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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
(Amendment No. 1)
Quarterly Report Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
For Quarter Ended September 30, 1999 Commission File Number 0-6611
SIMPSON INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-1225111
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
47603 Halyard Drive, Plymouth, Michigan 48170-2429
(Address of principal executive offices) (Zip Code)
(734)207-6200
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last
report)
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 and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No
At October 31, 1999 there were 18,008,728 outstanding shares of the registrant's
common stock, $1.00 par value each.
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This Form 10-Q/A, Amendment Number 1, amends and supplements the Form
10-Q (the "Original 10-Q") filed by Simpson Industries, Inc. (the "Company") on
November 10, 1999. The sole purpose of this Amendment Number 1 is to amend Part
II, Item 6 and the Exhibits of the Original 10-Q to add as an exhibit amended
bylaws of the Company. Item 6 of the Original 10-Q is hereby amended and
restated to read in its entirety and Exhibit 3 is added as follows:
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Part II. Other Information
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are filed as part of this report.
Exhibit No. Description
3 Bylaws, as amended
11 Computation of Earnings per Share
27 Financial Data Schedule
(b) Reports on From 8-K
No reports on Form 8-K were filed during the quarter ended September 30, 1999.
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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.
SIMPSON INDUSTRIES, INC.
Registrant
February 25, 2000 /S/VINOD M. KHILNANI
Vinod M. Khilnani
Vice President and Chief Financial Officer
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
3 Bylaws, as amended
11 Computation of Earnings Per Share
27 Financial Data Schedule
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EXHIBIT-3
As amended 4/20/99
BYLAWS
OF
SIMPSON INDUSTRIES, INC.
ARTICLE I
OFFICES
1.01 Principal Office. The principal office of the corporation shall
be at such place within the State of Michigan as the Board of Directors shall
determine from time to time.
1.02 Other Offices. The corporation also may have offices at such
other places as the Board of Directors from time to time determines or the
business of the corporation requires.
ARTICLE II
SEAL
2.01 Seal. The corporation may have a seal in such form as the Board
of Directors may from time to time determine. The seal may be used by causing it
or a facsimile to be impressed, affixed, reproduced or otherwise.
ARTICLE III
SHAREHOLDERS AND MEETINGS OF SHAREHOLDERS
3.01 Place of Meetings. All meetings of shareholders shall be held at
the principal office of the corporation or at such other place as shall be
determined by the Board of Directors and stated in the notice of meeting.
3.02 Annual Meeting. The annual meeting of shareholders of the
corporation shall be held on such business day during the fourth month after the
end of the fiscal year as the Board of Directors may fix. Directors shall be
elected at each Annual Meeting and such other business transacted as may
properly come before the meeting in accordance with these Bylaws. The Board of
Directors acting by resolution may postpone and reschedule any previously
scheduled annual meeting of shareholders. Any annual meeting of shareholders may
be adjourned by the Chairman of the meeting or pursuant to a resolution of the
Board of Directors.
3.03 Special Meetings. Special meetings of the shareholders may be
called by the Chairman of the Board, or by the President, or pursuant to
resolution of the Board of Directors. Business transacted at a special meeting
of shareholders shall be confined to the purpose or purposes of the meeting as
stated in the notice of the meeting. The Board of Directors acting by resolution
may postpone and reschedule any previously scheduled special meeting of
shareholders. Any special meeting of shareholders may be adjourned by the
Chairman of the meeting or pursuant to resolution of the Board of Directors.
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3.04 Notice of Meetings. Except as otherwise provided by statute,
written notice of the time, place and purposes of a meeting of shareholders
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each shareholder of record entitled to vote at the meeting, either
personally, by mailing such notice to his last address as it appears on the
books of the corporation or by any other means permitted under the laws of the
State of Michigan. No notice need be given of an adjourned meeting of the
shareholders provided the time and place to which such meeting is adjourned are
announced at the meeting at which the adjournment is taken and at the adjourned
meeting only such business is transacted as might have been transacted at the
original meeting. However, if after the adjournment a new record date is fixed
for the adjourned meeting a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice as provided
in this Bylaw.
