EXHIBIT 3(b)
BY-LAWS
OF
CUMMINS ENGINE COMPANY, INC.
___________________________
(As amended and restated effective as of February 9, 1999)
ARTICLE I
Meetings of Shareholders
________________________
Section 1.1. Annual Meetings. Annual meetings of the
shareholders of the Corporation shall be held each year on such
date, at such hour and at such place within or without the State
of Indiana as shall be designated by the Board of Directors. In
the absence of such designation, the meeting shall be held on the
first Tuesday of April of each year at the principal office of
the Corporation at 11:00 a.m. (local time). The Board of
Directors may, by resolution, change the date or time of such
annual meeting. If the day fixed for any annual meeting of
shareholders shall fall on a legal holiday, then such annual
meeting shall be held on the first following business day that is
not a legal holiday.
Section 1.2. Special Meetings. Special meetings of the
shareholders of the Corporation may be called at any time only by
the Board of Directors or the Chairman of the Board.
Section 1.3. Proper Business. To be properly brought before an
annual meeting, business must be specified in the notice of the
meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, otherwise properly brought before the
meeting by or at the direction of the Board of Directors, or
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 given written notification
thereof, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation not later
than 90 days in advance of the Originally Scheduled Date of such
meeting (provided, however, that if the Originally Scheduled Date
of such meeting is earlier than the date specified in these By-
Laws as the date of the annual meeting if the Board of Directors
does not determine otherwise, such written notice may be so given
and received not later than the close of business on the 10th day
following the date of the first public disclosure, which may
include any public filing by the Corporation with the Securities
and Exchange Commission, of the Originally Schedule Date of such
meeting). Any such notification by a shareholder shall set forth
as to each matter the shareholder proposes to bring before the
meeting (a) brief description of the business described to be
brought before the meeting and the reasons for conducting such
business at the meeting, (b) the name and address of the
shareholder proposing such business, (c) a representation that
the shareholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such business, and (d) any
material interest of the shareholder in such business. To be
properly brought before a special meeting of shareholders called
pursuant to Section 1.2, business must be specified in the notice
of the meeting (or any supplement thereto) given by or at the
direction of the Board of Directors or must otherwise be properly
brought before the meeting by or at the direction of the Board of
Directors. No business shall be conducted at a meeting of
shareholders except in accordance with this paragraph, and the
chairman of any meeting of shareholders may refuse to permit any
business to be brought before a meeting without compliance with
the foregoing procedures. For purposes of these By-Laws, the
"Originally Scheduled Date" of any meeting of shareholders shall
be the date such meeting is scheduled to occur in the notice of
such meeting first given to shareholders regardless of whether
any subsequent notice is given for such meeting or the record
date of such meeting is changed.
Section 1.4. Notices. A written notice, stating the date, time
and place of any meeting of the shareholders, and in the case of
a special meeting the purpose or purposes for which such meeting
is called, shall be delivered or mailed by the Secretary of the
Corporation, to each shareholder of record of the Corporation
entitled to notice of or to vote at such meeting no fewer than
ten (10) nor more than sixty (60) days before the date of the
meeting. Notice of shareholders' meetings, if mailed, shall be
mailed, postage prepaid, to each shareholder at the shareholder's
address shown in the Corporation's current record of
shareholders.
Except as provided by the Indiana Business Corporation Law
or the Corporation's Restated Articles of Incorporation, notice
of a meeting of shareholders is required to be given only to
shareholders entitled to vote at the meeting; provided, however,
notice of a meeting of shareholders shall be given to
shareholders not entitled to vote if a purpose for the meeting is
to vote on any amendment to the Corporation's Restated Articles
of Incorporation, a merger or share exchange to which the
Corporation would be a party, a sale of the Corporation's assets,
or dissolution of the Corporation.
A shareholder or the shareholder's proxy may at any time
waive notice of a meeting if the waiver is in writing and is
delivered to the Corporation for inclusion in the minutes or
filing with the Corporation's records. A shareholder's
attendance at a meeting, whether in person or by proxy, (a)
waives objection to lack of notice or defective notice of the
meeting, unless the shareholder or the shareholder's proxy 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 or the shareholder's proxy objects to
considering the matter when it is presented. Each shareholder
who has in the matter above provided waived notice or objection
to notice of a shareholders' meeting shall be conclusively
presumed to have been given due notice of such meeting, including
the purpose or purposes thereof.
