Bylaws - Aastrom Biosciences Inc.
BYLAWS
OF
AASTROM BIOSCIENCES, INC.
<PAGE>
BYLAWS
OF
AASTROM BIOSCIENCES, INC.
ARTICLE I GENERAL
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Section 1.1 The name, location of principal office, and purposes of the
Corporation shall be as set forth in the Articles of Incorporation. The powers
of the Corporation and of its directors and shareholders, and all matters
concerning the conduct and regulation of the business of the Corporation, shall
be subject to such provisions in regard thereto, if any, as are set forth in
said Articles of Incorporation.
Section 1.2 All references in these Bylaws to the Articles of
Incorporation shall be construed to mean the Articles of Incorporation of the
Corporation as amended from time to time.
Section 1.3 The registered office of the Corporation may be the same as
the principal office of the Corporation, but in any event must be located in the
State of Michigan, and must be the business office of the registered agent, as
required by the Michigan Business Corporation Act (the "MBCA"). The Corporation
may have business offices at such other places, either within or without the
State of Michigan, as the Board of Directors may designate or as the business of
the Corporation may require from time to time.
ARTICLE II SHAREHOLDERS
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Section 2.1 Annual Meeting. The annual meeting of the shareholders of the
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Corporation shall be held at the principal office of the Corporation, or at such
other place as may be set forth in the notice thereof, in August or September of
each year, at a date and time as designated by the Board of Directors, for the
purpose of election of Directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting. The
Board of Directors, for good and sufficient reasons, may schedule the annual
meeting at any other time, and notice shall be given or waived as provided in
Section 2.4 hereof.
Section 2.2 Special Meetings. Special Meetings of the shareholders
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(or of any specific class thereof), for any purpose or purposes, unless
otherwise prescribed by statute or by the Articles of Incorporation, may be
called by the President and shall be called by the President or Secretary at the
request in writing of a majority of the Board of Directors, or at the request in
writing of a shareholder or shareholders owning at least ten percent (10%) of
the number of shares of stock (or, with respect to meetings of a specific class,
the number of shares of such specific class thereof) of the Corporation issued
and outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Upon the closing of the first sale of the
Corporation's common stock
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pursuant to a firmly underwritten registered public offering (the "IPO"),
special meetings of the shareholders may be called only by the President and
shall be called by the President at the request in writing of a majority of the
Directors then in office, and shall be held at such place, on such date, and at
such time as the President or shall fix. Business transacted at special
meetings shall be confined to the purpose or purposes stated in the notice.
Section 2.3 List of Shareholders. The officer who has charge of the stock
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ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of shareholders, a complete list of the shareholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each shareholder and the number of shares registered in the name of each
shareholder. Such list shall be open to the examination of any shareholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
shareholder who is present.
Section 2.4 Notice of Meetings. Written notice of the time, place and
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purposes of the meeting of shareholders shall be given not less than 10 nor
more than 60 days before the date fixed for such meeting to each shareholder of
record entitled to vote at the meeting. Notice shall be deemed duly served when
the same has been personally delivered or deposited in the United States Mail,
with postage fully prepaid, addressed to the shareholder at such shareholder's
address as it appears on the records of the Corporation. Written notice may
also be given by facsimile or telegram, and such notice shall be deemed to be
given when the recipient receives the notice personally, or when confirmation of
transmission of the notice to the shareholder's address as it appears on the
books and records of the Corporation has been delivered to the Corporation or to
the equipment transmitting such notice. Such notice shall be given by or under
the direction of the Secretary of the Corporation, and in the absence or refusal
of the Secretary to give such notice, notice shall be given by or under the
direction of any other officer of the Corporation. No notice need be given of
an adjourned meeting of the shareholders provided the time and place to which
such meeting is adjourned is announced at the meeting at which the adjournment
is taken and at the adjourned meeting only such business is transacted as might
have been transacted at the original meeting. If the adjournment is for more
than thirty (30) days, or 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 entitled to vote at the meeting. A waiver of such
notice in writing, signed by a person entitled to said notice, whether before or
after the time of the meeting, shall be deemed equivalent to said notice.
Attendance of a person at a meeting of shareholders, in person or by proxy,
shall constitute a waiver of such notice, except when the attendance is for the
express and sole purpose of objecting to the transaction of any business,
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clearly stated at the commencement of the meeting, by reason of a claim that a
meeting was not lawfully called or convened.
