FORM 8-A/A
(Amendment No. 1)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PRAB, INC.
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(Exact name of registrant as specified in its charter)
Michigan 38-1654849
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
5944 E. Kilgore Road, P.O. Box 2121, Kalamazoo, Michigan 49003
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None
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If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933 pursuant to
General Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.10 par value
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(Title of class)
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(Title of class)
<PAGE>
All items of Form 8-A dated February 19, 1982 filed by Prab, Inc.,
formerly known as Prab Robots, Inc. (the "Corporation") are hereby amended in
their entirety to read as follows:
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The total number of capital shares of all classes which the Corporation
has authority to issue are 9,600,000 shares which are divided as follows:
(i) 7,000,000 Common Shares, $0.10 par value, being
registered hereunder (the "Common Stock");
(ii) 2,000,000 Convertible Preferred Shares, $0.75 par value,
which are not being registered (the "Convertible Preferred Stock"); and
(iii) 600,000 Non-Convertible Preferred Shares, $0.50 par value,
which are not being registered (the "Non-Convertible Preferred Stock").
Voting Rights. Except as otherwise required by law, each share of Common
Stock shall entitle the holder thereof to one vote on each matter submitted to
a vote of the shareholders of the Corporation. The holders of shares of Common
Stock do not have cumulative voting rights.
Dividend Rights. Subject to provisions of law and preferences of any
outstanding shares of Convertible Preferred Stock and Non-Convertible
Preferred Stock described below, the holders of the Common Stock shall be
entitled to receive dividends at such times and in such amounts as may be
determined by the Board of Directors of the Corporation.
The holders of Convertible Preferred Stock shall be entitled to receive,
out of any assets at the time legally available therefor, on and after
November 1, 1995 a per annum dividend, based on the par value of such stock,
payable on a quarterly basis (with the first such dividend payable for the
fiscal quarter beginning November 1, 1995), pursuant to the following
schedule:
<TABLE>
<CAPTION>
ANNUAL
PERIOD DIVIDEND
<S> <C>
November 1, 1995 to October 31, 1996 5% per annum
November 1, 1996 to October 31, 1997 6% per annum
November 1, 1997 to October 31, 1998 7% per annum
November 1, 1998 and thereafter 8% per annum
</TABLE>
The dividend shall be mandatory and shall be payable at the option of the
Corporation in either (i) cash to the extent that the Corporation has assets
legally available therefor, or (ii) in shares of Common Stock provided that
(a) the value of the Common Stock for the purposes of computing the dividends
shall be the average of the bid and ask price of such stock for the
consecutive sixty (60) day trading period ending ten (10) business days prior
to the last day of such quarter and (b) such Common Stock, when issued, shall
be fully paid and nonassessable. The dividend for each quarter shall be due
and payable on the last day of each fiscal quarter. Such dividends are prior
and in preference to any declaration or payment of any dividend or
distribution on the Common Stock, but shall be junior and subordinate to the
declaration or payment of any dividend or distribution on the Non-Convertible
Preferred Stock. Such dividends shall accrue on each share of Convertible
Preferred Stock from day to day from November 1, 1995 and continuing
thereafter, whether or not earned or declared so that if such dividends with
respect to any previous dividend period at the rate provided for above have
not been paid on, or set apart for all shares of Convertible Preferred Stock
at the time outstanding, the deficiency shall be fully paid on, or declared
and set apart for, such shares before any distribution shall be paid on, or
declared and set apart for the Common Stock.
The holders of Non-Convertible Preferred Stock shall be entitled to
receive, out of any assets at the time legally available therefor, on and
after the dates such stock is issued, a per annum dividend, based on the par
value of such stock, payable on a quarterly basis (with the first such
dividend payable for the fiscal quarter beginning November 1, 1992), pursuant
to the following schedule:
<TABLE>
<CAPTION>
ANNUAL
PERIOD DIVIDEND
<S> <C>
Date of issuance to October 31, 1997 7% per annum
November 1, 1997 to October 31, 1998 8% per annum
November 1, 1998 and thereafter 9% per annum
</TABLE>
The dividend shall be mandatory, and shall be payable in cash on the last day
of each fiscal quarter. Such dividends are prior and in preference to any
declaration or payment of any dividend or distribution on the Convertible
Preferred Stock or the Common Stock. Such dividends shall accrue on each share
of Non-Convertible Preferred Stock from day to day from the date of issuance
and continuing thereafter, whether or not earned or declared so that if such
dividends with respect to any previous dividend period at the right provided
for above have not been paid on, or declared and set apart for all shares of
Non-Convertible Preferred Stock at the time outstanding, the deficiency shall
be fully paid on, or declared and set apart for such shares before any
distribution shall be paid on or declared and set apart for the Convertible
Preferred Stock or the Common Stock.
Liquidation Preference. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, after payment
or provision for payments of the debts and other liabilities of the
Corporation, the remaining assets of the Corporation shall be distributed to
the holders of outstanding shares of capital stock of the Corporation in the
following priority:
(i) the holders of the Non-Convertible Preferred Stock then
outstanding shall first be entitled to receive an amount equal to $0.50
per share plus the amount of any accrued but unpaid dividends to which
such holder is entitled;
(ii) then the holders of the Convertible Preferred Stock shall be
entitled to receive an amount equal to $0.75 per share plus the amount
of any accrued but unpaid dividends to which such holder is entitled;
and
(iii) then the remainder shall be allocated pro rata among the
holders of the shares of Common Stock.
If upon any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the assets to be distributed to the holders of
either the Non-Convertible Preferred Stock or the Convertible Preferred Stock
shall be insufficient to permit the payment to such holders of the full
preferential amounts provided for above, then all the assets of the
Corporation to be distributed to such class of either the Non-Convertible
Preferred Stock or Convertible Preferred Stock shall be distributed ratably to
the holders thereof. A consolidation or merger of the Corporation, share
exchange, sale, lease, exchange, or transfer of all or substantially all of
the assets as an entirety, or any purchase or redemption of stock of the
Corporation of any class, shall not be regarded as a "liquidation,
dissolution, or winding up of the affairs of the Corporation" within the
meaning of this Section 1. Whenever the distribution provided for herein shall
be paid in property other than cash, the value of such distribution shall be
the fair market value of such property as determined in good faith by the
Board of Directors.
