SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
June 11, 1999
(Date of Report (Date of Earliest Event Reported))
LA-Z-BOY INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
Michigan
(State or Other Jurisdiction of Incorporation)
1-9656
(Commission File Number)
38-0751137
(I.R.S. Employer Identification No.)
1284 N. Telegraph Road
Monroe, Michigan 48162
(Address of Principal Executive Offices, Including Zip Code)
(734) 242-1444
(Registrant's Telephone Number, Including Area Code)
[not applicable]
(Former Name or Former Address If Changed Since Last Report
Item 5: Other Events
La-Z-Boy Incorporated (the "Company") is filing this Current Report on Form 8-K
so as to file with the Securities and Exchange Commission the amended and
restated By-laws of the Company that are to be incorporated by reference into
its Proxy Statement on Form DEF 14A.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
a) Financial Statements.
None.
b) Pro Forma Financial Information.
None.
c) Exhibits.
1. By-laws of La-Z-Boy Incorporated as amended and restated on
May 10, 1999
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
LA-Z-BOY INCORPORATED
/s/ Gene M. Hardy
Date: June 11, 1999 Gene M. Hardy
Secretary and Treasurer
(May 10, 1999)
BY-LAWS
OF
LA-Z-BOY INCORPORATED
ARTICLE I
Name and Office
Section 1. Name. The name of this corporation shall be La-Z-Boy Incorporated.
Section 2. Registered Office. The principal and registered office of the
corporation shall be located at 1284 North Telegraph Road, Monroe, Michigan.
Section 3. Other Offices. The corporation may also have other offices for the
transaction of business located at such places, both within and without the
State of Michigan, as the Board of Directors may from time to time determine.
ARTICLE II
Capital Stock and Transfers
Section 1. (A). Share Certificates: Required Signatures. The shares of the
corporation shall be represented by certificates signed by the Chairman of the
Board or the President or the Executive Vice President and the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer of the
corporation, and may be sealed with the seal of the corporation or a facsimile
thereof. The signatures of the officers of the corporation upon a certificate
may be facsimiles if the certificate is countersigned by a transfer agent, or is
registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon such 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 its issue.
Section 1. (B). Share Certificates: Required Information. A certificate
representing shares of the corporation shall state upon its face all of the
following:
(a) That the corporation is formed under the laws of this state.
(b) The name of the person to whom issued.
(c) The number and class of shares, and the designation of the series, if
any, which the certificate represents.
Section 2. Lien. The corporation shall have a first lien on all the shares of
its capital stock, and upon all dividends declared upon the same for any
indebtedness of the respective holders thereof to the corporation.
Section 3. Transfers. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares fully endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate canceled and the transaction recorded upon the books of the
corporation.
Section 4. Replacement of Lost, Stolen or Destroyed Share Certificates. The
Board of Directors may direct a new certificate to be issued in place of any
certificate theretofore issued by the corporation alleged to have been lost,
stolen or destroyed. When authorizing such issue of a new certificate, the Board
of Directors, in its discretion and as a condition precedent to the issuance
thereof, may prescribe such terms and conditions as it deems expedient, and may
require such indemnities as it deems adequate, to protect the corporation from
any claim that may be made against it with respect to any such certificate
alleged to have been lost, stolen or destroyed.
Section 5. Transfer Agent and Registration. The Board of Directors may
appoint a transfer agent and a registrar in the registration of transfers of
its securities.
Section 6. Rules of Issue and Transfer. The Board of Directors shall have power
and authority to make all such rules and regulations as the board shall deem
expedient regulating the issue, transfer and registration of certificates for
shares in this corporation.
Section 7. Registered Shareholders. The corporation shall have the right to
treat the registered holder of any share as the absolute owner thereof, and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the corporation shall
have express or other notice thereof, save as may be otherwise provided by the
statutes of Michigan.
ARTICLE III
Shareholders and Meetings
Section 1. Annual Meeting of Shareholders. The 1991 Annual Meeting of
Shareholders shall be held August 5, 1991 and all subsequent Annual Meetings of
Shareholders shall be held on the last Monday in July of each year, or at such
other date as shall be designated by the Board of Directors and stated in the
notice of the meeting. At said meeting the shareholders shall elect by a
plurality vote the Directors to be elected at such meeting, and shall transact
such other business as may properly be brought before the meeting.
