Attached files
file | filename |
---|---|
8-K - FORM 8-K - ELAH Holdings, Inc. | v56532e8vk.htm |
EX-3.1 - EX-3.1 - ELAH Holdings, Inc. | v56532exv3w1.htm |
EX-10.3 - EX-10.3 - ELAH Holdings, Inc. | v56532exv10w3.htm |
EX-10.7 - EX-10.7 - ELAH Holdings, Inc. | v56532exv10w7.htm |
EX-99.1 - EX-99.1 - ELAH Holdings, Inc. | v56532exv99w1.htm |
EX-10.4 - EX-10.4 - ELAH Holdings, Inc. | v56532exv10w4.htm |
EX-10.6 - EX-10.6 - ELAH Holdings, Inc. | v56532exv10w6.htm |
EX-10.5 - EX-10.5 - ELAH Holdings, Inc. | v56532exv10w5.htm |
EX-10.8 - EX-10.8 - ELAH Holdings, Inc. | v56532exv10w8.htm |
EX-10.2 - EX-10.2 - ELAH Holdings, Inc. | v56532exv10w2.htm |
EX-10.1 - EX-10.1 - ELAH Holdings, Inc. | v56532exv10w1.htm |
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
SIGNATURE GROUP HOLDINGS, INC.
As of June 11, 2010
TABLE OF CONTENTS
ARTICLE 1 OFFICES |
1 | |||
ARTICLE 2 SHAREHOLDERS |
1 | |||
Section 2.1 Place of Meetings |
1 | |||
Section 2.2 Annual Meetings |
1 | |||
Section 2.3 Special Meetings |
1 | |||
Section 2.4 Notice of Meetings |
1 | |||
Section 2.5 Fixing of Record Date |
2 | |||
Section 2.6 Quorum; Adjournment |
2 | |||
Section 2.7 Conduct of Meetings |
3 | |||
Section 2.8 Voting; Voting of Shares in the Name of Two or More Persons |
3 | |||
Section 2.9 Proxies |
4 | |||
Section 2.10 Procedure for Nominations to the Board of Directors |
4 | |||
Section 2.11 Substitution of Nominees |
5 | |||
Section 2.12 Proposals Other Than Director Nominations |
6 | |||
Section 2.13 Inspectors of Election |
7 | |||
Section 2.14 No Shareholders Action Without a Meeting |
7 | |||
ARTICLE 3 BOARD OF DIRECTORS |
8 | |||
Section 3.1 Number, Election and Term of Office |
8 | |||
Section 3.2 Duties and Powers |
8 | |||
Section 3.3 Regular Meetings; Notice |
8 | |||
Section 3.4 Special Meetings; Notice |
8 | |||
Section 3.5 Chairman |
9 | |||
Section 3.6 Quorum and Adjournments |
9 | |||
Section 3.7 Participation in Meetings by Conference Telephone |
9 | |||
Section 3.8 Conduct of Business |
9 | |||
Section 3.9 Directors Action Without A Meeting |
9 | |||
Section 3.10 Manner of Acting |
10 | |||
Section 3.11 Vacancies |
10 | |||
Section 3.12 Resignation |
10 | |||
Section 3.13 Removal |
10 | |||
Section 3.14 Salary |
10 | |||
Section 3.15 Contracts |
11 | |||
Section 3.16 Committees |
11 | |||
ARTICLE 4 OFFICERS |
11 | |||
Section 4.1 Number, Qualifications, Election and Term of Office |
11 | |||
Section 4.2 Resignation |
12 | |||
Section 4.3 Removal |
12 | |||
Section 4.4 Vacancies |
12 | |||
Section 4.5 Duties of Officers |
12 | |||
ARTICLE 5 CAPITAL STOCK |
13 | |||
Section 5.1 Certificates of Stock |
13 | |||
Section 5.2 Transfer Agent and Registrar |
14 | |||
Section 5.3 Registration and Transfer of Shares |
14 |
i
Section 5.4 Lost, Destroyed and Mutilated Certificates |
14 | |||
Section 5.5 Holder of Record |
15 | |||
ARTICLE 6 DIVIDENDS |
15 | |||
ARTICLE 7 MISCELLANEOUS |
15 | |||
Section 7.1 Inspection of Corporate Record |
15 | |||
Section 7.2 Checks, Drafts, Etc. |
15 | |||
Section 7.3 Contracts, Etc., How Executed |
15 | |||
Section 7.4 Representation of Shares of Stock of Other Corporations |
16 | |||
Section 7.5 Inspection, of Bylaws |
16 | |||
Section 7.6 Conflict |
16 | |||
ARTICLE 8 RESTRICTIONS ON TRANSFER OF SHARES |
16 | |||
Section 8.1 Definitions |
16 | |||
Section 8.2 Transfer And Ownership Restrictions |
18 | |||
Section 8.3 Exceptions |
18 | |||
Section 8.4 Excess Securities |
19 | |||
Section 8.5 Transfer To Agent |
19 | |||
Section 8.6 Application Of Proceeds And Prohibited Distributions |
20 | |||
Section 8.7 Modification Of Remedies For Certain Indirect Transfers |
20 | |||
Section 8.8 Legal Proceedings; Prompt Enforcement |
21 | |||
Section 8.9 Liability |
21 | |||
Section 8.10 Obligation To Provide Information |
22 | |||
Section 8.11 Legends |
22 | |||
Section 8.12 Authority Of Board Of Directors |
23 | |||
Section 8.13 Reliance |
24 | |||
Section 8.14 Benefits Of This Article 8 |
24 | |||
Section 8.15 Severability |
24 | |||
Section 8.16 Waiver |
24 | |||
ARTICLE 9 FISCAL YEAR |
24 | |||
ARTICLE 10 CORPORATE SEAL |
25 | |||
ARTICLE 11 RELIANCE UPON BOOKS, REPORTS AND RECORDS |
25 | |||
ARTICLE 12 AMENDMENTS |
25 |
ii
AMENDED AND RESTATED
BYLAWS
OF
SIGNATURE GROUP HOLDINGS, INC.
BYLAWS
OF
SIGNATURE GROUP HOLDINGS, INC.
ARTICLE 1
OFFICES
OFFICES
The office of Signature Group Holdings, Inc., a Nevada corporation (the Corporation) shall
be located in the City and State designated in the Corporations Articles of Incorporation, as
amended. The Corporation may also maintain offices at such other places within or without the
United States as the Board of Directors may, from time to time, determine.
ARTICLE 2
SHAREHOLDERS
SHAREHOLDERS
Section 2.1 Place of Meetings
Meetings of shareholders of the Corporation shall be held at such place as may be designated
by the President or the Chief Executive Officer or the Board, or by the written consent of all
shareholders entitled to vote thereat given either before or after the meeting and filed with the
Secretary of the Corporation.
Section 2.2 Annual Meetings
The annual meeting of shareholders of the Corporation for the election of directors and the
transaction of any other business which may properly come before such meeting shall be held each
year on a date and at a time to be designated by the Board. Failure to hold the annual meeting
shall not cause a forfeiture or dissolution of the Corporation.
Section 2.3 Special Meetings
Special meetings of shareholders, for any purpose or purposes, may be called at any time only
by the Chairman, the President or the Chief Executive Officer, by an action of the board of
directors of the Corporation then in office (the Board), or by a shareholder or group of
shareholders holding collectively 35% of the outstanding shares. Special meetings shall be held on
the date and at the time and place as may be designated by the Board. At a special meeting, no
business shall be transacted and no corporate action shall be taken other than that stated in the
notice of meeting.
Section 2.4 Notice of Meetings
(a) Except as otherwise provided by the Nevada Revised Statutes, written notice of each meeting of
stockholders, whether annual or special, stating the time when and place where it is to be held,
shall be served either personally or by mail, not less than ten (10) or more than sixty (60) days
before the date on which the meeting is to be held, upon each stockholder of record
1
entitled to vote at such meeting, and to any other stockholder to whom the giving of notice may be
required by law. Notice of a special meeting shall also state the purpose or purposes for which
the meeting is called, and shall indicate that it is being issued by, or at the direction of, the
person or persons calling the meeting. If, at any meeting, action is proposed to be taken that
would, if taken, entitle stockholders to receive payment for their shares pursuant to the Nevada
Revised Statutes, the notice of such meeting shall include a statement of that purpose and to that
effect. If mailed, such notice shall be directed to each such stockholder at his address, as it
appears on the records of the stockholders of the Corporation, unless he shall have previously
filed with the Secretary of the Corporation a written request that notices intended for him be
mailed to some other address, in which case, it shall be mailed to the address designated in such
request.