Preemptive Rights. The holders of shares of Common Stock do not have
any preemptive rights to acquire any capital shares of the Corporation.
<PAGE>
ITEM 2. EXHIBITS.
The following Exhibits are furnished with this Registration Statement:
Exhibit No. Description
3(i) Second Restated Articles of
Incorporation of the Corporation,
as amended.
3(ii) Bylaws of the Corporation, as
amended.
4 Specimen stock certificate
incorporated herein by reference to
Exhibit 1 of the Corporation's Form
8-A dated February 19, 1982, file
no. 2-73320. As of March 29, 1994,
the Corporation's name on its stock
certificate form changed from "Prab
Robots, Inc." to "Prab, Inc."
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Dated: May 25, 1995 PRAB, INC.
/s/ John J. Wallace
By: ---------------------------------
John J. Wallace
Its: Chairman of the Board
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
3(i) Second Restated Articles of
Incorporation of the Corporation,
as amended.
3(ii) Bylaws of the Corporation, as
amended.
4 Specimen stock certificate
incorporated herein by reference to
Exhibit 1 of the Corporation's Form
8-A dated February 19, 1982, file
no. 2-73320. As of March 29, 1994,
the Corporation's name on its stock
certificate form changed from "Prab
Robots, Inc." to "Prab, Inc."
EXHIBIT 3(i)
SECOND RESTATED ARTICLES OF INCORPORATION
OF PRAB, INC., AS AMENDED
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ARTICLE I
The name of the corporation is Prab, Inc.
ARTICLE II
The purpose or purposes for which the corporation is organized is to
engage in any activity within the purposes for which corporations may be
organized under the Business Corporation Act of Michigan.
ARTICLE III
The total number of capital shares of all classes which the Corporation
shall have authority to issue is 9,600,000 shares which shall be divided as
follows:
(i) 7,000,000 Common Shares, $0.10 par value (the
"Common Stock");
(ii) 2,000,000 Convertible Preferred Shares, $0.75 par
value (the "Convertible Preferred Stock"); and
(iii) 600,000 Non-Convertible Preferred Shares, $0.50 par value
(the "Non-Convertible Preferred Stock").
The preferences, qualifications, limitations, restrictions, and the
special or relative rights thereof are as follows:
A. COMMON STOCK
1. Voting Rights. Except as otherwise required by law, each share of
Common Stock shall entitle the holder thereof to one vote on each matter
submitted to a vote of the shareholders of the Corporation.
2. Dividend Rights. Subject to provisions of law and preferences of any
outstanding shares of Convertible Preferred Stock and Non-Convertible
Preferred Stock and except as otherwise provided herein, the holders of the
Common Stock shall be entitled to receive dividends at such times and in such
amounts as may be determined by the Board of Directors of the Corporation.
B. CONVERTIBLE PREFERRED STOCK
1. Limited Voting Rights. Except as otherwise required by law, the
holders of Convertible Preferred Stock shall not be entitled to vote on any
matters submitted to a vote of the shareholders of the Corporation; provided,
however, the holders of the Convertible Preferred Stock, voting together as a
class, shall have the right to nominate and elect one member of the Board of
Directors. In the event the holders of the Convertible Preferred Shares fail
to elect such member of the Board of Directors to which they are entitled,
such director shall be elected by the holders of the Common Stock.
2. Dividends. The holders of Convertible Preferred Stock shall be
entitled to receive, out of any assets at the time legally available therefor,
on and after November 1, 1995 a per annum dividend, based on the par value of
such stock, payable on a quarterly basis (with the first such dividend payable
for the fiscal quarter beginning November 1, 1995), pursuant to the following
schedule:
<TABLE>
<CAPTION>
ANNUAL
PERIOD DIVIDEND
<S> <C>
November 1, 1995 to October 31, 1996 5% per annum
November 1, 1996 to October 31, 1997 6% per annum
November 1, 1997 to October 31, 1998 7% per annum
November 1, 1998 and thereafter 8% per annum
</TABLE>
The dividend shall be mandatory and shall be payable at the option of
the Corporation in either (i) cash to the extent that the Corporation has
assets legally available therefor, or (ii) in shares of Common Stock provided
that (a) the value of the Common Stock for the purposes of computing the
dividends shall be the average of the bid and ask price of such stock for the
consecutive sixty (60) day trading period ending ten (10) business days prior
to the last day of such quarter and (b) such Common Stock, when issued, shall
be fully paid and nonassessable. The dividend for each quarter shall be due
and payable on the last day of each fiscal quarter.
Such dividends are prior and in preference to any declaration or payment
of any dividend or distribution on the Common Stock, but shall be junior and
subordinate to the declaration or payment of any dividend or distribution on
the Non-Convertible Preferred Stock. Such dividends shall accrue on each share
of Convertible Preferred Stock from day to day from November 1, 1995 and
continuing thereafter, whether or not earned or declared so that if such
dividends with respect to any previous dividend period at the rate provided
for above have not been paid on, or set apart for all shares of Convertible
Preferred Stock at the time outstanding, the deficiency shall be fully paid
on, or declared and set apart for, such shares before any distribution shall
be paid on, or declared and set apart for the Common Stock.
3. Conversion Rights. On or after November 1, 1994, at any time and from
time to time thereafter, any holder of Convertible Preferred Stock shall have
the right to convert all or any number of such shares into a number of shares
of Common Stock. Each share of Convertible Preferred Stock shall be
convertible into one share of Common Stock (the "Conversion Ratio"), subject
to adjustment from time to time as hereinafter provided. Prior to November 1,
1994, no holder of Convertible Preferred Stock shall have any right to convert
any of such shares into Common Stock.
