<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED January 31, 1998 OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO
------- -------
Commission File Number 0-14491
-------
ARBOR DRUGS, INC.
-----------------
(Exact name of registrant as specified in its charter)
State of Michigan 38-2054345
---------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3331 West Big Beaver, Troy, Michigan 48084
-------------------------------------- -----
(Address of principal executive offices) Zip Code
248-643-9420
------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at March 13, 1998
- ---------------------------- -----------------------------
Common Stock, $.01 par value 59,392,225
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ARBOR DRUGS, INC. AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets -
January 31, 1998 and July 31, 1997 3
Condensed Consolidated Statements of Income-
Three and Six Months Ended January 31, 1998
and 1997 4
Condensed Consolidated Statements of Cash Flows -
Six Months Ended January 31, 1998 and 1997 5
Notes to Condensed Consolidated Financial
Statements 6-7
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial Condition 7-8
PART II OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders 9
Item 6. Exhibits and Reports on Form 8-K 10
</TABLE>
2
<PAGE> 3
ARBOR DRUGS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
(Dollars in Thousands) January 31, July 31,
1998 1997
---------- ---------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $44,679 $43,537
Securities available for sale 800 335
Accounts receivable 25,906 25,565
Inventory 150,788 131,700
Deferred taxes 2,245 1,965
Prepaid expenses 2,207 1,388
---------- ---------
Total current assets 226,625 204,490
---------- ---------
Property and equipment:
Land and land improvements 35,855 23,124
Buildings 27,475 27,795
Furniture, fixtures and equipment 75,251 71,700
Leasehold improvements 47,149 45,075
Less accumulated depreciation (67,133) (63,745)
---------- ---------
118,597 103,949
---------- ---------
Other assets:
Intangible assets 20,719 21,238
---------- ---------
$365,941 $329,677
========== =========
LIABILITIES
Current liabilities:
Notes payable, current portion $622 $611
Accounts payable 76,012 60,422
Accrued rent 8,513 7,753
Accrued expenses 3,516 2,886
Accrued compensation and benefits 7,849 8,466
Income tax payable 4,441 3,436
---------- ---------
Total current liabilities 100,953 83,574
---------- ---------
Notes payable, net of current portion 16,045 16,301
Deferred income tax 6,173 6,023
Minority interest in subsidiaries 809 768
---------- ---------
23,027 23,092
---------- ---------
SHAREHOLDERS' EQUITY
Preferred stock: $.01 par value; 2,000,000
shares authorized; none issued -- --
Common stock: $.01 par value; 100,000,000
shares authorized; 59,363,555 and 59,124,496
issued and outstanding, respectively 594 394
Additional paid-in capital 77,659 74,870
Retained earnings 163,708 147,747
---------- ---------
241,961 223,011
---------- ---------
$365,941 $329,677
========== =========
</TABLE>
The accompanying notes are an integral part of the
condensed consolidated financial statements.
3
<PAGE> 4
ARBOR DRUGS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
(Amounts in Thousands, Except Three Months Ended Six Months Ended
Per Share Data) January 31, January 31,
------------------------ ----------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales $282,405 $250,318 $536,628 $475,291
Costs and expenses:
Cost of sales 208,706 185,449 398,026 352,764
Selling, general and administrative 52,457 48,586 105,750 96,442
-------- -------- -------- --------
Income from operations 21,242 16,283 32,852 26,085
Interest expense (336) (534) (696) (906)
Interest income 328 357 785 687
-------- -------- -------- --------
Income before income tax 21,234 16,106 32,941 25,866
Provision for income tax 7,113 5,378 11,041 8,745
-------- -------- -------- --------
Net income $14,121 $10,728 $21,900 $17,121
======== ======== ======== ========
Basic earnings per common share (note 3) $0.24 $0.18 $0.37 $0.30
======== ======== ======== ========
Diluted earnings per common share (note 3) $0.23 $0.18 $0.35 $0.29
======== ======== ======== ========
Cash dividend per common share $0.060 $0.040 $0.100 $0.071
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of the
condensed consolidated financial statements.
4
<PAGE> 5
ARBOR DRUGS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months Ended
(Dollars in Thousands) January 31,
-------------------------------
1998 1997
--------- ---------
<S> <C> <C>
Operating activities:
Net income $21,900 $17,121
Adjustments to reconcile to net cash provided by operations:
Depreciation and amortization 8,299 8,427
Changes in operating assets and liabilities:
Accounts receivable (341) (8,086)
Inventory (19,088) (19,466)
Prepaid expenses (819) 1,018
Accounts payable 15,590 9,633
Accrued expenses 684 844
Income tax payable 1,005 527
--------- ---------
Net cash provided by operations 27,230 10,018
--------- ---------
Investing activities:
Purchase of property and equipment, net (21,114) (16,405)
Purchase of intangible assets (1,314) (1,931)
(Purchase) sale of short-term investments (465) 520
--------- ---------
Net cash used in investing activities (22,893) (17,816)
--------- ---------
Financing activities:
Principal payments on debt (245) (5,224)
Dividends paid (5,922) (4,095)
Proceeds from exercise of stock options
and stock purchase plan 2,972 16,103
--------- ---------
Net cash (used in) provided by financing activities (3,195) 6,784
--------- ---------
Net increase (decrease) in cash and cash equivalents 1,142 (1,014)
--------- ---------
Cash and cash equivalents at beginning of period 43,537 34,955
--------- ---------
Cash and cash equivalents at end of period $44,679 $33,941
========= =========
Cash paid for income tax $9,763 $4,173
========= =========
Cash paid for interest $786 $1,201
========= =========
</TABLE>
The accompanying notes are an integral part of the
condensed consolidated financial statements.
