AMENDED AND RESTATED
BYLAWS
OF
ARVIN INDUSTRIES, INC.
(Adopted 09/13/90)
ARTICLE I
SECTION 1.1. Registered Office. The registered
office of the Corporation in the State of Indiana shall be
in the City of Columbus, County of Bartholomew.
SECTION 1.2. Principal Business Office. The
principal office of the Corporation shall be in the City of
Columbus, County of Bartholomew, in the State of Indiana.
ARTICLE 2
MEETING OF SHAREHOLDERS
SECTION 2.1. Place of Meetings. Each meeting of
shareholders of the Corporation shall be held at such place,
in or outside of the State of Indiana, as the Board of
Directors may designate in the notice of such meeting, but
if no such designation is made, then at the principal
business office of the Corporation.
SECTION 2.2. Annual Meetings. An annual meeting of
shareholders for the purpose of electing directors and
transacting such other business as may properly be brought
before the meeting shall be held on (i) the third Thursday
in April of each year at 10:30 a.m. Columbus, Indiana time,
unless such day is a legal holiday in which case the meeting
shall be held on the next succeeding business day that is
not a legal holiday or (ii) such other date and at such
other time as the Board of Directors may determine.
(Amended 10/19/95)
If for any reason any annual meeting shall not be held
at the time herein provided, the same may be held at any
time thereafter, upon notice as hereinafter provided, or the
business thereof may be transacted at any special meeting of
shareholders called for that purpose.
The Board of Directors may, upon public notice given
prior to the scheduled meeting date, postpone, for as long
as and to the extent permitted by the Indiana Business
Corporation Law, any previously scheduled annual or special
meeting of shareholders.
SECTION 2.3. Special Meetings. Special meetings of
shareholders, unless otherwise required by statute and
subject to the rights of holders of any class of Preferred
Shares of the Corporation, may be called only by (i) the
Chairman of the Board of Directors (the "Chairman") or the
Secretary at the request in writing of the Chairman or (ii)
the Board of Directors pursuant to a resolution adopted by
two-thirds of the total number of directors which the
Corporation would have if there were no vacancies (the
"Whole Board"). Business transacted at any special meeting
shall be confined to the purpose or purposes stated in the
notice of such special meeting. Meetings may be held
without notice if all shareholders entitled to vote are
present or if notice is waived by those not present.
SECTION 2.4. Notice of Shareholders' Meetings.
Notice of each meeting of shareholders, stating the date,
time and place, and, in the case of special meetings, the
purpose or purposes for which such meeting is called, shall
be given to each shareholder entitled to vote thereat not
less than 10 nor more than 60 days before the date of the
meeting unless otherwise prescribed by statute.
SECTION 2.5. Record Dates. (a) In order that the
Corporation may determine the shareholders entitled to
notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change,
conversion or exchange of shares or for the purpose of any
other lawful action, the Board of Directors may designate a
date as the record date which, for purposes of a meeting of
shareholders or other event requiring shareholder action,
shall not be more than 70 nor less than 10 days before the
date of such meeting or event. (Amended 10/19/95)
(b) If a record date has not been fixed as provided in
preceding subsection (a), then:
(i) The record date for determining shareholders
entitled to notice of or to vote at a meeting of
shareholders of the Corporation shall be at the close of
business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is
held; and
(ii) The record date for determining shareholders
for any other purpose shall be at the close of business on
the day on which the Board of Directors adopts the
resolution relating thereto.
(c) Only those who shall be shareholders of record on
the record date so fixed as aforesaid shall be entitled to
such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend
or other distribution, or to receive such allotment of
rights, or to exercise such rights, as the case may be,
notwithstanding the transfer of any shares on the books of
the Corporation after the applicable record date, provided,
however, the Corporation shall fix a new record date if a
meeting is adjourned to a date more than 120 days after the
date originally fixed for the meeting.
SECTION 2.6. List of Shareholders. The Secretary of
the Corporation shall make, before each meeting of
shareholders, an alphabetical list of shareholders entitled
to vote thereat, arranged by voting group, showing the
address of and number of shares registered in the name of
each shareholder. Such list shall be open to the
examination of any such shareholder or such shareholder's
agent or attorney authorized in writing ("shareholder
agent"), for any purpose germane to the meeting, during
ordinary business hours, for a period of at least 5 days
prior to the meeting for which the list was prepared and
continuing through the meeting, either at a place in the
city where the meeting is being held, which place shall be
specified in the notice of the meeting, or, if not so
specified, at the place where said meeting is to be held.
Such list shall be produced and kept at the time and place
of meeting during the whole time thereof for inspection by
any such shareholder or shareholder agent who is present.
SECTION 2.7. Quorum and Adjournments. The holders of
a majority of the voting power of the shares of the
Corporation entitled to vote, present in person or by proxy,
shall constitute a quorum of shareholders for all purposes
unless the representation of a larger proportion is required
by statute or by the Corporation's Restated Articles of
Incorporation, as amended (the "Articles of Incorporation"),
and, in such cases, the representation of the proportion so
required shall constitute a quorum. Whether or not there is
such a quorum, the Chairman of the meeting or the
shareholders present or represented by proxy representing a
majority of the shares present or represented may adjourn
the meeting from time to time without notice other than an
announcement at the meeting. Any such adjourned meeting at
which a quorum shall be present or represented, any business
may be transacted which might have been transacted at the
original meeting.