(b) Notice of any meeting need not be given to any person who may become a stockholder of record
after the mailing of such notice and prior to the meeting, or to any stockholder who attends such
meeting, in person or by proxy, or to any stockholder who, in person or by proxy, submits a signed
waiver of notice either before or after such meeting. Notice of any adjourned meeting of
stockholders need not be given, unless otherwise required by statute.
Section 2.5 Fixing of Record Date
For the purpose of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive payment of any
dividend or other distribution or the allotment of any rights, or in order to make a determination
of shareholders for any other proper purpose, the Board shall fix a date as the record date for any
such determination of shareholders, which date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board. Such date in any case shall be not more than sixty
(60) days, and in the case of a meeting of shareholders not less than ten (10) days, prior to the
date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed,
only shareholders of record on that date shall be entitled to notice of and to vote at the meeting,
or to receive the dividend, other distribution or the allotment of rights, or to exercise rights,
as the case may be, notwithstanding any transfer of any shares of stock on the books of the
Corporation after the record date. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section 2.5, such determination shall,
unless otherwise provided by the Board, also apply to any adjournment thereof. If no record date is
fixed, (a) the record date for determining shareholders entitled to notice of or vote at a meeting
of shareholders shall be at the close of business on the day preceding the day on which the notice
is given, or, if notice is waived, at the close of business on the day preceding the day on which
the meeting is held, and (b) the record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board adopts the resolution relating
thereto.
Section 2.6 Quorum; Adjournment
The holders of record of a majority of the total number of votes eligible to be cast in the
election of directors, represented in person or by proxy, shall constitute a quorum for the
transaction of business at any meeting of shareholders, except as otherwise provided by law, these
Bylaws or the Articles of Incorporation. In the absence of a quorum, a majority of the
2
number of votes so represented at the meeting of shareholders may adjourn the meeting from
time to time, but no other business may be transacted at any such meeting. When a meeting of
shareholders is adjourned, it shall not be necessary to give any notice of the time and place of
the adjourned meeting or of the business to be transacted thereat, other than an announcement at
the meeting at which such adjournment is taken, provided, that if such adjournment is for more than
sixty (60) days, a notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting as in the case of an original meeting. At such adjourned meeting at
which a quorum is present, any business may be transacted that might have been transacted at the
meeting as originally called. When a quorum is once present to organize a meeting of shareholders,
such quorum is not broken by the subsequent withdrawal of any shareholders.
Section 2.7 Conduct of Meetings
The Chairman shall serve as chairman at all meetings of the shareholders or, if the Chairman
is absent or otherwise unable to so serve, the President or Chief Executive Officer shall serve as
chairman, unless another person is appointed chairman of the meeting by a majority of the entire
Board. The Secretary or, in his or her absence, such other person as the chairman of the meeting
shall appoint, shall serve as secretary of the meeting. The chairman of the meeting shall conduct
all meetings of the shareholders in accordance with the best interests of the Corporation and shall
have the authority and discretion to establish reasonable procedural rules for the conduct of such
meetings, including such regulation of the manner of voting and the conduct of discussion as he or
she shall deem appropriate. The chairman of the meeting shall also have the authority to adjourn
the meeting from time to time and from place to place as he or she may deem necessary and in the
best interests of the Corporation.
Section 2.8 Voting; Voting of Shares in the Name of Two or More Persons
Except for the election of directors or as otherwise provided by applicable law or regulation,
the Articles of Incorporation or these Bylaws, at all meetings of shareholders, all matters shall
be determined by a vote of the holders of a majority of votes cast at a meeting of stockholders by
the holders of shares entitled to vote thereon. Directors shall, except as otherwise required by
law, these Bylaws or the Articles of Incorporation, be elected by a plurality of the votes cast by
each class of shares entitled to vote at a meeting of shareholders, present and entitled to vote in
the election. Except as otherwise provided by statute or by the Articles of Incorporation, at each
meeting of stockholders, each holder of record of stock of the Corporation entitled to vote
thereat, shall be entitled to one vote for each share of stock registered in his name on the books
of the Corporation.
If ownership of a share of voting stock of the Corporation stands in the name of two or more
persons, in the absence of written directions to the Corporation to the contrary, any one or more
of such shareholders may cast, in person or by proxy, all votes to which such ownership is
entitled. If an attempt is made to cast conflicting votes by the several persons in whose names
shares of stock stand, the vote or votes to which those persons are entitled shall be cast as
directed by a majority of those holding such stock and present, in person or by proxy, at such
meeting. If such conflicting votes are evenly split on any particular matter, each faction may vote
the securities in question proportionally, or any person voting the shares, or a beneficiary, if
any, may apply to such court as may have jurisdiction to appoint an additional person to act with
the
3
persons so voting the shares, which shall then be voted as determined by a majority of such
persons and the person appointed by such court.
Section 2.9 Proxies
Each stockholder entitled to vote or to express consent or dissent without a meeting may do so
by proxy; provided, however, that the instrument authorizing such proxy to act shall have been
executed in writing by the stockholder himself, or by his attorney-in-fact thereunto duly
authorized in writing. No proxy shall be valid after the expiration of eleven months from the date
of its execution, unless the person executing it shall have specified therein the length of time it
is to continue in force. Such instrument shall be exhibited to the Secretary at the meeting and
shall be filed with the records of the Corporation.
Section 2.10 Procedure for Nominations to the Board of Directors
(1) No person will be eligible for election, or elected, as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section 2.10.
(2) Subject to the provisions hereof, the Nominating and Governance Committee shall select,
and recommend to the Board for its approval, nominees for election as directors. Provided the
Nominating and Governance Committee makes such nominations, no nominations for directors except
those made by the Nominating and Governance Committee and approved by the Board shall be voted upon
at the annual meeting of shareholders unless other nominations by shareholders are made in
accordance with the provisions of this Section 2.10.
(3) Nominations of individuals for election to the Board at an annual meeting of shareholders
may be made by any shareholder of record of the Corporation entitled to vote for the election of
directors at such meeting who provides timely notice in writing to the Secretary as set forth in
this Section 2.11. To be timely, a nomination by a shareholder must (i) be sent to the Corporation
in compliance with the requirements of Rule 14a-8 under the 1934 Act, if the proposal is submitted
under such rule, or (ii) if not, be mailed and received by, or delivered to, the Secretary at the
principal executive offices of the Corporation not later than the close of business on the 90th day
prior to the anniversary date of the most recent annual meeting of shareholders or, if the date of
the annual meeting of shareholders is more than 30 days earlier or later than such anniversary
date, then not later than the close of business on the 75th day prior to the anniversary date of
the most recent annual meeting of shareholders.
(4) For purposes of this Section 2.10, notice shall be deemed to be first given to
shareholders when disclosure of such date of the meeting of shareholders is first made in a press
release reported to Dow Jones News Services, Associated Press or comparable national news service,
or in a document publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934 (the 1934 Act).
(5) Such shareholders notice must set forth (i) as to each person, whom the stockholder
proposes to nominate for election or re-election as a director: (A) the name, age, business address
and residence address of such person, (B) the principal occupation or employment of such person,
(C) the class and number of shares of the Corporation which are
4
beneficially owned by such person, (D) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or person (naming such person or
persons) pursuant to which the nominations are to be made by the stockholder, and (E) any other
information relating to such person that is required to be disclosed in solicitations of proxies
for elections of directors, or is otherwise required, in each case pursuant to Regulation 14A (or
any successor thereto) under the 1934 Act (including without limitation such persons written
consent to being named in the proxy statement, if any, as a nominee and to serving as a director if
elected); (ii) as to such stockholder giving notice: (W) the name and address, as they appear on
the Corporations books, of the stockholder, (X) the class and number of shares of the Corporation
which are owned beneficially by such stockholder, (Y) any other information that is required to be
provided by the stockholder pursuant to Regulation 14A (or any successor thereto) under the 1934
Act in such stockholders capacity as a proponent of a stockholder nomination, and (Z) a
representation whether the shareholder intends or is part of a group which intends to (1) deliver a
proxy statement and/or form of proxy to holders of at least the percentage of the Corporations
outstanding capital stock required to elect the nominee and/or (2) otherwise solicit proxies from
shareholders in support of such nomination; and (iii) the identification of any person employed,
retained or to be compensated by the shareholder submitting the nomination or by the person
nominated, or any person acting on his or her behalf to make solicitations or recommendations to
shareholders for the purpose of assisting in the election of such director, and a brief description
of the terms of such employment, retainer or arrangement for compensation.