3.05 Record Dates. The Board of Directors, the Chairman of the Board
(if such office is filled) or the President may fix in advance a date as the
record date for the purpose of determining shareholders entitled to notice of
and to vote at a meeting of shareholders or an adjournment thereof, or to
express consent or to dissent from a proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of a dividend or
allotment of a right, or for the purpose of any other action. The date fixed
shall not be more than 60 nor less than 10 days before the date of the meeting,
nor more than 60 days before any other action. In such case only such
shareholders as shall be shareholders of record on the date so fixed shall be
entitled to notice of and to vote at such meeting or adjournment thereof, or to
express consent or to dissent from such proposal, or to receive payment of such
dividend or to receive such allotment of rights, or to participate in any other
action, as the case may be, notwithstanding any transfer of any stock on the
books of the corporation, or otherwise, after any such record date. Nothing in
this Bylaw shall affect the rights of a shareholder and his transferee or
transferor as between themselves.
3.06 List of Shareholders. The Secretary of the corporation or the
agent of the corporation having charge of the stock transfer records for shares
of the corporation shall make and certify a complete list of the shareholders
entitled to vote at a shareholders' meeting or any adjournment thereof. The list
shall be arranged alphabetically within each class and series, with the address
of, and the number of shares held by, each shareholder; be produced at the time
and place of the meeting; be subject to inspection by any shareholder during the
whole time of the meeting; and be prima facie evidence as to who are the
shareholders entitled to examine the list or vote at the meeting.
3.07 Quorum. Unless a greater or lesser quorum is required in the
Articles of Incorporation or by the laws of the State of Michigan, the
shareholders present at a meeting in person or by proxy who, as of the record
date for such meeting, were holders of a majority of the outstanding shares of
the corporation entitled to vote at the meeting shall constitute a quorum at the
meeting. Whether or not a quorum is present, a meeting of shareholders may be
adjourned by a vote of the shares present in person or by proxy. When the
holders of a class or series of shares are entitled to vote separately on an
item of business, this Bylaw applies in determining the presence of a quorum of
such class or series for transaction of such item of business.
3.08 Proxies. A shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
other persons to act for the shareholder by proxy.
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A shareholder may authorize another person or persons to act for him or her as
proxy in any manner permitted under the laws of the State of Michigan. A proxy
shall not be valid after the expiration of three years from its date unless
otherwise provided in the proxy. A proxy is revocable at the pleasure of the
shareholder executing it except as otherwise provided by the laws of the State
of Michigan.
3.09 Inspectors of Election. The Board of Directors, or the chairman
presiding at any shareholders' meeting, may appoint one or more inspectors. 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 and the validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine challenges or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all shareholders. On request of the person presiding at the meeting,
the inspectors shall make and execute a written report to the person presiding
at the meeting of any of the facts found by them and matters determined by them.
The report shall be prima facie evidence of the facts stated and of the vote as
certified by the inspectors.
3.10 Voting. Each outstanding share is entitled to one vote on each
matter submitted to a vote, unless otherwise provided in the Articles of
Incorporation. Votes may be cast in writing, signed by the shareholder or
shareholder's proxy, or by any other means permitted under the laws of the State
of Michigan as determined by the Board of Directors. Votes cast by 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 vote was
authorized by the shareholder. When an action, other than the election of
directors, is to be taken by a 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 vote is required by the Articles of Incorporation or
by the laws of the State of Michigan. Except as otherwise provided by the
Articles of Incorporation, directors shall be elected by a plurality of the
votes cast at any election.
3.11 Meetings of Shareholders.
(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 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 Bylaw, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this Bylaw.