5
<PAGE> 6
ARBOR DRUGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles
and reflect, in the opinion of management, all adjustments necessary
for a fair presentation of financial position, results of operations
and cash flows at January 31, 1998, and for all periods presented.
The condensed consolidated financial statements should be read in
conjunction with the annual consolidated financial statements and
notes contained in Arbor's Annual Report on Form 10-K for the fiscal
year ended July 31, 1997. The results of operations for any interim
period should not necessarily be considered indicative of the results
of operations for the full year.
On December 2, 1997, the Board of Directors declared a 3 for 2
stock split which was effected in the form of a dividend paid on
December 16, 1997. Accordingly, all per share and stock amounts have
been restated to reflect this dividend.
2. INVENTORY VALUATION
Inventory at interim periods is valued on a last-in, first-out
(LIFO) basis which is determined based upon estimates of gross profit
rates, inflation rates and inventory levels, which is adjusted for the
results of physical inventories when taken.
3. EARNINGS PER SHARE
Statement of Financial Accounting Standards (SFAS) No. 128,
"Earnings per Share," was issued in February 1997 and is
effective for interim and annual periods beginning after December 15,
1997. The Statement simplifies the standards for computing earnings per
share (EPS) and makes them comparable to international EPS standards.
The Statement requires the presentation of both basic and diluted EPS
on the face of the income statement with a supplementary
reconciliation of the numerators and denominators used in the
calculations.
A reconciliation of the numerators and denominators used in the
basic and diluted EPS calculations follows:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
January 31, January 31,
------------------------- -----------------------
(In Thousands) 1998 1997 1998 1997
------- ------- ------- -------
<S> <C> <C> <C> <C>
Numerator:
Net Income $14,121 $10,728 $21,900 $17,121
======= ======= ======= =======
Denominator:
Weighted average shares outstanding
for the period - used for basic
EPS calculation 59,294 58,349 59,231 57,472
Weighted average options outstanding
for the period 2,756 1,301 2,547 1,151
------- ------- ------- -------
Weighted average shares outstanding
for the period - used for diluted
EPS calculation 62,050 59,650 61,778 58,623
======= ======= ======= =======
</TABLE>
Earnings per share for the three month and six month periods
ended January 31, 1997 have been restated to conform to SFAS No. 128.
6
<PAGE> 7
4. SUBSEQUENT EVENT
On February 8, 1998, Arbor, CVS Corporation, and Red
Acquisition, Corp., a wholly owned subsidiary of CVS, signed a merger
agreement pursuant to which CVS will acquire Arbor in a stock-for-stock
transaction valued at approximately $1.5 billion. The transaction is
subject to approval by the shareholders of Arbor and other customary
closing conditions.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
RESULTS OF OPERATIONS
References to years are to the Company's fiscal years, which end
July 31.
NET SALES
Net sales reached $282.4 million and $536.6 million for the three
and six months ended January 31, 1998, respectively, an increase of
12.8 percent and 12.9 percent, respectively, over the comparable
periods of the prior year. The increases reflect an increase in
comparable store sales (stores open for one year or more) of 8.1
percent and 7.6 percent for the three and six months ended January 31,
1998, respectively, and sales made by stores opened in the last 12
months. As of January 31, 1998, the Company operated 207 stores,
compared to 191 stores as of January 31, 1997, and 199 stores as of
July 31, 1997.
Prescription drug sales were $149.3 million and $290.1 million
for the three and six months ended January 31, 1998, respectively, an
increase of 17.1 percent and 17.3 percent, respectively, over the
comparable periods of the prior year. Prescription drug sales
represented 52.9 percent and 54.1 percent of total sales for the three
and six months ended January 31, 1998, respectively, compared to 50.9
percent and 52.0 percent for the three and six months ended January
31, 1997. The increases, in both absolute amount and relative
contribution, were primarily attributable to the larger store base, a
greater number of prescriptions filled on a comparable-store basis
and an increase in the average prescription price. The latter
reflected price increases for certain existing brand name drugs and
the introduction of new brand name drugs, offset in part by the lower
prices of generic drugs, which are marketed as the corresponding brand
name drugs lose patent protection.
COST OF SALES
Cost of sales represented 73.9 percent and 74.2 percent of net
sales for the three and six months ended January 31, 1998,
respectively, compared to 74.1 percent and 74.2 percent,
respectively, for the three and six months ended January 31, 1997.
During the quarter, the Company experienced sales increases in higher
margin seasonal products. This was somewhat offset by decreases in
over-the-counter cough and cold product sales, due to the later start
of the flu season. Also, the slower growth rate in pharmacy sales,
which contribute lower margins than non-pharmacy sales, had a positive
impact on gross margins.