Section 2. Special Meetings of Shareholders. A special meeting of the
shareholders for any purpose or purposes other than election of Directors may be
called at any time and place by the President, and in his absence by the
Chairman of the Board; or by the Directors. It shall be the duty of the
Directors, the Chairman of the Board, or President to call such meeting whenever
so requested in writing by shareholders owning, in the aggregate, at least
seventy-five percent (75%) of the entire capital stock of the corporation
entitled to vote at such special meeting. Such request shall state the purpose
or purposes of the proposed meeting.
Section 3. Notice of Meetings of Shareholders. Notice of the time, date and
place of all annual and special meetings shall be mailed by the Secretary to
each shareholder entitled to vote at such meeting not less than ten (10) days
nor more than sixty (60) days before the date thereof. The business transacted
at any special meeting of shareholders shall be limited to the purpose stated in
the notice.
Section 4. Presiding Officer. The Chairman of the Board, or, in his absence, the
Vice Chairman, or in his absence, the President, or in his absence, such other
Vice President as the Board of Directors may designate, shall preside at all
meetings.
Section 5. Vote of Shareholders; Proxies. At every such meeting each shareholder
shall be entitled to cast one vote for each share of stock held in his name;
which vote may be cast by him either in person, or by proxy, but no proxy shall
be voted after three (3) years from its date, unless the proxy provides for a
longer period. A shareholder may authorize one or more persons to act for him by
proxy. All proxies shall be in writing by the shareholder or by his duly
authorized agent or representative and shall be filed with the Secretary.
Section 6. Quorum of Shareholders. The holders of a majority of the shares of
stock issued and outstanding and entitled to vote thereat, represented in person
or by proxy, shall constitute a quorum at all meetings of the shareholders for
the transaction of business except as otherwise provided by statute or by the
Articles of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the shareholders, the shareholders present in
person or represented by proxy shall have power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the meeting as originally notified.
Section 7. Required Vote. If a quorum is present, the affirmative vote of the
holders of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders unless the vote of a greater number of shares of
stock is required by law or the Articles of Incorporation.
Section 8. Removal. The shareholders shall have power by a majority vote at
any such meeting, to remove any Director from office.
Section 9. List of Shareholders Entitled to Vote. The officer or agent having
charge of the stock transfer books 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:
(a) Be arranged alphabetically within each class and series, with the
address of, and the number of shares held by, each shareholder.
(b) Be produced at the time and place of the meeting. (c) Be subject to
inspection by any shareholder during the whole time of
the meeting.
(d) Be prima facie evidence as to who are the shareholders entitled to
examine the list or to vote at the meeting.
Section 10. Record Date for Determination of Shareholders. For the purpose of
determining shareholders entitled to notice of and to vote at a meeting of
shareholders or an adjournment of a meeting, the Board of Directors may fix a
record date, which shall not precede the date on which the resolution fixing the
record date is adopted by the board. The date shall not be more than sixty (60)
nor less than ten (10) days before the date of the meeting. If a record date is
not fixed, the record date for determination of shareholders entitled to notice
of or to vote at a meeting of shareholders shall be the close of business on the
day next preceding the day on which notice is given, or if no notice is given,
the day next preceding the day on which the meeting is held. When a
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders has been made as provided in this Section, the
determination applies to any adjournment of the meeting, unless the Board of
Directors fixes a new record date under this Section for the adjourned meeting.
For the purpose of determining shareholders entitled to receive payment of a
share dividend or distribution, or allotment of a right, or for the purpose of
any other action, the Board of Directors may fix a record date, which shall not
precede the date on which the resolution fixing the record date is adopted by
the board. The date shall not be more than sixty (60) days before the payment of
the share dividend or distribution or allotment of a right or other action.
If a record date is not fixed, the record date shall be the close of business
on the day on which the resolution of the Board of Directors relating to the
corporate action is adopted.
Section 11. Inspectors of Election. The Board of Directors may appoint one (1)
or more inspectors of election to act at the meeting or any adjournment thereof.
If inspectors are not so appointed, the person presiding at a shareholders'
meeting may, and on request of a shareholder entitled to vote thereat shall,
appoint one (1) or more inspectors. The inspectors shall determine the number of
shares outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine challenges and
questions arising in connection with the right to vote, count and tabulate
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all shareholders. On request of
the person presiding at the meeting or a shareholder entitled to vote thereat,
the inspectors shall make and execute a written report to the person presiding
at the meeting of any of the facts found by them and matters determined by them.
