Current report, items 5.02, 5.03 and 9.01
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT PURSUANT
TO
SECTION 13 OR 15(D) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of report (Date
of earliest event reported) September 27, 2006
Hurco
Companies, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Indiana
(State
or
Other Jurisdiction of
Incorporation)
0-9143 35-1150732
(Commission
File Number) (IRS
Employer Identification No.)
One
Technology Way
Indianapolis,
Indiana 46268
(Address
of Principal Executive Offices) (Zip
Code)
(317)
293-5309
(Registrant’s
Telephone Number, Including Area Code)
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see
General
Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.02 Departure
of Directors and Principal Officers; Election of Directors; Appointment of
Principal Officers.
Effective
September 27, 2006, the Board of Directors of Hurco Companies, Inc. (the
“Registrant”) elected Michael P. Mazza to serve as a director. Mr. Mazza holds a
Master's degree in Intellectual Property Law, and was with the nationally
recognized intellectual property law firm of Niro, Scavone, Haller & Niro of
Chicago for nearly 14 years before opening his own law firm. Mr. Mazza has
not
yet been named to a committee of the board of directors.
A
press
release regarding Mr. Mazza's appointment is attached as Exhibit 99.1 to this
Current Report on Form 8-K and the information set forth therein is incorporated
herein by reference and constitutes a part of this report.
Item
5.03 Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Effective
September 27, 2006, the Registrant amended its Amended and Restated By-Laws
to
increase the size of the Board of Directors from seven (7) to eight (8)
directors. The amended By-Laws are filed as Exhibit 3.1 to this report and
incorporated by reference herein.
Item
9.01 Financial
Statements and Exhibits.
(d) Exhibits
99.1 |
Press
Release dated September 27, 2006.
|
3.1 Amended
and Restated By-Laws of the Registrant.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated:
September 28, 2006
HURCO
COMPANIES, INC.
By:
___/s/ Michael Doar
Michael
Doar, Chairman and
Chief
Executive Officer
INDEX
TO EXHIBITS
Exhibit
No. Description
(d) Exhibits
99.1 |
Press Release dated September 27, 2006.
|
3.1 Amended
and Restated By-Laws of the Registrant.
Hurco Names Michael P Mazza as a New Director
FOR
IMMEDIATE RELEASE
WEDNESDAY,
SEPTEMBER 27, 2006
HURCO
NAMES MICHAEL P. MAZZA AS A NEW DIRECTOR
INDIANAPOLIS,
INDIANA - September 27, 2006 - Hurco Companies, Inc. (NASDAQ Global Market:
HURC)
Hurco
Companies, Inc. (the “Company”) announces today that Michael P. Mazza has been
appointed as a new Director of the Board for the Company effective September
27,
2006. Mr. Mazza has significant experience in the trial of intellectual property
cases. Mr. Mazza is also experienced in the procurement, maintenance,
enforcement, counseling and licensing of domestic and foreign intellectual
property, including patents, trademarks, copyrights, trade secrets, unfair
competition and related business torts. Mr. Mazza holds a Master's degree in
Intellectual Property Law, and was with the nationally recognized intellectual
property law firm of Niro, Scavone, Haller & Niro of Chicago for nearly 14
years before opening his own law firm. Mr. Mazza has not yet been named to
a
committee of the board of directors.
Hurco
Companies, Inc. is an industrial technology company that designs and produces
interactive computer controls, software and computerized machine tools for
the
worldwide metal cutting industry. The end market for the company’s products
consists primarily of independent job shops and short-run manufacturing
operations within large corporations in industries such as aerospace, defense,
medical equipment, energy, transportation and computer equipment. The Company
is
based in Indianapolis, Indiana, and has sales, application engineering and
service subsidiaries in High Wycombe, England; Munich, Germany; Paris, France;
Milan, Italy; Shanghai, China and Singapore, along with manufacturing operations
in Taiwan. Products are sold through independent agents and distributors in
the
United States, Europe and Asia. The Company also has direct sales forces in
the
United Kingdom, Germany, France, Italy and Asia.
Web
Site:
www.hurco.com
Contact: Hurco
Companies, Inc.
Michael
Doar
317-293-5309
Amended and Restate By-Laws
BY-LAWS
OF
HURCO
COMPANIES, INC.
AS
AMENDED THROUGH SEPTEMBER 27, 2006
TABLE
OF CONTENTS
ARTICLE
I Identification
Section 1.
Name
Section
2.
Registered
Office and Registered Agent
Section
3.
Principal
Office
Section
4.
Other
Offices
Section
5.
Seal
Section
6.
Fiscal
Year
ARTICLE
II Shareholders
Section
1.
Place
of Meeting
Section
2.
Annual
Meetings
Section
3.
Special
Meetings
Section
4.
Notice
of Meeting
Section
5.
Waiver
of Notice
Section
6.
Voting
at Meetings
(a) Voting
Rights
(b) Record
Date
(c) Proxies
(d) Quorum
(e) Adjournments
Section
7.
List
of Shareholders
Section
8.
Notice
of Shareholder Business
Section
9.
Notice
of Shareholder Nominees
ARTICLE
III Directors
Section
1.
Duties
Section
2.
Number
of Directors
Section
3.
Election
and Term
Section
4.
Resignation
Section
5.
Vacancies
Section
6.
Annual
Meetings
Section
7.
Regular
Meetings
Section
8.
Special
Meetings
Section
9.
Notice
Section
10.
Waiver
of Notice
Section
11.
Business
to be Transacted
Section
12.
Quorum
— Adjournment if Quorum is Not Present
Section
13.
Presumption
of Assent
Section
14.
Action
by Written Consent
Section
15.
Committees
Section
16.
Meeting
by Telephone or Similar Communication Equipment
ARTICLE
IV Officers
Section
1.
Principal
Officers
Section
2.
Election
and Terms
Section
3.
Resignation
and Removal
Section
4.
Vacancies
Section
5.
Powers
and Duties of Officers
Section
6.
Chairman
of the Board
Section
7.
The
President
Section
8.
Vice
Presidents
Section
9.
Secretary
Section
10.
Treasurer
Section
11.
The
Controller
Section
12.
Assistant
Secretaries
Section
13.
Assistant
Treasurers
Section
14.
Delegation
of Authority
Section
15.
Securities
of Other Corporations
ARTICLE
V Directors' Services, Limitation of Liability and Reliance on Corporate
Records, and Interest of Directors in Contracts
Section
1.
Services
Section
2.
General
Limitation of Liability
Section
3.
Reliance
on Corporate Records and Other Information
Section
4.
Interest
of Directors in Contracts
ARTICLE
VI Indemnification
Section
1.
Indemnification
Against Underlying Liability
Section
2.
Successful
Defense
Section
3.
Determination
of Conduct
Section
4.
Definition
of Good Faith
Section
5.
Payment
of Expenses in Advance
Section
6.
Indemnity
Not Exclusive
Section
7.
Vested
Right to Indemnification
Section
8.
Insurance
Section
9.
Additional
Definitions
Section
10.