(6) At the request of the Secretary, any person nominated by the Nominating and Governance
Committee for election as a director shall furnish to the Secretary that information required to be
set forth in a shareholders notice of nomination which pertains to the nominee together with the
required written consent. The Corporation may also require any proposed nominee to furnish such
other information as it may reasonably require, in order to determine the eligibility of such
proposed nominee to serve as a director of the Corporation.
(7) Upon the receipt of a stockholder nomination made in accordance with the procedures
prescribed by these Bylaws, such nomination shall be evaluated by the Corporations Nominating and
Governance Committee (or any successor thereto) in accordance with its evaluation procedures, in
order to determine whether such nominee should be included in the slate of persons recommended by
the Board of Directors to the Corporations stockholders for election at the next annual meeting.
(8) The chairman of the meeting will, if the facts warrant, determine and declare at the
meeting that a nomination was not made in accordance with the procedures prescribed by these
Bylaws, and if the Chairman so determines, the chairman will so declare at the meeting, and the
defective nomination will be disregarded and not considered.
Section 2.11 Substitution of Nominees
In the event that a person is validly designated as a nominee in accordance with Section 2.10
and shall thereafter become unwilling or unable to stand for election to the Board, the Board, upon
recommendation by the Nominating and Governance Committee, may designate a substitute nominee upon
delivery of a written notice to the Secretary setting forth such
5
information regarding such substitute nominee as would have been required to be delivered to
the Secretary pursuant to Section 2.10 had such substitute nominee been initially proposed as a
nominee. Such notice shall include a signed consent to serve as a director of the Corporation, if
elected, of each such substituted nominee.
Section 2.12 Proposals Other Than Director Nominations
(1) Any new business to be taken up at the annual meeting at the request of the Chief
Executive Officer or the President or by resolution of at least three-fourths of the directors then
in office shall be stated in writing and filed with the Secretary at least fifteen (15) days before
the date of the annual meeting, and all business so stated, proposed and filed shall be considered
at the annual meeting, but, except as provided in this Section 2.12, no other proposal shall be
acted upon at the annual meeting.
(2) Any proposal offered by a shareholder may be made at the annual meeting and the same may
be discussed and considered, but unless properly brought before the meeting such proposal shall not
be acted upon at the meeting. For a proposal to be properly brought before an annual meeting by a
shareholder, the shareholder must be a shareholder of record and have given timely notice thereof
in writing to the Secretary. To be timely, a proposal offered by a shareholder must (i) be sent to
the Corporation in compliance with the requirements of Rule 14a-8 under the 1934 Act, if the
proposal is submitted under such rule, or (ii) if not, be mailed and received by, or delivered to,
the Secretary at the principal executive offices of the Corporation not later than the close of
business on the 90th day prior to the anniversary date of the most recent annual meeting of
shareholders or, if the date of the annual meeting of shareholders is more than 30 days earlier or
later than such anniversary date, then not later than the close of business on the 75th day prior
to the anniversary date of the most recent annual meeting of shareholders.
(3) For purposes of this Section 2.12, notice shall be deemed to be first given to
shareholders when disclosure of such date of the meeting of shareholders is first made in a press
release reported to Dow Jones News Services, Associated Press or comparable national news service,
or in a document publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(4) A shareholders notice to the Secretary shall set forth as to the matter the shareholder
proposes to bring before the annual meeting (a) a brief description of the proposal desired to be
brought before the annual 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; (b) the name and address of the shareholder proposing such business;
(c) the class and number of shares of the Corporation which are owned of record by the shareholder
and the dates upon which he or she acquired such shares; (d) the identification of any person
employed, retained, or to be compensated by the shareholder submitting the proposal, or any person
acting on his or her behalf, to make solicitations or recommendations to shareholders for the
purpose of assisting in the passage of such proposal, and a brief description of the terms of such
employment, retainer or arrangement for compensation; (e) a representation that the shareholder is
a holder of record of stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the
6
meeting to propose such new business; (f) a representation whether the shareholder intends or
is part of a group which intends to (1) deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the Corporations outstanding capital stock required to approve or
adopt the proposal and/or (2) otherwise solicit proxies from shareholders in support of such
proposal; and (g) all such other information regarding such proposal as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission or required to be delivered to the Corporation pursuant to the proxy rules of the
Securities and Exchange Commission (whether or not the Corporation is then subject to such rules).
(5) This provision shall not prevent the consideration and approval or disapproval at an
annual meeting of reports of officers, directors and committees of the Board or the management of
the Corporation, but in connection with such reports, no new business shall be acted upon at such
annual meeting unless stated and filed as herein provided. This provision shall not constitute a
waiver of any right of the Corporation under the proxy rules of the Securities and Exchange
Commission or any other rule or regulation to omit a shareholders proposal from the Corporations
proxy materials.
(6) The chairman of the meeting shall, if the facts warrant, determine and declare to the
meeting that any new business was not properly brought before the meeting in accordance with the
procedures prescribed by these Bylaws, and, if the chairman so determines, the chairman will so
declare at the meeting, and such new business will be disregarded and not considered.
Section 2.13 Inspectors of Election
In advance of any meeting of shareholders, the Board shall, to the extent permitted by
applicable law, appoint one or more persons, other than officers, directors or nominees for office,
as inspectors of election to act at such meeting or any adjournment thereof. Such appointment shall
not be altered at the meeting. If inspectors of election are not so appointed, the chairman of the
meeting shall make such appointment at the meeting. If any person appointed as inspector fails to
appear or fails or refuses to act at the meeting, the vacancy so created may be filled by
appointment by the Board in advance of the meeting or at the meeting by the chairman of the
meeting. The duties of the inspectors of election shall include determining 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, receiving votes, ballots or consents, hearing and
deciding all challenges and questions arising in connection with the right to vote, counting and
tabulating all votes, ballots or consents, determining the results and doing such acts as are
proper to the conduct of the election or the vote with fairness to all shareholders. Any report or
certificate made by them shall be prima facie evidence of the facts stated and of the vote as
certified by them. Each inspector shall be entitled to a reasonable compensation for his or her
services, to be paid by the Corporation.
Section 2.14 No Shareholders Action Without a Meeting
The shareholders shall not take any action without a meeting properly held in accordance with
the Nevada Revised Statutes and these Bylaws.
7
ARTICLE 3
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 3.1 Number, Election and Term of Office
(a) The number of directors which shall constitute the whole Board of Directors shall be such
number as the Board of Directors shall from time to time have designated, except that in the
absence of any such designation, such number shall be not less than five (5) and not more than
eleven (11).
(b) Except as may otherwise be provided herein or in the Articles of Incorporation, the members of
the Board of Directors of the Corporation, who need not be stockholders, shall be elected by a
plurality of the votes cast at a meeting of stockholders, by the holders of shares, present in
person or by proxy, entitled to vote in the election.
(c) Each director shall hold office until the annual meeting of the stockholders next succeeding
his election, and until his successor is elected and qualified, or until his prior death,
resignation or removal.
Section 3.2 Duties and Powers
The Board of Directors shall be responsible for the control and management of the affairs,
property and interests of the Corporation, and may exercise all powers of the Corporation, except
as are in the Articles of Incorporation or by statute expressly conferred upon or reserved to the
stockholders.
Section 3.3 Regular Meetings; Notice
(a) Regular meetings of the Board of Directors shall be held at such place or places, on such date
or dates, and at such time or times as shall have been established by the Board of Directors and
publicized among all directors.
(b) Notice of any regular meeting of the Board of Directors shall not be required to be given and,
if given, need not specify the purpose of the meeting; provided, however, that in case the Board of
Directors shall fix or change the time or place of any regular meeting, notice of such action shall
be given to each director who shall not have been present at the meeting at which such action was
taken within the time limited, and in the manner set forth in paragraph (b) Section 4 of this
Article III, with respect to special meetings, unless such notice shall be waived in the manner set
forth in paragraph (c) of such Section 4.