If an annual or special shareholders' meeting is 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, unless a new record
date is or must be established for the adjourned meeting.
Section 1.5. Voting. Except as otherwise provided by the
Indiana Business Corporation Law or the Corporation's Restated
Articles of Incorporation, each share of the capital stock of any
class of the Corporation that is outstanding at the record date
established for any annual or special meeting of shareholders and
is outstanding at the time of and represented in person or by
proxy at the annual or special meeting, shall entitle the record
holder thereof, or the record holder's proxy, to one (1) vote on
each matter voted on at the meeting.
Section 1.6. Quorum. Unless the Corporation's Restated Articles
of Incorporation or the Indiana Business Corporation Law provides
otherwise, at all meetings of shareholders a majority of the
votes entitled to be cast on a matter, represented in person or
by proxy, constitutes a quorum for action on the matter. Action
may be taken at a shareholders' meeting only on matters with
respect to which a quorum exists; provided, however, that any
meeting of shareholders, including annual and special meetings
and any adjournments thereof, may be adjourned to a later date
although less than a quorum is present. Once a share is
represented for any purpose at a meeting, it is deemed present
for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must
be set for that adjourned meeting.
Section 1.7. Vote Required to Take Action. If a quorum exists
as to a matter to be considered at a meeting of shareholders,
action on such matter (other than the election of Directors) is
approved if the votes properly cast favoring the action exceed
the votes properly cast opposing the action, except as the
Corporation's Restated Articles of Incorporation or the Indiana
Business Corporation Law require a greater number of affirmative
votes. Directors shall be elected by a plurality of the votes
properly cast.
Section 1.8. Record Date. Only such persons shall be entitled
to notice of or to vote, in person or by proxy, at any
shareholders' meeting as shall appear as shareholders upon the
books of the Corporation as of such record date as the Board of
Directors shall determine, which date may not be earlier than the
date seventy (70) days immediately preceding the meeting. In the
absence of such determination, the record date shall be the
fiftieth (50th) day immediately preceding the date of such
meeting. Unless otherwise provided by the Board of Directors,
shareholders shall be determined as of the close of business on
the record date.
Section 1.9. Proxies. A shareholder's shares may be voted
either in person or by proxy. A shareholder may appoint a proxy
to vote or otherwise act for the shareholder (including
authorizing the proxy to receive, or to waive, notice of any
shareholders' meetings within the effective period of such proxy)
by signing an appointment form, either personally or by the
shareholder's attorney-in-fact. An appointment of a proxy is
effective when received by the Secretary or other officer or
agent authorized to tabulate votes and is effective for eleven
(11) months unless a shorter or longer period is expressly
provided in the appointment form. The proxy's authority may be
limited to a particular meeting or may be general and authorize
the proxy to represent the shareholder at any meeting of
shareholders held within the time provided in the appointment
form. Subject to the Indiana Business Corporation Law and to any
express limitation on the proxy's authority appearing on the face
of the appointment form, the Corporation is entitled to accept
the proxy's vote or other action as that of the shareholder
making the appointment.
Section 1.10. Organization. At every meeting of the
shareholders, the Chairman of the Board, or, in the Chairman's
absence, a person designated by the Chairman shall act as a
chairman. The Secretary of the Corporation shall act as
secretary of such meeting or, in the Secretary's absence, the
chairman shall appoint a secretary.
Section 1.11. Voting Lists. At least five business days before
each meeting of shareholders, the officer or agent having charge
of the stock transfer books shall make a complete list of the
shareholders entitled to notice of a shareholders' meeting,
arranged in alphabetical order, with the address and number of
shares so entitled to vote held by each, which list shall be on
file at the principal office of the Corporation and subject to
inspection by any shareholder entitled to vote at the meeting.
Such list shall be produced and kept open at the time and place
of the meeting and subject to the inspection of any shareholder
during the holding of such meeting. The original stock register
or transfer book, or a duplicate thereof, kept in this state,
shall be the only evidence as to who are the shareholders
entitled to examine such list or the stock ledger or transfer
book or to vote at any meeting of the shareholders.