Payments
a Business Expense
ARTICLE
VII Shares
Section
1.
Share
Certificates
Section
2.
Transfer
of Shares
Section
3.
Transfer
Agent
Section
4.
Registered
Holders
Section
5.
Lost,
Destroyed and Mutilated Certificates
Section
6.
Consideration
for Shares
Section
7.
Payment
for Shares
Section
8.
Distributions
to Shareholders
Section
9.
Regulations
ARTICLE
VIII Corporate Books and Reports
Section
1.
Place
of Keeping Corporate Books and Records
Section
2.
Place
of Keeping Certain Corporate Books and Records
Section
3.
Permanent
Records
Section
4.
Shareholder
Records
Section
5.
Shareholder
Rights of Inspection
Section
6.
Additional
Rights of Inspection
ARTICLE
IX Miscellaneous
Section
1.
Notice
and Waiver of Notice
Section
2.
Depositories
Section
3.
Signing
of Checks, Notes, etc.
Section
4.
Gender
and Number
Section
5.
Laws
Section
6.
Headings
ARTICLE
X Amendments
ARTICLE
XI The Indiana Business Corporation Law
BY-LAWS
OF
HURCO
COMPANIES, INC.
ARTICLE
IIdentification
Section 1.
Name
.
The
name of the Corporation is HURCO COMPANIES, INC. (hereinafter referred to as
the
"Corporation").
Section
2.
Registered
Office and Registered Agent .
The
street address of the Registered Office of the Corporation is One Technology
Way, Indianapolis, Indiana 46268; and the name of its Registered Agent
located at such office is James D. Fabris
Section
3.
Principal
Office.
The
address of the Principal Office of the Corporation is One Technology Way,
Indianapolis, Indiana 46268. The Principal Office of the Corporation shall
be the principal executive offices of the Corporation, and such Principal Office
may be changed from time to time by the Board of Directors in the manner
provided by law and need not be the same as the Registered Office of the
Corporation.
Section
4.
Other
Offices.
The
Corporation may also have offices at such other places or locations, within
or
without the State of Indiana, as the Board of Directors may determine or the
business of the Corporation may require.
Section
5.
Seal
.
The
Corporation need not use a seal. If one is used, it shall be circular in form
and mounted upon a metal die suitable for impressing the same upon paper. About
the upper periphery of the seal shall appear the words "HURCO COMPANIES, INC."
and about the lower periphery thereof the word "Indiana". In the center of
the
seal shall appear the word "Seal". The seal may be altered by the Board of
Directors at its pleasure and may be used by causing it or a facsimile thereof
to be impressed, affixed, printed or otherwise reproduced.
Section
6.
Fiscal
Year .
The
fiscal year of the Corporation shall begin at the beginning of the first day
of
November in each year and end at the close of the last day of October next
succeeding.
ARTICLE
IIShareholders
Section
1.
Place
of Meeting .
All
meetings of shareholders of the Corporation shall be held at such place, within
or without the State of Indiana, as may be determined by the President or Board
of Directors and specified in the notices or waivers of notice thereof or
proxies to represent shareholders at such meetings.
Section
2.
Annual
Meetings .
An
annual meeting of shareholders shall be held each year on such date and at
such
time as may be determined by the President or Board of Directors. The failure
to
hold an annual meeting at the designated time shall not affect the validity
of
any corporate action. Any and all business of any nature or character may be
transacted, and action may be taken thereon, at any annual meeting, except
as
otherwise provided by law or by these By-laws.
Section
3.
Special
Meetings .
A
special meeting of shareholders shall be held: (a) on call of the Board of
Directors or the President; or (b) if the holders of a majority of all the
votes entitled to be cast on any issue proposed to be considered at the proposed
special meeting sign, date and deliver to the Secretary one (1) or more written
demands for the meeting describing the purpose or purposes for which it is
to be
held. At any special meeting of the shareholders, only business within the
purpose or purposes described in the notice of the meeting may be
conducted.
Section
4.
Notice
of Meeting .
Written
or printed notice stating the date, time and place of a meeting and, in case
of
a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered or mailed by the Secretary, or by the officers or persons
calling the meeting, to each shareholder of record of the Corporation entitled
to vote at the meeting, at such address as appears upon the records of the
Corporation, no fewer than ten (10) days nor more than sixty (60) days, before
the meeting date. If mailed, such notice shall be effective when mailed if
correctly addressed to the shareholder's address shown in the Corporation's
current record of shareholders.
Section
5.
Waiver
of Notice .
A
shareholder may waive any notice required by law, the Articles of Incorporation
or these By-laws before or after the date and time stated in the notice. The
waiver by the shareholder entitled to the notice must be in writing and be
delivered to the Corporation for inclusion in the minutes or filing with the
corporate records. A shareholder's attendance at a meeting, in person or by
proxy: (a) waives objection to lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting; and (b) waives
objection to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
Section
6.
Voting
at Meetings .
(a) Voting
Rights
. At
each meeting of the shareholders, each outstanding share, regardless of class,
is entitled to one (1) vote on each matter voted on at such meeting, except
to
the extent cumulative voting is allowed by the Articles of Incorporation. Only
shares are entitled to vote.
(b) Record
Date
. The
record date for purposes of determining shareholders entitled to vote at any
meeting shall be ten (10) days prior to the date of such meeting or such
different date not more than seventy (70) days prior to such meeting as may
be
fixed by the Board of Directors.
(c) Proxies
.
(1) A
shareholder may vote the shareholder's shares in person or by
proxy.
(2) A
shareholder may appoint a proxy to vote or otherwise act for the shareholder
by
executing in writing an appointment form, either personally or by the
shareholder's attorney-in-fact. For purposes of this Section, a proxy appointed
by telegram, telex, telecopy or other document transmitted electronically for
or
by a shareholder shall be deemed "executed in writing" by the
shareholder.
(3) An
appointment of a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes. An appointment is valid for
eleven (11) months, unless a longer period is expressly provided in the
appointment form.
(4) An
appointment of a proxy is revocable by the shareholder, unless the appointment
form conspicuously states that is irrevocable and the appointment is coupled
with an interest.
(d) Quorum
. At all
meetings of shareholders, a majority of the votes entitled to be cast on a
particular matter constitutes a quorum on that matter. If a quorum exists,
action on a matter (other than the election of directors) is approved if the
votes cast favoring the action exceed the votes cast opposing the action, unless
the Articles of Incorporation or law require a greater number of affirmative
votes.
(e) Adjournments
. Any
meeting of shareholders, including both annual and special meetings and any
adjournments thereof, may be adjourned to a different date, time or place.
Notice need not be given of the new date, time or place if the new date, time
or
place is announced at the meeting before adjournment, even though less than
a
quorum is present. At any such adjourned meeting at which a quorum is present,
in person or by proxy, any business may be transacted which might have been
transacted at the meeting as originally notified or called.
Section
7.
List
of Shareholders .
(a) After
a
record date has been fixed for a meeting of shareholders, the Secretary shall
prepare or cause to be prepared an alphabetical list of the names of the
shareholders of the Corporation who are entitled to vote at such meeting. The
list shall show the address of and number of shares held by each
shareholder.