(a) Exercise of Conversion Rights. A holder of the Convertible
Preferred Stock shall surrender the certificate to the Corporation at its
principal office, accompanied by written notice electing to convert a
specified portion or all of such shares. Convertible Preferred Stock shall be
deemed to have been converted immediately prior to the close of business on
the day of surrender of the certificate for conversion, and at such time the
rights of the holder of such Convertible Preferred Stock, as such holder,
shall cease and such holder shall be treated for all purposes as the record
holder of the Common Stock issuable upon conversion. Within ten days of the
conversion date, the Corporation shall issue and mail or deliver to such
holder a certificate or certificates for the number of shares of Common Stock
issuable upon conversion and a certificate or certificates for the balance of
the Convertible Preferred Stock surrendered, if any, not so converted into
Common Stock. No fractional shares of Common Stock shall be issued upon
conversion. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall pay cash equal to such fraction
multiplied by the then fair market value of the Common Stock as determined in
good faith by the Board of Directors of the Corporation.
(b) Adjustment of Conversion Ratio. The Conversion Ratio as
hereinabove provided shall be subject to adjustment as follows:
(i) In case the Corporation shall (a) pay a dividend in shares of
its Common Stock, (b) subdivide its outstanding shares of Common Stock
into a greater number of shares, (c) combine its outstanding shares of
Common Stock into a smaller number of shares, or (d) issue by
reclassification of its shares of Common Stock any shares of its capital
stock, the Conversion Ratio in effect immediately prior thereto shall be
adjusted so that the holder of a share of Convertible Preferred Stock
surrendered for conversion after the record date fixing shareholders to
be affected by such event shall be entitled to receive, upon conversion,
the number of shares of Common Stock which such holder would have owned
or have been entitled to receive after the happening of such event had
such share of Convertible Preferred Stock been converted immediately
prior to the record date in the case of any such subdivision,
combination or reclassification. An adjustment made pursuant to this
subparagraph (i) shall be made whenever any of such events shall happen,
but shall become effective retroactively after such record date or such
effective date, as the case may be, as to shares of Convertible
Preferred Stock converted between such record date or effective date and
the date of happening of any such event.
(ii) In case the Corporation shall issue rights or warrants to all
holders of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share, which, when added to the
amount of consideration received or receivable by the Corporation for
such right or warrant, is less than the current market price (as
hereinafter defined) per share of Common Stock at the record date
mentioned below, the Conversion Ratio shall be adjusted so that
thereafter, until further adjusted, each share of Convertible Preferred
Stock shall be convertible into that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock into
which such share of Convertible Preferred Stock was theretofore
convertible by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of additional shares of Common Stock
issuable upon the exercise of such rights or warrants, and the
denominator of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the
number of shares which an amount equal to the sum of (a) the aggregate
exercise price of the total number of shares of Common Stock issuable
upon the exercise of such rights or warrants, plus (b) the aggregate
amount of consideration, if any, received, or receivable by the
Corporation for any such rights or warrants, would purchase at such
current market price. Such adjustment shall be made whenever such rights
or warrants are issued, but shall also be effective retroactively as to
shares of Convertible Preferred Stock converted between the record date
for the determination of stockholders entitled to receive such rights or
warrants and the date such rights or warrants are exercised.
(iii) In case the Corporation shall distribute to all holders of
its Common Stock any one or more of the following: (a) evidence of its
indebtedness, (b) assets (excluding cash dividends, distributions made
out of current or retained earnings, and distributions of the stock of
any subsidiary), or (c) rights or warrants to subscribe for or purchase
securities issued by, or property of, the Corporation (excluding those
referred to in subparagraph (ii) above), then in each such case the
Conversion Ratio shall be adjusted as provided below so that thereafter,
until further adjusted, the number of shares of Common Stock into which
each share of Convertible Preferred Stock shall be convertible shall be
determined by multiplying the number of shares of Common Stock into
which such share of Convertible Preferred Stock was theretofore
convertible by a fraction, the numerator of which shall be the current
market price per share of Common Stock on the date of such distribution,
and the denominator of which shall be such current market price per
share of the Common Stock, less the then fair market value (as
determined by the Board of Directors of the Corporation, whose
determinations shall be conclusive) of the portion of the assets or
evidence of indebtedness so distributed or of such rights or warrants
applicable to one share of the Common Stock. Such adjustment shall be
made whenever any such distribution is made, but shall also be effective
retroactively as to shares of Convertible Preferred Stock converted
between the record date for the determination of stockholders entitled
to receive such distribution and the date such distribution is made.
(iv) For the purpose of any computation under subparagraphs (ii)
and (iii) above, the current market price per share of Common Stock at
any date shall be the average of the bid and ask price of such stock for
the consecutive sixty (60) day trading period prior to such conversion
date.
(c) Transactions Not Requiring Adjustment. No adjustment of the
Conversion Ratio shall be made in any of the following cases:
(i) upon the grant or exercise of stock options pursuant
to any employee stock option plan now or hereafter authorized;
(ii) shares of Common Stock issued upon the conversion of
Convertible Preferred Stock;
(iii) shares issued by way of dividend or other distribution on
Common Stock excluded from the calculation of the adjustment under this
subparagraph (c) or on the Common Stock resulting from any subdivision
or combination of Common Stock so excluded; or
(iv) shares issued pursuant to all stock options and warrants
outstanding on the date of the filing of these Articles III.
(d) Payment of Dividends on Converted Shares. Upon conversion of
any shares of Convertible Preferred Stock, the holders of the shares of
Convertible Preferred Stock so converted shall be entitled to receive
dividends with respect to such shares of Convertible Preferred Stock up to and
including the date of the conversion. No payment or adjustment shall be made
on account of dividends declared and payable to holders of Common Stock of
record on a date prior to the date of conversion.
(e) Fractional Shares. No fractional shares or script representing
fractional shares shall be issued upon the conversion of any shares of
Convertible Preferred Stock. If more than one share of Convertible Preferred
Stock shall be surrendered for conversion at one time by the same holder, the
number of full shares issuable upon conversion thereof shall be computed on
the basis of the aggregate number of such shares so surrendered. If the
conversion of any share of Preferred Stock results in a fraction, an amount
equal to such fraction multiplied by the current market price (determined as
provided in subparagraph (b)(iv) above) of the Common Stock on the day of
conversion shall be paid to such holder in cash by the Corporation.