SECTION 2.8. Voting by Shareholders; Proxies.
Election of directors at all meetings of the shareholders at
which directors are to be elected shall be by ballot, and,
except as otherwise set forth in the Articles of
Incorporation with respect to the right of the holders of
any class or series of Preferred Shares to elect additional
directors under specified circumstances, a plurality of the
votes cast thereat shall elect. If a quorum exists, action
on a matter (other than the election of directors) submitted
to shareholders entitled to vote thereon at any meeting
shall be approved if the votes cast favoring the action
exceed the votes cast opposing the action, unless a greater
number of affirmative votes is required by law or the
Articles of Incorporation. (Amended 2/14/91)
SECTION 2.9. Conduct of Business.
(a) Presiding Officer. The Chairman of the Board of
Directors shall preside as Chairman of shareholder meetings
and shall determine the order and conduct of business and
all matters of procedure at such meetings. The Chairman
shall fix and announce at the meeting the date and time of
the opening and the closing of the polls for each matter
upon which the shareholders will vote at the meeting. In
the absence of the Chairman, the Vice Chairman of the Board
of Directors (the "Vice Chairman"), or if the Vice Chairman
is also absent, the President, shall assume the duties of
the Chairman specified in this paragraph (a) of Section 2.9.
If each of the Chairman, the Vice Chairman and the President
is absent, a vice president chosen by the Board of Directors
shall assume the duties of the Chairman specified in this
paragraph (a) of Section 2.9. (Amended 11/10/94)
(b) Annual Meetings of Shareholders. (i) Nominations
of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by
the shareholders may be made at an annual meeting of
shareholders (A) pursuant to the Corporation's notice of
meeting, (B) by or at the direction of the Board of
Directors or (C) by any shareholder of the Corporation who
was a shareholder of record at the time of giving of notice
provided for in this Section 2.9, who is entitled to vote at
the meeting and who complies with the notice procedures set
forth in this Section 2.9.
(ii) For nominations or other business to be properly
brought before any annual meeting by a shareholder pursuant
to clause (C) of paragraph (b)(i) of this Section 2.9, the
shareholder must have given timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a
shareholder's notice shall be delivered to the Secretary at
the principal executive offices of the Corporation not less
than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the
annual meeting is advanced by more than 30 days or delayed
by more than 60 days from such anniversary date, notice by
the shareholder to be timely must be so delivered not
earlier than the 90th day prior to such annual meeting and
not later than the close of business on the later of the
60th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date
of such meeting is first made. Such shareholder's notice
shall set forth (A) as to each person whom the shareholder
proposes to nominate for election or reelection as a
director all information relating to such person that is
required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")
(including such person's written consent to being named in
the proxy statement as a nominee and to serving a director
if elected); (B) as to any other business that the
shareholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the
meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; (C) as to the shareholder
giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (x) the name and
address of such shareholder, as they appear on the
Corporation's books, and of such beneficial owner and (y)
the class and number of shares of the Corporation which are
owned beneficially and of record by such shareholder and
such beneficial owner.
(iii) Notwithstanding anything in the second sentence
of paragraph (b)(ii) of this Section 2.9 to the contrary, in
the event that any person nominated by the Board of
Directors for election as a director (other than a person
nominated to fill a vacancy created by the death of a
director) was not a director or nominee named (A) in the
Corporation's proxy statement for the preceding annual
meeting or (B) in a public announcement made by the
Corporation at least 60 days prior to the first anniversary
of the preceding year's annual meeting (a "New Nominee"), a
shareholder's notice required by this Section 2.9 shall also
be considered timely if it is delivered to the Secretary at
the principal executive offices of the Corporation not later
than the close of business on the 10th day following the day
on which public announcement is first made by the
Corporation of the election or nomination of such New
Nominee to the Board of Directors.
(iv) The notice procedures of this Section 2.9 shall
not apply to any annual meeting if (A) with respect to
annual meetings of shareholders subsequent to the 1992
annual meeting of shareholders the Corporation shall not
have set forth in its proxy statement for the preceding
annual meeting of shareholders the date by which notice of
nominations by shareholders of persons for election as
directors or of other business proposed to be brought by
shareholders at the next annual meeting of shareholders must
be received by the Corporation to be considered timely
pursuant to this Section 2.9 or (B) with respect to the 1992
annual meeting of shareholders the Corporation shall have
failed to issue a public announcement setting forth such
information not less than 30 days prior to the date by which
a shareholder's notice must be received by the Secretary.