(2) For nominations or other business to be properly brought before
an annual meeting by a shareholder pursuant to clause (c) of paragraph (A)(1) of
this Bylaw, the shareholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the corporation
not less than 60 days nor more than 90 days 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 advanced by more than 30 days or delayed by
more than 60 days from such anniversary date, notice by the shareholder to be
timely must be so delivered not earlier than the 90th day prior to such annual
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meeting and not later than the close of business on the later of the 60th 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. 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, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (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; (c) as to the shareholder giving the notice and
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 paragraph (A)
(2) of this Bylaw 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 naming all of the nominees for director or specifying
the size of the increased Board of Directors made by the corporation at least 70
days prior to the first anniversary of the preceding year's annual meeting, a
shareholder's notice required by this Bylaw shall also be considered timely, but
only with 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. 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) by any shareholder of the corporation who is a shareholder of
record at the time of giving of notice provided hereunder, who shall be entitled
to vote at the meeting and who complies with the notice procedures set forth in
this Bylaw. Nominations by shareholders of persons for election to the Board of
Directors may be made at such a special meeting of shareholders if the
shareholder's notice required by paragraph (A)(2) of this Bylaw shall be
delivered to the Secretary at the principal executive offices of the corporation
not earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th 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.
(C) General. (1) Only such persons who are nominated in accordance
with the procedures set forth in this Bylaw shall be eligible 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
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procedures set forth in this Bylaw. 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 in accordance with the procedures set forth
in this Bylaw and, if any proposed nomination or business is not in compliance
with this Bylaw, to declare that such defective proposal shall be disregarded.
(2) For purposes of this Bylaw, "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 filed by the
corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, 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 Bylaw. Nothing in this Bylaw shall be deemed to affect any rights
of shareholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE IV
DIRECTORS
4.01 (Section 1) Management of the Corporation. The business and
affairs of the corporation shall be managed by the Board of Directors. The
directors need not be residents of Michigan.
4.02 (Section 2) Number and Classification. The number of directors
constituting the entire Board of Directors shall not be less than three nor more
than twelve, the exact number of directors to be fixed from time to time only by
vote of a majority of the entire Board. No decrease in the number of directors
shall shorten the term of any incumbent director. Directors need not be
shareholders of the Corporation.
4.03 (Section 3) [Reserved].
4.04 (Section 4) Term of Office. Upon the expiration of the directors
existing terms of office, each director shall be elected at each annual meeting
of shareholders, to hold office until the next annual meeting of shareholders,
and until the director's successor is elected and has qualified, or until the
director's resignation or removal.
4.05 (Section 5) Vacancies. Newly created directorships resulting from
an increase in the number of directors and vacancies occurring in the Board for
any reason may be filled by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, at any meeting of
the Board. A director elected to fill a vacancy shall be elected to hold office
until the next annual meeting of shareholders, and until the director's
successor is elected and has qualified, or until the director's resignation or
removal.
4.06 (Section 6) Removal of Directors. Any or all of the directors may
be removed from office at any time, but only for cause, by vote of a majority
the shareholders entitled to vote generally
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in the election of directors or by vote of a majority of the entire Board of
Directors, excluding the member whose removal is being voted upon.
4.07 (Section 7) Annual Meeting. The Board of Directors shall meet
each year immediately after the annual meeting of the shareholders, or within
three (3) days of such time excluding Sundays and legal holidays if such later
time is deemed advisable, at the place where such meeting of the shareholders
has been held or such other place as the Board may determine, for the purpose of
election of officers and consideration of such business that may properly be
brought before the meeting; provided, that if less than a majority of the
directors appear for an annual meeting of the Board of Directors the holding of
such annual meeting shall not be required and the matters which might have been
taken up therein may be taken up at any later special or annual meeting, or by
consent resolution.
4.08 (Section 8) Regular and Special Meetings. Regular meetings of the
Board of Directors may be held at such times and places as the majority of the
directors may from time to time determine at a prior meeting or as shall be
directed or approved by the vote or written consent of all the directors.
Special meetings of the Board may be called by the Chairman of the Board (if
such office is filled) or the President and shall be called by the President or
Secretary upon the written request of any two directors.
