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Exhibit 3(b)
RESTATED BYLAWS
of
PERRIGO COMPANY
Restated as of April 10, 1996
Amended as of June 23, 2000 and August 25, 2000
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RESTATED BYLAWS
of
PERRIGO COMPANY
ARTICLE I.
Offices
The registered office of the Corporation shall be in the City of Allegan, County
of Allegan, State of Michigan.
The Corporation may also have offices at such other places within or without the
State of Michigan as the Board of Directors may from time to time determine.
ARTICLE II.
Shareholders
Section 1. - Place of Meeting
Except as otherwise provided by applicable law, the Board of Directors may
designate any place, either within or without the State of Michigan, as the
place of meeting for any annual meeting of shareholders or for any special
meeting of shareholders. If no designation is made the place of meeting shall be
the registered office of the Corporation in the State of Michigan.
Section 2. - Annual Meeting
The annual meeting of shareholders shall be held on such date and at such time
and place as shall be selected by the Board of Directors, for the purpose of
electing directors and for the transaction of such other business as may
properly be brought before the meeting.
Section 3. - Special Meeting
A special meeting of shareholders may be called at any time by the Chairman of
the Board, the President or a majority of the total number of directors which
the Corporation would have if there were no vacancies (the "Whole Board of
Directors").
Section 4. - Notice of Meeting
Written notice of the place, date, hour and purposes of each meeting of
shareholders shall be given to the holders of record of the shares of capital
stock of the Corporation entitled to vote at the meeting by mailing, postage
prepaid, or delivering in person such notice not later than 10 nor more than 60
days before the date of such meeting to each such holder at the address
designated by him or her for that purpose or, if none is designated, at his or
her last known address. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail with postage thereon prepaid, addressed
to the shareholder at his or her address as it appears on the stock transfer
books of the Corporation. Only such business shall be conducted at a special
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meeting of shareholders as shall have been brought before the meeting pursuant
to the Corporation's notice of meeting. Meetings may be held without notice if
all shareholders entitled to vote are present, or if notice is waived by those
not present in accordance with Article VI of these Bylaws.
Any previously scheduled meeting of shareholders may be postponed, and except as
otherwise provided by applicable law, any special meeting of shareholders may be
cancelled by resolution of the Board of Directors upon public notice given prior
to the date previously scheduled for such meeting of shareholders.
If a meeting of shareholders is adjourned to another time or place, it shall not
be necessary to give notice of the adjourned meeting if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken and only such business is transacted at the adjourned
meeting as might have been transacted at the original meeting; provided that, if
after the adjournment the Board of Directors fixes a new record date for the
adjourned meeting, notice of the adjourned meeting shall be given to each
shareholder of record on the new record date.
Section 5. - Quorum; Adjournment
At all meetings of shareholders there shall be present in person or by proxy
holders of a majority of the shares entitled to vote at the meeting in order to
constitute a quorum. From time to time and whether or not there is such a
quorum, the Chairman of the meeting or the holders of a majority of the shares
entitled to vote at the meeting present in person or by proxy, without notice
other than announcement at the meeting of the time and place to which the
meeting is adjourned, may adjourn the meeting to such time and place, subject,
however, to the provisions of the proviso last set forth in Section 4 of this
Article II of these Bylaws. The shareholders present at a duly called meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
The Chairman of any meeting of shareholders shall be the Chairman of the Board,
unless the Board of Directors shall by resolution prior to such meeting
designate another person as Chairman of such meeting.
Section 6. - Voting
At each meeting of shareholders, each shareholder present in person or
represented by a valid proxy that satisfies the requirements of Section 8 of
this Article II of these Bylaws shall be entitled to one vote for each share of
common stock registered in his or her name on the books of the Corporation at
the record date determined in accordance with Section 5 of Article V of these
Bylaws. The voting rights, if any, of preferred stock will be established by the
Board of Directors in the designation of the preferred stock. To the extent that
voting rights are granted to any series of preferred stock outstanding, the
holders of shares of such series of preferred stock on the books of the
Corporation at the record date determined in accordance with Section 5 of
Article V of these Bylaws shall be entitled to vote at the meeting of
shareholders in accordance with their voting rights set forth in the
designation.
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Election of directors at all meetings of the shareholders at which directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any series of preferred stock to elect directors under specified circumstances,
a plurality of the votes cast thereat shall elect directors. In all matters
other than the election of directors, when an action is to be taken by vote of
the shareholders, it shall be authorized by a majority of the votes cast by the
holders of shares entitled to vote thereon, unless a greater plurality is
required by the Articles of Incorporation or by applicable law.