(Amended 11/14/91)
(c) Special Meetings of Shareholders. Only such
business shall be conducted at a special meeting of
shareholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of
Directors may be made at a special meeting of shareholders
at which directors are to be elected pursuant to the
Corporation's notice of meeting (A) by or at the direction
of the Board of Directors or (B) by any shareholder of the
Corporation of the Corporation who is a shareholder of
record at the time of giving of notice provided for in this
Section 2.9, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in
this Section 2.9. Nominations by shareholders of persons
for election to the Board of Directors may be made at such a
special meeting of shareholders if the shareholder's notice
required by paragraph (b)(ii) of this Section 2.9 shall be
delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 90th day
prior to such Special Meeting and not later than the close
of business on the later of the 60th day prior to such
special meeting or the 10th day following the date on which
public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(d) General. (i) Except where the terms of any class
or series of Preferred Shares of the Corporation require the
election of one or more directors by the holders of such
Preferred Shares voting as a single class and except a
provided in Section 3.2 of these By-Laws, only such persons
who are nominated in accordance with the procedures set
forth in this Section 2.9 shall be eligible to serve as
directors and only such business shall be conducted at a
meeting of shareholders as shall have been brought before
the meeting in accordance with the procedures set forth in
this Section 2.9. The person presiding at the meeting shall
have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was
made in accordance with the procedures set forth in this
Section 2.9 and, if any proposed nomination or business is
not in compliance with this Section 2.9, to declare that
such defective proposal shall be disregarded. (Amended
2/14/91)
(ii) For purposes of this Section 2.9, "public
announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or a document publicly
filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the
Exchange Act.
(iii) Notwithstanding the foregoing provisions of this
Section 2.9, a shareholder shall also comply with all
applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set
forth in this Section 2.9. Nothing in this Section 2.9
shall be deemed to affect any rights of shareholders to
request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.10. Inspectors. There shall be appointed by
the Board of Directors, before each meeting of the
shareholders, two inspectors of the vote. Such inspectors
shall first take and subscribe an oath or affirmation
faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best
of their ability. If two inspectors are not appointed in
advance of any such meeting by the Board of Directors or one
or both appointed inspectors fail or refuse to act, then one
or both inspectors, as the case may be, shall be appointed
for the meeting by the person presiding thereat. Such
inspectors shall be responsible for tallying and certifying
the vote taken on any matter at each meeting which is
required to be tallied and certified by them in the
resolution of the Board of Directors appointing them or the
appointment of the person presiding at such meeting as the
case may be. Except as otherwise provided by these By-Laws
or the laws of the State of Indiana, such inspectors shall
also decide all questions touching upon the qualification of
voters, the validity of proxies and ballots, and the
acceptance and rejection of votes. In the case of a tie
vote by the inspectors on any question, the person presiding
at the meeting shall decide such question. The Board of
Directors shall have the authority to make rules
establishing presumptions as to the validity and sufficiency
of proxies.
ARTICLE 3
DIRECTORS
SECTION 3.1. Number, Election and Terms of Office.
(a) Subject to the rights of the holders of any class or
series of Preferred Shares to elect additional directors
under specified circumstances, the number of directors shall
be thirteen (13) persons and from time to time may be
increased or decreased to the extent provided for in the
Articles of Incorporation exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of
the Whole Board. The directors, other than those who may be
elected by the holders of any class or series of Preferred
Shares, shall be divided, with respect to the time for which
they severally hold office, into three classes, each class
being (and shall be) as nearly equal as possible. At each
annual meeting of shareholders, (i) directors elected to
succeed those directors whose terms then expire shall be
elected for a term of office to expire at the third
succeeding annual meeting of shareholders after their
election, with each director to hold office until his or her
successor shall have been duly elected and qualified and
(ii), if authorized by a resolution of the Board of
Directors, directors may be elected to fill any vacancy on
the Board of Directors regardless of how such vacancy shall
have been created. All directors so elected shall hold
office until their respective successors are elected and
qualified. (Amended 6/17/93)
SECTION 3.2. Vacancies. Except where the terms of any
class or series of Preferred Shares of the Corporation
require the election of one or more directors by the holders
of such Preferred Shares voting as a single class and except
to the extent the Board of Directors determines otherwise,
vacancies occurring on the Board of Directors and newly-
created directorships resulting from any increase in the
number of directors may be filled only by the affirmative
vote of a majority of the directors then in office, although
less than a quorum, or by a sole remaining director, and any
director so chosen shall hold office for a term expiring at
the annual meeting of shareholders at which the term of
office of the class of directors to which such director has
been elected expires and until his or her successor is duly
elected and qualified or until the earlier of his or her
death, resignation or removal in a manner permitted by
statute or these By-Laws. No decrease in the number of
authorized directors constituting the Whole Board shall
shorten the term of any incumbent director.
SECTION 3.3. Powers. The business of the Corporation
shall be managed by the Board of Directors which may
exercise all powers of the Corporation and do all lawful
acts and things not by statute or by the Articles of
Incorporation or these By-Laws directed or required to be
exercised or done by the shareholders.
SECTION 3.4. Place of Meetings. The place of any
meeting of the Board of Directors may be either in or
outside the State of Indiana.
SECTION 3.5. Annual Meetings. Annual meetings of the
Board of Directors shall be held each year on the same day
as the shareholder's annual meeting for such year, at the
time and place determined by the Board of Directors or at
such date, time and place otherwise set by the Chairman.