(b) The
shareholders' list must be available for inspection by any shareholder entitled
to vote at the meeting, beginning five (5) business days before the date of
the
meeting for which the list was prepared and continuing through the meeting,
at
the Corporation's principal office or at a place identified in the meeting
notice in the city where the meeting will be held. Subject to the restrictions
of applicable law, a shareholder, or the shareholder's agent or attorney
authorized in writing, is entitled on written demand to inspect and to copy
the
list during regular business hours and at the shareholder's expense, during
the
period it is available for inspection.
(c) The
Corporation shall make the shareholders' list available at the meeting, and
any
shareholder, or the shareholder's agent or attorney authorized in writing,
is
entitled to inspect the list at any time during the meeting or any
adjournment.
Section
8.
Notice
of Shareholder Business .
At an
annual meeting of the shareholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a shareholder. For business to be properly brought before
an annual meeting by a shareholder, the shareholder must have the legal right
and authority to make the proposal for consideration at the meeting and the
shareholder must have given timely notice thereof in writing to the Secretary
of
the Corporation. To be timely, a shareholder's notice must be delivered to
or
mailed and received at the principal executive offices of the Corporation,
not
less than 60 days prior to the meeting; provided, however, that in the event
that less than 70 days' notice or prior public disclosure of the date of
the meeting is given or made to shareholders, notice by the shareholder to
be
timely must be so received not later than the close of business on the 10th
day
following the day on which such notice of the date of the annual 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 meeting (a) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and record address of the
shareholder(s) proposing such business, (c) the class and shares of number
of the Corporation's capital stock which are beneficially owned by such
shareholder(s), and (d) any material interest of such shareholder(s) in
such business. Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with
the
procedures set forth in this Section 8. The Chairman of an annual meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting and in accordance with the
provisions of this Section 8, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted. At any special meeting of the shareholders,
only such business shall be conducted as shall have been brought before the
meeting by or at the direction of the Board of Directors.
Section
9.
Notice
of Shareholder Nominees .
Only
persons who are nominated in accordance with the procedures set forth in this
Section 9 shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors may be made at a meeting of
shareholders by or at the direction of the Board of Directors, by any nominating
committee or person appointed by the Board of Directors or by any shareholder
of
the Corporation entitled to vote for the election of Directors at the meeting
who complies with the notice procedures set forth in this Section 9. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a shareholder's notice shall be delivered
to
or mailed and received at the principal executive offices of the Corporation
not
less than 60 days prior to the meeting; provided, however, that in the
event that less than 70 days' notice or prior public disclosure of the date
of the meeting is given or made to shareholders, notice by the shareholders
to
be timely must be so received not later than the close of business on the 10th
day following the date on which such notice of the date of the meeting was
mailed or such public disclosure was made. Such shareholder's notice shall
set
forth (a) as to each person whom the shareholder proposes to nominate for
election or re-election as a Director, (i) the name, age, business address
and residence address of such person; (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of capital
stock of the Corporation which are beneficially owned by such person, and
(iv) any other information relating to such person that is required to be
disclosed in solicitations of proxies for election of Directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange act of 1934, as amended (including without limitation such person's
written consent to being named in the proxy statement as a nominee and to
serving as a Director if elected); and (b) as to the shareholder giving the
notice (i) the name and record address of such shareholder and
(ii) the class and number of shares of capital stock of the Corporation
which are beneficially owned by such shareholder. No person shall be eligible
for election as a Director of the Corporation unless nominated in accordance
with the procedures set forth in this Section 9. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
a
nomination was not so declared in accordance with the procedures prescribed
by
these By-Laws, and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
ARTICLE
IIIDirectors
Section
1.
Duties
.
The
business, property and affairs of the Corporation shall be managed and
controlled by the Board of Directors and, subject to such restrictions, if
any,
as may be imposed by law, the Articles of Incorporation or by these By-laws,
the
Board of Directors may, and are fully authorized to, do all such lawful acts
and
things as may be done by the Corporation which are not directed or required
to
be exercised or done by the shareholders. Directors need not be residents of
the
State of Indiana or shareholders of the Corporation.
Section
2.
Number
of Directors .
The
Board of Directors shall consist of eight (8) members, which number may be
increased or reduced from time to time by resolution adopted by not less than
a
majority of the Directors then in office; provided that no reduction in number
shall have the effect of shortening the term of any incumbent
Director.
Section
3.
Election
and Term .
Except
as otherwise provided in Section 5 of this Article, the directors shall be
elected each year at the annual meeting of the shareholders, or at any special
meeting of the shareholders. Each such director shall hold office, unless he
is
removed in accordance with the provisions of these By-laws or he resigns or
dies
or becomes so incapacitated he can no longer perform any of his duties as a
director, for the term for which he is elected and until his successor shall
have been elected and qualified. Each director shall qualify by accepting his
election to office either expressly or by acting as a director. The shareholders
or directors may remove any director, with or without cause, and elect a
successor at a meeting called expressly for such purpose.
Section
4.
Resignation
.
Any
director may resign at any time by delivering written notice to the Board of
Directors, the President, or the Secretary of the Corporation. A resignation
is
effective when the notice is delivered unless the notice specifies a later
effective date. The acceptance of a resignation shall not be necessary to make
it effective, unless expressly so provided in the resignation.
Section
5.
Vacancies
.
Vacancies occurring in the membership of the Board of Directors caused by
resignation, death or other incapacity, or increase in the number of directors
shall be filled by a majority vote of the remaining members of the Board, and
each director so elected shall serve until the next meeting of the shareholders,
or until a successor shall have been duly elected and qualified.
Section
6.
Annual
Meetings .
The
Board of Directors shall meet annually, without notice, immediately following,
and at the same place as, the annual meeting of the shareholders.
Section
7.
Regular
Meetings .
Regular
meetings shall be held at such times and places, either within or without the
State of Indiana, as may be determined by the Chairman of the Board, the
President or the Board of Directors.
Section
8.
Special
Meetings .
Special
meetings of the Board of Directors may be called by the President or by two
(2)
or more members of the Board of Directors, at any place within or without the
State of Indiana, upon twenty--four (24) hours' notice, specifying the time,
place and general purposes of the meeting, given to each director personally,
by
telephone, telegraph, teletype, or other form of wire or wireless communication;
or notice may be given by mail if mailed at least three (3) days before such
meeting.
Section
9.
Notice
.
The
Secretary or an Assistant Secretary shall give notice of each special meeting,
and of the date, time and place of the particular meeting, in person or by
mail,
or by telephone, telegraph, teletype, or other form of wire or wireless
communication, and in the event of the absence of the Secretary or an Assistant
Secretary or the failure, inability, refusal or omission on the part of the
Secretary or an Assistant Secretary so to do, any other officer of the
Corporation may give said notice.
Section
10.
Waiver
of Notice .