7
<PAGE> 8
The Company expects that cost of sales as a percentage of net
sales will increase in future quarters, as it has historically.
Historical increases reflect rising pharmaceutical product costs and
gross margin percentage pressure due to the reimbursement practices of
the Company's third-party providers. Third-party providers generally
pay the Company an amount determined by formula to reimburse it for the
cost of the prescription drugs dispensed plus a fixed dispensing fee to
compensate it for the services rendered. As pharmaceutical costs
increase, the gross margin percentage on such sales decreases because
the dispensing fee remains the same pursuant to the applicable
third-party program. Changes in the reimbursement formulas of the
various third-party providers with which the Company has contracts may
also affect the Company's gross margin and operating income.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE
Selling, general and administrative ("SG&A") expenses, as a
percentage of net sales, amounted to 18.6 percent and 19.7 percent for
the three and six months ended January 31, 1998, respectively,
compared to 19.4 percent and 20.3 percent, respectively, for the three
and six months ended January 31, 1997. The decreases were primarily
attributable to the Company's efforts to control expenses and by the
higher level of net sales.
PROVISION FOR INCOME TAX
The provision for income tax as a percentage of income before
income tax was 33.5 percent for the three and six months ended January
31, 1998, compared to 33.4 percent and 33.8 percent, respectively, for
the three and six months ended January 31, 1997.
LIQUIDITY AND CAPITAL RESOURCES
For the six months ended January 31, 1998, net cash was provided
by operations ($27.2 million) and through the exercise of stock
options and employee stock purchase plan purchases ($3.0 million).
Cash was principally used for capital expenditures and acquisitions
($22.4 million) and cash dividends ($5.9 million). In the aggregate,
the Company's net cash increased by $1.1 million.
The Company anticipates fiscal 1998 capital expenditures to total
approximately $35 million. The funds will be used to open new
stores, remodel existing stores and invest in retailing
systems.
The Company's current expansion plan contemplates adding
approximately 20 new Arbor drugstores in fiscal 1998 through the
leasing and development of new sites and, if suitable opportunities
arise, acquisitions. As of January 31, 1998, 9 new stores have been
opened and one store was consolidated during the current fiscal year.
The Company believes that existing cash, cash equivalents and
short-term investments, cash provided from future operations and funds
available under a $50 million line of credit will support anticipated
expansion and working capital needs arising in the ordinary course of
business during fiscal 1998. As of January 31, 1998, the Company had
no outstanding borrowings against its line of credit.
8
<PAGE> 9
PART II OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Shareholders of the Company was held on December
2, 1997. At the annual meeting, the following persons were elected directors
of the Company and the following votes were cast for or were withheld from
voting (including broker non-votes and abstentions) with respect to the
election of each such person:
<TABLE>
<CAPTION>
Votes
-----
Name For Withheld
---- ------------ ----------
<S> <C> <C>
Eugene Applebaum 34,713,695 309,746
Markus M. Ernst 34,714,002 309,439
Gilbert C. Gerhard 34,714,507 308,934
David B. Hermelin 34,708,745 314,696
Spencer M. Partrich 34,713,063 310,378
Laurie M. Shahon 34,714,185 309,256
Samuel Valenti III 32,503,583 2,519,858
</TABLE>
In addition, the following proposals were approved at the annual
meeting:
<TABLE>
<CAPTION>
Broker
Non-
For Against Abstain Votes
--------------- ------------- --------------- ---------------
<S> <C> <C> <C> <C>
1) To increase the number of
authorized common shares 31,310,316 3,447,101 81,160 184,864
from 40,000,000 to
100,000,000
2) To amend the 1996 Stock
Option Plan to, among
other things, increase the
number of shares issuable
upon exercise of options
available for grant by
3,000,000 25,221,843 4,950,022 109,339 4,742,237
3) To amend the Employee
Stock Purchase Plan to
increase the number of
shares available for
purchase by 500,000 30,828,476 132,263 95,517 3,967,185
</TABLE>
All votes were cast prior to the stock split effective December 17,
1997.
9
<PAGE> 10
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits required by Item 601 of Regulation S-K:
2 Agreement and Plan of Merger dated as of February 8, 1998, among
Arbor Drugs, Inc., CVS Corporation and Red Acquisition, Inc.,
which is hereby incorporated by reference to Exhibit 2.1 to the
Company's Current Report on Form 8-K filed February 11, 1998.
3.1 Bylaw amendment adopted February 8, 1998.
3.2 Bylaws, as amended, through February 8, 1998.
27 Financial Data Schedule
99 Option and Voting Agreement dated as of February 8, 1998, among
CVS Corporation and certain holders of the Company's common
stock, which is hereby incorporated by reference to Annex C to the
Company's Proxy Statement dated March 3, 1998 relating to the
Company's Special Meeting to be held March 31, 1998.
(b) Reports on Form 8-K:
On February 11, 1998, the Company filed a Current Report on Form
8-K to report the execution and delivery by the Company
of an Agreement and Plan of Merger dated as of February 8, 1998,
pursuant to which the Company will be acquired by CVS Corporation.