4.09 (Section 9) Notices. No notice shall be required for annual or
regular meetings of the Board or for adjourned meetings, whether regular or
special. Three days' written notice, or 24-hour telephonic notice, shall be
given for special meetings of the Board, and such notice shall state or recite
the time, place and purpose or purposes of the meeting.
4.10 (Section 10) Quorum. A majority of the Board of Directors then in
office, or of the members of a committee thereof, constitutes a quorum for the
transaction of business. The vote of a majority of the directors present at any
meeting at which there is a quorum shall be the acts of the Board or of the
committee, except as a larger vote may be required by the laws of the State of
Michigan. A member of the Board or of a committee designated by the Board may
participate in a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can communicate with each other. Participation in a meeting in this
manner constitutes presence in person at the meeting.
4.11 (Section 11) Executive and Other Committees. The Board of
Directors may, by resolution passed by a majority of the whole Board, appoint
three or more members of the Board as an executive committee to exercise all
powers and authorities of the Board in management of the business and affairs of
the corporation, except that the committee shall not have power or authority to:
(a) Amend the Articles of Incorporation;
(b) Adopt an agreement of merger or plan of share exchange;
(c) Recommend to shareholders the sale, lease or exchange of all or
substantially all of
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the corporation's property and assets;
(d) Recommend to shareholders a dissolution of the corporation or
revocation of a dissolution;
(e) Amend these Bylaws;
(f) Fill vacancies in the Board; or
(g) Unless expressly authorized by the Board, declare a dividend or
authorize the issuance of stock.
The Board of Directors from time to time may, by like resolution,
appoint such other committees of one or more directors to have such authority as
shall be specified by the Board in the resolution making such appointments. The
Board of Directors may designate one or more directors as alternate members of
any committee who may replace an absent or disqualified member at any meeting
thereof.
4.12 (Section 12) Dissents. A director who is present at a meeting of
the Board of Directors, or a committee thereof of which the director is a
member, at which action on a corporate matter is taken is presumed to have
concurred in that action unless the director's dissent is entered in the minutes
of the meeting or unless the director files a written dissent to the action with
the person acting as secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
corporation promptly after the adjournment of the meeting. Such right to dissent
does not apply to a director who voted in favor of such action. A director who
is absent from a meeting of the Board, or a committee thereof of which he is a
member, at which any such action is taken is presumed to have concurred in the
action unless he files his written dissent with the Secretary of the corporation
within a reasonable time after he has knowledge of the action.
4.13 (Section 13) Compensation. The Board of Directors, 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 or officers.
ARTICLE V
CAPITAL STOCK
5.01 Issuance of Shares. The shares of capital stock of the corporation
shall be issued in such amounts, at such times, for such consideration and on
such terms and conditions as the Board shall deem advisable, subject to the
provisions of the Articles of Incorporation of the corporation and the further
provisions of these Bylaws, and subject also to any requirements or restrictions
imposed by the laws of the State of Michigan.
5.02 Certificates for Shares. The shares of the corporation shall be
represented by certificates signed by the Chairman of the Board, President or a
Vice President and also may be signed by the Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary of the corporation, and
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may be sealed with the seal of the corporation or a facsimile thereof. The
signatures of the officers may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar other than the corporation
itself or its employee. In case an 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 he were such officer at the date of issuance. A certificate
representing shares shall state upon its face that the corporation is formed
under the laws of the State of Michigan; the name of the person to whom it is
issued; the number and class of shares, and the designation of the series, if
any, which the certificate represents; the par value of each share represented
by the certificate, or a statement that the shares are without par value; and
such other provisions as may be required by the laws of the State of Michigan.
5.03 Transfer of Shares. The shares of the capital stock of the
corporation are transferable only on the books of the corporation upon surrender
of the certificate therefor, properly endorsed for transfer, and the
presentation of such evidences of ownership and validity of the assignment as
the corporation may require.