(f) Reservation of Common Stock. The Corporation shall at all
times reserve and keep available out of its authorized Common Stock, for the
purpose of effecting the conversion of the issued and outstanding Convertible
Preferred Stock, the full number of shares of Common Stock then deliverable in
the event and upon the conversion of all of the Convertible Preferred Stock
then issued and outstanding.
4. Redemption. Subject to Section 4(d), the Corporation may redeem the
Convertible Preferred Stock at its option at any time and from time to time,
in whole or in part, from funds legally available therefor, at the redemption
price hereinafter specified, together, in each case, with any accrued and
unpaid dividends to the redemption date. The redemption price per share of
Convertible Preferred Stock shall be $0.75, plus the amount of any accrued but
unpaid dividends.
(a) Notice. The Corporation shall effect each redemption of
Convertible Preferred Stock under this Section by giving at least 60 days but
not more than 90 days written notice to the holders of record of the
Convertible Preferred Stock to be redeemed and containing the date fixed for
redemption and the place of surrender and payment. On or after the date fixed
for redemption, each holder of Convertible Preferred Stock called for
redemption shall surrender the certificates evidencing such shares to be
redeemed to the Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the redemption price for the
shares redeemed.
(b) Conversion Prior to Redemption. For a period of 60 days after
the date of the redemption notice, the holders of Convertible Preferred Stock
shall have the option to convert such shares to Common Stock to the extent
such a right exists under Section 3 above.
(c) Effect of Redemption. From and after the redemption date
(unless default shall be made by the Corporation in duly paying the redemption
price in which case all of the rights of the holders of such shares shall
continue) the holders of the shares of the Convertible Preferred Stock called
for redemption shall cease to have any rights as shareholders of the
Corporation except the right to receive, without interest, the redemption
price, thereof upon surrender of the certificates representing the shares of
Convertible Preferred Stock, and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on the books of the
Corporation and shall not be deemed outstanding for any purposes whatsoever.
(d) Limitation on Redemption. The Corporation shall not be
permitted to redeem any shares of Convertible Preferred Stock or Common Stock
unless and until it has redeemed all outstanding shares of Non-Convertible
Preferred Stock from the holders thereof.
C. NON-CONVERTIBLE PREFERRED STOCK
1. Limited Voting Rights. Except as otherwise required by law, the
holders of the Non-Convertible Preferred Stock shall not be entitled to vote
on any matters submitted to a vote of the shareholders of the Corporation;
provided, however, in the event that the dividend provided for in Section 2
below is not paid within thirty (30) days of its due date, the holders of the
Non-Convertible Preferred Stock shall have the right to nominate and elect, by
a majority of such holders (by written consent or at any regular or special
meeting of shareholders), two members to the Board of Directors in addition to
those members then on the Board, and such directors shall continue in office
until all dividends in arrears have been paid in full and, for two successive
quarters thereafter, all dividends on the Non-Convertible Preferred Stock have
been paid in a timely manner. When the right of the holders of the Non-
Convertible Preferred Shares to vote as provided herein has ceased, the term
of office of the persons elected by them as directors shall terminate and the
vacancies shall remain unfilled. In the event the holders of the
Non-Convertible Preferred Stock fail to elect such members of the Board of
Directors to which they are entitled, such position shall remain unfilled.
2. Dividend. The holders of Non-Convertible Preferred Stock shall be
entitled to receive, out of any assets at the time legally available therefor,
on and after the dates such stock is issued, a per annum dividend, based on
the par value of such stock, payable on a quarterly basis (with the first such
dividend payable for the fiscal quarter beginning November 1, 1992), pursuant
to the following schedule:
<TABLE>
<CAPTION>
ANNUAL
PERIOD DIVIDEND
<S> <C>
Date of issuance to October 31, 1997 7% per annum
November 1, 1997 to October 31, 1998 8% per annum
November 1, 1998 and thereafter 9% per annum
</TABLE>
The dividend shall be mandatory, and shall be payable in cash on the last day
of each fiscal quarter.
Such dividends are prior and in preference to any declaration or payment
of any dividend or distribution on the Convertible Preferred Stock or the
Common Stock. Such dividends shall accrue on each share of Non-Convertible
Preferred Stock from day to day from the date of issuance and continuing
thereafter, whether or not earned or declared so that if such dividends with
respect to any previous dividend period at the right provided for above have
not been paid on, or declared and set apart for all shares of Non-Convertible
Preferred Stock at the time outstanding, the deficiency shall be fully paid
on, or declared and set apart for such shares before any distribution shall be
paid on or declared and set apart for the Convertible Preferred Stock or the
Common Stock.
3. Redemption. The Corporation may redeem the Non-Convertible Preferred
Stock at its option at any time and from time to time, in whole or in part,
from funds legally available therefor, at the redemption price hereinafter
specified, together, in each case, with any accrued and unpaid dividends to
the redemption date. The redemption price per share of Non-Convertible
Preferred Stock shall be: (i) $0.50 if the redemption occurs at any time prior
to November 15, 1994, plus the amount of any accrued but unpaid dividends; and
(ii) $0.60 if the redemption occurs at any time on or after November 15, 1994,
plus the amount of any accrued but unpaid dividends.
(a) Notice. The Corporation shall effect each redemption of Non-
Convertible Preferred Stock under this Section by giving at least 60 days but
not more than 90 days written notice to the holders of record of the
Non-Convertible Preferred Stock to be redeemed, and containing the date fixed
for redemption and the place of surrender and payment. On or after the date
fixed for redemption, each holder of Non-Convertible Preferred Stock called
for redemption shall surrender the certificates evidencing such shares to be
redeemed to the Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the redemption price for the
shares redeemed.
(b) Effect of Redemption. From and after the redemption date
(unless default shall be made by the Corporation in duly paying the redemption
price in which case all of the rights of the holders of such shares shall
continue) the holders of the shares of the Non-Convertible Preferred Stock
called for redemption shall cease to have any rights as shareholders of the
Corporation except the right to receive, without interest, the redemption
price, thereof upon surrender of the certificates representing the shares of
Non-Convertible Preferred Stock, and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on the books of the
Corporation and shall not be deemed outstanding for any purposes whatsoever.