Section 2.5 Transaction of Business. At an annual or special meeting of
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the shareholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before a meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Secretary or other officer of the
Corporation, (b) properly brought before the meeting by or at the direction of
the Board of Directors, (c) properly brought before an annual meeting by a
shareholder, or (d) properly brought before a special meeting by a shareholder,
but if, and only if, the notice of a special meeting provides for business to be
brought before the meeting by shareholders. For business to be properly brought
before a meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder proposal to be presented at an annual meeting shall be received at
the Corporation's principal executive offices not less than 120 calendar days in
advance of the date that the Corporation's (or the Corporation's predecessor's)
proxy statement was released to shareholders in connection with the previous
year's annual meeting of shareholders, except that if no annual meeting was held
in the previous year or the date of the annual meeting has been changed by more
than 30 calendar days from the date contemplated at the time of the previous
year's proxy statement, or in the event of a special meeting, notice by the
shareholder to be timely must be received not later than the close of business
on the tenth day following the day on which such notice of the date of the
meeting was mailed or such public disclosure was made. A shareholder's notice to
the Secretary shall set forth as to each matter the shareholder proposes to
bring before the annual or special meeting (a) a brief description of the
business desired to be brought before the annual or special meeting and the
reasons for conducting such business at the special meeting, (b) the name and
address, as they appear on the Corporation's books, of the shareholder proposing
such business, (c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder, and (d) any material interest of the
shareholder in such business.
Section 2.6 Quorum. The holders of a majority of the stock issued and
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outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the shareholders (or any
specific class thereof) for the transaction of business except as otherwise
provided by statute or by the Articles of Incorporation. If, however, such
quorum shall not be present or represented by any meeting of the shareholders,
the chairman of the meeting or the holders of a majority of shares of stock
entitled to vote thereat who are present, in person or represented by proxy,
shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented.
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Section 2.7 Voting and Record Date. In order that the Corporation
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may determine the shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution of allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be (i) more than sixty (60) nor less than ten (10)
days before the date of such meeting, nor (ii) more than ten (10) days after the
date upon which the resolution fixing the record date is adopted by the Board of
Directors for action by shareholder consent in writing without a meeting, nor
(iii) more than sixty (60) days prior to any other action. If a record date is
not fixed (a) the record date for determination of shareholders entitled to vote
at a meeting of shareholders shall be the close of business on the day next
preceding the day on which notice of such meeting is given, and (b) the record
date for determining shareholders for any purpose other than that specified in
subdivision (a) shall be the close of business on the day on which the
resolution of the Board relating thereto is adopted. When a determination of
shareholders of record entitled to vote at a meeting of shareholders has been
made as provided in this Section, the determination applies to any adjournment
of the meeting, unless the Board fixes a new record date under this Section for
the adjourned meeting.
Section 2.8 Proxies. A proxy, given by a shareholder to another person,
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authorizing such other person to vote the shares of such shareholder, shall be
in writing and signed by the shareholder or his authorized agent or
representative. A proxy shall not be valid after the expiration of three (3)
years from its date unless otherwise provided therein. All proxies shall be
filed with the Secretary at or before the meeting at which they are intended to
be used. A proxy shall be deemed sufficient if it appears on its face to confer
the requisite authority and is signed by the owner of the stock to be voted. No
witnesses to the execution of any proxy shall be required.
Section 2.9 Inspectors. The Board of Directors, in advance of a
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shareholders meeting, may appoint one or more inspectors to act at the meeting
or any adjournment thereof. If inspectors are not so appointed, the person
presiding at a shareholders meeting may, and on request of a shareholder
entitled to vote thereat shall, appoint one or more inspectors. In case a
person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board of Directors in advance of the meeting or at the
meeting by the person presiding thereat. The inspectors shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine
challenges and questions arising in connection with the right to vote, count and
tabulate votes, ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness
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to all shareholders. On request of the person presiding at the meeting or a
shareholder entitled to vote thereat, the inspectors shall make and execute a
written report to the person presiding at the meeting of any of the facts found
by them and matters determined by them. The report shall be prima facie
evidence of the facts stated and of the vote as certified.
Section 2.10 Action by Written Consent. The shareholders of the
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Corporation shall have the ability to take action without a meeting only as
provided in the Articles of Incorporation.
Section 2.11 Voting of Shares by Certain Holders.
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(a) Voting by Trustee or Fiduciary. Shares standing in the name of
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any person as trustee or other fiduciary may be voted and all rights incident
thereto may be exercised only by the trustee or other fiduciary, in person or by
proxy, and without proof of authority.
(b) Voting of Pledged Stock. Unless the Corporation has specific
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written instructions to the contrary, from the pledgee and pledgor, pledged
stock may be voted by the pledgor only.
(c) Voting by Guardian of Incompetent. Shares standing in the name
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of a person adjudged incompetent may be voted and all rights incident thereto
may be exercised only by his guardian, in person or by proxy.
(d) Voting by Executor or Administrator. Shares standing in the
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name of a deceased person may be voted and all rights incident thereto may be
exercised only by his executor or administrator, in person or by proxy.