A
director may waive any notice required by law, the Articles of Incorporation,
or
these By-laws before or after the date and time stated in the notice. Except
as
otherwise provided in this Section, the waiver by the director must be in
writing, signed by the director entitled to the notice, and included in the
minutes or filed with the corporate records. A director's attendance at or
participation in a meeting waives any required notice to the director of the
meeting unless the director at the beginning of the meeting (or promptly upon
the director's arrival) objects to holding the meeting or transacting business
at the meeting and does not thereafter vote for or assent to action taken at
the
meeting.
Section
11.
Business
to be Transacted .
Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or any waiver
of notice of such meeting. Any and all business of any nature or character
whatsoever may be transacted and action may be taken thereon at any meeting,
regular or special, of the Board of Directors.
Section
12.
Quorum
— Adjournment if Quorum is Not Present .
A
majority of the number of directors fixed by, or in the manner provided in,
the
Articles of Incorporation or these By-laws shall constitute a quorum for the
transaction of any and all business, unless a greater number is required by
law
or Articles of Incorporation or these By--laws. At any meeting, regular or
special, of the Board of Directors, if there be less than a quorum present,
a
majority of those present, or if only one director be present, then such
director, may adjourn the meeting from time to time without notice until the
transaction of any and all business submitted or proposed to be submitted to
such meeting or any adjournment thereof shall have been completed. In the event
of such adjournment, written, telegraphic or telephonic announcement of the
time
and place at which the meeting will reconvene must be provided to all directors.
The act of the majority of the directors present at any meeting of the Board
of
Directors at which a quorum is present shall constitute the act of the Board
of
Directors, unless the act of a greater number is required by law or the Articles
of Incorporation or these By-laws.
Section
13.
Presumption
of Assent .
A
director of the Corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall be presumed
to
have assented to the action taken unless his dissent or abstention shall be
entered in the minutes of the meeting or unless he shall file his written
dissent or abstention to such action with the presiding officer of the meeting
before the adjournment thereof or to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent or
abstain shall not apply to a director who voted in favor of such
action.
Section
14.
Action
by Written Consent .
Any
action required or permitted to be taken at a meeting of the Board of Directors
or any committee thereof may be taken without a meeting if the action is taken
by all the members of the Board of Directors or committee, as the case may
be.
The action must be evidenced by one or more written consents describing the
action taken, signed by each director or committee member, and included in
the
minutes or filed with the corporate records reflecting the action taken. Such
action is effective when the last director or committee member signs the
consent, unless the consent specifies a different prior or subsequent effective
date. Such consent shall have the same force and effect as a unanimous vote
at a
meeting, and may be described as such in any document or
instrument.
Section
15.
Committees
.
The
Board of Directors, by resolution adopted by a majority of the Board of
Directors, may designate from among its members an executive committee and
one
or more other committees, each of which, to the extent provided in such
resolution or in the Articles of Incorporation or in these By-laws of the
Corporation, shall have and may exercise such authority of the Board of
Directors as shall be expressly delegated by the Board from time to time; except
that no such committee shall have the authority of the Board of Directors in
reference to (a) amending the Articles of Incorporation; (b) approving
a plan of merger even if the plan does not require shareholder approval;
(c) authorizing dividends or distributions, except a committee may
authorize or approve a reacquisition of shares, if done according to a formula
or method prescribed by the Board of Directors; (d) approving or proposing
to shareholders action that requires shareholder approval; (e) amending,
altering or repealing the By-laws of the Corporation or adopting new By-laws
for
the Corporation; (f) filling vacancies in the Board of Directors or in any
of its committees; or (g) electing or removing officers or members of any
such committee. A majority of all the members of any such committee may
determine its action and fix the time and place of its meetings, unless the
Board of Directors shall otherwise provide. The Board of Directors shall have
power at any time to change the number and members of any such committee, to
fill vacancies and to discharge any such committee. The designation of such
committee and the delegation thereto of authority shall not alone constitute
compliance by the Board of Directors, or any member thereof, with the standard
of conduct imposed upon it or him by the Indiana Business Corporation Law,
as
the same may, from time to time, be amended.
Section
16.
Meeting
by Telephone or Similar Communication Equipment .
Any or
all directors may participate in and hold a regular or special meeting of the
Board of Directors or any committee thereof by, or through the use of, any
means
of conference telephone or other similar communications equipment by which
all
directors participating in the meeting may simultaneously hear each other during
the meeting. Participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting, except where a director
participates in the meeting for the express purpose of objecting to holding
the
meeting or transacting business at the meeting on the ground that the meeting
is
not lawfully called or convened.
ARTICLE
IVOfficers
Section
1.
Principal
Officers .
The
officers of the Corporation shall be chosen by the Board of Directors and shall
consist of a Chairman of the Board, a President, a Treasurer and a Secretary.
There may also be one or more Vice Presidents, a Controller, and such other
officers or assistant officers as the Board shall from time to time create
and
so elect. Any two (2) or more offices may be held by the same
person.
Section
2.
Election
and Terms .
Each
officer shall be elected by the Board of Directors at the annual meeting thereof
and shall hold office until the next annual meeting of the Board or until his
or
her successor shall have been elected and qualified or until his or her death,
resignation or removal. The election of an officer shall not of itself create
contract rights.
Section
3.
Resignation
and Removal .
An
officer may resign at any time by delivering notice to the Board of Directors,
its Chairman, or the Secretary of the Corporation. A resignation is effective
when the notice is delivered unless the notice specifies a later effective
date.
If an officer's resignation is made effective at a later date and the
Corporation accepts the future effective date, the Board of Directors may fill
the pending vacancy before the effective date, if the Board of Directors
provides that the successor does not take office until the effective date.
The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly provided in the resignation. An officer's resignation does not affect
the Corporation's contract rights, if any, with the officer. Any officer may
be
removed at any time, with or without cause, by vote of a majority of the whole
Board. Such removal shall not affect the contract rights, if any, of the officer
so removed.
Section
4.
Vacancies
.
Whenever any vacancy shall occur in any office by death, resignation, increase
in the number of officers of the Corporation, or otherwise, the same shall
be
filled by the Board of Directors, and the officer so elected shall hold office
until the next annual meeting of the Board or until his or her successor shall
have been elected and qualified.
Section
5.
Powers
and Duties of Officers .
The
officers so chosen shall perform the duties and exercise the powers expressly
conferred or provided for in these By-laws, as well as the usual duties and
powers incident to such office, respectively, and such other duties and powers
as may be assigned to them by the Board of Directors or by the
President.
Section
6.
Chairman
of the Board .
The
Chairman of the Board shall be the Chief Executive Officer of the Corporation
and shall have charge of and supervision and authority over all of the affairs,
business and operations of the Corporation in the ordinary course of its
business, with all such duties, powers and authority with respect to such
affairs, business and operations as may be reasonably incident to such
responsibilities. He shall have general supervision of and direct all officers,
agents and employees of the Corporation and shall see that all orders and
resolutions of the Board are carried into effect. He shall have the authority
to
sign all deeds, bonds, mortgages, contracts, notes and other instruments on
behalf of the Corporation (except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by these By-laws, or by
law
to some other officer or agent of the Corporation). He shall preside at meetings
of the shareholders and of the Board of Directors. He shall also perform such
other duties and have such additional authority and powers as are incident
to
his office or as may be delegated to him from time to time by the Board of
Directors."