Section 3.4 Special Meetings; Notice
(a) Special meetings of the Board of Directors shall be held whenever called by the President or by
two of the directors, at such time and place as may be specified in the respective notices or
waivers of notice thereof.
(b) Except as otherwise required by statute, notice of special meetings shall be mailed directly to
each director, addressed to him at his residence or usual place of business, at least
8
forty-eight (48) hours before the meeting is to be held, or shall be sent to him at such place by
facsimile, electronic mail or other electronic means, or shall be delivered to him personally or
given to him orally, not later than the day before the day on which the meeting is to be held.
(c) Notice of any meeting of the Board of Directors may be waived by any director at any time, by a
signed writing, delivered to the Corporation for inclusion in the minutes, either before or after
the meeting. Attendance or participation by a director at a meeting shall constitute a waiver of
any required notice of the meeting unless the director promptly objects to holding the meeting or
to the transaction of any business on the grounds that the meeting was not lawfully convened and
the director does not thereafter vote for or assent to action taken at the meeting. Notice of any
adjourned meeting shall not be required to be given.
Section 3.5 Chairman
At all meetings of the Board of Directors, the Chairman of the Board, if any and if present,
shall preside. If there shall be no Chairman, or he shall be absent, then the President shall
preside, and in his absence, a Chairman chosen by the directors shall preside.
Section 3.6 Quorum and Adjournments
(a) At all meetings of the Board of Directors, the presence of a majority of the entire Board shall
be necessary and sufficient to constitute a quorum for the transaction of business, except as
otherwise provided by law, by the Articles of Incorporation, or by these Bylaws.
(b) A majority of the directors present at the time and place of any regular or special meeting,
although less than a quorum, may adjourn the same from time to time without notice, until a quorum
shall be present.
Section 3.7 Participation in Meetings by Conference Telephone
Members of the Board of Directors, or of any committee thereof, may participate in a meeting
of such Board or committee by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other and such participation
shall constitute presence in person at such meeting.
Section 3.8 Conduct of Business
At any meeting of the Board of Directors, business shall be transacted in such order and
manner as the Board may from time to time determine, and all matters shall be determined by the
vote of a majority of the directors present, except as otherwise provided herein or required by
law.
Section 3.9 Directors Action Without A Meeting
The Board of Directors or a committee thereof may take any action without a meeting that it
could properly take at a meeting if by executing a resolution setting forth the action signed by
all of the directors, or all of the members of the committee, as the case may be, either before or
after the action is taken, and if the signed resolution is delivered to the Corporation for
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inclusion in the minutes or filing with the corporate records. Such action shall be effective
upon the signing of a resolution by the last director to sign, unless the consent specifies a later
effective date.
Section 3.10 Manner of Acting
(a) At all meetings of the Board of Directors, each director present shall have one vote,
irrespective of the number of shares of stock, if any, which he may hold.
(b) Except as otherwise provided by statute, by the Articles of Incorporation, or by these Bylaws,
the action 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. Any action authorized, in writing, by all of the directors
entitled to vote thereon and filed with the minutes of the corporation shall be the act of the
Board of Directors with the same force and effect as if the same had been passed by unanimous vote
at a duly called meeting of the Board.
Section 3.11 Vacancies
Any vacancy in the Board of Directors occurring by reason of an increase in the number of
directors, or by reason of the death, resignation, disqualification, removal (unless a vacancy
created by the removal of a director by the stockholders shall be filled by the stockholders at the
meeting at which the removal was effected) or inability to act of any director, or otherwise, shall
be filled for the unexpired portion of the term by a majority vote of the remaining directors,
though less than a quorum, at any regular meeting or special meeting of the Board of Directors
called for that purpose.
Section 3.12 Resignation
Any director may resign at any time by giving written notice to the Board of Directors, the
President or the Secretary of the Corporation. Unless otherwise specified in such written notice,
such resignation shall take effect upon receipt thereof by the Board of Directors or such officer,
and the acceptance of such resignation shall not be necessary to make it effective.
Section 3.13 Removal
Any director may be removed with or without cause at any time by the affirmative vote of
stockholders holding of record in the aggregate at least two-thirds (2/3) of the outstanding shares
of the Corporation at a special meeting of the stockholders called for that purpose.
Section 3.14 Salary
No stated salary shall be paid to directors, as such, for their services, but by resolution of
the Board of Directors a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board; provided, however, that nothing herein
contained shall be construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefore.
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Section 3.15 Contracts
(a) No contract or other transaction between this Corporation and any other Corporation shall be
impaired, affected or invalidated, nor shall any director be liable in any way by reason of the
fact that any one or more of the directors of this Corporation is or are interested in, or is a
director or officer, or are directors or officers of such other Corporation, provided that such
facts are disclosed or made known to the Board of Directors.
(b) Any director, personally and individually, may be a party to or may be interested in any
contract or transaction of this Corporation, and no director shall be liable in any way by reason
of such interest, provided that the fact of such interest be disclosed or made known to the Board
of Directors, and provided that the Board of Directors shall authorize, approve or ratify such
contract or transaction by the vote (not counting the vote of any such director) of a majority of a
quorum, notwithstanding the presence of any such director at the meeting at which such action is
taken. Such director or directors may be counted in determining the presence of a quorum at such
meeting. This Section shall not be construed to impair or invalidate or in any way affect any
contract or other transaction which would otherwise be valid under the law (common, statutory or
otherwise) applicable thereto.
Section 3.16 Committees
The Board of Directors, by resolution adopted by a majority of the entire Board, may from time
to time designate from among its members an executive committee and such other committees, and
alternate members thereof, as they may deem desirable, each consisting of two or more members, with
such powers and authority (to the extent permitted by law) as may be provided in such resolution.
Each such committee shall serve at the pleasure of the Board.
ARTICLE 4
OFFICERS
OFFICERS
Section 4.1 Number, Qualifications, Election and Term of Office
(a) The officers of the Corporation shall consist of a President, a Secretary, a Treasurer, and
such other officers, including a Chief Executive Officer, Chief Financial Officer, Chairman of the
Board of Directors, and one or more Vice Presidents, as the Board of Directors may from time to
time deem advisable. Any officer other than the Chairman of the Board of Directors may be, but is
not required to be, a director of the Corporation. Any two or more offices may be held by the same
person.
(b) The officers of the Corporation shall be elected by the Board of Directors, which shall
consider that subject at its first meeting after every annual meeting of stockholders.
(c) Each officer shall hold office until the annual meeting of the Board of Directors next
succeeding his election, and until his successor shall have been elected and qualified, or until
his death, resignation or removal.
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Section 4.2 Resignation
Any officer may resign at any time by giving written notice of such resignation to the Board
of Directors, or to the President or the Secretary of the Corporation. Unless otherwise specified
in such written notice, such resignation shall take effect upon receipt thereof by the Board of
Directors or by such officer, and the acceptance of such resignation shall not be necessary to make
it effective.
Section 4.3 Removal
Any officer may be removed, either with or without cause, and a successor elected by a
majority vote of the Board of Directors at any time.
Section 4.4 Vacancies
A vacancy in any office by reason of death, resignation, inability to act, disqualification,
or any other cause, may at any time be filled for the unexpired portion of the term by a majority
vote of the Board of Directors.
Section 4.5 Duties of Officers
Unless otherwise prescribed by the Board of Directors, the duties of the officers shall be as
follows:
(a) Chairman of the Board. The Chairman of the Board, if one is elected, shall preside at meetings
of the Board of Directors and of the stockholders, shall be responsible for carrying out the plans
and directives of the Board of Directors, shall report to and consult with the Board of Directors,
and, if the Board so resolves, shall be the Chief Executive Officer. The Chairman of the Board
shall have such other powers and duties as the Board of Directors may from time to time prescribe.
(b) Chief Executive Officer. The Chief Executive Officer shall be so designated by the Board and
may also hold the title of Chairman of the Board, and/or President. The Chief Executive Officer of
the Corporation, subject to the direction of the Board, shall be responsible for assuring that the
policy decisions of the Board are implemented as formulated. The Chief Executive Officer shall be
responsible for managing the day-to-day business operations of the Corporation consistent with the
policies, standards and plans of the Corporation and any specific instruction or directions of the
Board, and shall be responsible, in consultation with such officers and members of the Board as he
or she deems appropriate, for planning the growth of the Corporation.