Section 1.12. Inspectors of Election. The Board of Directors
may appoint Inspectors of Election to serve at meetings of
shareholders. If, at the time of any meeting, any Inspector so
appointed shall be absent, the presiding officer may appoint an
Inspector to serve in place of the absent Inspector.
Section 1.13. Conduct of Meeting. At any meeting of
shareholders of the Corporation, the Chairman of the Board (or,
in the absence of the Chairman of the Board, such person
designated by the Chairman pursuant to Section 1.10 of these By-
Laws) shall prescribe the order of business to be conducted at
the meeting and establish procedures incident thereto.
ARTICLE II
Directors
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Section 2.1. Number, Qualification and Terms. The business and
affairs of the Corporation shall be managed under the direction
of a Board of Directors. The number of Directors shall be fixed
by resolution of the Board of Directors from time to time. It
shall be the policy of the Corporation that no person seventy-two
years of age or more shall be elected to the Board of Directors.
Any Director who attains the age of seventy-two years during the
Director's term of office shall be eligible to remain a Director
for the duration of the term for which the Director was elected
but shall not be eligible for re-election.
Each Director shall be elected for a term of office to
expire at the annual meeting of shareholders next following the
Director's election, except that each Director elected pursuant
to Section 2.2 of this Article II shall hold office until the
next annual meeting of shareholders. Despite the expiration of a
Director's term, the Director shall continue to serve until the
Director's successor is elected and qualified, or until the
earlier of the Director's death, resignation, disqualification or
removal, or until there is a decrease in the number of Directors.
The Directors and each of them shall have no authority to
bind the Corporation except when acting as a Board.
Section 2.2. Vacancies. Any vacancy occurring in the Board of
Directors, from whatever cause arising, including an increase in
the number of Directors, shall be filled by selection of a
successor by a majority vote of the remaining members of the
Board of Directors (although less than a quorum) until the next
annual meeting of the shareholders.
Section 2.3. Quorum and Vote Required to Take Action. A
majority of the whole Board of Directors shall be necessary to
constitute a quorum for the transaction of any business, except
the filling of vacancies; provided that less than two Directors
shall not constitute a quorum. If a quorum is present when a
vote is taken, the affirmative vote of a majority of the
Directors present shall be the act of the Board of Directors,
unless the act of a greater number is required by the Indiana
Business Corporation Law, the Corporation's Restated Articles of
Incorporation or these By-Laws.
Section 2.4. Regular Meetings. The Board of Directors shall
meet regularly, without notice, at such times and places as may
be specified from time to time by the Board of Directors or the
Chairman of the Board (but no fewer than one time annually) for
the purpose of transacting such business as properly may come
before the meeting.
Section 2.5. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the
President or a majority of the Directors upon not less than
twenty-four (24) hours' notice given to each Director of the
date, time and place of the meeting, which notice need not
specify the purpose or purposes of the special meeting. Such
notice may be communicated in person (either in writing or
orally), by telephone, telegraph, teletype or other form of wire
or wireless communication, or by mail, and shall be effective at
the earlier of the time of its receipt or, if mailed, five (5)
days after its mailing. Notice of any meeting of the Board may
be waived in writing at any time if the waiver is signed by the
Director entitled to the notice and is filed with the minutes or
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 2.6. Written Consents. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken
without a meeting if the action is taken by all members of the
Board. The action must be evidenced by one (1) or more written
consents describing the action taken, signed by each Director,
and included in the minutes or filed with the corporate records
reflecting the action taken. Action taken under this Section
2.6. is effective when the last Director signs the consent,
unless the consent specifies a different prior or subsequent
effective date, in which cases the action is effective on or as
of the specified date. A consent signed under this Section 2.6
shall have the same effect as a unanimous meeting vote of all
members of the Board and may be described as such in any
document.
Section 2.7. Participation by Conference Telephone. The Board
of Directors may permit any or all Directors to participate in a
regular or special meeting by, or through the use of, any means
of communication, such as conference telephone, by which all
Directors participating may simultaneously hear each other during
the meeting. A Director participating in a meeting by such means
shall be deemed to be present in person at the meeting.
Section 2.8. Organization. At every meeting of the Board of
Directors, the Chairman of the Board, or in the Chairman's
absence, a person designated by the Chairman, shall act as
chairman. The Secretary of the Corporation shall act as
secretary of such meeting or, in the Secretary's absence, the
Chairman shall appoint a secretary.