No shareholder may participate in a meeting of shareholders by a conference
telephone or by other similar communications equipment, and any shareholder
attempting to so participate in any meeting of shareholders shall be deemed not
to be present in person at such a meeting.
Section 7. - Inspection of Shareholders List
The Corporation shall keep at the office of its transfer agent, within or
without the State of Michigan, records containing the names and addresses of all
shareholders, the number of shares held by each, and the dates when they
respectively became holders of record thereof. A person who is a shareholder of
record of the Corporation, upon at least ten days' written demand, may examine
for any proper purpose, in person or by agent or attorney, during usual business
hours, the record of shareholders and make extracts therefrom, at such place,
within or without the State of Michigan, as such records are kept.
The officer or agent of the Corporation 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. Such list shall be produced at the time and place of the meeting and
shall be subject to inspection by any shareholder during the whole time of the
meeting.
Section 8. - Proxies
Any shareholder entitled to vote at a meeting of shareholders may authorize
other persons to act for him or her by proxy; but no proxy shall be exercised
after three years from its date unless otherwise specifically provided in the
proxy.
Without limiting the manner in which a shareholder may authorize another person
or persons to act for him or her as proxy pursuant to these Bylaws, the
following methods constitute a valid means by which a shareholder may grant
authority to another person to act as proxy:
(A) The execution of a writing authorizing another person or persons to act
for the shareholder as proxy. Execution may be accomplished by the
shareholder or by an authorized officer, director, employee, or agent
signing the writing or causing his or her signature to be affixed to
the writing by any reasonable means including, but not limited to,
facsimile signature.
(B) Transmitting or authorizing the transmission of a telegram, cablegram,
or other means of electronic transmission to the person who will hold
the proxy or to a proxy solicitation
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firm, proxy support service organization, or similar agent fully
authorized by the person who will hold the proxy to receive that
transmission. Any telegram, cablegram, or other means of electronic
transmission must either set forth or be submitted with information
from which it can be determined that the telegram, cablegram, or other
electronic transmission was authorized by the shareholder. If a
telegram, cablegram, or other electronic transmission is determined to
be valid by the inspectors, they or, if there are no inspectors, the
persons making the determination shall specify the information upon
which they relied.
(C) A copy, facsimile telecommunication, or other reliable reproduction of
the writing or transmission created pursuant to this Section 8 may be
substituted or used in lieu of the original writing or transmission for
any purpose for which the original writing or transmission could be
used, if the copy, facsimile telecommunication, or other reproduction
is a complete reproduction of the entire original writing or
transmission.
Proxies shall be delivered or directed to the attention of the Secretary of the
Corporation before the meeting at which such proxies are intended to be voted.
Section 9. - Inspectors of Election; Opening and Closing the Polls
The Board of Directors, in advance of a shareholders' meeting, may appoint one
or more inspectors to act at the meeting or any adjournment thereof. If
inspectors are not so appointed, the Chairman of such meeting may, and on
request of a shareholder entitled to vote thereat shall, appoint one or more
inspectors. In case a person appointed fails to appear or act, the vacancy may
be filled by appointment made by the Board in advance of the meeting or at the
meeting by the Chairman of such meeting.
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, or ballots, hear
and determine challenges and questions arising in connection with the right to
vote, count and tabulate votes, or ballots, 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 Chairman of the meeting or a shareholder
entitled to vote thereat, the inspectors shall make and execute a written report
to the Chairman of 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.
The Chairman of the meeting (or his or her designee) shall fix and announce at
the meeting the date and time of the opening and the closing of the polls for
each matter upon which the shareholders will vote at a meeting.
Section 10. - Notice of Shareholder Business and Nominations
(A) Annual Meetings of Shareholders.
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
shareholders may be made at an
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annual meeting of shareholders (a) pursuant to the Corporation's notice
of meeting, (b) by or at the direction of the Board of Directors or (c)
by any shareholder of the Corporation who was a shareholder of record
at the time of giving of notice provided for in this Section 10 of this
Article II of these Bylaws, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 10(A)
of this Article II of these Bylaws.