The report is prima facie evidence of the facts stated and of the vote as
certified by the inspectors.
ARTICLE IV
Directors
Section 1. Number and Powers of Directors. The business and affairs of the
corporation shall be managed by a Board of Directors consisting of 10 Directors
who shall be elected by the shareholders. The Directors shall be elected at the
annual meeting of the shareholders, as detailed hereinafter, and each Director
shall serve until his successor shall have been elected and qualified. When
acting as such, the Board of Directors may exercise all powers and do all such
lawful acts and things (including, without limitation, the making of such
adjustments in the number of Directors in any Director class or classes that may
be determined by the Board to be necessary or appropriate in light of an
increase or decrease in the total number of Directors specified in these
by-laws) as are not by statute or by the Articles of Incorporation or these
by-laws directed or required to be exercised or done by the shareholders.
Section 2. Classification and Term of Office. The Directors shall be severally
classified with the respect to the time for which they shall hold office by
dividing them into three classifications, with the number of Directors in each
class being as nearly equal as possible to the number of directors in each other
class.
Section 3. Regular Meetings of Board. Regular meetings of the Directors shall be
held immediately after the adjournment of each annual shareholders' meeting and
may be held at such time and at such place as shall from time to time be
determined by the Board.
Section 4. Special Meetings of Board. Special meetings of the Board of Directors
may be called by the President and in his absence, by the Chairman of the Board
or any four members of the Board of Directors. By unanimous consent of the
Directors, special meetings of the board may be held without notice, at any time
and place. The presence of a Director at a meeting shall constitute a Waiver of
Notice except where the Director attends solely to protest the legality of the
meeting.
Section 5. Notice. Notice of all regular and special meetings, except those
specified in the second sentence of Section 4 of this article, shall be
delivered in person, mailed or telegrammed to each Director, by the Secretary,
at least one day previous to the time fixed for the meetings. All notices of
special meetings shall state the purposes thereof.
Section 6. Quorum and Required Vote. A majority of the Directors shall
constitute a quorum for the transaction of business unless a greater number is
required by law or by the Articles of Incorporation. 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, unless the act of a greater number is required by
statute, these By-Laws, or by the Articles of Incorporation. If a quorum shall
not be present at any meeting of Directors, the Directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 7. Annual Meeting. The Directors shall elect the officers of the
corporation, and fix their salaries; such elections to be held at the Directors'
meeting following each annual shareholders' meeting. No notice of such meeting
shall be necessary to any newly elected Director in order to legally constitute
the meeting, provided a quorum shall be present. An officer may be removed at
any time by a two-thirds vote of the full Board of Directors.
Section 8. Vacancies. All vacancies occurring in the Board of Directors, whether
caused by resignation, death or otherwise, may be filled by the affirmative vote
of two-thirds of the remaining Directors though less than a quorum of the Board
of Directors. A Director elected to fill a vacancy shall be elected for the
unexpired portion of the term of his predecessor in office.
Section 9. Directors' Report. At each annual shareholders' meeting the Directors
shall submit a statement of the business done during the preceding year,
together with a report of the general financial condition of the corporation,
and of the condition of its tangible property.
Section 10. Committees of Directors. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the Directors of the corporation. Any
such committee, to the extent provided in the resolution of the Board of
Directors, or in these By-laws, shall have and may exercise all of the power and
authority of the Board of Directors in the management of the business and
affairs of the corporation; but no such committee shall have the power or
authority in reference to amending the Articles of Incorporation, adopting an
agreement of merger or consolidation, recommending to shareholders the sale,
lease, or exchange of all or substantially all of the corporation's property and
assets, recommend to the shareholders the dissolution of the corporation or
revocation of a dissolution, amend the By-laws of the corporation, fill
vacancies in the Board; and unless a resolution of the Board of Directors, the
Articles of Incorporation or the By-laws expressly so provide, no such committee
shall have the power or authority to declare a distribution, dividend, or to
authorize the issuance of stock.
Section 11. Compensation of Directors. The Board of Directors, by the
affirmative vote of a majority of the Directors then in office, and irrespective
of any personal interest of any of them, shall have authority to fix the
compensation of all Directors for services to the corporation as directors,
officers, or otherwise.
Section 12. Action by Written Consent. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the Board of Directors or of any Committee thereof
may be taken without a meeting, if all members of the Board or Committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes or proceedings of the Board or Committee.