(e) Voting by Guardian of Minor. Shares standing in the name of a
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minor may be voted and all rights incident thereto may be exercised by his
guardian, in person or by proxy, or in the absence of such representation by his
guardian, by the minor, in person or by proxy, whether or not the Corporation
has notice, actual or constructive, of the nonage or the appointment of a
guardian, and whether or not a guardian has been in fact appointed.
(f) Voting of Shares in Name of Corporation. Shares standing in
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the name of a corporation, domestic or foreign, may be voted or represented and
all rights incident thereto may be exercised on behalf of that corporation by
the persons described in any of the following subdivisions:
(1) Any officer of the Corporation authorized so to do by the
Bylaws of that Corporation.
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(2) Any person authorized so to do by resolution of the Board of
Directors or a duly authorized committee of the Board of Directors of that
Corporation.
(3) Any person authorized so to do by proxy or power of attorney
duly executed by the President or Vice President and Secretary or Assistant
Secretary of that Corporation.
However, such shares may be voted or represented by the persons
described in any subdivision only in the absence of vote or representation by
the persons described in a preceding subdivision of this subparagraph.
(g) Voting Shares in Names of Two or More Persons. Shares standing
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in the names of two or more persons shall be voted or represented in accordance
with the vote or consent of the majority of the persons in whose names the
shares stand. If only one such person is present in person or by proxy, he may
vote all the shares, and all the shares standing in the names of such persons
are represented for the purpose of determining a quorum. This applies to the
voting of shares by two or more administrators, executors, trustees, or other
fiduciaries, unless the instrument or order of court appointing them otherwise
directs.
ARTICLE III BOARD OF DIRECTORS
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Section 3.1 General Powers. The property, affairs and business of the
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Corporation shall be managed by the Board of Directors.
Section 3.2 Number, Qualification and Term of Office. Unless otherwise
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provided in the Articles of Incorporation, the Board of Directors shall be
divided into three classes, as nearly equal in numbers as the then total number
of directors constituting the entire Board of Directors permits, with the term
of office of one class expiring each year. The term of office of directors in
the first class shall expire at the first annual meeting of shareholders after
their election, the term of office of directors in the second class shall expire
at the second annual meeting of shareholders after their election, and the term
of office of directors in the third class shall expire at the third annual
meeting of shareholders after their election. The directors elected at the 1994
Annual Shareholders Meeting will be classified into terms of one, two or three
years, by resolution of the Board of Directors. At each annual meeting of
shareholders after such classification of the Board of Directors, a number of
directors equal to the number of the class whose term expires at the meeting
shall be elected to hold office until the third succeeding annual meeting.
Directors shall hold office until the next election of the class for which such
directors shall have been chosen and until their successors are elected and
qualified, except in the case of the death, resignation or removal of any
Director. Directors need not be shareholders of the Corporation. The size of
the
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Board of Directors shall be within the range of five to nine directors, with the
exact size to be fixed from time to time by resolution of the Board of
Directors.
Section 3.3 Vacancies. The shareholders may, at any meeting called for
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such purpose, by a vote of a majority of the capital stock issued and
outstanding and entitled to vote thereon, remove any Director from office, with
or without cause. Any Director may resign by written notice to the President,
such resignation to be effective upon its receipt by the President or at such
subsequent time as may be specified in the notice of resignation. Subject to
the rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized number
of Directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification or other cause may be filled only by a
majority vote of the directors then in office, though less than a quorum, and
Directors so chosen shall hold office for a term expiring at the next annual
meeting of shareholders at which the term of office of the class to which they
have been elected expires, except in the case of death, resignation or removal
of any Director. No decrease in the number of Directors constituting the Board
of Directors shall shorten the term of any incumbent Director. Acceptance of
resignation shall not be necessary for it to be effective.
Section 3.4 Meetings of the Board of Directors. The Board of Directors
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shall hold an annual meeting immediately following the annual shareholders
meeting, for the purpose of electing officers and for the transaction of such
other business as may properly come before the meeting. No notice of such
annual meeting shall be necessary to the newly elected directors in order
legally to constitute the meeting, provided a quorum shall be present, unless
said meeting is held, by a consent of a majority of the Directors of such new
Board, at a time and place other then at the place of holding and immediately
following the annual meeting of shareholders. Special meetings of the Board of
Directors may be held at any place either within or without the State of
Michigan at any time pursuant to resolution adopted by the Board of Directors or
upon call of the President or any two (2) officers.
Section 3.5 Notice of Meetings. Notice of meetings of Directors shall be
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given or waived in the same manner as notice of meetings of shareholders, as
provided in Section 2.4, except that notice of Directors meetings shall be given
not later than two (2) nor more than ten (10) days prior to such meetings.