(2) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to Section 10(A)(1)(c) of this
Article II of these Bylaws, the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation and such
other business must otherwise be a proper matter for shareholder
action. To be timely, a shareholder's notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not
later than the close of business on the 70th day nor earlier than the
close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is more than 30 days before or more
than 60 days after such anniversary date, notice by the shareholder to
be timely must be so delivered not earlier than the close of business
on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 70th day prior to such annual
meeting or the 10th day following the day on which public announcement
of the date of such meeting is first made by the Corporation. In no
event shall the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a shareholder's
notice as described above. Such shareholder's notice shall set forth
(a) as to each person whom the shareholder proposes to nominate for
election or reelection as a director all information relating to such
person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (b) as
to any other business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such shareholder
and the beneficial owner, if any, on whose behalf the proposal is made;
and (c) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such shareholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class
and number of shares of the Corporation which are owned beneficially
and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of Section 10(A)(2)
of this Article II of these Bylaws to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the
size of the increased Board of Directors at least 70 days prior to the
first anniversary of the preceding year's annual meeting, a
shareholder's notice required by this Section 10(A) of this Article II
of these Bylaws shall also be considered timely, but only with
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respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the
10th day following the day on which such public announcement is first
made by the Corporation.
(B) Special Meetings of Shareholders. Except as otherwise provided by
applicable law, only such business shall be conducted at a special
meeting of shareholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting
of shareholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board
of Directors or (b) provided that the Board of Directors has determined
that directors shall be elected at such meeting, by any shareholder of
the Corporation who is a shareholder of record at the time of giving of
notice provided for in this Section 10(B) of this Article II of these
Bylaws, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 10(B) of this
Article II of these Bylaws. In the event the Corporation calls a
special meeting of shareholders for the purpose of electing one or more
directors to the Board of Directors, any such shareholder may nominate
a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if
such shareholder shall deliver the notice required by Section 10(A)(2)
of this Article II of these Bylaws to the Secretary at the principal
executive offices of the Corporation not earlier than the close of
business on the 90th day prior to such special meeting and not later
than the close of business on the later of the 70th day prior to such
special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of
the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of
a special meeting commence a new time period for the giving of a
shareholder's notice as described above.
(C) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 10 of this Article II of these
Bylaws shall be eligible to be elected at a meeting of shareholders to
serve as directors and only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting
in accordance with the procedures set forth in this Section 10 of this
Article II of these Bylaws. Except as otherwise provided by applicable
law, the Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 10 of this
Article II of these Bylaws and, if any proposed nomination or business
is not in compliance with this Section 10 of this Article II of these
Bylaws, to declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this Section 10 of this Article II of these Bylaws,
"public announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly
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filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 10 of this
Article II of these Bylaws, a shareholder shall also comply with all
applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this
Section 10 of this Article II of these Bylaws. Nothing in this Section
10 of this Article II of these Bylaws shall be deemed to affect any
rights (i) of shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act or (ii) of the holders of any series of preferred stock to elect
directors under specified circumstances.
Section 11. - No Shareholder Action by Written Consent
Subject to the rights of the holders of any series of preferred stock with
respect to such series of preferred stock, any action required or permitted to
be taken by the shareholders of the Corporation must be effected at an annual or
special meeting of shareholders of the Corporation and may not be effected by
any consent in writing by such shareholders.
ARTICLE III.
Board of Directors
Section 1. - Number; Method of Election; Terms of Office; Qualification and
Removal
The business and affairs of the Corporation shall be managed by the Board of
Directors. The number of directors of the Corporation shall be not less than one
(1) nor more than nine (9), the exact number to be determined from time to time
by resolution of the Board of Directors adopted by a majority of the directors
then in office.
The Board of Directors shall be divided into three classes as nearly equal in
number as possible with staggered three-year terms, the term in office of the
members of one class to expire at each annual meeting of shareholders of the
Corporation.
During the intervals between annual meetings of shareholders, any vacancy in the
Board of Directors caused by resignation, removal, death, or other incapacity
may be filled by a majority vote of the directors then in office, though less
than a quorum of the Board. A directorship to be filled because of a vacancy may
be filled by the Board for a term of office continuing only until the next
election of the class of directors in which the vacancy occurred. When the
number of directors is changed, any newly created directorships or any decrease
in directorships shall be so apportioned among the classes as to make all
classes as nearly equal in number as possible. No decrease in the number of
authorized directors constituting the Whole Board of Directors shall shorten the
term of any incumbent director.
Any director may be removed from office as a director at any time, but only for
cause, by the affirmative vote of shareholders holding a majority of the
outstanding shares of Common Stock of the Corporation entitled to vote for the
election of directors at a meeting of the shareholders called for that purpose.
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If for any reason the annual meeting of shareholders shall not be held at the
time appointed by these Bylaws, the directors shall cause a meeting to be held
for the election of the directors as soon thereafter as conveniently may be, and
the directors then in office who are nominees for reelection or for whom
successors are to be elected shall continue in office until such election shall
have been held and until their reelection or their successors have been duly
elected and qualified.