Section 13. Participation in Meeting by Telephone. By oral or written permission
of a majority of the Board of Directors, a member of the Board of Directors or
of a Committee designated by the Board may participate in a meeting by means of
conference telephone or similar communications equipment through which all
persons participating in the meeting can communicate with the other
participants. Participation in a meeting pursuant to this Section constitutes
presence in person at the meeting.
Section 14. Nomination of Director Candidates. Nomination of candidates for
election as Directors of the Corporation at any meeting of shareholders called
for election of Directors (an "Election Meeting") may be made by the Board of
Directors or by any shareholder entitled to vote at such Election Meeting but
only in accordance with the procedure outlined herein.
(a) Procedure for Nominations by the Board of Directors. Nominations made
by the Board of Directors shall be made at a meeting of the Board of Directors,
or by written consent of Directors in lieu of a meeting, not less than 30 days
prior to the date of the Election Meeting, and such nominations shall be
reflected in the minute books of the Corporation as of the date made. At the
request of the Secretary of the Corporation each proposed nominee shall provide
the Corporation with such information concerning himself or herself as is
required, under the rules of the Securities and Exchange Commission, to be
included in the Corporation's proxy statement soliciting proxies for his or her
election as a director.
(b) Procedure for Nominations by Shareholders.
Not less than 90 days prior to the first anniversary of the preceding
year's annual meeting any shareholder who intends to make a nomination at the
Election Meeting shall deliver a notice to the Secretary of the Corporation
setting forth (i) the name, age, business address and residence of each nominee
proposed in each such notice, (ii) the principal occupation or employment of
each such nominee, (iii) the number of shares of capital stock of the
Corporation which are beneficially owned by each such nominee and (iv) such
other information concerning each such nominee as would be required, under the
rules of the Securities and Exchange Commission, in a proxy statement soliciting
proxies for the election of such nominee.
(c) Determination of Compliance with Procedures. If the Chairman of the
Election Meeting determines that a nomination was not in accordance with the
foregoing procedures, such nomination shall be void.
ARTICLE V
Officers
Section 1. Selection and Number. The officers of this corporation shall be a
Chairman of the Board, Vice Chairman of the Board, President, one or more Vice
Presidents or Executive Vice Presidents, a Secretary and a Treasurer, and such
Assistant Secretaries and Treasurers as shall seem necessary to the Board of
Directors from time to time, who shall be elected for the term of one year and
shall hold office until their successors are duly elected and qualified. The
office of Secretary and Treasurer, or Assistant Secretary and Assistant
Treasurer, may be held by one person.
Section 2. Chairman of the Board. The Chairman of the Board shall preside at all
Directors' and shareholders' meetings; shall have general supervision over and
responsibility for all sales and marketing activities of the corporation and its
subsidiaries; shall sign all stock certificates; and such further duties as may
be assigned to him from time to time by the Board of Directors. In case of the
absence or the disability of the Chairman of the Board, his duties shall be
performed by the President, and in case of the President's absence, by the Vice
Chairman of the Board or by an Executive Vice President.
Section 3. Vice Chairman of the Board. The Vice Chairman of the Board may sign
any documents required by law to be filed on behalf of the corporation in the
office of the Secretary of State; may sign all stock certificates of the
corporation; and shall perform all such other duties as are incident to his
office, or such further duties as may be assigned to him from time to time by
the Board of Directors.
Section 4. President. The President shall have general supervision and
management of the day-to-day operations of the corporation and its subsidiaries
and over all other officers of the corporation; shall be the chief operating
officer of the corporation; shall sign all written contracts of the corporation;
and shall perform all such other duties as are incident to his office and such
other duties as may be assigned to him from time to time by the Board of
Directors. In the absence or disability of the Chairman of the Board and the
Vice Chairman of the Board, or while such offices are vacant, the President also
shall preside over all meetings of the Board of Directors or of the shareholders
and shall perform all of the duties or functions, and when so acting shall have
all powers and authority, of the Chairman of the Board. In case of the absence
or the disability of the President, his duties shall be performed by such other
officer or officers of the corporation as may be specified by resolution of the
Board of Directors.
Section 5. Vice Presidents. The Board of Directors may elect or appoint one or
more Vice Presidents. The Board of Directors may designate one or more Vice
Presidents as Executive Vice Presidents. Unless the Board of Directors shall
otherwise provide by resolution duly adopted by it, or as otherwise provided in
these By-Laws, such of the Vice Presidents as shall have been designated
Executive Vice Presidents and who are members of the Board of Directors in the
order specified by the Board of Directors shall perform the duties and exercise
the powers of the President during the absence or disability of the President if
the office of the Chairman of the Board is vacant. The Vice Presidents shall
perform such other duties as may be delegated to them by the Board of Directors,
the Chairman of the Board or the President.