Section
7.
The
President .
The
President shall be the Chief Operating Officer of the Corporation and shall
supervise the day-to-day operations of the Corporation subject to the
supervision of the Chairman of the Board and the Board
of
Directors. He shall have the authority to sign all deeds, mortgages, bonds,
contracts, notes and other instruments on behalf of the Corporation (except
in
cases where the signing and execution thereof shall be expressly
delegated
by
the
Board or by these By-laws or by law to some other officer or agent of the
Corporation). In the absence of the Chairman of the Board, he shall preside
at
meetings of the shareholders. He shall also perform such other duties
and
have
such
additional authority and powers as are incident to his office or as may be
delegated to him from time to time by the Chairman of the Board or the Board
of
Directors.
Section
8.
Vice
Presidents .
The
Vice Presidents shall assist the President and shall perform such duties as
may
be assigned to them by the Board of Directors or the President. Unless otherwise
provided by the Board, in the absence or disability of the President, the Vice
President (or, if there be more than one, the Vice President first named as
such
by the Board of Directors at its most recent meeting at which Vice Presidents
were elected) shall execute the powers and perform the duties of the President.
Any action taken by a Vice President in the performance of the duties of the
President shall be conclusive evidence of the absence or inability to act of
the
President at the time such action was taken.
Section
9.
Secretary
.
The
Secretary (a) shall keep the minutes of all meetings of the Board of
Directors and the minutes of all meetings of the shareholders in books provided
for that purpose; (b) shall attend to the giving and serving of all
notices; (c) when required, may sign with the President or a Vice President
in the name of the Corporation, and may attest the signature of any other
officers of the Corporation to all contracts, conveyances, transfers,
assignments, encumbrances, authorizations and all other instruments, documents
and papers, of any and every description whatsoever, of or executed for or
on
behalf of the Corporation and affix the seal of the Corporation thereto;
(d) may sign with the President or a Vice Presi-dent all certificates for
shares of the capital stock of the Corporation and affix the corporate seal
of
the Corporation thereto; (e) shall have charge of and maintain and keep or
supervise and control the maintenance and keeping of the stock certificate
books, transfer books and stock ledgers and such other books and papers as
the
Board of Directors may authorize, direct or provide for, all of which shall
at
all reasonable times be open to the inspection of any director, upon request,
at
the office of the Corporation during business hours; (f) shall, in general,
perform all the duties incident to the office of Secretary; and (g) shall
have such other powers and duties as may be conferred upon or assigned to him
by
the Board of Directors.
Section
10.
Treasurer
.
The
Treasurer shall have custody of all the funds and securities of the Corporation
which come into his hands. When necessary or proper, he may endorse on behalf
of
the Corporation, for collection, checks, notes and other obligations, and shall
deposit the same to the credit of the Corporation in such banks or depositories
as shall be selected or designated by or in the manner prescribed by the Board
of Directors. He may sign all receipts and vouchers for payments made to the
Corporation, either alone or jointly with such officer as may be designated
by
the Board of Directors. Whenever required by the Board of Directors, he shall
render a statement of his cash account. He shall enter or cause to be entered,
punctually and regularly, on the books of the Corporation, to be kept by him
or
under his supervision or direction for that purpose, full and accurate accounts
of all moneys received and paid out by, for or on account of the Corporation.
He
shall at all reasonable times exhibit his books and accounts and other financial
records to any director of the Corporation during business hours. He shall
have
such other powers and duties as may be conferred upon or assigned to him by
the
Board of Directors. The Treasurer shall perform all acts incident to the
position of Treasurer, subject always to the control of the Board of Directors.
He shall, if required by the Board of Directors, give such bond for the faithful
discharge of his duties in such form and amount as the Board of Directors may
require.
Section
11.
The
Controller .
The
Controller shall be the chief accounting officer of the Corporation and in
such
capacity shall keep full and accurate accounts of all assets, liabilities,
commitments, receipts, disbursements, and other financial transactions of the
Corporation and its subsidiaries in books belonging to the Corporation; shall
cause audits of such books and records to be made at regular intervals as
required by law and in accordance with guidelines established by the Audit
Committee of the Board of Directors; shall see that all expenditures are made
in
accordance with procedures duly established, from time to time by the
Corporation; shall prepare financial statements for the Corporation and its
subsidiaries at regular intervals as required by law or at the request of the
Board of Directors, the Chairman, the President or the Vice President, Finance;
and, in general shall perform all the duties ordinarily connected with the
office of Controller and such other duties as, from time to time, may be
assigned to him by the Board of Directors, the Chairman, the President or the
Vice President, Finance.
Section
12.
Assistant
Secretaries .
The
Assistant Secretaries shall assist the Secretary in the performance of his
or
her duties. In the absence of the Secretary, any Assistant Secretary shall
exercise the powers and perform the duties of the Secretary. The Assistant
Secretaries shall exercise such other powers and perform such other duties
as
may from time to time be assigned to them by the Board, the President, or the
Secretary.
Section
13.
Assistant
Treasurers .
The
Assistant Treasurers shall assist the Treasurer in the performance of his or
her
duties. Any Assistant Treasurer shall, in the absence or disability of the
Treasurer, exercise the powers and perform the duties of the Treasurer. The
Assistant Treasurers shall exercise such other duties as may from time to time
be assigned to them by the Board, the President, or the Treasurer.
Section
14.
Delegation
of Authority .
In case
of the absence of any officer of the Corporation, or for any reason that the
Board may deem sufficient, a majority of the entire Board may transfer or
delegate the powers or duties of any officer to any other officer or officers
for such length of time as the Board may determine.
Section
15.
Securities
of Other Corporations .
The
President or any Vice President or Secretary or Treasurer of the Corporation
shall have power and authority to transfer, endorse for transfer, vote, consent
or take any other action with respect to any securities of another issuer which
may be held or owned by the Corporation and to make, execute and deliver any
waiver, proxy or consent with respect to any such securities.
ARTICLE
VDirectors' Services, Limitation of Liabilityand Reliance on Corporate Records,
andInterest of Directors in Contracts
Section
1.
Services
.
No
director of this Corporation who is not an officer or employee of this
Corporation shall be required to devote his time or any particular portion
of
his time or render services or any particular services exclusively to this
Corporation. Every director of this Corporation shall be entirely free to
engage, participate and invest in any and all such businesses, enterprises
and
activities, either similar or dissimilar to the business, enterprise and
activities of this Corporation, without breach of duty to this Corporation
or to
its shareholders and without accountability or liability to this Corporation
or
to its shareholders.
