Notices. All notices of meetings required to be given to shareholders,
directors or any committee of directors may be given by mail (registered,
certified or other first class mail, with postage pre-paid), overnight carrier,
telecopy, telegram, computer transmission, radiogram, cablegram or other similar
form of communication, addressed to any shareholder, director or committee
member at his last address as it appears on the books of the corporation. The
corporation shall have no duty to change the written address of any shareholder,
director or committee member unless the secretary of the corporation receives
written notice of such address change. Such notice shall be deemed to be given
at the time when the same shall be mailed or otherwise dispatched; notices given
by overnight carrier shall be deemed "dispatched" at 9:00 a.m. on the day the
overnight carrier is reasonably requested to deliver the notice.
6.02 Waiver of Notice. Notice of the time, place and purpose of any meeting
of shareholders, directors or committee of directors may be waived by telecopy,
telegram, radiogram, cablegram or other writing, either before or after the
meeting, or in such other manner as may be permitted by the laws of the State of
Michigan. Attendance of a person at any meeting of shareholders, in person or by
proxy, or at any meeting of directors or of a committee of directors,
constitutes a waiver of notice of the meeting except as follows:
(a) In the case of a shareholder, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, or unless with
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respect to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, the shareholder
objects to considering the matter when it is presented.
(b) In the case of a director, unless he or she at the beginning of
the meeting, or upon his or her arrival, objects to the meeting or the
transacting of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting.
ARTICLE VII
OFFICERS
7.01 Number. The Board of Directors shall elect or appoint a President, a
Secretary and a Treasurer, and may select a Chairman of the Board, and one or
more Vice Presidents, Assistant Secretaries or Assistant Treasurers. Any two or
more of the above offices, except those of President and Vice President, may be
held by the same person. No officer shall execute, acknowledge or verify an
instrument in more than one capacity if the instrument is required by law, the
Articles of Incorporation or these Bylaws to be executed, acknowledged, or
verified by one or more officers.
7.02 Term of Office, Resignation and Removal. An officer 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 may resign by written notice to the corporation. The resignation is
effective upon its receipt by the corporation or at a subsequent time specified
in the notice of resignation. An officer may be removed by the Board with or
without cause. The removal of an officer shall be without prejudice to his
contract rights, if any. The election or appointment of an officer does not of
itself create contract rights.
7.03 Vacancies. The Board of Directors may fill any vacancies in any office
occurring for whatever reason.
7.04 Authority. All officers, employees and agents of the corporation shall
have such authority and perform such duties in the conduct and management of the
business and affairs of the corporation as may be designated by the Board of
Directors and these Bylaws.
ARTICLE VIII
DUTIES OF OFFICERS
8.01 Chairman of the Board. The Chairman of the Board, if such office is
filled, shall preside at all meetings of the shareholders and of the Board of
Directors at which the Chairman is present and shall perform such other duties
as the Board of Directors may from time to time prescribe.
8.02 President. The President shall be the chief executive officer of the
corporation. The President shall see that all orders and resolutions of the
Board are carried into effect and
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shall have the general powers of supervision and management usually vested in
the chief executive officer of a corporation, including the authority to vote
all securities of other corporations and business organizations which are held
by the corporation. In the absence or disability of the Chairman of the Board,
or if that office has not been filled, the President also shall perform the
duties and execute the powers of the Chairman of the Board as set forth in these
Bylaws.
8.03 Vice Presidents. The Vice Presidents, in the order designated by the
Board of Directors or, lacking such designation, in the order of their
seniority, 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 as the Board of Directors or the President may from time to time
prescribe.
8.04 Secretary. The Secretary shall attend all meetings of the Board of
Directors and of shareholders and shall record all votes and minutes of all
proceedings in a book to be kept for that purpose, shall give or cause to be
given notice of all meetings of the shareholders and of the Board of Directors,
and shall keep in safe custody the seal of the corporation and, when authorized
by the Board, affix the same to any instrument requiring it, and when so affixed
it shall be attested by the signature of the Secretary, or by the signature of
the Treasurer or an Assistant Secretary. The Secretary may delegate any of the
duties, powers and authorities of the Secretary to one or more Assistant
Secretaries, unless such delegation is disapproved by the Board.