(c) President. The President shall exercise the usual executive powers and duties pertaining to
the office of President, subject to the Board of Directors, including but not limited to; general
control over the day to day management of the corporation; signing and countersigning all
certificates, contracts and other instruments of the corporation; and any other powers or duties
assigned by the Board of Directors from time to time. In the absence of a Chairman of the Board,
the President shall preside at meetings of the Board of Directors and of the stockholders,
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perform the other duties of the Chairman of the Board prescribed in this Section, and perform such
other duties as the Board of Directors may from time to time designate.
(d) Treasurer. The Treasurer shall have the care and custody of, and be responsible for, all funds
and securities of the Corporation and shall cause to be kept regular books of account. The
Treasurer shall cause to be deposited all funds and other valuable effects in the name of the
Corporation in such depositories as may be designated by the Board of Directors and disperse funds
of the corporation in payment of the just demands against the corporation, or as may be ordered by
the Board of Directors, making proper vouchers for such disbursements and shall render to the Board
of Directors, from time to time as may be required of him, an account of all transactions as
treasurer and of the financial condition of the corporation. In general, the Treasurer shall
perform all of the duties incident to the office of Treasurer, and such other duties as from time
to time may be assigned by the Board of Directors.
(e) Chief Financial Officer. The Chief Financial Officer shall perform all acts and duties as are
generally incident to the office of the Chief Financial Officer. The Chief Financial Officer may be
the Treasurer of the Corporation, as determined by the Board.
(f) Vice President. Each Vice President shall perform such duties as the Board of Directors may
from time to time designate. In addition, the Vice President, or if there is more than one, the
most senior Vice President available, shall act as President in the absence or disability of the
President.
(g) Secretary. The Secretary shall be responsible for and shall keep, personally or with the
assistance of others, records of the proceedings of the directors and stockholders; authenticate
records of the Corporation; attest all certificates of stock in the name of the Corporation; keep
the corporate seal, if any, and affix the same to certificates of stock and other proper documents;
keep a record of the issuance of certificates of stock and the transfers of the same; shall issue
notices for all meetings as required by the Bylaws; shall have charge of the corporate books; and
shall make such reports and perform such other duties as are incident to the office, or properly
required by the Board of Directors.
ARTICLE 5
CAPITAL STOCK
CAPITAL STOCK
Section 5.1 Certificates of Stock
Certificates representing shares of stock may be issued by the Corporation and shall be in
such form as shall be determined by the Board. Each certificate shall state that the Corporation
will furnish to any shareholder upon request and without charge a statement of the powers,
designations, preferences and relative, participating, optional or other special rights of the
shares of each class or series of stock and the qualifications or restrictions of such preferences
and/or rights, or shall set forth such statement on the certificate itself. The certificates shall
be numbered in the order of their issue and entered in the books of the Corporation or its transfer
agent or agents as they are issued. Each certificate shall state the registered holders name and
the number and class of shares and shall be signed by the Chairman or the President and the
Secretary or any Assistant Secretary, and may, but need not, bear the seal of the Corporation or a
facsimile
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thereof. Any or all of the signatures of such officers on the certificates may be facsimiles,
provided the Corporation is not acting as Registrar with respect to the registration thereof. In
case any officer or officers who shall have signed any such certificate shall cease to be such
officer or officers of the Corporation, whether because of death, resignation or otherwise, before
such certificate shall have been delivered by the Corporation, such certificate may nevertheless be
adopted by the Corporation and be issued and delivered as though the person or persons who signed
such certificate or certificates had not ceased to be such officer or officers of the Corporation.
Section 5.2 Transfer Agent and Registrar
The Board shall have the power to appoint one or more Transfer Agents and Registrars for the
transfer and registration of certificates of stock of any class and may require that stock
certificates be countersigned and registered by one or more of such Transfer Agents and Registrars.
Whenever any stock certificate is countersigned or otherwise authenticated by a Transfer Agent, and
by a Registrar, then a facsimile of the signatures of the Transfer Agent or the Registrar of the
Corporation may be printed or lithographed upon the certificate in lieu of the actual signatures.
Section 5.3 Registration and Transfer of Shares
Subject to the provisions of the Articles of Incorporation of the Corporation, the name of
each person owning a share of the capital stock of the Corporation shall be entered on the books of
the Corporation together with the number of shares held by him or her, the numbers of the
certificates covering such shares and the dates of issue of such certificates. Subject to the
provisions of the Articles of Incorporation of the Corporation, the shares of stock of the
Corporation shall be transferable on the books of the Corporation by the holders thereof in person,
or by their duly authorized attorneys or legal representatives, on surrender and cancellation of
certificates for a like number of shares, accompanied by an assignment or power of transfer
endorsed thereon or attached thereto, duly executed, with such guarantee or proof of the
authenticity of the signature as the Corporation or its agents may reasonably require and with
proper evidence of payment of any applicable transfer taxes. Subject to the provisions of the
Articles of Incorporation of the Corporation, a record shall be made of each transfer.
Section 5.4 Lost, Destroyed and Mutilated Certificates
The holder of any shares of stock of the Corporation shall immediately notify the Corporation
of any loss, theft, destruction or mutilation of the certificates therefor. The Corporation may
issue, or cause to be issued, a new certificate of stock in the place of any certificate
theretofore issued by it alleged to have been lost, stolen or destroyed upon evidence satisfactory
to the Corporation of the loss, theft or destruction of the certificate and, in the case of
mutilation, the surrender of the mutilated certificate. The Corporation may, in its discretion,
require the owner of the lost, stolen or destroyed certificate, or his or her legal
representatives, to give the Corporation a bond sufficient to indemnify it against any claim that
may be made against it on account of the alleged loss, theft, destruction or mutilation of any such
certificate and the issuance of such new certificate, or may refer such owner to such remedy or
remedies as he or she may have under the laws of the State of Nevada.
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Section 5.5 Holder of Record
Subject to the provisions of the Articles of Incorporation of the Corporation, the Corporation
shall be entitled to treat the holder of record of any share or shares of stock as the holder
thereof in fact 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 it shall have express or other notice
thereof, except as otherwise expressly provided by law.
ARTICLE 6
DIVIDENDS
DIVIDENDS
The Board shall have the power, subject to the provisions of law and the requirements of the
Articles of Incorporation, to declare and pay dividends out of surplus (or, if no surplus exists,
out of net profits of the Corporation, for the fiscal year in which the dividend is declared and/or
the preceding fiscal year, except where there is an impairment of capital stock), to pay such
dividends to the shareholders in cash, in property or in shares of the capital stock of the
Corporation and to fix the date or dates for the payment of such dividends.
ARTICLE 7
MISCELLANEOUS
MISCELLANEOUS
Section 7.1 Inspection of Corporate Record
Shareholders may inspect such corporate records at such times and based upon such limitations
of such rights as may be set forth in the Nevada Revised Statutes Chapter 78 from time to time.
Section 7.2 Checks, Drafts, Etc. |
All checks, drafts, bonds, bill of exchange, or other orders for payment of money, notes, or
other evidences of indebtedness issued in the name or payable to the Corporation shall be signed or
endorsed by such person or persons and in such manner as, from time to time, shall be determined by
resolution of the Board.
Section 7.3 Contracts, Etc., How Executed
The Board, except as in these Bylaws otherwise provided, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument or document in the
name of and on behalf of the Corporation, and such authority may be general or confined to specific
instances. Unless otherwise specifically determined by the Board or otherwise required by law,
formal contracts, promissory notes and other evidences of indebtedness, deeds of trust, mortgages
and corporate instruments or documents requiring the corporate seal, shall be executed, signed or
endorsed by the President or any Vice President and by the Secretary (or any Assistant Secretary),
the Chief Financial Officer or the Treasurer (or any Assistant Treasurer). The Board may, however,
authorize any one (1) of such officers to sign any of such instruments for and on behalf of the
Corporation, without necessity of countersignature; may designate
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officers or employees of the Corporation, other than those named above, who may, in the name
of the Corporation, sign such instruments; and may authorize the use of facsimile signatures of any
of such persons. No officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit to render it liable for any
purpose or to any amount except as specifically authorized in these Bylaws or by the Board in
accordance with these Bylaws.