Section 3.6 Quorum and Required Vote of Board. A majority of the total
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number of Directors shall constitute a quorum for the transaction of business,
and the act of a majority of the Directors present at any meeting at which a
quorum is present shall be the act of the Board of Directors. Amendment of
these Bylaws by the Board requires the vote of not less than a majority of the
members of the Board then in office.
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Section 3.7 Telephonic Meetings. A member of the Board or of a committee
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designated by the Board may participate in a meeting by means of conference
telephone or similar communications equipment by which all persons participating
in the discussion can hear each other. Participation in a meeting pursuant to
this provision constitutes presence in person at the meeting.
Section 3.8 Board Action Without Meeting. If all of the Directors then
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constituting the Board of Directors of the Corporation or of any committee of
the Board of Directors shall severally and/or collectively consent in writing to
any action to be taken, such action shall have the same effect as though it had
been authorized at a duly called and properly held meeting of the Board of
Directors or such committee. Such written consent shall be filed with the
minutes of the proceedings of the Board.
Section 3.9 Committees. The Board of Directors may, by resolution or
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resolutions, passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of two (2) or more of the
Directors of the Corporation, which, to the extent provided in said resolution
or resolutions or in other provisions of these Bylaws, shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the Corporation, and may have the power to authorize the seal of
the Corporation to be affixed to all papers which may require it. However, such
a committee does not have the power or authority to amend the Bylaws of the
Corporation, fill vacancies on the Board of Directors, or fix compensation of
the Directors serving on the Board of Directors or on a committee; and, unless
the resolution of the Board of Directors creating such committee or the Articles
of Incorporation expressly so provide, such a committee does not have the power
or authority to declare a dividend or to authorize the issuance of stock. Any
such committee, and each member thereof, shall serve at the pleasure of the
Board of Directors. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors and each committee shall elect a chairman and secretary if one is not
named by the Board of Directors. Each committee shall keep regular minutes of
its meetings and report to the Board of Directors when required.
Section 3.10 Compensation. By resolution of the Board of Directors, the
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Directors may be paid their expenses, if any, of attendance at each meeting of
the Board, and may be paid a fixed sum for attendance. No such payment shall
preclude any Director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of the committees shall be allowed
similar compensation for attending committee meetings.
Section 3.11 Presumption of Assent. A Director of the Corporation who is
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present at a meeting of the Board at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to
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such action with the person acting as Secretary of the meeting before the
adjournment thereof, or by registered mail to such Secretary immediately after
the adjournment thereof. This shall not apply to a Director who voted in favor
of such action.
ARTICLE IV OFFICERS AND AGENTS
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Section 4.1 General. The Corporation shall have a President, a Secretary,
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and a Treasurer, and, if desired, a Chairman of the Board and one or more Vice
Presidents, Assistant Secretaries and Assistant Treasurers. All officers of the
Corporation shall be elected by the Directors and shall hold office until their
successors are elected and qualified. The Corporation may also have such other
officers, agents and factors as may be deemed necessary for the transaction of
the business of the Corporation, who shall be chosen in such manner and hold
their offices for such terms and have such authority and duties as may be
determined by the Board of Directors. The Board of Directors may secure the
fidelity of any and/or all of such officers by bond or otherwise and may also
provide for the qualification of any or all of such officers before any person
authorized by law to administer an oath. The Board of Directors, by resolution,
may require any or all of the officers of the Corporation to give bonds, in
favor of the Corporation, with sufficient surety or sureties, and in such
amounts as the Board of Directors may fix, conditioned on the faithful
performance of the duties of their respective offices. The President shall be
chosen from among the Directors. Any two offices except those of President and
Vice President may be held by the same person but no officer shall execute,
acknowledge or verify any instrument in more than one capacity. Subject to
these Bylaws, each officer shall have in addition to the duties and powers
herein set forth, such duties and powers as are commonly incident to his office,
and such duties and powers as the Board of Directors shall from time to time
designate. In all cases where the duties of any officer, agent or employee are
not specifically prescribed by the Bylaws or by the Board of Directors, such
officer, agent or employee shall obey the orders and instructions of the
President. Compensation of the officers shall be as authorized by the Board of
Directors.
Section 4.2 Duties of the President. The President shall, subject to the
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direction and under the supervision of the Board of Directors, be the chief
executive officer of the Corporation and shall have general and active control
of its affairs and business and general supervision over its officers, agents
and employees. The President shall also appoint and discharge all subordinate
agents and employees and fix their salaries, subject to review by the Board of
Directors, and shall designate their duties. He shall preside at all meetings
of the shareholders and, unless a Chairman of the Board has been elected, at all
meetings of the Board of Directors, at which he is present. The President shall
have custody of the Treasurer's bond, if any.