Every
director of this Corporation shall be entirely free to act for, serve and
represent any other corporation, any entity or any person, in any capacity,
and
be or become a director or officer, or both, of any other corporation or any
entity, irrespective of whether or not the business, purposes, enterprises
and
activities, or any of them thereof, be similar or dissimilar to the business,
purposes, enterprises and activities, or any of them, of this Corporation,
without breach of duty to this Corporation or to its shareholders and without
accountability or liability of any character or description to this Corporation
or to its shareholders.
Section
2.
General
Limitation of Liability .
A
director shall, based on facts then known to the director, discharge the duties
as a director, including the director's duties as a member of a committee,
in
good faith, with the care an ordinarily prudent person in a like position would
exercise under similar circumstances, and in a manner the director reasonably
believes to be in the best interests of the Corporation. A director is not
liable to the Corporation for any action taken as a director, or any failure
to
take any action, unless: (a) the director has breached or failed to perform
the duties of the director's office in accordance with the standard of care
set
forth above; and (b) the breach or failure to perform constitutes willful
misconduct or recklessness.
Section
3.
Reliance
on Corporate Records and Other Information .
Any
person acting as a director of the Corporation shall be fully protected, and
shall be deemed to have complied with the standard of care set forth in
Section 2 of this Article, in relying in good faith upon any information,
opinions, reports or statements, including financial statements and other
financial data, if prepared or presented by (a) one or more officers or
employees of the Corporation whom such person reasonably believes to be reliable
and competent in the matters presented; (b) legal counsel, public
accountants, or other persons as to matters such person reasonably believes
are
within the person's professional or expert competence; or (c) a committee
of the Board of Directors of which such person is not a member, if such person
reasonably believes the committee merits confidence; provided,
however,
that
such person shall not be considered to be acting in good faith if such person
has knowledge concerning the matter in question that would cause such reliance
to be unwarranted.
Section
4.
Interest
of Directors in Contracts .
Any
contract or other transaction between the Corporation and (a) any director,
or (b) any corporation, unincorporated association, business trust, estate,
partnership, trust, joint venture, individual or other legal entity (1) in
which any director has a material financial interest or is a general partner,
or
(2) of which any director is a director, officer, or trustee, shall be
valid for all purposes, if the material facts of the contract or transaction
and
the director's interest were disclosed or known to the Board of Directors,
a
committee of the Board of Directors with authority to act thereon, or the
shareholders entitled to vote thereon, and the Board of Directors, such
committee or such shareholders authorized, approved or ratified the contract
or
transaction. Such a contract or transaction is authorized, approved or ratified:
(i) by the Board of Directors or such committee, if it receives the
affirmative vote of a majority of the directors who have no interest in the
contract or transaction, notwithstanding the fact that such majority may not
constitute a quorum or a majority of the directors present at the meeting,
and
notwithstanding the presence or vote of any director who does have such an
interest; provided,
however,
that no
such contract or transaction may be authorized, approved or ratified by a single
director; and (ii) by such shareholders, if it receives the vote of a
majority of the shares entitled to be counted, in which vote shares owned by
or
voted under the control of any director who, or of any corporation,
unincorporated association, business trust, estate, partnership, trust, joint
venture, individual or other legal entity that, has an interest in the contract
or transaction may be counted; provided,
however,
that a
majority of such shares, whether or not present, shall constitute a quorum
for
the purpose of authorizing, approving or ratifying such a contract or
transaction. This Section shall not be construed to require authorization,
ratification or approval by the shareholder of any such contract or transaction,
or to invalidate any such contract or transaction that is fair to the
Corporation or would otherwise be valid under the common and statutory law
applicable thereto.
ARTICLE
VIIndemnification
Section
1.
Indemnification
Against Underlying Liability .
The
Corporation shall, to the fullest extent to which it is empowered to do so
by
the Corporation Law, or any other applicable law, as from time to time in
effect, indemnify any person who was or is a party or is threatened to be made
a
party to any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative and whether formal
or
informal, by reason of the fact that he is or was a director, officer, employee
or agent of the Corporation, or who, while serving as such director, officer,
employee or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(collectively, "Agent") against expenses (including attorneys' fees), judgments,
fines, penalties, court costs and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement (whether with or without court approval), conviction or upon
a
plea of nolo contendere
or its
equivalent, shall not, of itself, create a presumption that the Agent did not
act in good faith and in a manner which he reasonably believed to be in or
not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. If several claims, issues or matters are involved, an
Agent may be entitled to indemnification as to some matters even though he
is
not entitled as to other matters.
Section
2.
Successful
Defense .
To the
extent that an Agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
Section 1 of this Article VI, or in defense of any claim, issue or
matter therein, the Corporation shall indemnify such person against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in
connection therewith.
Section
3.
Determination
of Conduct .
Subject
to any rights under any contract between the Corporation and any Agent, any
indemnification against underlying liability provided for in Section 1 of
this Article VI (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the Agent is proper in the circumstances because he has
met
the applicable standard of conduct set forth in said Section. Such determination
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to such action, suit or
proceeding; (2) if such an independent quorum cannot be obtained, by
majority vote of a committee duly designated by the full Board of Directors
(in
which designation directors who are parties may participate), consisting solely
of one or more directors not at the time parties to the action, suit or
proceeding; (3) by special legal counsel (A) selected by the
independent quorum of the Board of Directors (or the independent committee
thereof if no such quorum can be obtained), or (B) if no such independent
quorum or committee thereof can be obtained, selected by majority vote of the
full Board of Directors (in which selection directors who are parties may
participate); or (4) by the shareholders, but shares owned by or voted
under the control of directors who are at the time parties to such action,
suit
or proceeding may not be voted on the determination. Notwithstanding the
foregoing, an Agent shall be able to contest any determination that the Agent
has not met the applicable standard of conduct by petitioning a court of
appropriate jurisdiction.
Section
4.
Definition
of Good Faith .
For
purposes of any determination under Section 1 of this Article VI, a
person shall be deemed to have acted in good faith and to have otherwise met
the
applicable standard of conduct set forth in Section 1 if his action is
based on information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by (1) one or
more
officers or employees of the Corporation or another enterprise whom he
reasonably believes to be reliable and competent in the matters presented;
(2) legal counsel, public accountants, appraisers or other persons as to
matters he reasonably believes are within the person's professional or expert
competence; or (3) a committee of the Board of Directors of the Corporation
or another enterprise of which the person is not a member if he reasonably
believes the committee merits confidence. The provisions of this Section 4
shall not be deemed to be exclusive or to limit in any way the circumstances
in
which a person may be deemed to have met the applicable standards of conduct
set
forth in Section 1 of this Article VI.
Section
5.
Payment
of Expenses in Advance .