5.04 Registered Shareholders. The corporation shall be entitled to
treat the person in whose name any share of stock is registered as the owner
thereof for purposes of dividends and other distributions in the course of
business, or in the course of recapitalization, merger, plan of share exchange,
reorganization, sale of assets, liquidation or otherwise and for the purpose of
votes, approvals and consents by shareholders, and for the purpose of notices to
shareholders, and for all other purposes whatever, and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not the corporation shall have notice thereof,
save as expressly required by the laws of the State of Michigan.
5.05 Lost or Destroyed Certificates. Upon the presentation to the
corporation of a proper affidavit attesting the loss, destruction or mutilation
of any certificate or certificates for shares of stock of the corporation, the
Board of Directors shall direct the issuance of a new certificate or
certificates to replace the certificates so alleged to be lost, destroyed or
mutilated. The Board of Directors may require as a condition precedent to the
issuance of new certificates any or all of the following:
(a) Presentation of additional evidence or proof of the loss,
destruction or mutilation claimed;
(b) Advertisement of loss in such manner as the Board of
Directors may direct or approve;
(c) A bond or agreement of indemnity, in such form and amount and
with such sureties, or without sureties, as the Board of Directors may
direct or approve;
(d) The order or approval of a court or judge.
ARTICLE VI
NOTICES, WAIVERS OF NOTICE AND MANNER OF ACTING
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6.01 Notices. All notices of meetings required to be given to
shareholders, directors or any committee of directors may be given by mail,
telecopy, telegram, cablegram or any other means permitted under the laws of the
State of Michigan to any shareholder, director or committee member at his last
address as it appears on the books of the corporation. Such notice shall be
deemed to be given at the time when the same shall be mailed or otherwise
dispatched. Telephonic notice may be given for special meetings of the Board as
provided in Section 4.09.
6.02 Waiver of Notice. Notice of the time, place and purpose of any
meeting of shareholders, directors or committee of directors may be waived by
telecopy, telegram, radiogram, cablegram or other writing, either before or
after the meeting, or in such other manner as may be permitted by the laws of
the State of Michigan. Attendance of a person at any meeting of shareholders, in
person or by proxy, or at any meeting of directors or of a committee of
directors, constitutes a waiver of notice of the meeting except as follows:
(a) In the case of a shareholder, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, or unless with respect to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, the shareholder objects to considering the matter when it is
presented.
(b) In the case of a director, unless he or she at the beginning of
the meeting, or upon his or her arrival, objects to the meeting or the
transacting of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting.
6.03 Action Without a Meeting. Any action required or permitted at any
meeting of shareholders or directors or committee of directors may be taken
without a meeting, without prior notice and without a vote, if all of the
shareholders or directors or committee members entitled to vote thereon consent
thereto in writing before or after the action is taken.
ARTICLE VII
OFFICERS
7.01 Number. The Board of Directors shall elect or appoint a Chairman
of the Board, a President, a Secretary and a Treasurer and such Vice Presidents,
Assistant Secretaries and/or Assistant Treasurers as the Board of Directors may
from time to time determine. Any two or more of the above offices, except those
of President and Vice President, may be held by the same person, but no officer
shall execute, acknowledge or verify an instrument in more than one capacity if
the instrument is required by law, the Articles of Incorporation or these Bylaws
to be executed, acknowledged, or verified by one or more officers.
7.02 Term of Office, Resignation and Removal. An officer shall hold
office for the term for which he is elected or appointed and until his successor
is elected or appointed and qualified, or until his resignation or removal. An
officer may resign by written notice to the corporation. The resignation is
effective upon its receipt by the corporation or at a subsequent time specified
in the notice of resignation. An officer may be removed by the Board with or
without cause. The removal
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of an officer shall be without prejudice to his contract rights, if any. The
election or appointment of an officer does not of itself create contract rights.
7.03 Vacancies. The Board of Directors may fill any vacancies in any
office occurring for whatever reason.
7.04 Authority. All officers, employees and agents of the corporation
shall have such authority and perform such duties in the conduct and management
of the business and affairs of the corporation as may be designated by the Board
of Directors and these Bylaws.