(c) Limitation on Redemption. The Corporation shall be required to
redeem all of the shares of Non-Convertible Preferred Stock issued and
outstanding before it shall be permitted to redeem any shares of Convertible
Preferred Stock or Common Stock.
D. GENERAL TERMS
1. Liquidation Preference. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, after
payment or provision for payments of the debts and other liabilities of the
Corporation, the remaining assets of the Corporation shall be distributed to
the holders of outstanding shares of capital stock of the Corporation in the
following priority:
(i) the holders of the Non-Convertible Preferred Stock then
outstanding shall first be entitled to receive an amount equal to $0.50
per share plus the amount of any accrued but unpaid dividends to which
such holder is entitled;
(ii) then the holders of the Convertible Preferred Stock shall be
entitled to receive an amount equal to $0.75 per share plus the amount
of any accrued but unpaid dividends to which such holder is entitled;
and
(iii) then the remainder shall be allocated pro rata among the
holders of the shares of Common Stock.
If upon any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the assets to be distributed to the holders of
either the Non-Convertible Preferred Stock or the Convertible Preferred Stock
shall be insufficient to permit the payment to such holders of the full
preferential amounts provided for above, then all the assets of the
Corporation to be distributed to such class of either the Non-Convertible
Preferred Stock or Convertible Preferred Stock shall be distributed ratably to
the holders thereof. A consolidation or merger of the Corporation, share
exchange, sale, lease, exchange, or transfer of all or substantially all of
the assets as an entirety, or any purchase or redemption of stock of the
Corporation of any class, shall not be regarded as a "liquidation,
dissolution, or winding up of the affairs of the Corporation" within the
meaning of this Section 1. Whenever the distribution provided for herein shall
be paid in property other than cash, the value of such distribution shall be
the fair market value of such property as determined in good faith by the
Board of Directors.
2. Anti-Dilution. In case the Corporation shall at any time subdivide
the outstanding shares of Convertible Preferred Stock or Non-Convertible
Preferred Stock, or shall issue a stock dividend on its outstanding
Convertible Preferred Stock or Non-Convertible Preferred Stock payable in such
same class of stock, the dividend or redemption price payable with respect
thereto prior to such subdivision or the issuance of such stock dividend shall
be proportionately decreased, and in case the Corporation shall at any time
combine the outstanding shares of Convertible Preferred Stock and
Non-Convertible Preferred Stock, the dividend or redemption price with respect
thereto immediately prior to such combination shall be proportionately
increased, effective at the close of business on the day of such subdivision,
stock dividend or combination, as the case may be.
3. Notices. All notices required or permitted to be given by the
Corporation with respect to the capital stock shall be in writing, and if
delivered by first class United States mail, postage prepaid, to the holders
of such capital stock at their last addresses as they shall appear upon the
books of the Corporation, shall be conclusively presumed to have been duly
given, whether or not the stockholder actually receives such notice.
ARTICLE IV
The address of the current registered office is:
444 West Michigan Avenue, Kalamazoo, Michigan 49007
The name of the current resident agent at the registered office is Eric
V. Brown, Sr.
ARTICLE V
The duration of the corporation is perpetual.
ARTICLE VI
Any action required or permitted by law, these Articles of Incorporation
or the Bylaws of the corporation to be taken at an annual or special meeting
of shareholders may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take the action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action shall be given to
shareholders who have not consented in writing.
EXHIBIT 3(ii)
BYLAWS OF PRAB, INC., AS AMENDED
Section 1.01. Annual Meetings. The annual meeting of the stockholders of
the Corporation for the election of Directors and for the transaction of such
other business as may properly come before the meeting shall be held at the
corporate offices or any other place either within or without the State of
Michigan, as specified by the Directors and at 2:00 o'clock p.m. local time on
the 1st Thursday of March, each year, (or, if such is a legal holiday, then on
the next succeeding business day), or at any other time and date as shall be
fixed from time to time by resolution of the Board of Directors."
Section 1.02. Special Meetings. Special meetings of the stockholders may
be called at any time by the Board of Directors or by the Chairman of the
Board of Directors, or the President of the Corporation. A two-thirds majority
of the stockholders may also request a special meeting and the Directors shall
grant such a request. The holders of a majority of the outstanding shares of
the Convertible Preferred Shares, $0.75 par value (the "Convertible Preferred
Stock"), may call a meeting of the holders of the Convertible Preferred Stock
and the holders of a majority of the outstanding shares of the Non-Convertible
Preferred Shares, $0.50 par value (the "Non-Convertible Preferred Stock") may
call a meeting of the holders of the Non-Convertible Preferred Stock. Special
meetings of the stockholders shall be held at places within or without the
State of Michigan, as shall be specified in the notice or waiver of notice
thereof. Notices of special meetings shall state the purpose of the meeting.
Section 1.03. Notice of Meetings. The Secretary or any assistant
Secretary shall cause notice of the time and place and purpose of each meeting
of the stockholders to be personally delivered or mailed, at least ten (10)
days but not more than sixty (60) days prior to the meeting, to each
stockholder of record entitled to vote at the meeting. Notice shall be deemed
given when the requisite time has elapsed after deposit in a United States
mailbox addressed to the address of the stockholder as revealed on the records
of the Corporation. Notice of a meeting of stockholders need not be given to
any stockholder who signs a waiver of notice in writing, whether before or
after the time of the meeting. Notice of any adjourned meeting of the
stockholders of the Corporation need not be given if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken and at the adjourned meeting only such business is
transacted as might have been transacted at the original meeting. If after the
adjournment the Board fixes a new record date for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to such notice on the new record date.
Section 1.04. Attendance at Meeting. Attendance of a person at a meeting
of stockholders in person or by proxy constitutes a waiver of notice of the
meeting.
Section 1.05. Quorum. Except as otherwise required by statute or the
Articles of Incorporation, the presence at any stockholders' meeting, in
person or by proxy, of the holders of record of the shares of stock of each
class entitled to vote at the meeting, aggregating a majority of the total
number of shares of the stock of each class then issued and outstanding and
entitled to vote at the meeting, shall be sufficient to constitute a quorum
for the transaction of business. If such majority shall not be present or
represented at any meeting of the stockholders, those stockholders present in
person or by proxy shall have the power to adjourn the meeting, until the
requisite amount of voting stock shall be present. The stockholders present in
person or by proxy at such meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. At the adjourned meeting at which the requisite amount of
voting stock shall be represented, any business may be transacted which might
have been transacted at the meeting as originally notified.