Expenses incurred in connection with any civil, criminal, administrative or
investigative action, suit or proceeding by an Agent who may be entitled to
indemnification pursuant to Section 1 of this Article VI shall be paid
by the Corporation in advance of the final disposition of such action, suit
or
proceeding upon receipt of a written affirmation by the Agent of his good faith
belief that he has met the applicable standard of conduct set forth in
Section 1 of this Article VI and upon receipt of a written undertaking
by or on behalf of the Agent to repay such amount if it is ultimately determined
that he is not entitled to be indemnified by the Corporation as authorized
in
this Article VI. Notwithstanding the foregoing, such expenses shall not be
advanced if the Corporation conducts the determination of conduct procedure
referred to in Section 3 of this Article VI and it is determined from
the facts then known that the Agent will be precluded from indemnification
against underlying liability because he has failed to meet the applicable
standard of conduct set forth in Section 1 of this Article VI. The
full Board of Directors (including directors who are parties) may authorize
the
Corporation to implement the determination of conduct procedure, but such
procedure is not required for the advancement of expenses. The full Board of
Directors (including directors who are parties) may authorize the Corporation
to
assume the Agent's defense where appropriate, rather than to advance expenses
for such defense.
Section
6.
Indemnity
Not Exclusive .
The
indemnification against underlying liability, and advancement of expenses
provided by, or granted pursuant to, this Article VI shall not be deemed
exclusive of, and shall be subject to, any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the
Corporation's Articles of Incorporation, these By-laws, any resolution of the
Board of Directors or shareholders, any other authorization, whenever adopted,
after notice, by a majority vote of all voting shares then outstanding, or
any
contract, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be an Agent, and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section
7.
Vested
Right to Indemnification .
The
right of any individual to indemnification under this Article shall vest at
the
time of occurrence or performance of any event, act or omission giving rise
to
any action, suit or proceeding of the nature referred to in Section 1 of
this Article VI and, once vested, shall not later be impaired as a result
of any amendment, repeal, alteration or other modification of any or all of
these provisions. Notwithstanding the foregoing, the indemnification afforded
under this Article shall be applicable to all alleged prior acts or omissions
of
any individual seeking indemnification hereunder, regardless of the fact that
such alleged acts or omissions may have occurred prior to the adoption of this
Article. To the extent such prior acts or omissions cannot be deemed to be
covered by this Article VI, the right of any individual to indemnification
shall be governed by the indemnification provisions in effect at the time of
such prior acts or omissions.
Section
8.
Insurance
.
The
Corporation shall have the power to purchase and maintain insurance on behalf
of
any person who is or was an Agent of the Corporation against any liability
asserted against him or incurred by him in any such capacity, or arising out
of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this
Article VI.
Section
9.
Additional
Definitions .
For
purposes of this Article VI references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to "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, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries. A person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VI.
Section
10.
Payments
a Business Expense .
Any
payments made to any indemnified party under this Article or under any other
right to indemnification shall be deemed to be an ordinary and necessary
business expense of the Corporation, and payment thereof shall not subject
any
person responsible for the payment, or the Board of Directors, to any action
for
corporate waste or to any similar action.
ARTICLE
VIIShares
Section
1.
Share
Certificates .
The
certificate for shares of the Corporation shall be in such form as shall be
approved by the Board of Directors. Each share certificate shall state on its
face the name and state of organization of the Corporation, the name of the
person to whom the certificate is issued, and the number and class of shares
the
certificate represents. Share certificates shall be consecutively numbered
and
shall be entered in the books of the Corporation as they are issued. Every
certificate for shares of the Corporation shall be signed (either manually
or in
facsimile) by, or in the name of, the Corporation by the President or a Vice
President and either the Secretary or an Assistant Secretary of the Corporation,
with the seal of the Corporation, if any, or a facsimile thereof impressed
or
printed thereon. If the person who signed (either manually or in facsimile)
a
share certificate no longer holds office when the certificate is issued, the
certificate is nevertheless valid.
Section
2.
Transfer
of Shares .
Except
as otherwise provided by law, transfers of shares of the capital stock of the
Corporation, whether part paid or fully paid, shall be made only on the books
of
the Corporation by the owner thereof in person or by duly authorized attorney,
on payment of all taxes thereon and surrender for cancellation of the
certificate or certificates for such shares (except as hereinafter provided
in
the case of loss, destruction or mutilation of certificate) properly endorsed
by
the holder thereof or accompanied by the proper evidence of succession,
assignment or authority to transfer, and delivered to the Secretary or an
Assistant Secretary. All such transfers shall be made in accordance with the
relevant provisions of Indiana Code §§26-1-8-101 et
seq.
Section
3.
Transfer
Agent .
The
Board of Directors shall have power to appoint one or more transfer agents
and
registrars for the transfer and registration of certificates of stock of the
Corporation, and may require that such certificates shall be countersigned
and
registered by one or more of such transfer agents and registrars.
Section
4.
Registered
Holders .
The
Corporation shall be entitled to treat the person in whose name any share of
stock or any warrant, right or option is registered as the owner thereof for
all
purposes and shall not be bound to recognize any equitable or other claim to,
or
interest in, such share, warrant, right or option on the part of any other
person, whether or not the Corporation shall have notice thereof, save as may
be
expressly provided otherwise by the laws of the State of Indiana, the Articles
of Incorporation of the Corporation or these By-laws. In no event shall any
transferee of shares of the Corporation become a shareholder of the Corporation
until express notice of the transfer shall have been received by the
Corporation.
Section
5.
Lost,
Destroyed and Mutilated Certificates .
The
holder of any share certificate of the Corporation shall immediately notify
the
Corporation of any loss, destruction or mutilation of the certificate, and
the
Board may, in its discretion, cause to be issued to such holder of shares a
new
certificate or certificates of shares of capital stock, upon the surrender
of
the mutilated certificate, or, in case of loss or destruction, upon the
furnishing of an affidavit or satisfactory proof of such loss or destruction.
The Board may, in its discretion, require the owner of the lost or destroyed
certificate or such owner's legal representative to give the Corporation a
bond
in such sum and in such form, and with such surety or sureties as it may direct,
to indemnify the Corporation, its transfer agents and registrars, if any,
against any claim that may be made against them or any of them with respect
to
the certificate or certificates alleged to have been lost or destroyed, but
the
Board may, in its discretion, refuse to issue a new certificate or new
certificates, save upon the order of a court having jurisdiction in such
matters.
Section
6.
Consideration
for Shares .
The
Corporation may issue shares for such consideration received or to be received
as the Board of Directors determines to be adequate. That determination by
the
Board of Directors is conclusive insofar as the adequacy of consideration for
the issuance of shares relates to whether the shares are validly issued, fully
paid and nonassessable. When the Corporation receives the consideration for
which the Board of Directors authorized the issuance of shares, the shares
issued therefor are fully paid and nonassessable.
Section
7.
Payment
for Shares .
The
Board of Directors may authorize shares to be issued for consideration
consisting of any tangible or intangible property or benefit to the Corporation,
including cash, promissory notes, services performed, contracts for services
to
be performed, or other securities of the Corporation. If shares are authorized
to be issued for promissory notes or for promises to render services in the
future, the Corporation must report in writing to the shareholders the number
of
shares authorized to be so issued before or with the notice of the next
shareholders' meeting.
Section
8.
Distributions
to Shareholders .
The
Board of Directors may authorize and the Corporation may make distributions
to
the shareholders subject to any restrictions set forth in the Articles of
Incorporation of the Corporation and any limitations in the Indiana Business
Corporation Law, as amended.