ARTICLE VIII
DUTIES OF OFFICERS
8.01 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the Board of Directors and shall perform such other duties as
may be prescribed from time to time by the Board of Directors or by the Bylaws.
The Chairman may also be the Chief Executive Officer of the corporation if so
designated by the Board of Directors.
8.02 President. The President shall be the Chief Executive Officer of
the corporation unless otherwise designated by the Board of Directors. The Chief
Executive Officer shall see that all orders and resolutions of the Board are
carried into effect and shall have the general powers of supervision and
management over the business and affairs of the corporation customarily vested
in the Chief Executive Officer. The President shall perform such other duties as
may be prescribed from time to time by the Board of Directors and shall also
assume the duties of the Chairman in the absence or disability of the Chairman
of the Board.
8.03 Vice Presidents. The Vice Presidents shall have such powers and
perform such duties as may be assigned to them by the Chairman of the Board, the
President or the Board of Directors. In the absence or disability of the
President, the Vice President designated by the Board shall perform his duties
and exercise his powers and shall perform such other duties as the Board of
Directors may from time to time prescribe.
8.04 Secretary. The Secretary shall attend all meetings of the Board
of Directors and of shareholders and shall record all votes and minutes of all
proceedings in a book to be kept for that purpose. He shall give or cause to be
given notice of all meetings of the shareholders and of the Board of Directors.
He shall keep in safe custody the seal of the corporation and, when authorized
by the Board, affix the same to any instrument requiring it, and when so affixed
it shall be attested by his signature, or by the signature of the Treasurer or
an Assistant Secretary. The Secretary may delegate any of his duties, powers and
authorities to one or more Assistant Secretaries, unless such delegation is
disapproved by the Board.
8.05 Treasurer. The Treasurer shall have the custody of the corporate
funds and securities; shall keep full and accurate accounts of receipts and
disbursements in books of the corporation; and shall deposit all moneys and
other valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors. He shall render
<PAGE> 11
to the Chief Executive Officer and directors, whenever they may require it, an
account of his transactions as Treasurer and of the financial condition of the
corporation. The Treasurer may delegate any of his duties, powers and
authorities to one or more Assistant Treasurers, unless such delegation is
disapproved by the Board of Directors.
8.06 Assistant Secretaries and Treasurers. The Assistant Secretaries,
in order of their seniority, shall perform the duties and exercise the powers
and authorities of the Secretary in case of the Secretary's absence or
disability. The Assistant Treasurers, in the order of their seniority, shall
perform the duties and exercise the powers and authorities of the Treasurer in
case of the Treasurer's absence or disability. The Assistant Secretaries and
Assistant Treasurers shall also perform such duties as may be delegated to them
by the Secretary and Treasurer, respectively, and also such duties as the Board
of Directors may prescribe.
ARTICLE IX
SPECIAL CORPORATE ACTS
9.01 Orders for Payment of Money. All checks, drafts, notes, bonds,
bills of exchange and orders for payment of money of the corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
9.02 Contracts and Conveyances. The Board of Directors of the
corporation may in any instance designate the officer and or agent who shall
have authority to execute any contract, conveyance, mortgage, proxy or other
instrument on behalf of the corporation, or may ratify or confirm any execution.
When the execution of any instrument has been authorized without specification
of the executing officers or agents, the Chairman of the Board, the President or
any Vice President, and the Secretary or Assistant Secretary or Treasurer or
Assistant Treasurer, may execute the same in the name and on behalf of this
corporation and may affix the corporate seal thereto.
ARTICLE X
BOOKS AND RECORDS
10.01 Maintenance of Books and Records. The proper officers and agents
of the corporation shall keep and maintain such books, records and accounts of
the corporation's business and affairs, minutes of the proceedings of its
shareholders, Board and committees, if any, and such stock ledgers and lists of
shareholders, as the Board of Directors shall deem advisable, and as shall be
required by the laws of the State of Michigan and other states or jurisdictions
empowered to impose such requirements. Books, records and minutes may be kept
within or without the State of Michigan in a place which the Board shall
determine.