Section 2. - Meetings
The Board of Directors may hold its meetings and have an office and keep the
books of the Corporation, except as otherwise provided by applicable law or
these Bylaws, in such place or places within or without the State of Michigan as
the Board may from time to time determine.
The Board of Directors may in its discretion provide for regular meetings of the
Board. Notice of regular meetings need not be given. Special meetings of the
Board shall be held whenever called by direction of the Chairman of the Board or
the President or any two of the directors for the time being in office. The
Secretary shall give notice of a special meeting by mailing same at least three
days, or by delivering personally or by overnight mail or courier service, or by
telegraphing the same at least one day, or by telephoning or delivering by
facsimile transmission at least twelve hours, before the meeting to each
director, but such notice may be waived by any director. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at a
special meeting.
A meeting may be held without notice, and any business may be transacted
thereat, if every director shall be present, or if those not present waive
notice of the meeting in accordance with Article VI of these Bylaws. No notice
of any adjourned meeting need be given.
Section 3. - Quorum and Actions of the Board of Directors
Except as provided in Section 6 of this Article III of these Bylaws, a majority
of the Board of Directors shall constitute a quorum for the transaction of
business, and the acts of a majority of the directors present at a meeting at
which a quorum is present shall be the acts of the Board of Directors; but if
there be less than a quorum at any meeting of the Board, a majority of those
present may adjourn the meeting from time to time. The directors present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
A member of the Board may participate in any meeting of the Board by means of
conference telephone or similar communications equipment by means of which all
persons may participate in the meeting, and participation in a meeting by such
means shall constitute presence in person at such meeting.
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Section 4. - Committees
The Board of Directors may designate from among its members such committees as
it may deem appropriate from time to time, and such committees shall exercise
the authority delegated to them. The Board may delegate to any committee, but
not more than one committee, the power and authority to declare a distribution
or dividend upon any outstanding class or series of capital stock of the
Corporation, and the Board may delegate to the same or any other committee, but
not more than one committee, the power and authority to authorize the issuance
of shares of any class or series of capital stock of the Corporation.
Section 5. - Quorum and Action of a Committee
Except as provided in Section 6 of this Article III of these Bylaws, a majority
of any committee of the Board of Directors shall constitute a quorum for the
transaction of business, and the acts of a majority of the committee members
present at a meeting at which a quorum is present shall be the acts of the
committee; but if there be less than a quorum at any meeting of a committee, a
majority of those present may adjourn the meeting from time to time. The members
of a committee present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough committee
members to leave less than a quorum.
A majority, or the chairperson, of any committee may fix the time and place of
its meeting, unless the Board shall otherwise provide. Notice of meetings of a
committee shall be given to each member of the committee in the manner provided
for in the second paragraph of Section 2 of this Article III of these Bylaws.
In the absence or disqualification of a member of a committee, the remaining
members thereof present at a meeting and not disqualified from voting, whether
or not they constitute a quorum, may unanimously appoint another member of the
Board to act at the meeting in place of such absent or disqualified member.
A member of a committee of the Board of Directors may participate in any meeting
of the committee by means of conference telephone or similar communication
equipment by means of which all persons may participate in the meeting, and
participation in a meeting by such means shall constitute presence in person at
such meeting.
Section 6. - Action by Unanimous Written Consent
Any action required or permitted to be taken at any meeting of the Board of
Directors or a committee thereof may be taken without a meeting if, before the
action, all members of the Board or of the committee consent thereto in writing.
The written consents shall be filed with the minutes of the proceedings of the
Board or committee. The consent shall have the same effect as a vote of the
Board or committee for all purposes.
Section 7. - Compensation of the Board of Directors
Directors, unless employed by and receiving a salary from the Corporation, shall
receive such compensation for serving on the Board and for attending meetings of
the Board and any committee thereof as may be fixed by the Board. Directors
shall be reimbursed their reasonable expenses incurred while engaged in the
business of the Corporation.
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ARTICLE IV.
Officers
Section 1. - Selection and Removal
At the first meeting of the Board of Directors after the annual meeting of
shareholders each year, the Board of Directors shall elect a President, a
Secretary, and a Treasurer. All of these officers, except the Secretary, are
required to be regular full-time employees of the Corporation. The Board of
Directors may also elect one or more Vice Presidents including Senior Vice
Presidents or Executive Vice Presidents, one or more Assistant Secretaries and
one or more Assistant Treasurers. No one of these officers needs to be a
director. Any two of the above offices except those of (a) President and Vice
President, (b) Secretary and Assistant Secretary or (c) Treasurer and Assistant
Treasurer may be held by the same person; but no officer shall execute,
acknowledge, or verify any instrument in more than one capacity.