SECTION 3.6. Regular Meetings. Regular meetings of the
Board of Directors shall be held in the months of February,
June, September and November at the times and places
designated by the Board of Directors in the notice of any
such meeting, or at such dates, times and places otherwise
set by the Chairman.
SECTION 3.7. Special Meetings. Special meetings of
the Board of Directors may be called by the Chairman; and
shall be called by the Chairman upon the written request of
a majority of the entire Board of Directors of the
Corporation, and in the case of death, disability or absence
from the State of Indiana of the Chairman, the Secretary
shall call the meeting upon such request. Amended 11/10/94)
SECTION 3.8. Notice of Meetings. Notice of each
meeting of the Board of Directors shall be given to each
director. Meetings of the Board of Directors may be held at
any time and for any purpose, without notice, when all
members of the Board of Directors are present.
SECTION 3.9. Quorum. Except as provided in Section
3.2, a whole number of directors equal to at least a
majority of the Whole Board shall constitute a quorum for
the transaction of business at all meetings of the Board of
Directors. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present.
SECTION 3.10. Informal Action. Unless otherwise
restricted by statute, the Articles of Incorporation or
these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if a written consent
thereto is signed by all directors or by all members of such
committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board of
Directors or of such committee.
SECTION 3.11. Attendance by Conference Telephone.
Members of the Board of Directors or any committee
designated by the Board of Directors may participate in a
meeting of such Board of Directors 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 in a meeting shall
constitute presence in person at such meeting.
SECTION 3.12. Committees. (a) The Board of Directors
may from time to time, in its discretion, by resolution
passed by a majority of the Whole Board, designate, and
appoint, from the directors, committees of one or more
persons which shall have and may exercise such lawfully
delegable powers and duties conferred or authorized by the
resolutions of designation and appointment. The Board of
Directors shall have power at any time to change the members
of any such committee, to fill vacancies, and to discharge
any such committee.
(b) Unless the Board of Directors shall provide
otherwise, the presence of one-half of the total membership
of any committee of the Board of Directors shall constitute
a quorum for the transaction of business at any meeting of
such committee and the act of a majority of those present
shall be necessary and sufficient for the taking of any
action thereat.
SECTION 3.13. Compensation of Directors. The
directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and at each
meeting of a committee of the Board of Directors of which
they are members. Unless otherwise provided in these By-
Laws, the Chairman shall have the authority to fix
compensation of all directors for their services to the
Corporation as directors and for their services to the
Corporation as members of committees of the Board of
Directors.
SECTION 3.14. Removal. Subject to the rights of the
holders of any class or series of Preferred Shares, any
director or the entire Board of Directors may be removed
from office at any time, but only for cause and only by the
affirmative vote by the holders of at least two-thirds of
the voting power of all of the then outstanding shares of
capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single
class.
ARTICLE 4
NOTICES
SECTION 4.1. Notices. Notices to directors and
shareholders shall be in writing and delivered personally or
mailed to their addresses appearing on the records of the
Corporation or, if to directors, by telegram, cable,
telephone, telecopy, facsimile or a nationally recognized
overnight delivery service. Notice to directors by mail
shall be given at least two days before the meeting. Notice
to directors by telegram, cable, personal delivery,
telephone or wireless shall be given a reasonable time
before the meeting, but in no event less than one hour
before the meeting. Notice by mail shall be deemed to be
given when mailed to the director at his or her address
appearing on the records of the Corporation. Notice by
telegram or cable shall be deemed to be given when the
telegram or cable addressed to the director at his or her
address appearing on the records of the Corporation is
delivered to the telegraph company. Notice by telephone or
wireless shall be deemed to be given when transmitted by
telephone or wireless to the telephone number or wireless
call designation appearing on the records of the Corporation
for the director (regardless of whether the director shall
have personally received such telephone call or wireless
message), provided confirmation of transmission shall be
made promptly by telegram or cable in the manner specified
above.
SECTION 4.2. Waiver of Notice. Whenever any notice is
required, a waiver thereof signed by the person entitled to
such notice and filed with the minutes or corporate records,
whether before or after the time stated therein, shall be
deemed equivalent thereto. Attendance of any person at any
meeting of shareholders or directors shall constitute a
waiver of notice of such meeting, except when such person
attends only for the express purpose of objecting, at the
beginning of the meeting (or in the case of a director's
meeting, promptly upon such director's arrival), to the
transaction of any business at the meeting and does not
thereafter vote for or assent to action taken at the
meeting.
ARTICLE 5
OFFICERS
SECTION 5.1. Designation; Number; Election. The Board
of Directors shall elect the officers of the Corporation.
Such officers shall be a chairman of the Board of Directors,
a vice chairman of the Board of Directors, a president, one
or more vice presidents as the Board of Directors shall
determine from time to time, a controller, a treasurer, and
a secretary. The Chairman, Vice Chairman and the President
shall be chosen from the directors.