10.02 Reliance on Books and Records. In discharging his duties, a
director or an officer of the corporation, when acting in good faith, may rely
upon information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by any of the
following:
(a) One or more directors, officers, or employees of the corporation,
or of a
<PAGE> 12
business organization under joint control or common control, whom the
director or officer reasonably believes to be reliable and competent in the
matters presented;
(b) Legal counsel, public accountants, engineers, or other persons as
to matters the director or officer reasonably believes are within the person's
professional or expert competence; or
(c) A committee of the board of which he or she is not a member if
the director or officer reasonably believes the committee merits confidence. A
director or officer is not entitled to rely on the information set forth above
if he or she has knowledge concerning the matter in question that makes reliance
otherwise permitted unwarranted.
ARTICLE XI
AMENDMENTS
11.01 Amendments. Except as provided in the Articles of Incorporation
of the corporation, these By-Laws may be altered, amended, supplemented or
repealed by vote of a majority of the vote of a majority of the votes cast by
shareholders entitled to vote for the election of directors, or by the Board of
Directors, provided that the Board shall not alter, amend, supplement or repeal
any Bylaws fixing or affecting their qualifications, classifications or term of
office. Any Bylaws adopted, altered, amended, supplemented or repealed by the
Board of Directors may be thereafter altered, amended, supplemented, repealed or
readopted by the shareholders.
ARTICLE XII
INDEMNIFICATION
12.01 Non-Derivative Actions. Subject to all of the other provisions of
this Article, the corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, against expenses (including actual
and reasonable attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation or its shareholders, and with respect to any
criminal action or proceeding, if the person had no reasonable cause to believe
his or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interests of the corporation or its
shareholders, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
12.02 Derivative Actions. Subject to all of the provisions of this
Article, the
<PAGE> 13
corporation shall indemnify any person who was or is a party to or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that the person is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, whether for profit or
not, against expenses (including attorneys' fees) and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation or its
shareholders. However, indemnification shall not be made for any claim, issue or
matter in which such person has been found liable to the corporation unless and
only to the extent that the court in which such action or suit was brought has
determined upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnification for the reasonable expenses incurred.
12.03 Expenses of Successful Defense. To the extent that a person has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 12.01 or 12.02 of these Bylaws, or in defense
of any claim, issue or matter in the action, suit or proceeding, the person
shall be indemnified against actual and reasonable expenses (including
attorneys' fees) incurred by such person in connection with the action, suit or
proceeding and any action, suit or proceeding brought to enforce the mandatory
indemnification provided by this Article XII.
12.04 Definition. For the purposes of Sections 12.01 and 12.02, "other
enterprises" shall include employee benefit plans; "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
"serving at the request of the corporation" shall include any service as a
director, officer, employee, or agent of the corporation which imposes duties
on, or involves services by, the director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
considered to have acted in a manner "not opposed to the best interests of the
corporation or its shareholders" as referred to in Sections 12.01 and 12.02.
12.05 Contract Right; Limitation on Indemnity. The right to
indemnification conferred in this Article XII shall be a contract right, shall
apply to services of a director or officer as an employee or agent of the
corporation as well as in such person's capacity as a director or officer, from
the date he became or becomes such director or officer, and any repeal or
modification of this section shall not adversely affect any right or protection
existing at the time of such repeal or modification. Except as provided in
Section 12.03 of these Bylaws, the corporation shall have no obligations under
this Article XII to indemnify any person in connection with any proceeding, or
part thereof, initiated by such person without authorization by the Board of
Directors.