8.05 Treasurer. The Treasurer shall have the custody of the corporate funds
and securities; shall keep full and accurate accounts of receipts and
disbursements in books of 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
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 is
disapproved by the Board of Directors.
8.06 Assistant Secretaries and Treasurers. The Assistant Secretaries, in
order of their seniority, shall perform the duties and exercise the powers and
authorities of the Secretary in the event that the Secretary is absent, disabled
or otherwise unavailable. The Assistant Treasurers, in the order of their
seniority, shall perform the duties and exercise the powers and authorities of
the Treasurer in the event that the Treasurer is absent, disabled or otherwise
unavailable. The Assistant Secretaries and Assistant Treasurers shall also
perform such duties as may be delegated to them by the Secretary and Treasurer,
respectively, and also such duties as the Board of Directors and/or the
President may prescribe from time to time.
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ARTICLE IX
SPECIAL CORPORATE ACTS
9.01 Orders for Payment of Money. All checks, drafts, notes, bonds, bills
of exchange and orders for payment of money 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.
9.02 Contracts and Conveyances. The Board of Directors of the corporation
may in any instance designate the officer and/or agent who shall have authority
to execute any contract, conveyance, mortgage 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, the President or any 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
and may affix the corporate seal thereto.
ARTICLE X
BOOKS AND RECORDS
10.01 Maintenance of Books and Records. The proper officers and agents of
the corporation shall keep and maintain such books, records and accounts of the
corporation's business and affairs, minutes of the proceedings of its
shareholders, Board and committees, if any, and such stock ledgers and lists of
shareholders, as the Board of Directors shall deem advisable, and as shall be
required by the laws of the State of Michigan and other states or jurisdictions
empowered to impose such requirements. Books, records and minutes may be kept
within or without the State of Michigan in a place which the Board shall
determine.
10.02 Reliance on Books and Records. In discharging his or her duties, a
director or an officer of the corporation, when acting in good faith, may rely
upon information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by any of the
following:
(a) One or more directors, officers, or employees of the corporation,
or of a business organization under joint control or common control, whom the
director or officer reasonably believes to be reliable and competent in the
matters presented.
(b) Legal counsel, public accountants, engineers, or other persons as
to matters the director or officer reasonably believes are within the person's
professional or expert competence.
(c) A committee of the board of which he or she is not a member if the
director or officer reasonably believes the committee merits confidence.
A director or officer is not entitled to rely on the information set forth above
if he or she has knowledge concerning the matter in question that makes reliance
otherwise permitted unwarranted.
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ARTICLE XI
INDEMNIFICATION
11.01 Non-Derivative Actions. Subject to all of the other provisions of
this Article XI, the corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director or officer of the corporation, or, while serving as a director or
officer of the corporation, 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), judgments, penalties, fines, and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders, and, with respect to any criminal action or
proceeding, if the person had no reasonable cause to believe his or her conduct
was unlawful. 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 the person reasonably believed to be in
or not opposed to the best interests of the corporation or its shareholders,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
11.02 Derivative Actions. Subject to all of the provisions of this Article
XI, the corporation shall indemnify any person who was or is a party to or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director or officer of the
corporation, or, while serving as a director or officer of the corporation, 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) and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action or
suit if the person acted in good faith and in a manner the person 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 any claim, issue or
matter in which such person has been found liable to the corporation unless and
only to the extent that the court in which such action or suit was brought has
determined upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnification for the reasonable expenses incurred.
11.03 Expenses of Successful Defense. To the extent that a person has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 11.01 or 11.02 of these Bylaws, or in defense
of any claim, issue or matter in the action, suit or
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proceeding, the person shall be indemnified against actual and reasonable
expenses (including attorneys' fees) incurred by such person in connection with
the action, suit or proceeding and any action, suit or proceeding brought to
enforce the mandatory indemnification provided by this Section 11.03.
11.04 Definitions. For the purposes of Sections 11.01 and 11.02, "other
enterprises" shall include employee benefit plans; "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
"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, the director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
considered to have acted in a manner "not opposed to the best interests of the
corporation or its shareholders" as referred to in Sections 11.01 and 11.02.