An officer shall hold office for the term of one year and until his or her
successor shall have been elected or appointed and qualified, or until
resignation or removal.
Any officer may be removed by the Board of Directors with or without cause.
The Board of Directors may fill any vacancies in any offices occurring for
whatever reason.
The Board is authorized from time to time to elect or appoint one of its members
as Chairman of the Board or Vice Chairman of the Board and such person or
persons shall perform such duties as shall be prescribed by these Bylaws or by
the Board of Directors from time to time.
Section 2. - Powers and Duties of the President
Subject to the direction of the Board of Directors, the President shall be the
chief executive officer in general charge of the business and affairs of the
Corporation, shall have control over the general operations of the Corporation
and shall establish and implement its corporate policies. He or she shall have
supervisory power and authority over all officers and agents elected or
appointed by the Board of Directors of the Corporation and over the employment,
appointment, functions, duties, removal or discharge of all other employees and
agents of the Corporation.
The President shall perform such other duties as may be delegated to him or her
from time to time by the Board of Directors. The President may delegate any of
his or her powers or functions to any officer of the Corporation.
The President shall at least once in each year cause a true statement of the
operations and properties of the Corporation for the preceding fiscal year to be
made and to be communicated or distributed to each shareholder thereof within
four months after the end of the preceding fiscal year.
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In the event of the absence or inability to act of the Chairman of the Board,
the President, in addition to his or her powers and duties as President, shall
have the powers and perform the duties of the office of the Chairman of the
Board.
Section 3. - Powers and Duties of Vice Presidents
The Vice Presidents shall perform any such duties as may from time to time be
assigned to them by the Board of Directors or the President.
Section 4. - Powers and Duties of Secretary
The Secretary or an Assistant Secretary shall record the proceedings of all
meetings of the Board of Directors and of the shareholders, in books kept for
that purpose. The Secretary shall be the custodian of the corporate seal, and he
or she or an Assistant Secretary shall affix the same to and countersign papers
requiring such acts. The Secretary and the Assistant Secretaries shall perform
such other duties as may be required by the Board of Directors, the President,
or a designated Vice President.
Section 5. - Powers and Duties of Treasurer
The Treasurer and Assistant Treasurers shall have care and custody of all funds
of the Corporation and disburse and administer the same under the direction of
the Board of Directors, the President, or a designated Vice President, and shall
perform such other duties as the Board of Directors, the President, or a
designated Vice President may assign to them.
Section 6. - Voting Shares of Other Corporations
Unless otherwise ordered by the Board of Directors, the President or such proxy
as he or she may appoint, shall vote all shares which the Corporation may own in
another corporation, and if solicited, shall consent in writing, in the name of
the Corporation as such holder, to or against any action by such other
corporation, and if the officer himself or herself is not so voting or
consenting, the officer appointing such proxy may instruct such proxy as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such written proxies or other instruments as such officer
may deem necessary or proper in the premises.
Section 7. - Execution of Instruments
The President or a Vice President or such other officer from time to time
designated by the Board of Directors is authorized to sign and the Secretary or
an Assistant Secretary to attest under the corporate seal, on behalf of the
Corporation, contracts and other instruments in writing, including bonds and
other obligations required in legal proceedings, surety and indemnifying bonds
required in the conduct of the business of the corporation, papers required by
the applicable laws of any state with respect to the right to conduct business
in such state, and reports required by the applicable laws of the United States
or any state, territory, or foreign country.
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Section 8. - Officers Appointed by the President
The President may appoint such officers, other than those that shall be elected
by the Board of Directors pursuant to Section I of this Article IV of these
Bylaws, and such agents as may be necessary or desirable for the conduct of the
business of the Corporation. Such other officers and agents shall have such
duties and shall hold their offices for such terms as may be provided by the
Board of Directors or any committee thereof or the President, as the case may
be. Any such officer or agent appointed by the President may be removed by the
President with or without cause. The President may fill any vacancies in any
office appointed by the President occurring for whatever reason.
Section 9. - Delegation
Subject to any restrictions imposed by the Board of Directors, the President
and/or any Vice President of the Corporation may delegate contractual powers to
others under his or her jurisdiction, it being understood, however, that any
such delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
ARTICLE V.