Section 6. Secretary. The Secretary shall issue notices of all Directors' and
shareholders' meeting, and shall attend and keep the minutes of the same; shall
have charge of all corporation books, records and papers; shall be custodian of
the corporate seal, all stock certificates and written contracts of the
corporation; and shall perform all such other duties as are incident to his
office. The Secretary shall also perform such duties as are assigned to him from
time to time by the Board of Directors.
Section 7. Treasurer. The Treasurer shall have custody of all money and
securities of the corporation and shall give bond, in such sum and with such
securities as the Directors may require, conditioned upon the faithful
performance of the duties of his office. He shall sign all checks of the
corporation, shall keep regular books of account and shall submit them, together
with all his vouchers, receipts, records, and other papers, to the Directors for
their examination and approval as often as they may require; and shall perform
all such other duties as are incident to his office. The Treasurer shall also
perform such duties as may be assigned to him by the Board of Directors from
time to time.
Section 8. Indemnification of Directors, Officers and Others. Pursuant to the
provisions of Article XI of the Articles of Incorporation of the corporation,
the corporation shall indemnify any of its Directors and officers and may
indemnify any of its employees and agents (in each case including such person's
heirs, executors, administrators and legal representatives) in accordance with
the following provisions of this By-Law:
A. Indemnification of Directors and Officers: Claims by Third Parties. The
corporation shall, to the fullest extent authorized or permitted by the Michigan
Business Corporation Act, as amended (the "Act") or other applicable law, as the
same presently exist or may hereafter be amended, but, in the case of any such
amendment, only to the extent such amendment permits the corporation to provide
broader indemnification rights than before such amendment, indemnify a Director
or officer (an "Indemnitee") who was or is a party or is threatened to be made a
party to a threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative and whether formal or
informal, other than an action by or in the right of the corporation, by reason
of the fact that he or she is or was a Director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
Director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, or other enterprise,
whether for profit or not, against expenses, including attorneys' fees,
judgments, penalties, fines, and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the action, suit, or
proceeding, if the Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders, and with respect to a criminal action or
proceeding, if the Indemnitee had no reasonable cause to believe his or her
conduct was unlawful. The termination of an action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the corporation or its
shareholders, and, with respect to a criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
B. Indemnification of Directors and Officers: Claims Brought by or in the
Right of the Corporation. The corporation shall, to the fullest extent
authorized or permitted by the Act or other applicable law, as the same
presently exist or may hereafter be amended, but, in the case of any such
amendment, only to the extent such amendment permits the corporation to provide
broader indemnification rights than before such amendment, indemnify an
Indemnitee who was or is a party or is threatened to be made a party to a
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a Director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a Director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise, whether for profit or
not, against expenses, including attorneys' fees, and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with the action
or suit, if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders. However, indemnification shall not be made
under this Section B for a claim, issue, or matter in which the Indemnitee has
been found liable to the corporation unless and only to the extent that the
Court in which the action or suit was brought has determined upon application
that, despite the adjudication of liability but in view of all circumstances of
the case, the Indemnitee is fairly and reasonably entitled to indemnification
for the expenses which the Court considers proper.
C. Actions Brought by the Indemnitee. Notwithstanding the provisions of
Subsections A and B of this Section 8, the corporation shall not be required to
indemnify an Indemnitee in connection with an action, suit, proceeding or claim
(or part thereof) brought or made by such Indemnitee, unless such action, suit,
proceeding or claim (or part thereof): (i) was authorized by the board of
Directors of the corporation; or (ii) was brought or made to enforce this
Section 8 and the Indemnitee has been successful in such action, suit,
proceeding or claim (or part thereof).
D. Approval of Indemnification. An indemnification under Subsections A or B
of this Section 8, unless ordered by the court, shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the Indemnitee is proper in the circumstances because such
Indemnitee has met the applicable standard of conduct set forth in Subsections A
or B of this Section 8, as the case may be, and upon an evaluation of the
reasonableness of expenses and amounts paid in settlement. This determination
and evaluation shall be made in any of the following ways:
(a) By a majority vote of a quorum of the Board of Directors
consisting of Directors who are not parties or threatened to be made parties to
the action, suit, or proceeding.