On March 5, 1998, the Company filed a Current Report on Form 8-K
to report the Company's issuance of a joint press release with
CVS Corporation relating to the commencement of shareholder litigation,
against the Company, CVS Corporation and the directors of the Company,
arising out of the Company's execution of the above-described Agreement
and Plan of Merger.
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 thereunto duly authorized.
ARBOR DRUGS, INC.
----------------------------
(Registrant)
DATED: March 16, 1998 /s/ Gilbert C. Gerhard
-------------- ----------------------------
Gilbert C. Gerhard
(Duly Authorized Officer and
Principal Financial Officer)
10
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
2 Agreement and Plan of Merger dated as of February 8, 1998, among Arbor Drugs, Inc., CVS Corporation and
Red Acquisition, Inc., which is hereby incorporated by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K filed February 11, 1998.
3.1 Bylaw amendment adopted February 8, 1998.
3.2 Bylaws, as amended, through February 8, 1998.
27 Financial Data Schedule
99 Option and Voting Agreement dated as of February 8, 1998, among CVS Corporation and certain
holders of the Company's common stock, which is hereby incorporated by reference to Annex C to the
Company's Proxy Statement dated March 3, 1998 relating to the Company's Special Meeting to be held
March 31, 1998.
</TABLE>
<PAGE> 1
Exhibit 3.1
ARBOR DRUGS, INC.
BOARD OF DIRECTORS RESOLUTIONS - BYLAW AMENDMENT
FURTHER RESOLVED, that pursuant to Article IX of the Bylaws of the
Corporation, the Board of Directors hereby adopts a new Article XI to such
Bylaws, which Article XI shall read in its entirety as follows:
ARTICLE XI
CONTROL SHARE ACT
Pursuant to Section 794 of the MBCA, Chapter 7B of the Michigan Business
Corporation Act does not apply to any "control share acquisition" (as
defined in Section 791 of the MBCA) of shares of the Corporation.
Adopted: February 8, 1998
<PAGE> 1
Exhibit 3.2
As amended through February 8, 1998
BYLAWS
OF
ARBOR DRUGS, INC.
ARTICLE I
OFFICES
1.1 Registered Office. The registered office of the Corporation shall be
located at such place in Michigan as the Board of Directors from time to time
determines.
1.2 Other Offices. The Corporation may also have offices or branches at such
other places as the Board of Directors from time to time determines or the
business of the Corporation requires.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 Time and Place. All meetings of the shareholders shall be held at such
place and time as the Board of Directors determines.
2.2 Annual Meetings. Beginning in the Corporation's 1988 fiscal year, an
annual meeting of shareholders shall be held on a date, not later than 180 days
after the end of the immediately preceding fiscal year, to be determined by the
Board of Directors. At the annual meeting, the shareholders shall elect
directors and transact such other business as is properly brought before the
meeting and described in the notice of meeting. If the annual meeting is not
held on its designated date, the Board of Directors shall cause it to be held
as soon thereafter as convenient. Failure to hold an annual meeting at the
designated date shall not invalidate any otherwise valid corporate acts.
2.3 Special Meetings. Special meetings of the shareholders, for any purpose,
(a) may be called by the Chairman of the Board or the Board of Directors, and
(b) shall be called by the President or Secretary upon written request (stating
the purpose for which the meeting is to be called) of the holders of a majority
of all the shares entitled to vote at the meeting.
2.4 Notice of Meetings. Written notice of each shareholders' meeting,
stating the
<PAGE> 2
place, date and time of the meeting and the purposes for which the meeting is
called, shall be given (in the manner described in Section 5.1 below) not less
than 10 nor more than 60 days before the date of the meeting to each
shareholder of record entitled to vote at the meeting. Notice of adjourned
meetings is governed by Section 2.6 below.
2.5 List of Shareholders. The officer or agent who has charge of the stock
ledger or 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 of the meeting. The list shall be arranged
alphabetically within each class and series and shall show the address of, and
the number of shares held by, each shareholder. The list shall be produced at
the meeting and may be inspected by any shareholder at any time during the
meeting. The list shall be prima facie evidence as to the shareholders
entitled to examine it or vote at the meeting.
2.6 Quorum; Adjournment. At all shareholders' meetings, the shareholders
present in person or represented by proxy who, as of the record date for the
meeting, were holders of a majority of the outstanding shares of the
Corporation entitled to vote at the meeting, shall constitute a quorum. Once a
quorum is present at a meeting, all shareholders present in person or
represented by proxy at the meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave
less than a quorum. Regardless of whether a quorum is initially present, a
shareholders' meeting may be adjourned to another time and place by a vote of
the shares present in person or by proxy without notice other than announcement
at the meeting; provided, that (a) only such business may be transacted at the
adjourned meeting as might have been transacted at the original meeting; and
(b) if the adjournment is for more than 60 days or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting must be given to each shareholder of record entitled to vote at the
meeting.
2.7 Voting. Each shareholder shall at every meeting of the shareholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such shareholder except as otherwise expressly
required in the Articles of Incorporation. A vote may be cast either orally or
in writing. Each proxy shall be in writing and signed by the shareholder or
the shareholder's authorized agent or representative. A proxy is not valid
after the expiration of six months after its date unless otherwise provided in
the proxy. All questions regarding the qualification of voters, the validity
of proxies and the acceptance or rejection of votes shall be decided by the
presiding officer of the meeting.