Section 1.06. Stockholder to Vote in Person or by Proxy. At each meeting
of the stockholders, every stockholder having the right to vote or to express
consent or dissent without a meeting shall be entitled to vote in person, or
by proxy appointed by an instrument in writing authorizing other persons to
act for him. A proxy shall be signed by the stockholder or his authorized
agent or representative and shall not be valid after the expiration of three
(3) years from its date unless otherwise provided in the proxy.
Section 1.07. Stockholder to Have One Vote Per Share. Each stockholder
shall have one vote for each share of stock having voting power registered in
his name on the books of the Corporation. All elections shall be had and all
questions decided by a majority vote. There shall be no cumulative voting.
Section 1.08. Consent of Stockholders in Lieu of Meeting. To the extent
provided by any statute and the Articles of Incorporation at the time in
force, whenever the vote of stockholders at a meeting is required or permitted
to be taken for or in connection with any corporate action, by any statute, by
the Articles of Incorporation or by these By-Laws, the meeting, notice of
meeting and vote of stockholders may be dispensed with if 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 all voted shall consent in writing
to such corporate action being taken. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers. The property, affairs, and business of the
Corporation shall be managed by the Board of Directors. The Board of Directors
may exercise all the powers of the Corporation, whether derived from law or
the Articles of Incorporation. A Director need not he a stockholder of the
Corporation.
Section 2.02. Number and Term of Office. The Board of Directors shall
consist of not less than five (5) and not more than nine (9) Directors;
provided that in the event that the holders of the Non-Convertible Preferred
Stock shall have the right to nominate and elect two Directors, as provided in
the Articles of Incorporation, then the maximum number of Directors shall
without further action be increased by two (2), until the holders of the
Non-Convertible Preferred Stock no longer have such right. The number of
members of the Board shall be fixed from time to time by resolution of the
Board of Directors; provided that in the event that the holders of the
Non-Convertible Preferred Stock shall have the right to nominate and elect two
Directors, then the number of Directors fixed by the Board of Directors shall
without further action be increased by two, until the holders of the
Non-Convertible Preferred Stock no longer have such right. The first Board of
Directors shall hold office until the first annual meeting of shareholders. At
the first annual meeting thereafter the shareholders shall elect Directors to
hold office until the succeeding annual meeting. A Director shall hold office
for the term for which he is elected and until his successor is elected and
qualified or until his death, or until he shall have resigned or have been
removed. A resignation shall be effective upon its receipt by the Corporation
or at the subsequent time as set forth in the notice of resignation.
Section 2.03. Election of Directors. Except as otherwise provided in
Section 2.11 hereof, the Directors shall be elected annually at the annual
meeting of the stockholders unless a term of more than one (1) year shall be
prescribed, in which event at least one-third (1/3), as near as may be, of the
members of the Board shall be elected at each annual meeting; provided that
Directors elected by the Convertible Preferred Stock or Non-Convertible Stock
may also be elected at a Special Meeting of the holders thereof called by such
holders as specified in Section 1.02 hereof. At the meeting of the
stockholders for the election of Directors, provided a quorum is present, the
Directors shall be chosen and elected by a majority of the votes validly cast
at the election; provided that, as provided in the Articles of Incorporation,
the holders of the Convertible Preferred Stock shall have the right to elect
one member of the Board of Directors,by a majority of the votes validly cast
by such class of stock at the election and under certain circumstances
specified in the Articles of Incorporation the holders of the Non-Convertible
Preferred Stock shall have the right to elect two directors by a majority of
the votes validly cast by such class of stock at the election.
Section 2.04. Annual and Regular Meetings. The annual meeting of the
Board of Directors, for the election of officers and for the transaction of
other business as may come before the meeting, shall be held in each year
either within or without the State of Michigan as soon as possible after the
annual meeting of the stockholders on the same day and place as the annual
meeting of the stockholders. Notice of the annual meeting of the Board of
Directors shall not be required. Notice of regular meetings, if set by
resolution of the Board of Directors, need not be given; provided, however,
that in case the Board of Directors shall change the time or place of regular
meetings, notice of this action shall be mailed promptly to each Director who
shall not have been present at the meeting at which the action was taken.
Section 2.05. Special Meeting; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board or by the
President, or by any one Director, at such time and place as may be specified
in the notice or waiver of notice. Special meetings of the Board of Directors
may be called on 24 hours' notice to each Director, personally or by telephone
or telegram, or on ten (10) days' notice by mail. Notice of any special
meeting need not be given to any Director who shall be present at the meeting,
or to any Director who shall waive notice of the meeting in writing, whether
before or after the time of the meeting. No notice need be given of any
adjourned special meeting.
Section 2.06. Quorum. At all meetings of the Board of Directors, the
presence of a majority of the total number of Directors, but at least four (4)
Directors, shall constitute a quorum for the transaction of business. Except
when otherwise required by statute, the act of a majority of the Directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors. In the absence of a quorum, the Directors present may
adjourn the meeting. A Director shall be present at the meeting if he and all
other persons participating in the meeting can hear one another by means of
conference telephone or similar communications equipment.
Section 2.07. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting, if before or after the action written consents thereto are signed by
all members of the Board and such written consents are filed with the minutes
of proceedings of the Board.
Section 2.08. Manner of Acting. The Directors shall act only as a
Board -- dual Directors shall have no power as such.
Section 2.09. Resignations. Any Director may resign at any time by
delivering a written resignation to the Chairman of the Board, the President,
or the Secretary. The resignation shall be effective as provided by Section
2.02.
Section 2.10. Removal of Directors. A Director or the entire Board may
be removed at any time with or without cause upon the affirmative vote of the
holders of a majority of the outstanding shares of stock of the Corporation
entitled to vote at an election of Directors; provided that a Director elected
by the holders of the Convertible Preferred Stock or the Non-Convertible
Preferred Stock may only be removed by the affirmative vote of the holders of
a majority of the outstanding shares of stock of the Corporation entitled to
vote on the election of such Director.