Section 7.4 Representation of Shares of Stock of Other Corporations
The President or any Vice President and the Secretary or any Assistant Secretary of this
Corporation are authorized to vote, represent and exercise on behalf of this Corporation all rights
incident to any and all shares of stock of any other corporation or corporations standing in the
name of this Corporation. The authority herein granted to said officers to vote or represent on
behalf of this Corporation any and all shares of stock held by this Corporation in any other
corporation or corporations may be exercised either by such officers in person or by any persons
authorized so to do by proxy or power of attorney duly executed by said officers.
Section 7.5 Inspection, of Bylaws
The Corporation shall keep at the Registered Office the original or a copy of the Bylaws as
amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection
by the shareholders at all reasonable times during office hours.
Section 7.6 Conflict
In the event of any conflict between any provision in these Bylaws and in the Corporations
Articles of Incorporation, the provision in the Articles shall control.
ARTICLE 8
RESTRICTIONS ON TRANSFER OF SHARES
RESTRICTIONS ON TRANSFER OF SHARES
Section 8.1 Definitions
As used in this Article 8, the following capitalized terms have the following meanings when
used herein with initial capital letters (and any references to any portions of Treasury Regulation
§§ 1.382-2T, 1.382-3 and 1.382-4 shall include any successor provisions):
(1) 4.9-percent Transaction means any Transfer described in clause (a) or (b) of Section
8.2.
(2) 4.9-percent Shareholder a Person who owns 4.9% or more of the Corporations
then-outstanding Common Shares, whether directly or indirectly, and including shares such Person
would be deemed to constructively own or which otherwise would be aggregated with shares owned by
such Person pursuant to Section 382 of the Code, or any successor provision or replacement
provision and the Treasury Regulations thereunder.
(3) Agent has the meaning set forth in Section 8.5.
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(4) Common Shares means any interest in Common Shares, par value $0.01 per share, of the
Corporation that would be treated as stock of the Corporation pursuant to Treasury Regulation §
1.382-2T(f)(18).
(5) Code means the United States Internal Revenue Code of 1986, as amended from time to
time, and the rulings issued thereunder.
(6) Corporation Security or Corporation Securities means (i) Common Shares, (ii) shares of
preferred stock issued by the Corporation (other than preferred stock described in Section
1504(a)(4) of the Code), (iii) warrants, rights, or options (including options within the meaning
of Treasury Regulation §§ 1.382-2T(h)(4)(v)) and 1.382-4 to purchase Securities of the Corporation,
and (iv) any Shares.
(7) Effective Date means the date of the adoption of this amendment by the Board of
Directors.
(8) Excess Securities has the meaning given such term in Section 8.4.
(9) Expiration Date means the earlier of (i) the repeal of Section 382 of the Code or any
successor statute if the Board of Directors determines that this Article 8 is no longer necessary
for the preservation of Tax Benefits, (ii) the beginning of a taxable year of the Corporation to
which the Board of Directors determines that no Tax Benefits may be carried forward or (iii) such
date as the Board of Directors shall fix in accordance with Section 8.12.
(10) Percentage Share Ownership means the percentage Share Ownership interest of any Person
or group (as the context may require) for purposes of Section 382 of the Code as determined in
accordance with the Treasury Regulation §§ 1.382-2T(g), (h), (j) and (k) and 1.382-4 or any
successor provision.
(11) Person means any individual, firm, corporation or other legal entity, including a group
of persons treated as an entity pursuant to Treasury Regulation § 1.382-3(a)(1)(i); and includes
any successor (by merger or otherwise) of such entity.
(12) Prohibited Distributions means any and all dividends or other distributions paid by the
Corporation with respect to any Excess Securities received by a Purported Transferee.
(13) Prohibited Transfer means any Transfer or purported Transfer of Corporation Securities
to the extent that such Transfer is prohibited and/or void under this Article 8.
(14) Public Group has the meaning set forth in Treasury Regulation § 1.382-2T(f)(13).
(15) Purported Transferee has the meaning set forth in Section 8.4.
(16) Shares means any interest that would be treated as stock of the Corporation pursuant
to Treasury Regulation § 1.382-2T(f)(18).
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(17) Share Ownership means any direct or indirect ownership of Shares, including any
ownership by virtue of application of constructive ownership rules, with such direct, indirect, and
constructive ownership determined under the provisions of Section 382 of the Code and the
regulations thereunder.
(18) Tax Benefits means the net operating loss carryforwards, capital loss carryforwards,
general business credit carryforwards, alternative minimum tax credit carryforwards and foreign tax
credit carryforwards, as well as any loss or deduction attributable to a net unrealized built-in
loss of the Corporation or any direct or indirect subsidiary thereof, within the meaning of
Section 382 of the Code.
(19) Transfer means, any direct or indirect sale, transfer, assignment, conveyance, pledge
or other disposition or other action taken by a person, other than the Corporation, that alters the
Percentage Share Ownership of any Person. A Transfer also shall include the creation or grant of an
option (including an option within the meaning of Treasury Regulation §§ 1.382-2T(h)(4)(v) and
1.382-4). For the avoidance of doubt, a Transfer shall not include the creation or grant of an
option by the Corporation, nor shall a Transfer include the issuance of Shares by the Corporation.
(20) Transferee means any Person to whom Corporation Securities are Transferred.
(21) Treasury Regulations means the regulations, including temporary regulations or any
successor regulations promulgated under the Code, as amended from time to time.
Section 8.2 Transfer And Ownership Restrictions
In order to preserve the Tax Benefits, from and after the Effective Date of this Article 8 any
attempted Transfer of Corporation Securities prior to the Expiration Date and any attempted
Transfer of Corporation Securities pursuant to an agreement entered into prior to the Expiration
Date, shall be prohibited and void ab initio to the extent that, as a result of such Transfer (or
any series of Transfers of which such Transfer is a part), either (a) any Person or Persons would
become a 4.9-percent Shareholder, (b) the Percentage Share Ownership in the Corporation of any
4.9-percent Shareholder would be increased, of (c) any Shareholder holding 5% or more of the total
market value of the Corporate Securities Transfers, or agrees to Transfer, Corporate Securities;
provided, however, that nothing herein contained shall preclude the settlement of any transaction
in the Corporation Securities entered into through the facilities of the New York Stock Exchange,
Inc.
Section 8.3 Exceptions
Notwithstanding anything to the contrary herein:
(1) Transfers to a Public Group (including a new Public Group created under Treasury
Regulation § 1.382-2T(j)(3)(i)) shall be permitted.
(2) The restrictions set forth in Section 8.2 shall not apply to an attempted Transfer that is
a 4.9-percent Transaction if the transferor or the Transferee obtains the written approval of the
Board of Directors or a duly authorized committee thereof. As a condition to granting its
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approval pursuant to this Section 8.3 of Article 8, the Board of Directors, may, in its
discretion, require (at the expense of the transferor and/or Transferee) an opinion of counsel
selected by the Board of Directors that the Transfer shall not result in the application of any
Section 382 of the Code limitation on the use of the Tax Benefits; provided that the Board of
Directors may grant such approval notwithstanding the effect of such approval on the Tax Benefits
if it determines that the approval is in the best interests of the Corporation. The Board of
Directors may impose any conditions that it deems reasonable and appropriate in connection with
such approval, including, without limitation, restrictions on the ability of any Transferee to
Transfer Shares acquired through a Transfer. Approvals of the Board of Directors hereunder may be
given prospectively or retroactively. The Board of Directors, to the fullest extent permitted by
law, may exercise the authority granted by this Article 8 through duly authorized officers or
agents of the Corporation. Nothing in this Section 8.3 shall be construed to limit or restrict the
Board of Directors in the exercise of its fiduciary duties under applicable law.
Section 8.4 Excess Securities
(1) No employee or agent of the Corporation shall record any Prohibited Transfer, and the
purported transferee of such a Prohibited Transfer (the Purported Transferee) shall not be
recognized as a shareholder of the Corporation for any purpose whatsoever in respect of the
Corporation Securities which are the subject of the Prohibited Transfer (the Excess Securities).