2.8 Telephonic Attendance. Shareholders may participate in any shareholders'
meeting by means of conference telephone or similar communications equipment by
which all persons participating in the meeting can hear each other if all
participants are advised of the communications equipment and the names of all
participants in the conference.
2.9 Inspectors of Election. The Board of Directors, in advance of a
shareholders' meeting, may appoint one or more inspectors (who may be employees
of the Corporation) to act at the meeting or any adjournment of the meeting.
If inspectors are not so appointed, the
2
<PAGE> 3
officer presiding at the shareholders' meeting may, and on request of a
shareholder entitled to vote at the meeting shall, appoint one or more
inspectors. If an appointed inspector fails to appear or act, the vacancy may
be filled by appointment made by the Board of Directors before the meeting or
at the meeting by the presiding officer. If appointed, 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; 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 of the election
or vote; and do such acts as are proper to conduct the election or vote with
fairness to all shareholders. In the absence of an inspector, all of the
determinations and actions described in the preceding sentence shall be made
and taken by the officer presiding at the meeting. On request of the officer
presiding at the meeting or a shareholder entitled to vote at the meeting, the
inspectors shall make and execute a written report to the presiding officer of
any of the facts found by them and matters determined by them. The report is
prima facie evidence of the facts stated and the vote as certified by the
inspectors.
2.10 Action by Written Consent. To the extent permitted by the Articles of
Incorporation, any action required or permitted to be taken at any
shareholders' meeting may be taken without a meeting, prior notice and a vote,
by written consent of shareholders.
ARTICLE III
DIRECTORS
3.1 Number and Residence. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors consisting of not
less than three nor more than fifteen members. The number of Directors shall
be determined from time to time by the Board of Directors. Directors need not
be Michigan residents or shareholders of the Corporation.
3.2 Election and Term. Except as provided in Section 3.6 below, Directors
shall be elected at the annual shareholders' meeting. Each Director elected
shall hold office for the term for which he or she is elected and until his or
her successor is elected and qualified or until his or her resignation or
removal.
3.3 Resignation. A Director may resign by written notice to the Corporation.
A Director's resignation is effective upon its receipt by the Corporation or a
later time set forth in the notice of resignation.
3.4 Removal. A Director or the entire Board may be removed, with or without
cause, by vote of the holders of a majority of the shares entitled to vote at
an election of Directors.
3
<PAGE> 4
3.5 Nominations for Director. Only persons who are nominated in accordance
with the procedures set forth in this Section 3.5 shall be eligible for
election as Directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of shareholders by or at
the direction of the Board of Directors or by any shareholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this Section 3.5. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a shareholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation
not less than 60 days nor more than 90 days before the meeting; provided, that
if less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the shareholder to be
timely must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such shareholder's notice shall set forth (a)
as to each person whom the shareholder proposes to nominate for election or
re-election as a Director, (1) the name, age, business, address and residence
address of such person, (2) the principal occupation or employment of such
person, (3) the class and number of shares of the Corporation which are
beneficially owned by such person and (4) any other information relating to
such person that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
each such person's written consent to being named in the proxy statement as a
nominee and to serving as a Director if elected); and (b) as to the shareholder
giving the notice (1) the name and address, as they appear on the Corporation's
books, of such shareholder and (2) the class and number of shares of the
Corporation which are beneficially owned by such shareholder. At the request
of the Board of Directors any person nominated by the Board of Directors for
election as a Director shall furnish to the Secretary of the Corporation that
information required to be set forth in a shareholder's notice of nomination
which pertains to the nominee. No person shall be eligible for election as a
Director of the Corporation unless nominated in accordance with the procedures
set forth in this Section 3.5. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws, and if the Chairman
should so determine, the Chairman shall so declare to the meeting and the
defective nominations shall be disregarded.
3.6 Vacancies. Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by the affirmative
vote of a majority of the remaining Directors (even if less than a quorum) or
by a sole remaining Director. Each Director so chosen shall hold office until
the next annual election of Directors by the shareholders and until his or her
successor is duly elected and qualified, or until his or her resignation or
removal.
3.7 Place of Meetings. The Board of Directors may hold meetings at any
location. The location of annual and regular Board of Directors' meetings
shall be determined by the
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Board and the location of special meetings shall be determined by the person
calling the meeting.
3.8 Annual Meeting. Each newly elected Board of Directors shall meet promptly
after the annual shareholders' meeting for the purposes of electing officers
and transacting such other business as may properly come before the meeting.
No notice of the annual Directors' meeting shall be necessary to the newly
elected Directors in order to legally constitute the meeting, provided a quorum
is present. If the annual Directors' meeting is not held, the matters which
might have been addressed may be addressed at a later regular or special
meeting or by consent resolution.
3.9 Regular Meetings. Regular meetings of the Board of Directors or Board
committees may be held without notice at such places and times as the Board or
committee determines at least 30 days before the date of the meeting.
3.10 Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board or President, and shall be called by the
President or Secretary upon the written request of two Directors, on two days'
notice to each Director or committee member by mail or 24 hours notice either
personally, by telephone, telegram, or telex. The notice must specify the
place of the special meeting, but need not specify the business to be
transacted or the purpose of the meeting. Special meetings of Board committees
may be called by the Chairman of the committee or a majority of committee
members pursuant to this Section 3.10.