In addition to any vice president elected by the Board
of Directors, the President, at any time, may appoint one or
more vice presidents as the President may determine from
time to time.
In addition to the foregoing officers elected by the
Board of Directors and/or appointed by the President, the
Board of Directors and/or the President, at any time, may
elect or appoint one or more assistant controllers,
assistant treasurers, assistant secretaries and other
officers.
In addition to the foregoing officers elected by the
Board of Directors and/or appointed by the President, the
Controller, the Treasurer and the Secretary, at any time,
may appoint one or more assistant controllers, assistant
treasurers and assistant secretaries, respectively, as the
Controller, the Treasurer and the Secretary may determine
from time to time.
One person may hold more than one office at the same
time provided the duties of such officers as prescribed by
these By-Laws may be properly and consistently performed by
one person.
SECTION 5.2. Term of Office; Removal; Vacancies. The
term of each officer shall be for one year and continue
until his or her successor is chosen and qualified or until
the earlier of his or her death, resignation or removal,
except that any such officer elected by the Board of
Directors, excluding the Chairman, the Vice Chairman and the
President, at any time, may be suspended by the Chairman,
the Vice Chairman or the President until the Board of
Directors convenes, and any such officer, including the
Chairman, the Vice Chairman and the President, may be
removed at any time by the affirmative vote of a majority of
the members of the Whole Board.
Vacancies occurring among officers elected by the Board
of Directors may be filled at any time by the Board of
Directors.
All agents and representatives of the Corporation shall
hold office only during the pleasure of the Board of
Directors or the officer appointing them.
SECTION 5.3. Compensation of Officers. The
compensation committee of the Board of Directors shall have
the authority to fix compensation of the Chairman, the Vice
Chairman and the President. The President and/or such
officer as the President may designate shall have the
authority to fix compensation of all other officers of the
Corporation.
SECTION 5.4. Chairman of the Board of Directors. The
Chairman of the Board of Directors shall, subject to the
Board of Directors, have general management and oversight of
the administration and operation of the Corporation's
business and general supervision of its policies and
affairs. He or she shall see that all orders and
resolutions of the Board of Directors and of any committee
thereof are carried into effect.
He or she shall (a) preside at all meetings of the
shareholders and of the Board of Directors, and shall have
plenary power to set the agenda, determine the procedure and
rules of order and make definitive rulings at meetings of
shareholders; (b) be ex-officio a member of all committees
except the audit committee and the stock option committee;
(c) have power to appoint officers for any division who, as
such, shall not be officers of the Corporation; (d) subject
to the Board of Directors, be in general and active charge
of the entire business and all the affairs of the
Corporation; and (e) have such other powers and perform such
other duties as may be prescribed by the Board of Directors
or provided in these By-Laws. (Amended 6/17/93)
Section 5.5. Vice Chairman of the Board of Directors.
The Vice Chairman shall have such powers and duties
prescribed in these By-Laws or assigned to him or her by the
Board of Directors. In the absence or disability of the
Chairman, the Vice Chairman shall preside at meetings of the
Board of Directors and shall perform such other duties of
the Chairman as may be assigned to him or her by the Board
of Directors.
Section 5.6. President. The President shall have such
powers and duties prescribed in these By-Laws or assigned to
him or her by the Board of Directors. In the absence or
disability of the Chairman and the Vice Chairman, the
President shall preside at meetings of the Board of
Directors and shall perform such other duties of the
Chairman as may be assigned to him or her by the Board of
Directors. In the absence or disability of the Chairman,
the Vice Chairman and the President, on assembling for a
regular or special meeting of the Board of Directors, the
directors shall choose one of the Vice Presidents in
attendance to preside at such meeting.
Section 5.7. Vice Presidents. Each Vice President
shall have the powers and duties prescribed in these By-Laws
or assigned to him or her by the Board of Directors, the
Chairman or the President. The Board of Directors and/or
the President may designate one or more of such vice
presidents, as executive, senior or assistant vice
presidents.
SECTION 5.8. Controller. Subject to control and
supervision by the President or such officer as the
President may designate and by the Board of Directors, the
Controller shall be in charge of the accounts of the
Corporation and its subsidiaries; maintain adequate records
of all assets, liabilities and business transactions; and
have such other powers and duties prescribed by these By-
Laws or by the Board of Directors, the President or such
officer as the President may designate, and the usual powers
and duties pertaining to his or her office.
SECTION 5.9. Assistant Controllers. The Assistant
Controllers shall have the powers and duties prescribed by
these By-Laws or assigned by the Controller. IN the absence
or disability of the Controller, they shall have all his
other powers and duties.
SECTION 5.10. Treasurer. Subject to control and
supervision by the President or such officer as the
President may designate and by the Board of Directors, the
Treasurer shall propose financial policies, negotiate loans
and be responsible for the maintenance of proper insurance
coverages; and have such other powers and duties prescribed
by these By-Laws or by the Board of Directors, the President
or such officer as the President may designate, and the
usual powers and duties pertaining to his or her office.