Section 2.11. Vacancies and Newly Created Directorships. If any
vacancies shall occur in the Board of Directors, by reason of death,
resignation. removal or otherwise, or if the authorized number of Directors
shall be increased, the Directors then in office shall continue to act, and
the vacancies shall be filled by vote of a majority of the Directors then in
office, though less than a quorum; provided, however, that a Director
appointed to fill such vacancies shall only hold office until the next
election of Directors by the stockholders; and provided further that a vacancy
in a position held by Directors elected by the holders of the Convertible
Preferred Stock or the Non-Convertible Preferred Stock may only be filled by
vote of a majority of the outstanding shares of stock of the Corporation
entitled to vote on the election of such Director.
Section 2.12. Compensation. The amount, if any, which each Director
shall be entitled to receive as compensation for his services shall be fixed
by resolution of the Board of Directors.
Section 2.13. Reliance on Accounts and Reports. A Director, or a member
of any committee designated by the Board of Directors, in the performance of
his duties, shall be fully protected in relying in good faith upon the books
of account of the Corporation represented to him to be correct by the
President or the officer of the Corporation having charge of its books of
account or stated in a written report by an independent public or certified
public accountant or firm of such accountants represented to fairly reflect
the financial condition of the Corporation, and upon the opinion of counsel
for the Corporation and upon the report of an independent appraiser selected
with reasonable care by the Board of Directors.
ARTICLE III
OFFICERS
Section 3.01. Number. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a President, one or more Vice Presidents,
a Secretary and a Treasurer who shall hold office until their successors are
chosen and qualify. The Secretary and Treasurer may be the same person, and
the Vice President may hold, at the same time, the office of Secretary or
Treasurer. The Board of Directors may also choose one or more Assistant
Secretaries and Assistant Treasurers. Any number of offices may be held by the
same person, but no officer shall execute, acknowledge, or verify any
instrument in more than one capacity if the instrument is required by law or
the Articles of Incorporation or By-Laws to be executed, acknowledged or
verified by two (2) or more officers. The Board of Directors may elect, but
shall not be required to elect, a Chairman of the Board.
Section 3.02. Additional Officers. The Board of Directors may appoint
such other 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 of Directors.
Section 3.03. Election. The Board of Directors at its first meeting or
subsequent meetings as shall be held prior to its first annual meeting, and
thereafter annually at its annual meeting, shall elect the officers of the
Corporation. If officers are not elected at an annual meeting, such officers
may be elected at any subsequent regular or special meeting.
Section 3.04. Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors.
Section 3.05. Removal and Vacancies. Any officer elected or appointed by
the Board of Directors may be removed by the Board at any time, by the
affirmative vote of a majority of the Board of Directors, with or without
cause. Any vacancy occurring in any office of the Corporation shall be filled
by the Board of Directors.
Section 3.06. Duties of the Chairman of the Board of Directors. The
Chairman of the Board of Directors, if there be such an officer, shall preside
at all stockholders' meetings and all meetings of the Board at which he is
Present and shall have such other duties as are assigned to him by the Board
of Directors.
Section 3.07. Duties of the President. The President shall have direct
charge of the business of the Corporation, subject to the general control of
the Board of Directors, and shall be the chief executive officer of the
Corporation.
Section 3.08. Duties of the Vice President. In the event of the absence
or disability of the President, the Vice President, or, in case there shall be
more than one Vice President, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
President.
Section 3.09. Duties of the Secretary. The Secretary shall, if present,
act as Secretary of, and keep the minutes of, all the proceedings of the
meetings of the stockholders and of the Board of Directors and of any
committee of the Board of Directors in one or more books to be kept for that
purpose; shall perform other duties as shall be assigned to him by the
President or the Board of Directors; and, in general, shall perform all duties
incident to the office of Secretary.
Section 3.10. Duties of the Treasurer. The Treasurer shall keep or
cause to be kept full and accurate records of all receipts and disbursements
in the books of the Corporation and shall have the care and custody of all
funds and securities of the Corporation. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, shall render to the
President and Directors, whenever they request it, an account of all of his
transactions as Treasurer and shall perform other duties as may be assigned to
him by the President or the Board of Directors; and, in general, shall perform
all duties incident to the office of Treasurer.
Section 3.11. Employee Bonds. The Board of Directors may require the
Treasurer, the Assistant Treasurers and any other officers, agents or
employees of the Corporation to give bond for the faithful discharge of their
duties, in such sum and of such character as the Board may from time to time
prescribe.
Section 3.12. Officers as Directors. No officer need be a Director of
the Corporation.
Section 3.13. Reliance on Accounts and Reports. An officer shall be
entitled to rely on the same accounts in the same manner as specified for a
Director in Section 2.13.
ARTICLE IV
EXECUTION OF INSTRUMENTS, DEPOSITS,
VOTING OF SECURITIES
Section 4.01. General. Subject to the provisions of Section 4.02 and
4.03 hereof, all deeds, documents, transfers, contracts, agreements and other
instruments requiring execution by the Corporation shall be signed by the
President and by the Treasurer or Secretary or as the Board of Directors may
otherwise from time to time authorize.
Section 4.02. Corporate Indebtedness. No loan shall be contracted on
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors. Authorization may be
general or confined to specific instances. All bonds, debentures, notes and
other obligations or evidences of indebtedness of the Corporation issued for
loans shall be made, executed and delivered as the Board of Directors shall
authorize. When authorized by the Board of Directors, any part or all of the
properties, including contract rights, assets, business or good will of the
Corporation, or inventories, whether then owned or thereafter acquired, may be
mortgaged, pledged, hypothecated or conveyed or assigned in trust as security
for the payment of such bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation, and of the interest thereon, by
instruments executed and delivered in the name of the Corporation.
Section 4.03. Checks or Drafts. All checks, drafts, bills of exchange or
other orders for the payment of money issued in the name of the Corporation
shall be signed only by such person or persons and in such manner as may from
time to time be designated by the Board of Directors, and unless so
designated, no person shall have any power or authority thereby to bind the
Corporation or to pledge its credit or to render it liable.