Section
9.
Regulations
.
The
Board of Directors shall have power and authority to make all such rules and
regulations as they may deem expedient concerning the issue, transfer and
registration or the replacement of certificates for shares of the
Corporation.
ARTICLE
VIIICorporate Books and Reports
Section
1.
Place
of Keeping Corporate Books and Records .
Except
as expressly provided otherwise in this Article, the books of account, records,
documents and papers of the Corporation shall be kept at any place or places,
within or without the State of Indiana, as directed by the Board of Directors.
In the absence of a direction, the books of account, records, documents and
papers shall be kept at the principal office of the Corporation.
Section
2.
Place
of Keeping Certain Corporate Books and Records .
The
Corporation shall keep a copy of the following records at its principal
office:
(1) Its
Articles or restated Articles of Incorporation and all amendments to them
currently in effect;
(2) Its
By-laws or restated By-laws and all amendments to them currently in
effect;
(3) Resolutions
adopted by the Board of Directors with respect to one or more classes or series
of shares and fixing their relative rights, preferences and limitations, if
shares issued pursuant to those resolutions are outstanding;
(4) The
minutes of all shareholders' meetings and records of all action taken by
shareholders without a meeting, for the past three (3) years;
(5) All
written communications to shareholders generally within the past three (3)
years, including financial statements furnished to shareholders;
(6) A
list of
the names and business addresses of its current directors and officers;
and
(7) The
Corporation's most recent annual report.
Section
3.
Permanent
Records .
The
Corporation shall keep as permanent records minutes of all meetings of its
shareholders and Board of Directors, a record of all actions taken by the
shareholders or Board of Directors without a meeting, and a record of all
actions taken by a committee of the Board of Directors in place of the Board
of
Directors on behalf of the Corporation. The Corporation shall also maintain
appropriate accounting records.
Section
4.
Shareholder
Records .
The
Corporation shall maintain a record of its shareholders, in a form that permits
preparation of a list of the names and addresses of all shareholders, in
alphabetical order by class of shares showing the number and class of shares
held by each.
Section
5.
Shareholder
Rights of Inspection .
The
records designated in Section 2 of this Article may be inspected and copied
by shareholders of record, during regular business hours at the Corporation's
principal office, provided that the shareholder gives the Corporation written
notice of the shareholder's demand at least five (5) business days before the
date on which the shareholder wishes to inspect and copy. A shareholder's agent
or attorney, if authorized in writing, has the same inspection and copying
rights as the shareholder represented. The Corporation may impose a reasonable
charge, covering the costs of labor and material, for copies of any documents
provided to the shareholder.
Section
6.
Additional
Rights of Inspection .
Shareholder rights enumerated in Section 5 of this Article may also apply
to the following corporate records, provided that the notice requirements of
Section 5 are met, the shareholder's demand is made in good faith and for a
proper purpose, the shareholder describes with reasonable particularity the
shareholder's purpose and the records the shareholder desires to inspect, and
the records are directly connected with the shareholder's purpose: excerpts
from
minutes of any meeting of the Board of Directors, records of any action of
a
committee of the Board of Directors while acting in place of the Board of
Directors on behalf of the Corporation, minutes of any meeting of the
shareholders, and records of action taken by the shareholders or Board of
Directors without a meeting, to the extent not subject to inspection under
Section 5 of this Article, as well as accounting records of the Corporation
and
the record of shareholders. Such inspection and copying is to be done during
regular business hours at a reasonable location specified by the Corporation.
The Corporation may impose a reasonable charge, covering the costs of labor
and
material, for copies of any documents provided to the shareholder.
ARTICLE
IXMiscellaneous
Section
1.
Notice
and Waiver of Notice .
Subject
to the specific and express notice requirements set forth in other provisions
of
these By-laws, the Articles of Incorporation, and the Indiana Business
Corporation Law, as the same
may,
from
time to time, be amended, notice may be communicated to any shareholder or
director in person, by telephone, telegraph, teletype, or other form of wire
or
wireless communication, or by mail. If the foregoing forms of personal notice
are deemed to be impracticable, notice may be communicated in a newspaper of
general circulation in the area where published or by radio, television, or
other form of public broadcast communication. Subject to Section 4 of
ARTICLE II of these By-laws, written notice is effective at the earliest of
the following: (a) when received; (b) if correctly addressed to the
address listed in the most current records of the Corporation, five days after
its mailing, as evidenced by the postmark or private carrier receipt; or
(c) if sent by registered or certified United States mail, return receipt
requested, on the date shown on the return receipt which is signed by or on
behalf of the addressee. Oral notice is effective when communicated. A written
waiver of notice, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice.
Section
2.
Depositories
.
Funds
of the Corporation not otherwise employed shall be deposited in such banks
or
other depositories as the Board of Directors, the President or the Treasurer
may
select or approve.
Section
3.
Signing
of Checks, Notes, etc. In
addition to and cumulative of, but in no way limiting or restricting, any other
provision of these By-laws which confers any authority relative thereto, all
checks, drafts and other orders for the payment of money out of funds of
the
Corporation and all notes and other evidence of indebtedness of the Corporation
may be signed on behalf of the Corporation, in such manner, and by such officer
or person as shall be determined or designated by the Board of Directors;
provided,
however,
that
if, when, after and as authorized or provided for by the Board of Directors,
the
signature of any such officer or person may be a facsimile or engraved or
printed, and shall have the same force and effect and bind the Corporation
as
though such officer or person had signed the same personally; and, in the event
of the death, disability, removal or resignation of any such officer or person,
if the Board of Directors shall so determine or provide, as though and with
the
same effect as if such death, disability, removal or resignation had not
occurred.
Section
4.
Gender
and Number .
Wherever used or appearing in these By-laws, pronouns of the masculine gender
shall include the female gender and the neuter gender, and the singular shall
include the plural wherever appropriate.
Section
5.
Laws
.
Wherever used or appearing in these By-laws, the words "law" or "laws" shall
mean and refer to laws of the State of Indiana, to the extent only that such
are
expressly applicable, except where otherwise expressly stated or the context
requires that such words not be so limited.
Section
6.
Headings
.
The
headings of the Articles and Sections of these By-laws are inserted for
convenience of reference only and shall not be deemed to be a part thereof
or
used in the construction or interpretation thereof.
ARTICLE
XAmendments
These
By-laws may, from time to time, be added to, changed, altered, amended or
repealed or new By-laws may be made or adopted by a majority vote of the whole
Board of Directors at any meeting of the Board of Directors, if the notice
or
waiver of notice of such meeting shall have stated that the By-laws are to
be
amended, altered or repealed at such meeting, or if all directors at the time
are present at such meeting, have waived notice of such meeting, or have
consented to such action in writing.
ARTICLE
XIThe Indiana Business Corporation Law
The
provisions of the Indiana Business Corporation Law, as the same may, from time
to time, be amended, applicable to any of the matters not herein specifically
covered by these By-laws, are hereby incorporated by reference in and made
a
part of these By-laws.
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