3.11 Quorum. At all meetings of the Board or a Board committee, a majority
of the Directors then in office or members of such committee shall constitute a
quorum for the transaction of business. If a quorum is not present at any
Board or Board committee meeting, a majority of the Directors present at the
meeting may adjourn the meeting to another time and place without notice other
than announcement at the meeting. Any business may be transacted at the
adjourned meeting which might have been transacted at the original meeting,
provided a quorum is present.
3.12 Voting. The vote of a majority of the members present at any Board or
Board committee meeting at which there is a quorum shall be the act of the
Board of Directors or the committee, unless a higher vote is otherwise
required.
3.13 Telephonic Participation. Members of the Board of Directors or any Board
committee may participate in a Board or Board committee meeting by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this Section 3.13 shall constitute presence in person at
such meeting.
3.14 Action by Written Consent. Any action required or permitted to be taken
at any Board or Board committee meeting may be taken without a meeting, if,
before or after the action, all members of the Board or committee consent in
writing to the action. Such consents
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<PAGE> 6
shall be filed with the minutes of proceedings of the Board or committee and
shall have the same effect as a vote of the Board or committee for all
purposes.
3.15 Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board, designate one or more committees, each consisting
of one or more Directors. The Board may designate one or more Directors as
alternate members of any committee to replace any absent or disqualified member
at any committee meeting. Any committee, to the extent provided in the
resolution of the Board, may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation, except a
committee shall not have the power or authority to:
(a) Amend the Articles of Incorporation.
(b) Adopt an agreement of merger or consolidation.
(c) Recommend to shareholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets.
(d) Recommend to shareholders a dissolution of the Corporation or a
revocation of a dissolution.
(e) Amend the Bylaws of the Corporation.
(f) Fill vacancies in the Board.
(g) Fix compensation of the Directors for serving on the Board or on
a committee.
(h) Declare a dividend.
(i) Authorize the issuance of stock.
Each committee and its members shall serve at the pleasure of the Board, which
may at any time change the members and powers of, or discharge, the committee.
Each committee shall keep regular minutes of its meetings and report them to
the Board of Directors when required.
3.16 Compensation. The Board, by affirmative vote of a majority of Directors
in office and irrespective of any personal interest of any of them, may
establish reasonable compensation of Directors for services to the Corporation
as directors, officers or members of a Board committee. No such payment shall
preclude any Director from serving the Corporation in any other capacity and
receiving compensation for such service.
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ARTICLE IV
OFFICERS
4.1 Officers and Agents. The Board of Directors, at its first meeting after
each annual meeting of shareholders, shall elect a President, a Secretary and a
Treasurer, and may also elect a Chairman of the Board, a Vice Chairman of the
Board and one or more Executive Vice Presidents, Vice Presidents, Assistant
Vice Presidents, Assistant Secretaries and Assistant Treasurers. The Board of
Directors may also from time to time appoint such other officers and agents as
it deems advisable. Any number of offices may be held by the same person, but
no officer shall execute, acknowledge or verify an instrument in more than one
capacity. The officers shall have such power and duties as may be prescribed
by the Board of Directors and to the extent not so prescribed, as set forth in
this Article IV and as generally pertain to their offices, subject to the
control of the Board of Directors.
4.2 Compensation. The compensation of all officers of the Corporation shall
be fixed by the Board of Directors.
4.3 Term. Each officer of the Corporation shall hold office for the term for
which he or she is elected or appointed and until his or her successor is
elected or appointed and qualified, or until his or her resignation or removal.
The election or appointment of an officer does not, by itself, create any
contract rights.
4.4 Removal. Any officer appointed by the Board of Directors may be removed
at any time by the Board with or without cause.
4.5 Resignation. An officer may resign by written notice to the Corporation.
The resignation is effective upon its receipt by the Corporation or at a later
time specified in the notice of resignation.
4.6 Vacancies. Any vacancy occurring in any office of the Corporation shall
be filled by the Board of Directors.
4.7 Chairman of the Board. The Chairman of the Board, if such office is
filled, shall be the chief executive officer of the Corporation and a Director,
and shall preside at all shareholders' and Board of Directors' meetings. The
Chairman of the Board shall have the general powers of supervision and
management of the business and affairs of the Corporation usually vested in the
chief executive officer of a corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The Chairman of
the Board may delegate to the other officers such of his or her authority and
duties at such time and in such manner as he or she deems advisable.
4.8 President. In the absence or non-election of a Chairman of the Board, the
President shall preside at all shareholders' and Board of Directors' meetings,
and shall perform
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<PAGE> 8
the duties and execute the authority of the Chairman of the Board. If the
office of Chairman of the Board is filled, the President shall be the chief
operating officer of the Corporation and shall assist the Chairman of the Board
in the supervision and management of the business and affairs of the
Corporation. The President may delegate to the officers other than the
Chairman of the Board such of his or her authority and duties at such time and
in such manner as he or she deems appropriate.