Section 4.3 Duties of the Chairman of the Board. The Board of Directors
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may elect or appoint a Chairman of the Board. The Chairman of the Board shall,
if
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present, preside at all meetings of the Board of Directors and shall exercise
and perform such other powers and duties as may be assigned to him from time to
time by the Board of Directors or prescribed by these Bylaws.
Section 4.4 Duties of the Vice President. The Board of Directors may
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elect or appoint one or more Vice Presidents. The Vice Presidents, if such be
elected, shall, subject to the direction and under the supervision of the
President, be the assistant chief executive officer of the Corporation and shall
assist the President in the general and active control of its affairs in
business. The Vice Presidents shall perform all the duties of the President in
case of the absence or disqualification of the President. Any of such Vice
Presidents shall preside at all meetings of the shareholders in the absence or
unavailability of the President.
Section 4.5 Duties of the Secretary. The Secretary shall: (a) keep the
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minutes of the proceedings of the shareholders and of the Board of Directors in
one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these Bylaws or as required by law;
(c) be custodian of the corporate records and of the seal of the Corporation and
ensure that the seal of the Corporation is affixed to all documents the
execution of which on behalf of the Corporation under its seal is duly
authorized; (d) keep a register of the post office address of each shareholder
which shall be furnished to the Secretary by such shareholder; and (e) perform
all duties incident to the office of secretary and such other duties as from
time to time may be assigned to him by the President or by the Board of
Directors. The Secretary also shall have charge of the stock ledger (which may,
however, be kept by any transfer agent or agents of the Corporation under the
direction of the Secretary), the original or duplicate of which shall, at all
times, during the usual hours for business, be open to the examination of every
shareholder at the principal office or place of business of the Corporation in
Michigan. In the absence of the Secretary from any meeting, a temporary
Secretary shall be chosen, who shall be sworn to the faithful discharge of his
duty and shall record the proceedings of such meeting in the aforesaid books.
Section 4.6 Duties of the Treasurer. The Treasurer shall, subject to the
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direction and under the supervision of the Board of Directors, the President and
the Vice President, have the care and custody of the funds and valuable papers
of the Corporation, except his own bond, and he shall have power to endorse for
deposit or collection all notes, checks, drafts and other obligations for the
payment of money to the Corporation or its order. He shall keep, or cause to be
kept, at the principal office of the Corporation accurate books of account,
which shall be the property of the Corporation. He shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the President and
Directors, when they so direct, an account of all his transactions as Treasurer
and of the financial condition of the Corporation.
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Section 4.7 Assistant Secretaries and Assistant Treasurers. The Assistant
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Secretary or Assistant Secretaries, in the absence or disability of the
Secretary, shall perform the duties and exercise the powers of the Secretary.
The Assistant Treasurer or Assistant Treasurers, in the absence or disability of
the Treasurer, shall perform the duties and exercise the powers of the
Treasurer. Any Assistant Treasurer, if required by the Board, shall keep in
force a bond as provided in Section 4.1. The Assistant Secretaries and
Assistant Treasurers, in general, shall exercise and perform such other powers
and duties as shall be assigned to them by the Secretary or by the Treasurer,
respectively, or by the Board of Directors or the President.
Section 4.8 Vacancies. The Board of Directors may, at any meeting called
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for the purpose, by vote of a majority of their number, remove from office any
officer of the Corporation, with or without cause. Any officer may resign by
written notice to the President, which resignation may be effective upon its
receipt by the President or at such subsequent time as may be specified in the
notice of resignation, PROVIDED, HOWEVER, that the resignation of the President
shall be submitted to the Board of Directors. The Board of Directors may, at
any meeting, accept the resignation of any officer or remove or accept the
resignation of any agent or member of a committee, and may fill such vacancy for
the unexpired term and until the successor thereof shall be duly elected and
qualified. Acceptance of resignation shall not be necessary for it to be
effective.
ARTICLE V CAPITAL STOCK
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Section 5.1 Issuance. The shares of capital stock of the Corporation
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shall be issued by the Board of Directors 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.
Section 5.2 Stock Certificates. The shares of the capital stock of the
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Corporation shall be represented by certificates signed and sealed in accordance
with the provisions of the laws of the State of Michigan. Certificates shall
have a form and content complying with the laws of the State of Michigan and
approved by the Board of Directors of the Corporation. Certificates of stock
shall bear the signature of the President, and shall be signed by the Secretary,
Assistant Secretary, or any other officer appointed by the Board of Directors
for the purpose, to be known as an Authorized Officer. 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 issue. Each certificate shall recite on its
face the stock represented thereby is transferable only upon the books of the
Corporation properly endorsed. A certificate
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representing shares issued by a corporation which is authorized to issue shares
of more than one class shall set forth on its face or back or state that the
Corporation will furnish to a shareholder upon request and without charge a full
statement of the designation, relative rights, preferences and limitations of
the shares of each class authorized to be issued, and if the Corporation is
authorized to issue any class of shares in 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 5.3 Transfers. Upon surrender to the Corporation or the transfer
---------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 5.4 Ownership. 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 case of recapitalization, consolidation, merger, reorganization, sale of
assets, liquidation or otherwise and for the purpose of votes, approvals and
consents by shareholders, and for the purpose of notice 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.