Until the Excess Securities are acquired by another person in a Transfer that is not a Prohibited
Transfer, the Purported Transferee shall not be entitled with respect to such Excess Securities to
any rights of shareholders of the Corporation, including, without limitation, the right to vote
such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise,
in respect thereof, if any, and the Excess Securities shall be deemed to remain with the transferor
unless and until the Excess Securities are transferred to the Agent pursuant to Section 8.5 or
until an approval is obtained under Section 8.3. After the Excess Securities have been acquired in
a Transfer that is not a Prohibited Transfer, the Corporation Securities shall cease to be Excess
Securities. For this purpose, any Transfer of Excess Securities not in accordance with the
provisions of Sections 8.4 or 8.5 shall also be a Prohibited Transfer.
(2) The Corporation may require as a condition to the registration of the Transfer of any
Corporation Securities or the payment of any distribution on any Corporation Securities that the
proposed Transferee or payee furnish to the Corporation all information reasonably requested by the
Corporation with respect to its direct or indirect ownership interests in such Corporation
Securities. The Corporation may make such arrangements or issue such instructions to its share
transfer agent as may be determined by the Board of Directors to be necessary or advisable to
implement this Article 8, including, without limitation, authorizing such transfer agent to require
an affidavit from a Purported Transferee regarding such Persons actual and constructive ownership
of shares and other evidence that a Transfer will not be prohibited by this Article 8 as a
condition to registering any transfer.
Section 8.5 Transfer To Agent
If the Board of Directors determines that a Transfer of Corporation Securities constitutes a
Prohibited Transfer then, upon written demand by the Corporation sent within thirty days of the
date on which the Board of Directors determines that the attempted Transfer would result in
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Excess Securities, the Purported Transferee shall transfer or cause to be transferred any
certificate or other evidence of ownership of the Excess Securities within the Purported
Transferees possession or control, together with any Prohibited Distributions, to an agent
designated by the Board of Directors (the Agent). The Agent shall thereupon sell to a buyer or
buyers, which may include the Corporation, the Excess Securities transferred to it in one or more
arms-length transactions (on the public securities market on which such Excess Securities are
traded, if possible, or otherwise privately); provided, however, that any such sale must not
constitute a Prohibited Transfer and provided, further, that the Agent shall effect such sale or
sales in an orderly fashion and shall not be required to effect any such sale within any specific
time frame if, in the Agents discretion, such sale or sales would disrupt the market for the
Corporation Securities or otherwise would adversely affect the value of the Corporation Securities.
If the Purported Transferee has resold the Excess Securities before receiving the Corporations
demand to surrender Excess Securities to the Agent, the Purported Transferee shall be deemed to
have sold the Excess Securities for the Agent, and shall be required to transfer to the Agent any
Prohibited Distributions and proceeds of such sale, except to the extent that the Corporation
grants written permission to the Purported Transferee to retain a portion of such sales proceeds
not exceeding the amount that the Purported Transferee would have received from the Agent pursuant
to Section 8.6 if the Agent rather than the Purported Transferee had resold the Excess Securities.
Section 8.6 Application Of Proceeds And Prohibited Distributions
The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the Purported
Transferee has previously resold the Excess Securities, any amounts received by it from a Purported
Transferee, together, in either case, with any Prohibited Distributions, as follows: (a) first,
such amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses
incurred in connection with its duties hereunder; (b) second, any remaining amounts shall be paid
to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess
Securities (or the fair market value at the time of the Transfer, in the event the purported
Transfer of the Excess Securities was, in whole or in part, a gift, inheritance or similar
Transfer) which amount shall be determined at the discretion of the Board of Directors; and (c)
third, any remaining amounts shall be paid to one or more organizations qualifying under Section
501(c)(3) of the Code (or any comparable successor provision) selected by the Board of Directors.
The Purported Transferee of Excess Securities shall have no claim, cause of action or any other
recourse whatsoever against any transferor of Excess Securities. The Purported Transferees sole
right with respect to such shares shall be limited to the amount payable to the Purported
Transferee pursuant to this Section 8.6. In no event shall the proceeds of any sale of Excess
Securities pursuant to this Section 8.6 of Article 8 inure to the benefit of the Corporation or the
Agent, except to the extent used to cover costs and expenses incurred by the Agent in performing
its duties hereunder.
Section 8.7 Modification Of Remedies For Certain Indirect Transfers
In the event of any Transfer which does not involve a transfer of securities of the
Corporation within the meaning of Michigan law (Securities, and individually, a Security) but
which would cause a 4.9-percent Shareholder to violate a restriction on Transfers provided for in
this Article 8, the application of Sections 8.5 and 8.6 shall be modified as described in this
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Section 8.7. In such case, no such 4.9-percent Shareholder shall be required to dispose of any
interest that is not a Security, but such 4.9-percent Shareholder and/or any Person whose ownership
of Securities is attributed to such 4.9-percent Shareholder shall be deemed to have disposed of and
shall be required to dispose of sufficient Securities (which Securities shall be disposed of in the
inverse order in which they were acquired) to cause such 4.9-percent Shareholder, following such
disposition, not to be in violation of this Article 8. Such disposition shall be deemed to occur
simultaneously with the Transfer giving rise to the application of this provision, and such number
of Securities that are deemed to be disposed of shall be considered Excess Securities and shall be
disposed of through the Agent as provided in Sections 8.5 and 8.6, except that the maximum
aggregate amount payable either to such 4.9-percent Shareholder, or to such other Person that was
the direct holder of such Excess Securities, in connection with such sale shall be the fair market
value of such Excess Securities at the time of the purported Transfer. All expenses incurred by the
Agent in disposing of such Excess Securities shall be paid out of any amounts due such 4.9-percent
Shareholder or such other Person. The purpose of this Section 8.7 is to extend the restrictions in
Sections 8.2 and 8.5 to situations in which there is a 4.9-percent Transaction without a direct
Transfer of Securities, and this Section 8.7, along with the other provisions of this Article 8,
shall be interpreted to produce the same results, with differences as the context requires, as a
direct Transfer of Corporation Securities.
Section 8.8 Legal Proceedings; Prompt Enforcement
If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a sale
thereof to the Agent within thirty days from the date on which the Corporation makes a written
demand pursuant to Section 8.5 (whether or not made within the time specified in Section 8.5), then
the Corporation shall promptly take all cost effective actions which it believes are appropriate to
enforce the provisions hereof, including the institution of legal proceedings to compel the
surrender. Nothing in this Section 8.8 shall (i) be deemed inconsistent with any Transfer of the
Excess Securities provided in this Article 8 being void ab initio, (ii) preclude the Corporation in
its discretion from immediately bringing legal proceedings without a prior demand or (iii) cause
any failure of the Corporation to act within the time periods set forth in Section 8.5 to
constitute a waiver or loss of any right of the Corporation under this Article 8. The Board of
Directors may authorize such additional actions as it deems advisable to give effect to the
provisions of this Article 8.
Section 8.9 Liability
To the fullest extent permitted by law, any shareholder subject to the provisions of this
Article 8 who knowingly violates the provisions of this Article 8 and any Persons controlling,
controlled by or under common control with such shareholder shall be jointly and severally liable
to the Corporation for, and shall indemnify and hold the Corporation harmless against, any and all
damages suffered as a result of such violation, including but not limited to damages resulting from
a reduction in, or elimination of, the Corporations ability to utilize its Tax Benefits, and
attorneys and auditors fees incurred in connection with such violation.
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Section 8.10 Obligation To Provide Information
As a condition to the registration of the Transfer of any Shares, any Person who is a
beneficial, legal or record holder of Shares, and any proposed Transferee and any Person
controlling, controlled by or under common control with the proposed Transferee, shall provide such
information as the Corporation may request from time to time in order to determine compliance with
this Article 8 or the status of the Tax Benefits of the Corporation.