Capital Stock
Section 1. - Certificates of Stock
Every shareholder shall be entitled to have a certificate of stock signed by or
in the name of the Corporation by the Chairman of the Board, the President, or a
Vice President and the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary of the Corporation, and such signatures may be
facsimiles, sealed with the Corporation's seal, certifying the number and class
of shares represented by such certificate, and where such certificate is
countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee, the signatures of the officers may be
facsimiles. In case any officer who shall have signed or whose facsimile
signature shall have been placed upon a certificate shall cease to be such
officer, whether because of death, resignation or otherwise, before such
certificate shall have been issued by the Corporation, such certificate may
nevertheless be issued by the Corporation with the same effect as if such person
were such officer at the date of issue. If the Corporation is authorized to
issue shares of more than one class of stock, the certificate shall state on its
face or back that the Corporation will furnish a shareholder upon request and
without charge a full statement of the designation, relative rights, preferences
and limitations of the shares of each class to be issued, and if the Corporation
is authorized to issue any class of shares in a series, the designation,
relative rights, preferences and limitations of each series so far as the same
have been prescribed and the authority of the Board to designate and prescribe
the relative rights, preferences and limitations of other series.
Section 2. - Transfers of Shares
Upon surrender of the Corporation or the transfer agent of the Corporation of a
stock certificate duly endorsed or accompanied by proper evidence of succession,
assignment, or authority to
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transfer, it shall be the duty of the Corporation to issue a new certificate for
not more than the same number of shares (appropriately adjusted for any
dividends paid in shares of the Corporation, or any subdivision, combination or
reclassification of the shares of the Corporation) to the person entitled
thereto, cancel the old certificate, and record the transaction upon the books
of the Corporation. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation.
Section 3. - Lost, Stolen, or Destroyed Certificates
The Chairman of the Board, President, Secretary, or any Vice President may
approve issuance of replacement stock certificates upon presentation of such
documentation and obligation bond(s), if any, as such officer, in his or her
discretion, shall deem adequate for the protection of the Corporation.
Section 4. - Transfer Agent and Registrar; Regulations
The Corporation shall, if and whenever the Board of Directors shall so
determine, maintain one or more transfer offices or agencies, each in charge of
a transfer agent designated by the Board of Directors, where the shares of the
capital stock of the Corporation shall be directly transferable, or a transfer
clerk to act on behalf of the Corporation in connection with such transfers, and
also one or more registry offices, each in charge of a registrar designated by
the Board of Directors, where such shares of stock shall be registered; and no
certificate for shares of the capital stock of the Corporation in respect of
which a transfer agent or transfer clerk and registrar shall have been
designated shall be valid unless countersigned by such transfer agent or
transfer clerk and registered by such registrar, and such signature may be a
facsimile. The Board of Directors may also make such additional rules and
regulations as it may deem expedient concerning the issue, transfer, and
registration of certificates for shares of the capital stock of the Corporation.
Section 5. - Fixing of Record Date
For the purpose of determining (a) shareholders entitled to notice of and to
vote at a meeting of shareholders, (b) shareholders entitled to receive payment
of any dividend, or (c) shareholders for any other purpose, the Board of
Directors may fix, in advance, a date as the record date for any such
determination, such date in the case of a meeting to be not more than 60 nor
less than 10 days before the date of the meeting and in any other case to be not
more than 60 days before the date of the action to be taken.
If a record date is not fixed, (a) the record date for determining 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 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 thereto.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment thereof unless the Board
of Directors fixes a new record date for the adjourned meeting.
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ARTICLE VI.
Waiver of Notice
Notice of the time, place, and purpose of any meeting of the Board of
Directors, a committee thereof, or shareholders may be waived by telegram,
radiogram, cablegram, facsimile transmission or other writing by those not
present, and entitled to vote thereat, either before or after the holding
thereof.
ARTICLE VII.
Indemnification and Insurance
Section 1. - Right to Indemnification and Advance Payment of Expenses a Contract
Right
All rights to indemnification and payment of expenses in advance of the final
disposition of any action, suit or proceeding conferred by Article IX of the
Corporation's Amended and Restated Articles of Incorporation and this Article
VII of these Bylaws shall be a contract right inuring to the benefit of (i) the
person conferred such rights to indemnification and advance payment of expenses
by Article IX of the Corporation's Amended and Restated Articles of
Incorporation and this Article VII of these Bylaws, and (ii) such person's
heirs, executors and administrators.