Section 5.5 Replacement of Certificates. Upon the presentation to the
---------------------------
Corporation of a proper affidavit attesting the loss, destruction or mutilation
of any certificate for shares of stock of the Corporation, the Board of
Directors may direct the issuance of a new certificate in lieu of and to replace
the certificate so alleged to be lost, destroyed and mutilated. The Board of
Directors may require as a condition precedent to the issuance of a new
certificate any or all of the following, to wit: (a) Additional evidence of the
loss, destruction or mutilation claimed; (b) Advertisement of the 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 surety (or without surety)
as the Board of Directors may direct or approve; or (d) The order or approval of
a court.
Section 5.6 Transfer Agent and Registrar. The Board of Directors may
----------------------------
appoint a transfer agent and a registrar for the registration of transfers of
its securities.
Section 5.7 Regulations. The Board of Directors shall have power and
-----------
authority to make all such rules and regulations as the Board shall deem
expedient
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regulating the issue, transfer and registration of certificates for shares of
this Corporation.
Section 5.8 Dividends. The Board of Directors, in its discretion from
---------
time to time, may declare dividends upon the capital stock from the surplus of
the Corporation as permitted by the MBCA, subject to the Articles of
Incorporation.
Section 5.9 Reserves. Before payment of any dividend, there may be set
--------
aside out of any funds of the Corporation available for dividends such sum or
sums as the Directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Directors shall think conducive to the interest of
the Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE VI INDEMNIFICATION OF OFFICERS, DIRECTORS,
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EMPLOYEES AND AGENTS
--------------------
Section 6.1 Indemnification of Directors and Officers: Claims by Third
----------------------------------------------------------
Parties. The Corporation shall, to the fullest extent authorized or permitted
-------
by the MBCA or other applicable law, as the same presently exists or may
hereafter be amended, indemnify a director or officer (the "Indemnitee") who was
or is a party or is threatened to be made a party to a threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal, other than an action by or in
the right of the Corporation, by reason of the fact that he or she is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, or other enterprise, whether for profit or not, against
expenses, including attorneys' fees, judgments, penalties, fines, and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with the action, suit, or proceeding, if the Indemnitee acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation or its shareholders, and with respect to a criminal
action or proceeding, if the Indemnitee had no reasonable cause to believe his
or her conduct was unlawful. The termination of an action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the Corporation or its
shareholders, and, with respect to a criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
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Section 6.2 Indemnification of Directors and Officers: Claims Brought By
------------------------------------------------------------
or In the Right of the Corporation. The Corporation shall, to the fullest
----------------------------------
extent authorized or permitted by the MBCA or other applicable law, as the same
presently exists or may hereafter be amended, indemnify a director or officer
(the "Indemnitee") who was or is a party to or is threatened to be made a party
to a threatened, pending, or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise, whether for profit or
not, against expenses, including actual and reasonable attorneys' fees, and
amounts paid in settlement incurred by the person in connection with the action
or suit, if the Indemnitee 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 under this Section
shall not be made for a claim, issue, or matter in which the Indemnitee has been
found liable to the Corporation unless and only to the extent that the court in
which the action or suit was brought has determined upon application that,
despite the adjudication of liability but in view of all circumstances of the
case, the Indemnitee is fairly and reasonably entitled to indemnification for
the expenses which the court considers proper.
Section 6.3 Actions by the Indemnitee. Notwithstanding the provisions of
-------------------------
Sections 6.1 and 6.2, the Corporation shall not indemnify an Indemnitee in
connection with any action, suit, proceeding or claim (or part thereof) brought
or made by such Indemnitee; unless such action, suit, proceeding or claim (or
part thereof) (i) was authorized by the Board of Directors of the Corporation,
or (ii) was brought or made to enforce this Article and such Indemnitee has been
successful in such action, suit, proceeding or claim (or part thereof).
Section 6.4 Approval of Indemnification. An indemnification under
---------------------------
Sections 6.1 or 6.2 hereof, unless ordered by a court, shall be made by the
Corporation only as authorized in the specific case upon it determination that
indemnification of the Indemnitee is proper in the circumstances because such
Indemnitee has met the applicable standard of conduct set forth in Sections 6.1
and 6.2. This determination shall be made in any of the following ways:
(a) By a majority vote of a quorum of the Board consisting of
Directors who were not parties to the action, suit, or proceeding.