12.06 Determination That Indemnification is Proper. Any indemnification
under Section 12.01 or 12.02 of these Bylaws (unless ordered by a court) shall
be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the person is proper in the circumstances
because the person has met the applicable standard of conduct set forth
<PAGE> 14
in Section 12.01 or 12.02, whichever is applicable, and upon an evaluation of
the reasonableness of expenses and amount paid in settlement. Such determination
and evaluation shall be made in any of the following ways:
(a) By a majority vote of a quorum of the Board consisting of
directors who are not parties or threatened to be made parties to such action,
suit or proceeding;
(b) If the quorum described in clause (a) above is not obtainable,
then by a majority vote of a committee of directors duly designated by the Board
of Directors and consisting solely of two or more directors who are not at the
time parties or threatened to be made parties to the action, suit or proceeding;
(c) By independent legal counsel in a written opinion which counsel
shall be selected in one of the following ways: (i) by the board or its
committee in the manner prescribed in subparagraph (a) or (b); or (ii) if a
quorum of the board cannot be obtained under subparagraph (a) and a committee
cannot be designated under subparagraph (b), by the board; or
(d) By the shareholders, but shares held by directors or officers who
are parties or threatened to be made parties to the action, suit or proceeding
may not be voted.
12.07 Proportionate Indemnity. If a person is entitled to
indemnification under Section 12.01 or 12.02 of these Bylaws for a portion of
expenses, including attorneys' fees, judgments, penalties, fines, and amounts
paid in settlement, but not for the total amount thereof, the corporation shall
indemnify the person for the portion of the expenses, judgments, penalties,
fines, or amounts paid in settlement for which the person is entitled to be
indemnified.
12.08 Expense Advance. The corporation shall pay or reimburse the
reasonable expenses incurred by a person referred to in Section 12.01 or 12.02
of these bylaws who is a party or threatened to be made a party to an action,
suit, or proceeding in advance of final disposition of the proceeding if all of
the following apply:
(a) The person furnishes the corporation a written affirmation of his
or her good faith belief that he or she has met the applicable standard of
conduct set forth in Section 12.01 or 12.02;
(b) The person furnishes the corporation a written undertaking
executed personally, or on his or her behalf, to repay the advance if it is
ultimately determined that he or she did not meet the standard of conduct;
(c) The authorization of payment is made in the manner specified in
Section 12.06; and
(d) A determination is made that the facts then known to those making
the determination would not preclude indemnification under Section 12.01 or
12.02. The undertaking shall be an unlimited general obligation of the person on
whose behalf advances are made but need
<PAGE> 15
not be secured.
12.09 Non-Exclusivity of Rights. The indemnification or advancement of
expenses provided under this Article XII is not exclusive of other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under a contractual arrangement with the corporation. However, the
total amount of expenses advanced or indemnified from all sources combined shall
not exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses.
12.10 Indemnification of Employees and Agents of the Corporation. The
corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the corporation to the fullest extent of the provisions
of this Article XII with respect to the indemnification and advancement of
expenses of directors and officers of the corporation.
12.11 Former Directors and Officers. The indemnification provided in
this Article XII continues as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
12.12 Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the corporation would have power to indemnify
him against such liability under these Bylaws or the laws of the State of
Michigan.
12.13 Changes in Michigan Law. In the event of any change of the
Michigan statutory provisions applicable to the corporation relating to the
subject matter of Article XII of these Bylaws, then the indemnification to which
any person shall be entitled hereunder shall be determined by such changed
provisions, but only to the extent that any such change permits the corporation
to provide broader indemnification rights than such provisions permitted the
corporation to provide prior to any such change. Subject to Section 12.15, the
Board of Directors is authorized to amend these Bylaws to conform to any such
changed statutory provisions.
12.14 Enforcement of Rights. Any indemnification or payment in advance
of final disposition under this Article XII shall be made promptly, and in any
event within 30 days, after written request to the corporation by the person
seeking such indemnification or payment. The rights granted by this Article XII
shall be enforceable by such person in any court of competent jurisdiction.
12.15 Amendment or Repeal of Article XII. No amendment or repeal of
this Article XII shall apply to or have any effect on any director or officer of
the corporation for or with respect to any acts or omissions of such director or
officer occurring prior to such amendment or repeal.