Section 2.9. Resignation. A Director may resign at any time by
delivering written notice to the Chairman of the Board, the
Secretary of the Corporation, the Board of Directors, or such
other officer as the Board of Directors may designate, and such
resignation shall become effective upon such delivery unless the
notice specifies a later effective date.
Section 2.10. Compensation. Any Director who is also an officer
of the Corporation shall receive no separate compensation for
serving as Director. Each Director who is not an officer of the
Corporation shall be paid such compensation, by way of salary,
fees for attendance at meetings of the Board of Directors,
special consulting fees, or other remuneration, as shall be fixed
from time to time by resolution of the Board of Directors. Each
Director shall be reimbursed by the Corporation for travel
expenses incurred in attending such meetings.
Section 2.11. Nominations. Nominations for the election of
Directors may be made by the Board of Directors or by any
shareholder entitled to vote for the election of Directors who
complies fully with the requirements of these By-Laws. Any
shareholder entitled to vote for the election of Directors at a
meeting may nominate a person or persons for election as
Directors only if written notice of such shareholder's intent to
make such nominations is given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the
Corporation not later than 90 days in advance of the Originally
Scheduled Date of such annual meeting (provided, however, that if
the Originally Scheduled Date of such meeting is earlier than the
date specified in these By-Laws as the date of the annual meeting
if the Board of Directors does not determine otherwise, such
written notice may be so given and received not later than the
close of business on the 10th day following the date of the first
public disclosure, which may include any public filing by the
Corporation with the Securities and Exchange Commission, of the
Originally Scheduled Date of such meetings). Each such notice
shall set forth (a) the name and address of the shareholder who
intends to make the nomination and of the person or persons to be
nominated; (b) a representation that the shareholder is a holder
of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings
between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder; (d)
such other information regarding each nominee proposed by such
shareholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had each nominee been nominated, or intended
to be nominated, by the Board of Directors; and (e) the consent
of each nominee to serve as a Director of the Corporation if so
elected. The chairman of any meeting of shareholders to elect
Directors and the Board of Directors may refuse to acknowledge
the nomination of any person not made in compliance with the
foregoing procedure. This Section 2.11 shall not affect the
right of the holders of either Preference or Preferred Stock to
nominate and elect Directors in the event such right arises.
Section 2.12. Chairman of the Executive Committee. The Board of
Directors shall elect a Chairman of the Executive Committee from
among the members of the Board of Directors. The Chairman of the
Executive Committee shall preside at meetings of the Executive
Committee, and shall perform such other duties and functions as
may be assigned to the Chairman of such Committee from time to
time by the Board of Directors.
ARTICLE III
Committees of the Board of Directors
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Section 3.1. General.
(a) The Board of Directors may create one (1) or more
committees and appoint members of the Board of Directors to serve
on them, by resolution of the Board of Directors adopted by a
majority of all the Directors in office when the resolution is
adopted. Each committee may have one (1) or more members, and
all the members of a committee shall serve at the pleasure of the
Board of Directors.
(b) To the extent specified by the Board of Directors in
the resolution creating a committee (as such resolution may be
amended by the Board of Directors from time to time), and except
as otherwise provided in the Indiana Business Corporation Law,
each committee may exercise all of the authority of the Board of
Directors.
(c) Except to the extent inconsistent with the resolutions
creating a committee, the provisions of these By-Laws which
govern meetings, action without meetings, notice and waiver of
notice, quorum and voting requirements and telephone
participation in meetings of the Board of Directors, apply to
each committee and its members as well.
(d) A member of a committee of the Board of Directors who
is also an officer of the Corporation shall receive no separate
compensation for serving as a member of such committee. Each
member of a committee of the Board of Directors who is not an
officer of the Corporation shall be paid such compensation for
attendance at committee meetings as shall be fixed from time to
time by resolution of the Board of Directors. Committee members
shall be reimbursed by the Corporation for travel expenses
incurred in attending committee meetings.
Section 3.2. Executive Committee.