(b) If the quorum described in subdivision (a) is not obtainable,
then by a majority vote of it committee of Directors who are not parties to the
action. The committee shall consist of not less than two (2) disinterested
Directors.
(c) By independent legal counsel in a written opinion.
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(d) By the shareholders.
Section 6.5 Advancement of Expenses. Expenses incurred in defending a
-----------------------
civil or criminal action, suit, or proceeding described in Section 6.1 or 6.2
above shall be paid by the Corporation in advance of the final disposition of
the action, suit, or proceeding upon receipt of an undertaking by or on behalf
of the Indemnitee to repay the expenses if it is ultimately determined that the
Indemnitee is not entitled to be indemnified by the Corporation. The
undertaking shall be by unlimited general obligation of the person on whose
behalf advances are made but need not be secured.
Section 6.6 Partial Indemnification. If an Indemnitee is entitled to
-----------------------
indemnification under Section 6.1 or 6.2 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
Indemnitee for the portion of the expenses, judgments, penalties, fines, or
amounts paid in settlement for which the Indemnitee is entitled to be
indemnified.
Section 6.7 Indemnification of Employees and Agents. Any person who is
---------------------------------------
not covered by the foregoing provisions of this Article and who is or was an
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
may be indemnified to the fullest extent authorized or permitted by the MBCA or
other applicable law, as the same exists or may hereafter be amended, but in the
case of any such amendment, only to the extent such amendment permits the
Corporation to provide broader indemnification rights than before such
amendment, but in any event only to the extent authorized at any time or from
time to time by the Board of Directors.
Section 6.8 Other Rights of Indemnification. The indemnification or
-------------------------------
advancement of expenses provided under Sections 6.1 to 6.7 is not exclusive of
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under the Articles of Incorporation, Bylaws, or a
contractual agreement. 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. The indemnification provided for in Sections 6.1 to 6.7 continues as
to a person who ceases to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of the person.
Section 6.9 Definitions. "Other enterprises" shall include employee
-----------
benefit plans; "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and "serving at the request of the
corporation" shall include any service as a director, officer, employee, or
agent of the corporation which imposes duties on, or involves services by, the
director, officer, employee,
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or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be considered to have acted in a manner "not
opposed to the best interests of the corporation or its shareholders" as
referred to in Sections 6.1 and 6.2.
Section 6.10 Application to a Resulting or Surviving Corporation or
------------------------------------------------------
Constituent Corporation. The definition for "corporation" found in Section 569
-----------------------
of the MBCA, as the same exists or may hereafter be amended, is and shall be,
specifically excluded from application to this Article. The indemnification and
other obligations of the Corporation set forth in this Article shall be binding
upon any resulting or surviving corporation after any merger or consolidation of
the Corporation. Notwithstanding anything to the contrary contained herein or
in Section 569 of the MBCA, no person shall be entitled to the indemnification
and other rights set forth in this Article for acting as a director or officer
of another corporation prior to such other corporation entering into a merger or
consolidation with the Corporation.
Section 6.11 Contract With the Corporation. The right to indemnification
-----------------------------
conferred in this Article VI shall be deemed to be a contract between the
Corporation and each director or officer who serves in any such capacity at any
time while this Article VI is in effect, and any repeal or modification of any
such law or of this Article VI shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore existing or any
action, suit or proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts. In the event this Article is
repealed or modified, the Corporation shall give written notice thereof to the
directors and officers and any such repeal or modification shall not be
effective for a period of sixty (60) days after such notice is delivered.
Section 6.12 Liability Insurance. The Corporation shall have the power to
-------------------
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against and incurred by such
person in any such capacity or arising out of such person's status as such,
regardless of whether the Corporation would have the power to indemnify such
person against such liability under the provisions of the MBCA.
Section 6.13 Severability. Each and every paragraph, sentence, term and
------------
provision of this Article VI shall be considered severable in that, in the event
a court finds any paragraph, sentence, term or provision to be invalid or
unenforceable, the validity and enforceability, operation, or effect of the
remaining paragraphs, sentences, terms, or provisions shall not be affected, and
this
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Article VI shall be construed in all respects as if the invalid or unenforceable
matter had been omitted.
Section 6.14 Enforcement. If a claim under this Article is not paid in
-----------
full by the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim, and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the MBCA for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, a committee
thereof, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because such claimant has met the
applicable standard of conduct set forth in the MBCA nor an actual determination
by the Corporation (including its Board of Directors, a committee thereof,
independent legal counsel, or its shareholders) that the claimant has not met
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.