SECTION 5.11. Assistant Treasurers. The Assistant
Treasurers shall have the powers and duties prescribed by
these By-Laws or assigned by the Treasurer. In the absence
of the Treasurer, they shall have all his other powers and
duties.
SECTION 5.12. Secretary. Subject to control and
supervision by the President or such officer as the
President may designate and by the Board of Directors and
the Chairman of the Board of Directors, the secretary shall
attend and record proceedings of meetings of shareholders
and directors and have such other powers and duties
prescribed by these By-Laws or by the Board of Directors,
the President or such officer as the President may
designate, and the usual powers and duties pertaining to his
or her office.
SECTION 5.13. Assistant Secretaries. The Assistant
Secretaries shall have the powers and duties prescribed by
these By-Laws or assigned by the Secretary. In the absence
or disability of the Secretary, they shall have all his or
her powers and duties.
ARTICLE 6
CONDUCT OF BUSINESS
RESOLVED, that Section 6.1 of the By-Laws of the
Corporation shall henceforth read as follows:
SECTION 6.1. Contracts, Deeds and Other Instruments.
All agreements evidencing indebtedness of the Corporation,
including but not limited to contracts, trust deeds,
promissory notes, sight drafts, time drafts and letters of
credit (including applications therefor), and all guarantees
of or letters of comfort regarding debt or other obligations
of the Corporation or any of its wholly-owned subsidiaries
or affiliates whether wholly or partly owned, may be signed
by any one of the Chairman, the Vice Chairman, the
President, any Executive Vice President, the Vice President-
Finance, the Treasurer, the Secretary, the Assistant
Treasurer, any Assistant Secretary, and any person
authorized by a resolution of the Board of Directors. Such
documents pertaining to the business of a division of the
Corporation, in excess of the principal amount determined
from time to time for each division by the Chairman, may be
signed by appropriate officers of such division only upon
written authorization signed by any one of the Chairman, the
Vice Chairman, the President, any Executive Vice President,
the Vice President-Finance and the Treasurer or upon
authorization by a resolution of the Board of Directors.
(Amended 4/18/96)
A certified copy of these By-Laws and/or any
authorization given hereunder may be furnished as evidence
of the authorities herein granted, and all persons shall be
entitled to rely on such authorities in the case of a
specific contract, conveyance or other transaction without
the need of a resolution of the Board of Directors
specifically authorizing the transaction involved. (Amended
2/9/95)
Section 6.2. Checks. Checks and other negotiable
instruments for the disbursement of Corporation funds may be
signed by the Chairman, the Vice Chairman, the President,
any Executive Vice President, the Vice President-Finance and
the Treasurer. In addition to the foregoing, other persons
may sign instruments for the disbursement of Corporation
funds under written authorization signed by any two of the
foregoing officers acting jointly. Electronic or wire
transfers of funds may be authorized by any officer of the
Corporation who is authorized pursuant to this Section 6.2
to disburse Corporation funds by check or other negotiable
instrument. (Amended 2/14/91)
Section 6.3. Banking. Any two of the Chairman, the
President, an Executive Vice President, the Vice President -
Finance and the Treasurer, at least one of whom must be
either the Vice President - Finance or the Treasurer, shall
be empowered to establish and maintain, for and on behalf of
the Corporation, one or more accounts with such banks,
depositories, trust companies or other financial
institutions as they may designate ("Banks") for the deposit
of checks, drafts and other funds, and for the keeping of
securities, notes and other evidences of indebtedness, and
to enter into such agreements with Banks with respect to the
establishment and maintenance of such accounts, or effecting
foreign exchange or derivative transactions, as they deem
necessary or proper in their sole discretion, and to bind
and obligate the Corporation with respect thereto. In
addition to the authority heretofore set forth, any two of
the foregoing corporate officers, at least one of whom must
be either the Vice President - Finance or the Treasurer,
acting jointly, shall also have the authority to designate
in writing to any Bank those other officers, employees and
agents of the Corporation ("Representatives") who shall be
authorized to sign checks or other drafts, and to issue
written, telephonic, electronic or oral instructions with
respect to the transfer of funds of the Corporation on
deposit with a Bank (or transferable by or to a Bank), by
wire or otherwise, without any written order for the payment
of money being issued with respect to such transfer, and,
for on behalf of the Corporation, to enter into such
agreements with a Bank with respect to any such transfer, or
with respect to foreign exchange or derivative transactions,
as such Representatives, in their sole discretion, deem
advisable. (Amended 9/8/94)
Section 6.4. Voting of Stock. Unless otherwise
ordered by the Board of Directors, the Chairman, the Vice
Chairman, the President or any Vice President elected by the
Board of Directors or appointed by the President shall have
the power to execute and deliver on behalf of the
Corporation proxies on stock owned by the Corporation
appointing a person or persons to represent and vote such
stock at any meeting of stockholders, with full power of
substitution, and shall have power to alter or rescind such
appointment. Unless otherwise ordered by the Board of
Directors, the Chairman, the Vice Chairman, the President,
any Vice President elected by the Board or appointed by the
President shall have the power on behalf of the Corporation
to attend and to act and vote at any meeting of stockholders
of any corporation in which the Corporation holds stock and
shall possess and may exercise any and all rights and powers
incident to the ownership of such stock, which, as the owner
thereof, the Corporation might have possessed and exercised
if present. The Board may confer like powers upon any other
person or persons.