Section 2. - Advance Payment of Expenses
The Corporation shall pay and/or reimburse (as applicable) the reasonable
expenses incurred by a director or officer or a former director or officer, or
other person designated as entitled to indemnification and/or advance payment of
expenses under Article IX of the Corporation's Amended and Restated Articles of
Incorporation and/or this Article VII of these Bylaws, who is a party or
threatened to be made a party to an action, suit or proceeding in advance of
final disposition of the action, suit or proceeding. Such advance payment of
expenses shall be made upon satisfaction of the following (to the extent
required by the Business Corporation Act of the State of Michigan):
(1) the person seeking advance payment of expenses 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
Article IX of the Corporation's Amended and Restated Articles of
Incorporation entitling such person to indemnification;
(2) the person seeking advance payment of expenses furnishes the
Corporation a written undertaking, executed personally or on his or her
own behalf, to repay the advance if it is ultimately determined that he
or she did not meet the standard of conduct set forth in Article IX of
the Corporation's Amended and Restated Articles of Incorporation
entitling such person to indemnification;
(3) a determination is made that the facts then known to those making
the determination as to the entitlement to advance payment of expenses
would not preclude
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indemnification under Article IX of the Corporation's Amended and
Restated Articles of Incorporation.
The determinations and evaluations under this Section 2 of this Article VII of
these Bylaws shall be made in the applicable manner specified in Article IX of
the Corporation's Amended and Restated Articles of Incorporation and this
Article VII of these Bylaws or, if the person seeking advance payment of
expenses is party to an indemnification agreement with the Corporation (or any
of its subsidiaries), in the applicable manner (if any) specified in such
agreement.
Section 3. - Claim of Indemnification and Advance Payment of Expenses
In the event a claimant shall submit to the Corporation a written request for
indemnification and/or advance payment of expenses pursuant to Article IX of the
Corporation's Amended and Restated Articles of Incorporation and this Article
VII of these Bylaws and there shall have occurred within two years prior to the
date of the commencement of the action, suit or proceeding for which
indemnification and/or advance payment of expenses is claimed a Change of
Control (as hereinafter defined), determination of entitlement to
indemnification and/or advance payment of expenses is to be made by Independent
Counsel (as hereinafter defined) selected by the claimant unless the claimant
shall request that such selection be made by the Board of Directors. If it is so
determined that the claimant is entitled to indemnification and/or advance
payment of expenses, payment to the claimant shall be made within 10 days after
such determination.
Section 4. - Enforcement of Right to Indemnification and Advance Payment of
Expenses
If a claim for indemnification and/or advance payment of expenses under Article
IX of the Corporation's Amended and Restated Articles of Incorporation and/or
this Article VII of these Bylaws is not paid in full by the Corporation within
thirty days after a written claim requesting such payment 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 standard of conduct which makes it permissible under the Business
Corporation Act of the State of Michigan 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, Independent Counsel or shareholders) to have made a determination
prior to the commencement of such action that indemnification and/or advance
payment of the expenses of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the Business
Corporation Act of the State of Michigan, nor an actual determination by the
Corporation (including its Board of Directors, Independent Counsel or
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.
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Section 5. - Determination of Entitlement to Indemnification and/or Advance
Payment of Expenses
If a determination shall have been made pursuant to Article IX of the
Corporation's Amended and Restated Articles of Incorporation or Section 3 of
this Article VII of these Bylaws that the claimant is entitled to
indemnification and/or advance payment of expenses, the Corporation shall be
bound by such determination in any judicial proceeding commenced pursuant to
Section 4 of this Article VII of these Bylaws.
Section 6. - Procedures Not to be Contested
The Corporation shall be precluded from asserting in any judicial proceeding
commenced pursuant to Section 4 of this Article VII of these Bylaws that the
procedures and presumptions of Article IX of the Corporation's Amended and
Restated Articles of Incorporation and/or this Article VII of these Bylaws are
not valid, binding and enforceable and shall stipulate in such proceeding that
the Corporation is bound by all the provisions of Article IX of the
Corporation's Amended and Restated Articles of Incorporation and this Article
VII of these Bylaws.
Section 7. - No Retroactive Effect of Amendments
No repeal or modification of Article IX of the Corporation's Amended and
Restated Articles of Incorporation and/or of this Article VII of these Bylaws
shall in any way diminish or adversely affect the rights of any present, former
or future director, officer, employee or agent of the Corporation hereunder in
respect of any occurrence or matter arising prior to any such repeal or
modification.