ARTICLE VII EXECUTION OF PAPERS
--------------------------------
The officers of the Corporation may sell any or all of its holdings of
stock, bonds, or securities of other corporations, or government securities;
sign all deeds, mortgages, assignments of mortgages, discharges of mortgages,
bills of sale, leases and other conveyances and transactions of any interest in
property, real, personal or mixed, to the extent that the Board of Directors of
the Corporation may from time to time specify in resolutions approved by the
Board. The Board may in any instance designate the officers and agents who
shall have authority to execute any contract, conveyance or other instrument on
behalf of the Corporation, and may also ratify and affirm such execution. Any
such instrument or document shall be binding on the Corporation if executed by
the President or a Vice President. In addition, any such instrument or document
shall be binding on the Corporation if signed by any other officer designated by
the Board on behalf of the Corporation.
ARTICLE VIII BANKING
---------------------
Section 8.1 Bank Accounts. The Board of Directors shall by resolution
-------------
designate the bank or banks in which the funds of the Corporation shall be
deposited, and such funds shall be deposited in the name of the Corporation and
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shall be subject to checks drawn as authorized by resolution of the Board of
Directors.
Section 8.2 Borrowing. To the extent authorized by law, the Corporation
---------
may, wherever its general interests and corporate purpose require the same,
borrow money and issue its promissory notes, debentures or bonds for the
repayment thereof with interest, and may in like case mortgage, pledge or
encumber its property as security for its debts or other lawful engagements.
ARTICLE IX VOTING STOCK IN OTHER CORPORATIONS
----------------------------------------------
Unless otherwise ordered by the Board of Directors, the President
shall have full power and authority on behalf of the Corporation to attend and
to act and to vote at any meetings of shareholders of any corporation in which
this Corporation may hold stock, and at any such meeting shall possess and may
exercise any and all of the rights and powers incident to the ownership of such
stock, PROVIDED, HOWEVER, that such rights shall be exercised in the best
interests of this Corporation. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons, but the same
shall not be effective unless actually received by such other corporation prior
to the meeting of shareholders in which such other person is to act. The
President, or in his absence or disability, a Vice President of the Corporation,
may authorize from time to time the signature and issuance of proxies to vote
such stock of other corporations owned by this Corporation, and all such proxies
shall be signed in the name of this Corporation by the President or Vice
President and the Secretary or Assistant Secretary, or by any two officers
authorized by the Board of Directors.
ARTICLE X SUBSIDIARIES
-----------------------
The Board of Directors may establish, reorganize and/or dissolve
wholly- or partly-owned subsidiaries of the Corporation. The Articles of
Incorporation and Bylaws of any such subsidiary shall not, without approval of
the shareholders of this Corporation, substantially differ from the Articles of
Incorporation and Bylaws, respectively, of this Corporation.
ARTICLE XI FISCAL YEAR
----------------------
Except as from time to time otherwise provided by the Board of
Directors, the fiscal year of the Corporation shall end on the last day of June.
ARTICLE XII CORPORATE BOOKS AND RECORDS
----------------------------------------
The Corporation shall keep books and records of account and minutes of
the proceedings of its shareholders, Board of Directors and executive
committees, if any. The books, records and minutes may be kept outside this
state. The Corporation shall keep at its registered office, or at the office of
its
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transfer agent within or without this state, records containing the names and
addresses of all shareholders, the number, class and series of shares held by
each and the dates when they respectively became holders of record thereof. Any
of such books, records or minutes may be in written form or in any other form
capable of being converted into written form within a reasonable time. The
Corporation shall convert into written form without charge any such record not
in such form, upon written request of a person entitled to inspect them.
ARTICLE XIII AMENDMENTS
------------------------
Except as otherwise expressly provided in the Articles of
Incorporation or in these Bylaws, these Bylaws may be altered, amended or
repealed by any duly adopted resolution of the Board of Directors or at any
annual or special meeting of the shareholders. The Board of Directors, however,
shall not adopt or alter any Bylaws fixing the number, qualifications,
classifications or term of office of Directors. If the amendment is to be
adopted at a special meeting of the shareholders, the notice thereof shall
specify the subject matter of the proposed alteration, amendment or repeal and
the Articles of these Bylaws to be affected thereby. Bylaws adopted by the
Directors may be altered or repealed by the Directors or shareholders.
Provided, further, that neither the time nor the place for the election of
Directors shall be changed within sixty (60) days next preceding the day on
which any election of Directors is to be held, and provided further that a
notice of any such change shall be given to each shareholder at least twenty
(20) days before the next election is held, in person or by letter mailed to his
last known post office address.
ATTEST:
/s/ TODD E. SIMPSON
__________________________
TODD E. SIMPSON, SECRETARY
Includes amendments approved through April 30, 1996