Section 8.11 Legends
The Board of Directors may require that any certificates issued by the Corporation evidencing
ownership of Shares that are subject to the restrictions on transfer and ownership contained in
this Article 8 bear the following legend:
THE BY-LAWS, AS AMENDED FROM TIME TO TIME (THE BY-LAWS), OF THE CORPORATION CONTAIN
RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE BY-LAWS) OF COMMON SHARES OF THE
CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS, RIGHTS AND WARRANTS) WITHOUT THE
PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION (THE BOARD OF DIRECTORS) IF SUCH
TRANSFER AFFECTS THE PERCENTAGE OF STOCK OF THE CORPORATION (WITHIN THE MEANING OF SECTION 382 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) AND THE TREASURY REGULATIONS PROMULGATED
THEREUNDER), THAT IS TREATED AS OWNED BY A 4.9 PERCENT SHAREHOLDER UNDER THE CODE AND SUCH
REGULATIONS. IF THE TRANSFER RESTRICTIONS ARE VIOLATED, THEN THE TRANSFER WILL BE VOID AB INITIO
AND THE PURPORTED TRANSFEREE OF THE SHARES WILL BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS
DEFINED IN THE BY-LAWS) TO THE CORPORATIONS AGENT. IN THE EVENT OF A TRANSFER WHICH DOES NOT
INVOLVE SECURITIES OF THE CORPORATION WITHIN THE MEANING OF THE BUSINESS CORPORATION ACT OF THE
STATE OF MICHIGAN (SECURITIES) BUT WHICH WOULD VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED
TRANSFEREE (OR THE RECORD OWNER) OF THE SECURITIES WILL BE REQUIRED TO TRANSFER SUFFICIENT
SECURITIES PURSUANT TO THE TERMS PROVIDED FOR IN THE CORPORATIONS BY-LAWS TO CAUSE THE 4.9 PERCENT
SHAREHOLDER TO NO LONGER BE IN VIOLATION OF THE TRANSFER RESTRICTIONS. THE CORPORATION WILL FURNISH
WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY OF THE BY-LAWS, CONTAINING THE
ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL
PLACE OF BUSINESS.
The Board of Directors may also require that any certificates issued by the Corporation
evidencing ownership of Shares that are subject to conditions imposed by the Board of Directors
under Section 8.3 also bear a conspicuous legend referencing the applicable restrictions.
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Section 8.12 Authority Of Board Of Directors
(1) The Board of Directors shall have the power to determine all matters necessary for
assessing compliance with this Article 8, including, without limitation, (i) the identification of
4.9-percent Shareholders, (ii) whether a Transfer is a 4.9-percent Transaction or a Prohibited
Transfer, (iii) the Percentage Share Ownership in the Corporation of any 4.9-percent Shareholder,
(iv) whether an instrument constitutes a Corporation Security, (v) the amount (or fair market
value) due to a Purported Transferee pursuant to Section 8.6, and (vi) any other matters which the
Board of Directors determines to be relevant; and the good faith determination of the Board of
Directors on such matters shall be conclusive and binding for all the purposes of this Article 8.
In addition, the Board of Directors may, to the extent permitted by law, from time to time
establish, modify, amend or rescind by-laws, regulations and procedures of the Corporation not
inconsistent with the provisions of this Article 9 for purposes of determining whether any Transfer
of Corporation Securities would jeopardize the Corporations ability to preserve and use the Tax
Benefits and for the orderly application, administration and implementation of this Article 8.
(2) Nothing contained in this Article 8 shall limit the authority of the Board of Directors to
take such other action to the extent permitted by law as it deems necessary or advisable to protect
the Corporation and its shareholders in preserving the Tax Benefits. Without limiting the
generality of the foregoing, in the event of a change in law making one or more of the following
actions necessary or desirable, the Board of Directors may, by adopting a written resolution, (i)
accelerate or extend the Expiration Date, (ii) modify the ownership interest percentage in the
Corporation or the Persons or groups covered by this Article 8, (iii) modify the definitions of any
terms set forth in this Article 8 or (iv) modify the terms of this Article 8 as appropriate, in
each case, in order to prevent an ownership change for purposes of Section 382 of the Code as a
result of any changes in applicable Treasury Regulations or otherwise; provided, however, that the
Board of Directors shall not cause there to be such acceleration, extension or modification unless
it determines, by adopting a written resolution, that such action is reasonably necessary or
advisable to preserve the Tax Benefits or that the continuation of these restrictions is no longer
reasonably necessary for the preservation of the Tax Benefits. Shareholders of the Corporation
shall be notified of such determination through a filing with the Securities and Exchange
Commission or such other method of notice as the Secretary of the Corporation shall deem
appropriate.
(3) In the case of an ambiguity in the application of any of the provisions of this Article 8,
including any definition used herein, the Board of Directors shall have the power to determine the
application of such provisions with respect to any situation based on its reasonable belief,
understanding or knowledge of the circumstances. In the event this Article 8 requires an action by
the Board of Directors but fails to provide specific guidance with respect to such action, the
Board of Directors shall have the power to determine the action to be taken so long as such action
is not contrary to the provisions of this Article 8. All such actions, calculations,
interpretations and determinations which are done or made by the Board of Directors in good faith
shall be conclusive and binding on the Corporation, the Agent, and all other parties for all other
purposes of this Article 8. The Board of Directors may delegate all or any portion of its duties
and powers under this Article 8 to a committee of the Board of Directors as it deems necessary or
advisable and, to the fullest extent permitted by law, may exercise the authority
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granted by this Article 8 through duly authorized officers or agents of the Corporation.
Nothing in this Article 8 shall be construed to limit or restrict the Board of Directors in the
exercise of its fiduciary duties under applicable law.
Section 8.13 Reliance
To the fullest extent permitted by law, the Corporation and the members of the Board of
Directors shall be fully protected in relying in good faith upon the information, opinions, reports
or statements of the chief executive officer, the chief financial officer, the chief accounting
officer or the corporate controller of the Corporation and the Corporations legal counsel,
independent auditors, transfer agent, investment bankers or other employees and agents in making
the determinations and findings contemplated by this Article 8. The members of the Board of
Directors shall not be responsible for any good faith errors made in connection therewith. For
purposes of determining the existence and identity of, and the amount of any Corporation Securities
owned by any shareholder, the Corporation is entitled to rely on the existence and absence of
filings of Schedule 13D or 13G under the 1934 Act (or similar filings), as of any date, subject to
its actual knowledge of the ownership of Corporation Securities.
Section 8.14 Benefits Of This Article 8
Nothing in this Article 8 shall be construed to give to any Person other than the Corporation
or the Agent any legal or equitable right, remedy or claim under this Article 8. This Article 8
shall be for the sole and exclusive benefit of the Corporation and the Agent.
Section 8.15 Severability
The purpose of this Article 8 is to facilitate the Corporations ability to maintain or
preserve its Tax Benefits. If any provision of this Article 8 or the application of any such
provision to any Person or under any circumstance shall be held invalid, illegal or unenforceable
in any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision of this Article 8.
Section 8.16 Waiver
With regard to any power, remedy or right provided herein or otherwise available to the
Corporation or the Agent under this Article 9, (a) no waiver will be effective unless expressly
contained in a writing signed by the waiving party; and (b) no alteration, modification or
impairment will be implied by reason of any previous waiver, extension of time, delay or omission
in exercise, or other indulgence.
ARTICLE 9
FISCAL YEAR
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board of Directors from time to time,
subject to applicable law.
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ARTICLE 10
CORPORATE SEAL
CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be approved from time to time by
the Board of Directors.
ARTICLE 11
RELIANCE UPON BOOKS, REPORTS AND RECORDS
RELIANCE UPON BOOKS, REPORTS AND RECORDS
Each director, each member of any committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his or her duties, be fully protected in
relying in good faith upon the books of account or other records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any other person as to
matters which such director or committee member reasonably believes are within such other persons
professional or expert competence and who has been selected with reasonable care by or on behalf of
the Corporation.
ARTICLE 12
AMENDMENTS
AMENDMENTS
These Bylaws, except as provided by applicable law or the Articles of Incorporation, or as
otherwise set forth in these Bylaws, may be amended or repealed at any regular or special meeting
of the entire Board; provided, however, that (a) a notice specifying the change or amendment shall
have been given at a previous regular meeting and entered in the minutes of the Board; (b) a
written statement describing the change or amendment shall be made in the notice delivered to the
directors of the meeting at which the change or amendment shall be acted upon; and (c) any Bylaw
made by the Board may be altered, amended, rescinded or repealed by the holders of shares of
capital stock presenting a majority of the securities entitled to vote thereon at any annual
meeting or at any special meeting called for that purpose in accordance with the percentage
requirements set forth in the Articles of Incorporation and/or these Bylaws. Notwithstanding the
foregoing, any provision of these Bylaws that contains a supermajority voting requirement shall
only be altered, amended, rescinded or repealed by a vote of the Board or holders of capital stock
entitled to vote thereon that is not less than the supermajority specified in such provision.
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