4.9 Executive Vice Presidents and Vice Presidents. The Executive Vice
Presidents and Vice Presidents shall assist and act under the direction of the
Chairman of the Board and President. The Board of Directors may designate one
or more Executive Vice Presidents and may grant other Vice Presidents titles
which describe their functions or specify their order of seniority. In the
absence or disability of the President, the authority of the President shall
descend to the Executive Vice Presidents or, if there are none, to the Vice
Presidents in the order of seniority indicated by their titles or otherwise
specified by the Board. If not specified by their titles or the Board, the
authority of the President shall descend to the Executive Vice Presidents or,
if there are none, to the Vice Presidents, in the order of their seniority in
such office.
4.10 Secretary. The Secretary shall act under the direction of the Chairman
of the Board and President. The Secretary shall attend all shareholders' and
Board of Directors' meetings, record minutes of the proceedings and maintain
the minutes and all documents evidencing corporate action taken by written
consent of the shareholders and Board of Directors in the Corporation's minute
book. The Secretary shall perform these duties for Board committees when
required. The Secretary shall see to it that all notices of shareholders'
meetings and special Board of Directors' meetings are duly given in accordance
with applicable law, the Articles of Incorporation and these Bylaws. The
Secretary shall have custody of the Corporation's seal and, when authorized by
the Chairman of the Board, President or the Board of Directors, shall affix the
seal to any instrument requiring it and attest such instrument.
4.11 Treasurer. The Treasurer shall act under the direction of the Chairman
of the Board and President. The Treasurer shall have custody of the corporate
funds and securities and shall keep full and accurate accounts of the
Corporation's assets, liabilities, receipts and disbursements in books
belonging to the Corporation. The Treasurer shall deposit all moneys and other
valuables in the name and to the credit of the Corporation in such depositories
as may be designated by the Board of Directors. The Treasurer shall disburse
the funds of the Corporation as may be ordered by the Chairman of the Board,
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board, the President and
the Board of Directors (at its regular meetings or whenever they request it) an
account of all his or her transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond for the faithful discharge of his
or her duties in such amount and with such surety as the Board prescribes.
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<PAGE> 9
4.12 Assistant Vice Presidents, Secretaries and Treasurers. The Assistant
Vice Presidents, Assistant Secretaries and Assistant Treasurers, if any, shall
act under the direction of the Chairman of the Board, the President and the
officer they assist. In the order of their seniority, the Assistant
Secretaries shall, in the absence or disability of the Secretary, perform the
duties and exercise the authority of the Secretary. The Assistant Treasurers,
in the order of their seniority, shall, in the absence or disability of the
Treasurer, perform the duties and exercise the authority of the Treasurer.
4.13 Execution of Contracts and Instruments. The Board of Directors may
designate an office or agent with authority to execute any contract or other
instrument on the Corporation's behalf; the Board may also ratify or confirm
any such execution. If the Board authorizes, ratifies or confirms the
execution of a contract or instrument without specifying the authorized
executing officer or agent, the Chairman of the Board, the President or any
Executive Vice President or Vice President may execute the contract or
instrument in the name and on behalf of the Corporation and may affix the
corporate seal to such document or instrument.
4.14 Voting Shares and Securities of Other Corporations and Entities. Unless
the Board of Directors otherwise directs, the Chairman of the Board shall be
entitled to vote or designate a proxy to vote all shares and other securities
which the Corporation owns in any other corporation or entity.
ARTICLE V
NOTICES AND WAIVERS OF NOTICE
5.1 Delivery of Notices. All written notices to shareholders, Directors and
Board committee members shall be delivered personally or by mail (registered,
certified or other first class mail, with postage pre-paid), addressed to such
person at his or her address as it appears on the Corporation's records or,
with respect to a Director, at his or her office on the Corporation's premises.
Written notices to Directors or Board committee members may also be delivered
by telegram, telex, radiogram, cablegram, facsimile, computer transmission or
similar form of communication, addressed to either address referred to in the
preceding sentence. Notices delivered pursuant to this Section 5.1 shall be
deemed to be given at the time when mailed or otherwise dispatched. The
Corporation shall have no duty to change the written address of any Director,
Board committee member or shareholder unless the Secretary receives written
notice of such address change.
5.2 Waiver of Notice. Any required notice may be waived in writing (signed by
the person entitled to the notice or his or her duly authorized attorney or
legal representative), either before or after the event requiring notice, or in
such other manner as permitted by statute. Neither the business to be
transacted at, nor the purpose of, the meeting need be specified in the written
waiver of notice. Attendance at any shareholders' meeting (in person or by
proxy)
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<PAGE> 10
or any Board or Board committee meeting constitutes a waiver of notice of the
meeting except if the person attends for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
ARTICLE VI
SHARE CERTIFICATES AND SHAREHOLDERS OF RECORD
6.1 Certificates for Shares. The shares of the Corporation shall be
represented by certificates signed by the Chairman or Vice Chairman of the
Board, President, Executive Vice President or Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary.
The officers' signatures may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar other than the Corporation or
its employee. If any officer who has signed or whose facsimile signature has
been placed upon a certificate ceases to be such officer before the certificate
is issued, it may be issued by the Corporation with the same effect as if the
person were such officer at the date of issue.