Section 8. - Severability
If any provision or provisions of this Article VII of these Bylaws shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this
Article VII of these Bylaws (including, without limitation, each portion of any
section of this Article VII of these Bylaws containing any such provision held
to be invalid, illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (2) to the fullest extent possible, the provisions of this Article VII of
these Bylaws (including, without limitation, each such portion of any section of
this Article VII of these Bylaws containing any such provision held to be
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
Section 9. - Definitions
For purposes of this Article VII of these Bylaws:
(A) "Change of Control" means:
(1) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a
"Person")) of beneficial ownership (within
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the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (i) the then outstanding shares of common stock of the
Corporation (the "Outstanding Corporation Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of the
Corporation entitled to vote generally in the election of directors
(the "Outstanding Corporation Voting Securities"); provided, however,
that for purposes of this Section 9(A)(1) of this Article VII of these
Bylaws, the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Corporation, (ii) any
acquisition by the Corporation, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Corporation or any other Corporation controlled by the Corporation or
(iv) any acquisition by any other Corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of Section 9(A)(3) of
this Article VII of these Bylaws; or
(2) Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board of Directors; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Corporation's shareholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board of Directors; or
(3) Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the
Corporation (a "Business Combination"), in each case, unless, following
such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively,
of the Outstanding Corporation Common Stock and Outstanding Corporation
Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the Corporation resulting from such Business Combination
(including, without limitation, another corporation which as a result
of such transaction owns the Corporation or all or substantially all of
the Corporation's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities,
as the case may be, (ii) no Person (excluding any corporation resulting
from such Business Combination or any employee benefit plan (or related
trust) of the Corporation or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding shares of common stock of
the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to
the Business Combination and (iii) at least a majority of the members
of the Board of Directors of the corporation resulting from such
Business Combination were
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members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board of Directors,
providing for such Business Combination; or
(4) Approval by the shareholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
(B) "Independent Counsel" means a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation
law and shall include any person who, under the applicable standards of
professional conduct then prevailing, would not have a conflict of
interest in representing either the Corporation or the claimant in an
action to determine the claimant's rights under this Section 9 of this
Article VII of these Bylaws.
Section 10. - Notices
Any notice, request or other communication required or permitted to be given to
the Corporation under Article IX of the Corporation's Amended and Restated
Articles of Incorporation or under this Article VII of these Bylaws shall be in
writing and either delivered in person or sent by telegram or facsimile
transmission, or overnight mail or courier service, or certified or registered
mail, postage prepaid, return receipt requested, to the Secretary of the
Corporation and shall be effective only upon receipt by the Secretary.
ARTICLE VIII.
Control Share Acquisitions Statute
Pursuant to Section 794 of the Business Corporation Act of the State of
Michigan (Mich. Comp. Laws Ann.ss.450.1794 (West 1995)), the Corporation
expressly elects that Chapter 7B, such chapter being that commonly entitled
"Control Share Acquisitions Statute" and comprised of Sections 790 through 799,
of the Business Corporation Act of the State of Michigan (Mich. Comp. Laws
Ann.ss.ss.450.1790 to 450.1799 (West 1995)), shall not apply to control share
acquisitions of shares of the Corporation; and the phrase "control share
acquisitions" having the meaning ascribed thereto in Section 791 of the Business
Corporation Act of the State of Michigan (Mich. Comp. Laws Ann. ss. 450.1791
(West 1995)).
ARTICLE IX.
Miscellaneous Provisions
Section 1. - Fiscal Year
The fiscal year of the Corporation shall be the 52 or 53-week period that ends
on the Saturday closest to each June 30.
Section 2. - Reliance Upon Records
In discharging his or her duties, a director or an officer, when acting in good
faith, may rely upon the opinion of counsel for the Corporation, upon the report
of an independent appraiser selected with reasonable care by the Board, or upon
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financial statements of the Corporation represented to him or her to be correct
by the President or the officer of the Corporation having charge of its books of
account, or stated in a written report by an independent or certified public
accountant or firm of such accountants fairly to reflect the financial condition
of the Corporation.
Section 3. - Checks
All checks, drafts or orders for the payment of money and all notes and
acceptances shall be signed by such officer(s) or agent(s) or both as the Board
of Directors may from time to time designate. No check, draft, or note shall be
signed in blank.
ARTICLE X.
Amendments
To the extent not in conflict or inconsistent with the Articles of
Incorporation of the Corporation, as amended, these Bylaws may be amended or
repealed or new Bylaws may be adopted by a majority of the Board of Directors
then in office. So long as the shareholders of the Corporation shall be
empowered by applicable law to adopt, amend or repeal bylaws for the Corporation
or adopt any provision inconsistent herewith, such action may only be taken by
the shareholders by the favorable vote of the holders of not less than eighty
percent (80%) of the issued and outstanding shares of the common stock of the
Corporation unless such action has first been recommended by the favorable vote
of at least a majority of the Whole Board of Directors.
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