Section 6.5. Transfer of Stock. Such form of transfer
or assignment customary or necessary to effect a transfer of
stocks or other securities standing in the name of the
Corporation shall be signed by the Chairman, the Vice
Chairman, the President, any Executive Vice President, the
Vice President-Finance or the Treasurer, and the Secretary
or an Assistant Secretary shall sign as witness if required
on the form. A corporation or person transferring any such
stocks or other securities pursuant to a form of transfer or
assignment so executed shall be fully protected and shall be
under no duty to inquire whether the Board of Directors has
taken action in respect thereof. (Amended 2/14/91)
ARTICLE 7
SHARE CERTIFICATES AND THEIR TRANSFER
SECTION 7.1. Share Certificates. Certificates for
shares of the Corporation shall be signed by the Chairman,
the Vice Chairman, the President, any Executive Vice
President or the Vice President-Finance, and by the
Secretary or any Assistant Secretary, and shall not be valid
unless so signed. Such certificates shall be appropriately
numbered and contain the name of the registered holder, the
number of shares and the date of issue. If such
certificates is countersigned (a) by a transfer agent other
than the Corporation or its employee, or (b) by a registrar
other than the Corporation or its employee, any other
signature on the certificate may be a facsimile. (Amended
2/14/91)
In case any officer, transfer agent, or registrar who
has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if
he, she or it were such officer, transfer agent, or
registrar at the date of issue.
During any period when more than one class of shares of
the Corporation is authorized, there shall be set forth on
the face or back of certificates issued to represent each
class or series of shares, a statement that the Corporation
will furnish without charge to each shareholder who so
requests, the designation, preferences and relative,
participating, optional or other special rights of each
class of shares or series thereof and the qualifications,
limitations or restrictions of such preferences and/or
rights.
SECTION 7.2. Transfer of Shares. Upon surrender to
the Corporation or a transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation and such
transfer agent to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the
transaction. No certificate shall be issued in exchange for
any certificate until the former certificate for the same
number of shares of the same class and series shall have
been surrendered and canceled, except as provided in Section
7.4.
SECTION 7.3. Regulations. The Board of Directors
shall have authority to make rules and regulations
concerning the issue, transfer and registration of
certificates for shares of the Corporation.
SECTION 7.4. Lost, Stolen and Destroyed Certificates.
The Corporation may issue a new certificate or certificates
for shares in place of any issued certificate alleged to
have been lost, stolen or destroyed upon such terms and
conditions as the Board of Directors may prescribe.
SECTION 7.5. Registered Shareholders. The Corporation
shall be entitled to treat the holder or record (according
to the books of the Corporation) of any share or shares as
the holder in fact thereof and shall not be bound to
recognize any equitable or other claim to or interest in
such share or shares on the part of any other party whether
or not the Corporation shall have express or other notice
thereof, except as expressly provided by the laws of
Indiana.
SECTION 7.6. Transfer Agents and Registrars. The
Board of Directors may from time to time appoint a transfer
agent and a registrar in one or more cities, may require all
certificates evidencing shares of the Corporation to bear
the signatures of a transfer agent and a registrar, may
provide that such certificates shall be transferable in more
than one city, and may provide for the functions of transfer
agent and registrar to be combined in one agency.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1. Litigation Brought By Third Parties. The
Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, formal or
informal (other than an action by or in the right of the
Corporation) (an "Action") by reason of the fact that he or
she is or was a director, officer, employee or agent of the
Corporation (a "Corporate Person"), or is or was serving at
the request of the Corporation as a director, officer,
employee, agent, partner, trustee or member or in another
authorized capacity (collectively, an "Authorized Capacity")
of or for another corporation, unincorporated association,
business trust, state, partnership, joint venture,
individual or other legal entity, whether or not organized
or formed for profit (collectively, "Another Entity"),
against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such
Action ("Expenses") if he or she acted in good faith and in
a manner he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
The termination of any Action by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner
which he or she 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 reasonable cause
to believe his conduct was unlawful.
SECTION 8.2. Litigation by or in the Right of the
Corporation. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
Action suit by or in the right of the Corporation to procure
a judgment in its favor by reason of the fact that he or she
is or was a Corporate Person, or is or was serving at the
request of the Corporation in an Authorized Capacity of or
for Another Entity against Expenses actually and reasonably
incurred by him or her in connection with that defense or
settlement of such Action if he or she acted in good faith
and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation, except
that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have
been adjudged to be liable for willful negligence or
misconduct in the performance of his duty to the Corporation
unless and only to the extent that a court of equity or the
court in which such Action was pending shall determine upon
application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such
expenses which such court of equity or other court shall
deem proper.