6.2 Lost or Destroyed Certificates. The Board of Directors may direct or
authorize an officer to direct that a new certificate for shares be issued in
place of any certificate alleged to have been lost or destroyed. When
authorizing such issue of a new certificate, the Board of Directors or officer
may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost or destroyed certificate, or the owner's legal
representative, to give the Corporation an affidavit claiming that the
certificate is lost or destroyed or a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to such certificate.
6.3 Transfer of Shares. Shares of the Corporation are transferable only on
the Corporation's stock transfer books upon surrender to the Corporation or its
transfer agent of a certificate for the shares, duly endorsed for transfer, and
the presentation of such evidence of ownership and validity of the transfer as
the Corporation requires.
6.4 Record Date. The Board of Directors may fix, in advance, a date as the
record date for determining shareholders for any purpose, including determining
shareholders entitled to (a) notice of, and to vote at, any shareholders'
meeting or any adjournment of such meeting; (b) express consent or dissent from
a proposal without a meeting; or (c) receive payment of any dividend or other
distribution or allotment of any rights. The record date shall not be more
than 60 nor less than 10 days before the date of the meeting, nor more than 60
days before any other action.
If a record date is not fixed:
(a) the record date for determining the shareholders entitled to notice of,
or to vote at, a shareholders' meeting shall be the close of business on the
day on which
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notice of the meeting is given, or, if notice is not given, the close of
business on the day next preceding the day on which the meeting is held; and
(b) the record date for determining shareholders for any other purpose shall
be the close of business on the day on which the Board of Directors adopts the
resolution relating to the action.
A determination of shareholders of record entitled to notice of, or to vote at,
a shareholders' meeting shall apply to any adjournment of the meeting except
that the Board of Directors may fix a new record date for the adjourned
meeting.
Only shareholders of record on the record date shall be entitled to
notice of, or to participate in, the action relating to the record date,
notwithstanding any transfer of shares on the Corporation's books after the
record date. This Section 6.4 shall not affect the rights of a shareholder and
the shareholder's transferor or transferee as between themselves.
6.5 Registered Shareholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of a share for all purposes, including notices, voting, consents, dividends and
distributions, and shall not be bound to recognize any other person's equitable
or other claim to interest in such share, regardless of whether it has actual
or constructive notice of such claim or interest.
ARTICLE VII
INDEMNIFICATION
The Corporation shall indemnify to the fullest extent authorized or
permitted by the Michigan Business Corporation Act any person, and his or her
heirs, executors, administrators and legal representatives, who is made or
threatened to be made a party to an action, suit or proceeding (whether civil,
criminal, administrative or investigative) by reason of the fact that such
person is or was a director or officer of the Corporation or serves or served,
at the request of the Corporation, as a director, officer, employee or agent,
of another corporation, partnership, joint venture, trust or other enterprise,
and may provide such other indemnification to directors, officers, employees
and agents by insurance, contract or otherwise as is permitted by law and
authorized by the Board of Directors.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Checks and Funds. All checks, drafts or demands for money and
notes of the Corporation must be signed by such officer or officers or such
other person or persons as the
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<PAGE> 12
Board of Directors from time to time designates. All funds of the Corporation
not otherwise employed shall be deposited or used as the Board of Directors
from time to time designates.
8.2 Fiscal Year. The fiscal year of the Corporation shall end on
July 31 of each year, or such other date as the Board of Directors from time to
time determines.
8.3 Corporate Seal. The Board of Directors may adopt a corporate
seal for the Corporation. The corporate seal, if adopted, shall be circular
and contain the name of the Corporation and the words "Corporate Seal
Michigan". The seal may be used by causing it or a facsimile of it to be
impressed, affixed, reproduced or otherwise.
8.4 Books and Records. The Corporation shall keep within or
outside of Michigan books and records of account and minutes of the proceedings
of its shareholders, Board of Directors and Board committees, if any. The
Corporation shall keep at its registered office or at the office of its
transfer agent within or outside 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 recordholders of shares. Any
of such 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.
8.5 Financial Statements. Beginning in the Corporation's 1988
fiscal year, the Corporation shall deliver to its shareholders, within four
months after the beginning of each fiscal year, a financial report (including a
statement of income, year-end balance sheet, and, if prepared by the
Corporation, its statement of sources and application of funds) covering the
preceding fiscal year of the Corporation.
ARTICLE IX
AMENDMENTS
These Bylaws may be amended or repealed, or new Bylaws may be adopted,
by action of either the shareholders or a majority of the Board of Directors
then in office. The shareholders may from time to time specify particular
provisions of the Bylaws which may not be altered or repealed by the Board of
Directors.
ARTICLE X
SCOPE OF BYLAWS
These Bylaws govern the regulation and management of the affairs of the
Corporation to the extent that they are consistent with applicable law and the
Articles of Incorporation. Greater voting, notice or other requirements than
those set forth in these Bylaws may be established by
12
<PAGE> 13
contract.
ARTICLE XI
CONTROL SHARE ACT
Pursuant to Section 794 of the MBCA, Chapter 7B of the Michigan Business
Corporation Act does not apply to any "control share acquisition" (as defined
in Section 791 of the MBCA) of shares of the Corporation.
13
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