(a) The Board of Directors shall elect from its members an
Executive Committee consisting of not less than three members to
serve at the pleasure of the Board of Directors. During the
intervals between the meetings of the Board of Directors, the
Executive Committee shall possess and may exercise, except as
described in Section 3.1(b) of this Article III, all the power of
the Board of Directors in the management and direction of the
business and affairs of the Corporation. All Directors,
including those Directors who are not designated members of the
Executive Committee, may attend meetings of the Executive
Committee. The Chairman of the Executive Committee shall preside
at all meetings of such Committee. The Secretary of the
Corporation, or, in the Secretary's absence, a person appointed
by the Chairman of the Executive Committee, shall act as
secretary of such Committee.
(b) The Executive Committee shall keep regular minutes of
its proceedings and all action by the Committee shall be reported
to the Board of Directors at its meeting next following the
meeting of the Committee.
Section 3.3. Audit Committee. To the extent the Board of
Directors creates and maintains an Audit Committee, such
committee shall consist entirely of Independent Directors. For
purposes of this Section 3.3, the term "Independent Director"
means a director who: (i) has not been employed by the
Corporation in an executive capacity within the last five years;
(ii) is not, and is not affiliated with a company that is, an
advisor or consultant to the Corporation; (iii) is not affiliated
with a significant customer or supplier of the Corporation; (iv)
has no personal services contract(s) with the Corporation or its
senior management; (v) is not affiliated with a not-for-profit
entity that receives significant contributions from the
Corporation; (vi) within the last five years, has not had any
business relationship with the Corporation (other than service as
a director) for which the Corporation has been required to make
disclosure under Regulation S-K of the Securities and Exchange
Commission; (vii) is not employed by a public company at which an
executive officer of the Corporation serves as a director; (viii)
has not had a relationship described in (i) through (vii) above
with any affiliate of the Corporation; and (ix) is not a member
of the immediate family of any person described in (i) through
(viii) above.
ARTICLE IV
Officers
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Section 4.1. Designation and Selection. The Board of Directors
shall elect as officers of the Corporation a Chairman of the
Board, a Chief Executive Officer, a President, and a Chief
Operating Officer. The Chief Executive Officer shall appoint a
Secretary and such other officers of the Corporation as the Chief
Executive Officer deems appropriate, which appointments shall be
presented to the Board of Directors for ratification.
Section 4.2. Duties and Functions.
(a) Chairman of the Board. The Chairman of the Board shall
be a member of the Board of Directors and shall, when present,
preside at all meetings of the Board of Directors and of the
shareholders. The Chairman of the Board shall perform such other
duties and functions as may be assigned to the Chairman of the
Board from time to time by the Board of Directors.
(b) Chief Executive Officer. The Chief Executive Officer
shall be a member of the Board of Directors and shall perform
such other duties and functions as may be assigned from time to
time by the Board of Directors.
(c) President. The President shall be a member of the
Board of Directors and shall perform such other duties and
functions as may be assigned the President from time to time by
the Board of Directors or the Chief Executive Officer.
(d Chief Operating Officer. The Chief Operating Officer
shall be a member of the Board of Directors and shall perform
such other duties as may be assigned from time to time by the
Board of Directors or the Chief Executive Officer.
(e) Secretary. The Secretary shall keep a record of
proceedings at all meetings of the Board of Directors and of the
shareholders, shall have custody of the corporate records and
seal of the Corporation, shall be responsible for authenticating
records of the Corporation, and shall perform such other duties
and functions as may be assigned to the Secretary from time to
time by the Chairman of the Board.
(f) Other Officers. Each other officer appointed by the
Chairman of the Board shall have and perform such powers, duties
and functions as may be assigned to such officer from time to
time by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer, the President, or the Chief Operating
Officer.
Section 4.3. Removal. The Board of Directors may remove any
officer at any time with or without cause by resolution adopted
by a majority of the whole Board of Directors. An officer
appointed by the Chairman of the Board may also be removed at any
time, with or without cause, by the Chairman of the Board.
Section 4.4. Resignations. Any corporate officer may resign at
any time by delivering written notice thereof to the Board of
Directors, the Chairman of the Board or the Secretary. Such
resignation shall take effect at the time delivered unless a
later time is specified therein. The acceptance of such
resignation shall not be necessary to make it effective.