SECTION 8.3. Successful Defense. To the extent that a
person who is or was a Corporate Person or in an Authorized
Capacity of Another Entity serving at the request of the
Corporation and has been successful on the merits or
otherwise in defense of any Action, referred to in Section
8.1 and 8.2 of this Article, or in defense of any claim,
issue or matter therein, he or she shall be indemnified
against Expenses actually and reasonably incurred by him or
her in connection therewith.
SECTION 8.4. Determination of Conduct. Any
indemnification under Section 8.1 or 8.2 of this Article
(unless ordered by a court) shall be made by the Corporation
only upon a determination that indemnification of the person
is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in said Sections
8.1 or 8.2. Such determination shall be made (a) 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, or (b) if a quorum cannot be obtained by a
majority vote of a committee duly designated by the Board of
Directors (in which designation directors who are parties
may participate) consisting of two or more directors not at
the time parties to such action suit or proceeding or (c) by
special legal counsel or (d) by the shareholders, provided,
however, shares owned by or voted under the control of
persons who are at the time parties to such action, suit or
proceeding may not be voted on the determination.
SECTION 8.5. Advance Payment. The Corporation shall
advance Expenses reasonably incurred by any Corporate Person
in any Action in advance of the final disposition thereof
upon the undertaking of such party to repay the advance
unless it is ultimately determined that such party is
entitled to indemnification hereunder, if (a) the indemnitee
furnishes the Corporation a written affirmation of his or
her good faith belief that he or she has satisfied the
standard of conduct in Section 8.1 or 8.2 and (b) a
determination is made by those making the decision pursuant
to Section 8.4 that the facts then known would not preclude
indemnification under these By-Laws.
SECTION 8.6. By-Law Not Exclusive. The
indemnification provided by this Article 8 shall not be
deemed exclusive of any other rights to which any person may
be entitled under any by-law, agreement, vote of
shareholders or disinterested directors, or otherwise, both
as to action in his or her 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 a
director, officer, employee, agent or participant and shall
inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 8.7. Insurance. The Corporation may purchase
and maintain insurance on behalf of any person who is or was
a Corporate Person or is or was serving at the request of
the Corporation in an Authorized Capacity of or for Another
Entity against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out
of his or her status as such, whether or not the Corporation
would have the power to indemnify him or her against such
liability under the provisions of this Article or the
Business Corporation Law of the State of Indiana.
SECTION 8.8. Effect of Invalidity. The invalidity or
unenforceability of any provision of this Article 8 shall
not affect the validity or enforceability of the remaining
provisions of this Article 8.
SECTION 8.9. Definition of Corporation. For purposes
of this Article 8, references to "the Corporation" shall
include, in addition to the surviving or resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have had power and authority to indemnify its director,
officer, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise shall stand in the same position under the
provisions of this Article 8 with respect to the surviving
or resulting corporation as he or she would have with
respect to such constituent corporation if its separate
existence had continued.
SECTION 8.10. Change in Law. Notwithstanding the
foregoing provisions of Article 8, the Corporation shall
indemnify any person who is or was a Corporate Person or is
or was serving at the request of the Corporation in an
Authorized Capacity of or for Another Entity to the full
extent permitted by the Indiana Business Corporation Law or
by any other applicable law, as may from time to time be in
effect.
ARTICLE 9
GENERAL
SECTION 9.1. Dividends. Subject to any provisions of
any applicable statute or of the Articles of Incorporation,
dividends may be declared upon the capital stock of the
Corporation by the Board of Directors at any regular or
special meeting thereof; and such dividends may be paid in
cash, property or shares of the Corporation.
SECTION 9.2. Fiscal Year. The fiscal year of the
Corporation shall be the fifty-two or fifty-three week
period beginning the Monday following the Sunday nearest
December 31 of each year.
SECTION 9.3. Severability. If any provision of these
By-Laws, or its application thereof to any person or
circumstances, is held invalid, the remainder of these By-
Laws and the application of such provision to other persons
or circumstances shall not be affected thereby.
SECTION 9.4. Amendments. These By-Laws may be
amended, added to, rescinded or repealed only by an
affirmative vote of at least two-thirds of the directors
then in office at any meeting of the Board of Directors.
SECTION 9.5. Control Shares. The terms "control
shares" and "control share acquisition" used in this Section
9.5 shall have the meanings set forth in Indiana Business
Corporation Law Section 23-1-42-1 et seq. (the "Act").
Control shares of the Corporation acquired in a control
share acquisition shall have only such voting rights as are
conferred by the Act.
Control shares of the Corporation acquired in a control
share acquisition with respect to the acquiring person has
not filed with the Corporation the Statement required by the
Act may, at any time during the period ending sixty days
after the last acquisition of control shares by the
acquiring person, be redeemed by the Corporation at the fair
value thereof pursuant to procedures authorized by a
resolution of the Board of Directors. Such authority may be
exercised generally or confined to specific instances.
Control shares of the Corporation acquired in a control
share acquisition with respect to which the acquiring person
was not granted full voting rights by the shareholders as
provided in the Act may, at any time after the shareholder
vote required by the Act, be redeemed by the Corporation at
the fair value thereof pursuant to procedures authorized by
a resolution of the Board of Directors. Such authority may
be exercised generally or confined to specific instances.