(b) If a quorum cannot be obtained in subsection (a), then by majority
vote of a committee of Directors who are not parties to the action. The
committees shall consist of not less than three (3) disinterested Directors.
(c) By independent legal counsel in a written opinion. (d) By the
shareholders.
E. Advancement of Expenses. The corporation may pay or reimburse the
reasonable expenses incurred by an Indemnitee 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 Indemnitee 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 Subsections A and B above.
(b) The Indemnitee 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) A determination is made that the facts then known to those making
the determination would not preclude indemnification under the Act.
The undertaking required by subsection (b) must be an unlimited
general obligation of the Indemnitee but need not be secured. Determinations of
payments under this Section shall be made in the manner specified in Subsection
D above.
F. Partial Indemnification. If an Indemnitee is entitled to indemnification
under Subsections A or B of this Section 8 for a portion of expenses, including
reasonable attorneys' fees, judgments, penalties, fines, and amounts paid in
settlement, but not for the total amount, the corporation shall indemnify the
Indemnitee for the portion of the expenses, judgments, penalties, fines, or
amounts paid in settlement for which the Indemnitee is entitled to be
indemnified.
G. Indemnification of Employees and Agents. Any person who is not covered
by the foregoing provisions of this Section 8 and who is or was an employee or
agent of the corporation, or is or was serving at the request of the corporation
as a Director, officer, partner, trustee, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, may be indemnified to the fullest extent authorized
or permitted by the Act or other applicable law, as the same exists or may
hereafter be amended, but, in the case of any such amendment, only to the extent
such amendment permits the corporation to provide broader indemnification rights
than before such amendment, but in any event only to the extent authorized at
any time or from time to time by the Board of Directors.
H. Other Rights of Indemnification. The indemnification or advancement of
expenses provided under Subsections A through G of this Section 8 is not
exclusive of other rights to which a person seeking indemnification or
advancement of expenses may be entitled under the articles of incorporation,
bylaws, or a contractual agreement. 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. The indemnification provided for in Subsections A through G of this
Section 8 continues as to a person who ceases to be a Director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of the person.
I. Definitions. "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,
officer, employee or agent with respect to an employee benefit plan, its
participants or its beneficiaries; and a person who acted in good faith and in a
manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be considered to have acted
in a manner "not opposed to the best interests of the corporation or its
shareholders" as referred to in Subsections A and B of this Section 8.
J. Liability Insurance. The corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a Director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a Director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, whether for profit or not, against any liability asserted against
him or her and incurred by him or her in any such capacity or arising out of his
or her status as such, whether or not the corporation would have power to
indemnify him or her against liability under the pertinent provisions of the
Act.
K. Enforcement. If a claim under this Section 8 is not paid in full by the
corporation within thirty (30) days after a written claim has been received by
the corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim, and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Act for the
corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, a committee thereof, independent
legal counsel, or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because such claimant has met the applicable standard of
conduct set forth in the Act nor an actual determination by the corporation
(including its Board of Directors, a committee thereof, independent legal
counsel or its shareholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
L. Contract With the Corporation. The right to indemnification conferred in
this Section 8 shall be deemed to be a contract right between the corporation
and each Director or officer who serves in any such capacity at any time while
this Section 8 is in effect, and any repeal or modification of this Section 8
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
M. Application to a Resulting or Surviving Corporation or Constituent
Corporation. The definition for "corporation" found in Section 569 of the Act,
as the same exists or may hereafter be amended is, and shall be, specifically
excluded from application to this Section 8. The indemnification and other
obligations set forth in this Section 8 of the corporation shall be binding upon
any resulting or surviving corporation after any merger or consolidation with
the corporation. Notwithstanding anything to the contrary contained herein or in
Section 569 of the Act, no person shall be entitled to the indemnification and
other rights set forth in this Section 8 for acting as a Director or officer of
another corporation prior to such other corporation entering into a merger or
consolidation with the corporation.
N. Severability. Each and every paragraph, sentence, term and provision of
this Section 8 shall be considered severable in that, in the event a court finds
any paragraph, sentence, term or provision to be invalid or unenforceable, the
validity and enforceability, operation, or effect of the remaining paragraphs,
sentences, terms, or provisions shall not be affected, and this Section 8 shall
be construed in all respects as if the invalid or unenforceable matter had been
omitted.