Section 4.5. Compensation. The Board of Directors shall fix the
salary and other compensation for officers of the Corporation who
are also Directors of the Corporation and may delegate to the
Chairman of the Board authority to fix salaries and other
compensation of all remaining officers of the Corporation.
Section 4.6. Special Authority. The Chairman of the Board or
the President, or other officers designated by either of them,
shall have authority to execute guarantees, indentures for monies
borrowed by the Corporation, appointments of powers of attorney
and proxies to act on behalf of the Corporation, instruments for
the devise or conveyance of real estate or creation of mortgages,
bank forms required to open, maintain or close bank accounts, and
any other written agreements to which the Corporation shall be a
party which pertain to the routine operation of the Corporation
and are regularly being made in the ordinary course of carrying
on such operations.
Article V
Stock
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Section 5.1. Execution. The certificates of stock of the
Corporation shall be signed by the President or a Vice President
and the Secretary; provided, however, that where such
certificates are also signed by a transfer agent or a registrar
or both, the signature of such corporate officers may be
facsimiles. 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 such person were
such officer, transfer agent, or registrar at the date of its
issue.
Section 5.2. Contents. Each certificate shall state on its face
the name of the Corporation and that it is organized under the
laws of the State of Indiana, the name of the person to whom it
is issued, and the number and class of shares and the designation
of the series, if any, the certificate represents, and shall
state conspicuously on its front or back that the Corporation
will furnish the shareholder, upon the shareholder's written
request and without charge, a summary of the designations,
relative rights, preferences and limitations applicable to each
class and the variations in rights, preferences and limitations
determined for each series (and the authority of the Board of
Directors to determine variations for future series).
Section 5.3. Transfer Agents and Registrars. The Corporation
may have one or more transfer agents and one or more registrars
of its shares, whose respective duties the Board of Directors may
from time to time define. No certificate for shares shall be
valid until countersigned by a transfer agent if the Corporation
has a transfer agent or until registered by a registrar if the
Corporation has a registrar.
Section 5.4. Transfers. Shares of stock shall be transferable
on the books of the Corporation by the person named in the
certificate or by such person's attorney upon surrender of the
certificate properly endorsed. The Corporation may deem and
treat the person in whose name shares of stock stand on the books
of the Corporation as the owner thereof for purposes of voting,
dividends and all other purposes.
Section 5.5. Stock Transfer Records. There shall be entered
upon the stock records of the Corporation the number of each
certificate issued, the name and address of the registered holder
of such certificate, the number, kind and class of shares
represented by such certificate, the date of issue, whether the
shares are originally issued or transferred, the registered
holder from whom transferred and such other information as is
commonly required to be shown by such records. The stock records
of the Corporation shall be kept as its principal office, unless
the Corporation appoints a transfer agent or registrar, in which
case the Corporation shall keep at its principal office a
complete and accurate shareholders' list giving the names and
addresses of all shareholders and the number and class of shares
held by each. If a transfer agent is appointed by the
Corporation, shareholders shall give written notice of any
changes in their addresses from time to time to the transfer
agent.
Section 5.6. Loss, Destruction or Mutilation of Certificates.
The holder of any shares of the capital stock of the Corporation
shall immediately notify the Corporation of any loss, destruction
or mutilation of the certificate therefor, and the Board of
Directors may, in its discretion, cause to be issued to the
holder a new certificate or certificates of stock, upon the
surrender of the mutilated certificate, or, in the case of loss
or destruction, upon satisfactory proof of such loss or
destruction. The Board of Directors may, in its discretion,
require the holder of the lost or destroyed certificate or the
holder'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 capital stock represented
by the certificate or certificates alleged to have been lost or
destroyed, but the Board of Directors may, in its discretion,
refuse to issue a new certificate or certificates, save upon the
order of a court having jurisdiction in such matters.
Section 5.7. Form of Certificates. The form of the certificates
for shares of the capital stock of the Corporation shall conform
to the requirements of Section 5.2 of the By-Laws and be in such
printed form as shall from time to time be approved by resolution
of the Board of Directors.