11.05 Contract Right; Limitation on Indemnity. The right to indemnification
conferred in this Article XI shall be a contract right, and shall apply to
services of a director or officer as an employee or agent of the corporation as
well as in such person's capacity as a director or officer. Except as provided
in Section 11.03 of these Bylaws, the corporation shall have no obligations
under this Article XI to indemnify any person in connection with any proceeding,
or part thereof, initiated by such person without authorization by the Board of
Directors.
11.06 Determination That Indemnification is Proper. Any indemnification
under Section 11.01 or 11.02 of these Bylaws (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 person is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
Section 11.01 or 11.02, whichever is applicable, and upon an evaluation of the
reasonableness of expenses and amount paid in settlement. Such determination and
evaluation shall be made in any of the following ways:
(a) By a majority vote of a quorum of the Board consisting of
directors who are not parties or threatened to be made parties to such action,
suit or proceeding.
(b) If the quorum described in clause (a) above is not obtainable,
then by a majority vote of a committee of directors duly designated by the Board
of Directors and consisting solely of two or more directors who are not at the
time parties or threatened to be made parties to the action, suit or proceeding.
(c) By independent legal counsel in a written opinion, which counsel
shall be selected in one of the following ways: (i) by the board or its
committee in the manner prescribed in subparagraph (a) or (b), or (ii) if a
quorum of the board cannot be obtained under subparagraph (a) and a committee
cannot be designated under subparagraph (b), by the board.
(d) By the shareholders, but shares held by directors or officers who
are parties or threatened to be made parties to the action, suit or proceeding
may not be voted.
<PAGE> 13
11.07 Proportionate Indemnity. If a person is entitled to indemnification
under Section 11.01 or 11.02 of these Bylaws for a portion of expenses,
including attorneys' 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.
11.08 Expense Advance. The corporation may pay or reimburse the reasonable
expenses incurred by a person referred to in Section 11.01 or 11.02 of these
Bylaws who is a party or threatened to be made a party to an action, suit, or
proceeding in advance of final disposition of the proceeding if all of the
following apply: (a) the person furnishes the corporation a written affirmation
of his or her good faith belief that he or she has met the applicable standard
of conduct set forth in Section 11.01 or 11.02; (b) the person furnishes the
corporation a written undertaking executed personally, or on his or her behalf,
to repay the advance if it is ultimately determined that he or she did not meet
the standard of conduct; (c) the authorization of payment is made in the manner
specified in Section 11.06; and (d) a determination is made that the facts then
known to those making the determination would not preclude indemnification under
Section 11.01 or 11.02. The undertaking shall be an unlimited general obligation
of the person on whose behalf advances are made but need not be secured.
11.09 Non-Exclusivity of Rights. The indemnification or advancement of
expenses provided under this Article XI is not exclusive of other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under a contractual arrangement with the corporation. 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.
11.10 Indemnification of Employees and Agents of the Corporation. The
corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the corporation to the fullest extent of the provisions
of this Article XI with respect to the indemnification and advancement of
expenses of directors and officers of the corporation.
11.11 Former Directors and Officers. The indemnification provided in this
Article XI continues as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such person.
11.12 Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against the person 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 power to indemnify the person against such liability under these Bylaws or
the laws of the State of Michigan.
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11.13 Changes in Michigan Law. In the event of any change of the Michigan
statutory provisions applicable to the corporation relating to the subject
matter of Article XI of these Bylaws, then the indemnification to which any
person shall be entitled hereunder shall be determined by such changed
provisions, but only to the extent that any such change permits the corporation
to provide broader indemnification rights than such provisions permitted the
corporation to provide prior to any such change. Subject to Section 11.l4, the
Board of Directors is authorized to amend these Bylaws to conform to any such
changed statutory provisions.
11.l4 Amendment or Repeal of Article XI. No amendment or repeal of this
Article XI shall apply to or have any effect on any director or officer of the
corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
ARTICLE XII
AMENDMENTS
12.01 Amendments. Unless otherwise provided herein, the Bylaws of the
corporation may be amended, altered or repealed, in whole or in part, by the
shareholders or by the Board of Directors.