Section 4.04. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may select. For the purpose of deposit and for the purpose of collection for
the account of the Corporation, checks, drafts and other orders for the
payments of money which are payable to the order of the Corporation shall be
endorsed, assigned and delivered by such person or persons and in such manner
as may from time to time be designated by the Board of Directors.
Section 4.05. Appointment of Agents to Vote Securities of Other
Corporations. Unless otherwise provided by resolution adopted by the Board of
Directors, the President may from time to time appoint an attorney or
attorneys, or an agent or agents, to exercise in the name and on behalf of the
Corporation the powers and rights which the Corporation may have as the holder
of stock or other securities in any other corporation to vote or to consent in
respect of such stock or other securities; and the President may instruct the
person or persons so appointed as to the manner of exercising such powers and
rights. The President may execute or cause to be executed in the name and on
behalf of the Corporation all such written proxies, powers of attorney or
other written instruments as he may deem necessary in order that the
Corporation may exercise such powers and rights.
ARTICLE V
CAPITAL STOCK
Section 5.01 Certificates of Stock. Every holder of stock in the
Corporation shall be entitled to have a signed certificate, signed by, or in
the name of the Corporation, by the President and Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
The signatures of the officers may be facsimiles if the certificate is signed
by a transfer agent or registered by a registrar other than the Corporation or
its employee.
Section 5.02. Transfers of Stock. 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, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 5.03. Record Date. In order to determine the stockholders
entitled to notice of and to vote at any meeting of stockholders or any
adjournment thereof, or to express consent or dissent from a proposal without
a meeting for the purpose of determining stockholders entitled to receive
payment of a dividend or other distribution or allotment of any right, or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other action, the Board of
Directors may fix, in advance, a record date for any such determination of the
stockholders, which shall not be more than sixty (60) days nor less than ten
(10) days before the date of such meeting, or the date for payment of any
dividend or the date for the allotment of rights or the date on which any
change or conversion or exchange of capital stock shall go into effect. Only
those stockholders as shall be stockholders of record on the date so fixed
shall be entitled to notice of, and to vote at, such meeting, or to receive
payment of such dividend, or to receive such allotment of rights, or to
exercise such rights. The record date shall not be more than sixty (60) days
prior to any other action.
If a record date is not fixed:
(a) The record date for determination of stockholders entitled to
notice of or to vote at a meeting of stockholders shall be the close of
business on the day next preceding the day on which notice is given, or
if no notice is given, the day next preceding the day on which the
meeting is held, and
(b) The record date for determining stockholders for any purpose
other than that specified in Section 5.04(a) shall be the close of
business on the day on which the resolution of the Board relating
thereto is adopted.
A determination of a record date under this section regarding a meeting
applies to any adjournment of the meeting unless the Board fixes a new record
date for the adjourned meeting.
Section 5.04. Registered Stockholders. Prior to due presentment for
registration of transfer of a security in registered form, the Corporation may
treat the registered owner as the person exclusively entitled to vote, to
receive notifications and otherwise to exercise all rights and powers of an
owner.
Section 5.05. Signatures. 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 he were such officer, transfer agent or registrar at the
date of issue.
Section 5.06. Lost Certificates. The Board of Directors may direct that
a new certificate or certificates be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost
or destroyed, upon the making of an affidavit of the fact by the person
claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost or destroyed certificate or certificates, or
his legal representative, to give the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed or the issuance of a new certificate.
Section 5.07. Transfer Restrictions. The Corporation may place transfer
restrictions upon the stock of the Corporation by a majority vote of the
stockholders of all the stock of the Corporation. All shares whose transfer is
restricted shall carry a notation to that effect on their face.
ARTICLE VI
INSURANCE
Section 6.01. Insurance. By action of the Board of Directors,
notwithstanding any interest of the Directors in the action, the Corporation
may purchase and maintain insurance, in such amounts as the Board of Directors
may deem appropriate, on behalf of any person who is or was a Director,
officer, employee or agent of the Corporation or who was serving at the
request of the Corporation as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or enterprise against
any liability asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability.
ARTICLE VII
INDEMNIFICATION
Section 7.01. Indemnification. To the extent permitted and in the manner
provided by law, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, sending or
completed action, suit or proceedings, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of
the Corporation), by reason of the fact that he is or was a Director, officer,
employee or agent of the Corporation or is or was serving at the request of
the Corporation as a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation or its stockholders and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
foregoing right of indemnification shall not be deemed exclusive of any other
rights to which any person seeking indemnification may he entitled under any
agreement, vote of stockholders or disinterested Directors or otherwise, and
shall continue 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
a person.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends. Dividends upon the stock of the Corporation,
subject to the provisions of the Articles of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of stock,
subject to the provisions of the Articles of Incorporation and the applicable
statute. Dividends may be paid only out of surplus.
Section 8.02. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Directors from time to time, in their absolute discretion think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Directors shall deem conducive to the interest
of the Corporation, and the Directors may modify or abolish any such reserve.
Section 8.03. Fiscal Year. The fiscal year of the Corporation, if any,
shall be fixed by resolution of the Board of Directors.
Section 8.04. Offices. The registered office of the Corporation shall be
in the City of Kalamazoo, State of Michigan, at 444 West Michigan Avenue, or
at such other places both within or outside the State of Michigan as the Board
of Directors may from time to time determine.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments. These By-Laws may be altered or repealed by a
majority vote at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration or repeal is contained in the notice of
such special meeting; provided that Sections 1.02, 1.05, 2.02, 2.03, 2.10,
2.11 and 9.01 may not be altered or repealed without the approval of a
majority of the holders of both the Convertible Preferred Stock and the
Non-Convertible Stock, voting as separate classes of stock.
ARTICLE X
INTERPRETATION
Section 10.01. Headings. The article and paragraph headings included in
these By-Laws have been used solely for convenience and shall in no event act
as or be used in conjunction with the interpretation of these By-Laws.
Section 10.02. Conflict with Statute. In the event any article of
section of these By-Laws shall conflict with the Michigan Business Corporation
Act, the Michigan Business Corporation Act shall rule.