ARTICLE VI
Indemnification of Directors and Officers
_________________________________________
Section 6.1. Mandatory. The Corporation shall, to the fullest
extent permitted by Sections 1 through 13 of Indiana Code
Ch. 23-1-37 as in effect April 1, 1986, (i) indemnify any person
who is or was a Director or officer of the Corporation (and the
heirs and legal representatives thereof) against expenses
(including attorneys' fees), judgments, fines, and penalties and
amounts paid in settlement resulting from any action, suit or
proceeding threatened or brought against such person by reason of
such person's serving in such position or serving another
enterprise in any capacity at the request of the Corporation, and
(ii) pay for or reimburse the reasonable expenses incurred by
such person in advance of the final disposition of the action,
suit or proceeding.
Section 6.1. Discretionary. Separate and apart from, and in
addition to, the mandatory indemnification required under Section
6.1 of this Article, the Corporation may, in its sole discretion,
provide for indemnification of any person in accordance with the
provisions of Indiana Code Ch. 23-1-37, as from time to time
amended, or superseding statutory provisions.
Section 6.3. Other Capacity Service. Any Director or officer of
the Corporation serving in any capacity (i) another corporation,
of which a majority of the shares entitled to vote in the
election of its directors is held, directly or indirectly, by the
Corporation, or (ii) any employee benefit plan of the Corporation
or of another corporation described in Subsection (i) of this
Section, shall be deemed to be doing so at the request of the
Corporation.
Section 6.4. Applicable Law. Any person entitled to be
indemnified as a matter of right pursuant to this Article VI may
elect to have the right to indemnification interpreted on the
basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action, suit
or proceeding, to the extent permitted by Indiana law, or on the
basis of the applicable law in effect at the time indemnification
is sought.
Section 6.5. Rights. The right to be indemnified pursuant to
this Article VI (i) shall be a contract right of each individual
entitled to be indemnified hereunder, (ii) is intended to be
retroactive and shall be available with respect to events
occurring prior to the adoption hereof, and (iii) shall continue
to exist with respect to events occurring prior to any rescission
or restrictive modification of this Article VI.
Section 6.6. Claims. If a claim for indemnification pursuant to
this Article VI is not paid in full by the Corporation within
ninety days after a written request therefor has been received by
the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall
be entitled also to be paid the expense of prosecuting such
claim. Neither the failure of the Corporation (including its
Board of Directors, special legal counsel or its shareholders) to
have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because the claimant has met the applicable
standard of conduct, nor an actual determination by the
Corporation (including its Board of Directors, special legal
counsel or its shareholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action
or create a presumption that the claimant had not met the
applicable standard of conduct.
ARTICLE VII
Miscellaneous
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Section 7.1. Indiana Business Corporation Law. The provisions
of the Indiana Business Corporation Law, as amended, applicable
to all matters relevant to, but not specifically covered by,
these By-Laws are hereby, by reference, incorporated in and made
a part of these By-Laws.
Section 7.2. Fiscal Year. The fiscal year of the Corporation
shall end on the 31st of December of each year.
Section 7.3. Control Share Act. The provisions of Chapter 42 of
the Indiana Business Corporation Law, Ind. Code 23-1-42-1 et
seq., shall not apply to control share acquisitions of shares of
the Corporation.
Section 7.4. Seal. The Corporation shall have a corporate seal,
which shall have inscribed the name of the Corporation and the
word "INDIANA" around the outer edge and the words "CORPORATE
SEAL" in the center.
Section 7.5. Contracts and Other Instruments. Bonds, contracts,
deeds, leases and other obligations and instruments of the
Corporation may be signed in the name of and on behalf of the
Corporation by (i) officers or their designees, and (ii) agents
of the Corporation as may be specifically authorized by
resolution of the Board of Directors.
Section 7.6. Books and Records. Subject to the laws of the
State of Indiana, the books of account, records, documents and
papers of the Corporation may be kept at any place or places
within or without the State of Indiana.
Section 7.7. Amendments. These By-Laws may be rescinded,
changed or amended, and provisions hereof may be waived, at any
meeting of the Board of Directors by the affirmative vote of a
majority of the entire number of Directors at the time, except as
otherwise required by the Corporation's Restated Articles of
Incorporation or by the Indiana Business Corporation Law.
Section 7.8. Definition of Articles of Incorporation and
Restated Articles of Incorporation. The term "Articles of
Incorporation" and "Restated Articles of Incorporation" as used
in these By-Laws mean the Restated Articles of Incorporation of
the Corporation as from time to time in effect.