ARTICLE VI
Dividends and Finance
Section 1. Dividends. Dividends, to be paid out of the surplus earnings of the
corporation, or as otherwise permitted in accordance with the provisions of the
governing statute, may be declared from time to time by resolution of the Board
of Directors; but no dividend shall be paid that will impair the capital of the
corporation. Dividends may be paid in cash, in property or in shares of the
capital stock, subject to any provisions of the governing statute or the
Articles of Incorporation.
Section 2. Deposits. The funds of the corporation shall be deposited in such
banks or trust companies as the Directors shall designate and shall be withdrawn
only upon checks issued and signed in accordance with regulations adopted by the
Board of Directors.
Section 3. Checks. All checks, drafts and orders for the payment of money shall
be signed in the name of the corporation in such manner and by such officer or
officers or such other person or persons as the Board of Directors shall from
time to time designate for that purpose.
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of this corporation shall end on the last Saturday of
April each year. The fiscal year may be changed by the Board of Directors by
resolution of the Board of Directors.
ARTICLE VIII
Amendments
These By-Laws may be altered, amended or repealed in whole or in part and new
By-Laws may be adopted either:
(a) By the affirmative vote of the holders of record of not less than 67%
of the outstanding stock of the Corporation entitled to vote in elections of
Directors; or
(b) By the affirmative vote of a majority of the Board of Directors at any
meeting of the Board, or by written consent signed by all members of the Board
of Directors; provided, however, no such alteration, amendment or repeal of
Article VIII (a) of these By-Laws shall be made by the Board of Directors or be
effective unless such alteration, amendment or repeal shall be first approved by
the affirmative vote of the holders of record of not less than 67% of the
outstanding stock of the Corporation entitled to vote in elections of Directors.
ARTICLE IX
General Provisions
Section 1. Distributions in Cash or Property. The Board of Directors may
authorize and the corporation may make distributions to its shareholders subject
to restriction by the Articles of Incorporation and/or unless otherwise limited
by the Articles of Incorporation, these By-Laws or the Act.
Section 2. Reserves. The Board of Directors shall have power and authority to
set apart such reserve or reserves, for any proper purpose, as the Board in its
discretion shall approve, and the Board shall have the power and authority to
abolish any reserve created by the Board.
Section 3. Voting Securities. Unless otherwise directed by the Board of
Directors, the President or in the case of his absence or inability to act, the
Chairman of the Board or the Vice Chairman of the Board, or in the case of their
absence or inability to act, the Vice Presidents, including Executive Vice
Presidents, in order of their seniority, shall have full power and authority on
behalf of the corporation to attend and to act and to vote, or to execute in the
name or on behalf of the corporation a consent in writing in lieu of a meeting
of shareholders or a proxy authorizing an agent or attorney-in-fact for the
corporation to attend and vote at any meetings of security holders of
corporations in which the corporation may hold securities, and at such meetings
he or his duly authorized agent or attorney-in-fact shall possess and may
exercise on behalf of the corporation any and all rights and powers incident to
the ownership of such securities and which, as the owner thereof, the
corporation might have possessed and exercised if present. The Board of
Directors by resolution from time to time may confer like power upon any other
person or persons.
Section 4. Contracts, Conveyances, Etc. When the execution of any contract,
conveyance or other instrument has been authorized without specification of the
executing officers, the Chairman of the Board, the Vice Chairman of the Board,
President or any Vice President, and the Secretary or Assistant Secretary, may
execute the same in the name and on behalf of this corporation and may affix the
corporate seal thereto. The Board of Directors shall have power to designate the
officers and agents who shall have authority to execute any instrument in behalf
of this corporation. Section 5. Corporate Books and Records. The corporation
shall keep books and records of account and minutes of the proceedings of its
shareholders, Board of Directors and executive committees, if any. The
corporation shall keep at its registered office, or at the office of its
transfer agent in or outside the State of Michigan, records containing the names
and addresses of all shareholders, the number, class and series of shares held
by each and the dates when they respectively became holders of record. Any of
the books, records or minutes may be in written form or in any other form
capable of being converted into written form within a reasonable time. The
corporation shall convert into written form without charge any record not in
written form, unless otherwise requested by a person entitled to inspect the
records.
Section 6. Seal. The seal of the corporation shall have inscribed thereon the
name of the corporation and the words "Corporate Seal" and "Michigan." The seal
may be used by causing it or a facsimile to be affixed, impressed or reproduced
in any other manner.
