AMENDED AND RESTATED
CODE OF BY-LAWS
OF
FORUM GROUP, INC.
September 24, 1994
E-1
ARTICLE 1
---------
Definition of Certain Terms
---------------------------
Section 1.01. Corporation. The term "Corporation," as used
in this Code of By-Laws, means Forum Group, Inc., a corporation
duly organized and existing under the Indiana Business
Corporation Law, as amended, IND. CODE 23-1-17-1, et seq.
Section 1.02. Articles of Incorporation. The term
"Articles of Incorporation," as used in this Code of By-Laws,
means the Restated Articles of Incorporation of the Corporation,
which were filed with and approved by the Secretary of State of
Indiana on March 31, 1992, as now in force or hereafter amended.
Section 1.03. Preferred Stock. The term "Preferred Stock,"
as used in this Code of By-Laws, means the shares of Preferred
Stock, without par value, which the Corporation is authorized to
issue pursuant to the Articles of Incorporation.
Section 1.04. Common Stock. The term "Common Stock," as
used in this Code of By-Laws, means the shares of Common Stock,
without par value, which the Corporation is authorized to issue
pursuant to the provisions of the Articles of Incorporation.
Section 1.05. Stock Register. The term "Stock Register,"
as used in this Code of By-Laws, means the Stock Register of the
Corporation to which reference is made in Section 2.01 of this
Code of By-Laws.
Section 1.06. Registered Office of the Corporation. The
term "Registered Office of the Corporation," as used in this Code
of By-Laws, means the office of the Corporation as stated in
Section 4.1 of the Articles of Incorporation or, if a certificate
or certificates indicating a change in the location of such
office has been filed in accordance with the Law, the office set
forth in the most recently filed of such certificates.
E-2
Section 1.07. Shareholders. The term "Shareholders," as
used in this Code of By-Laws, means the persons shown by the
records of the Corporation to be the holders of the duly
authorized, issued and outstanding shares of Preferred Stock and
Common Stock unless otherwise indicated.
Section 1.08. Board of Directors. The term "Board of
Directors," as used in this Code of By-Laws, means the Board of
Directors of the Corporation.
Section 1.09. Officers. The terms "Chairman of the Board,"
"President," "Vice President," "Secretary," "Assistant
Secretary," "Treasurer" and "Assistant Treasurer," as used in
this Code of By-Laws, mean, respectively, the individuals serving
as the duly elected, qualified and acting officers of the
Corporation, from time to time, in their respective capacities as
such.
Section 1.10. Law. The term "Law," as used in this Code of
By-Laws, means the Indiana Business Corporation Law, as amended,
IND. CODE 23-1-17-1, et seq.
ARTICLE 2
---------
Shares of the Corporation
-------------------------
Section 2.01. Stock Register. The Secretary shall maintain
a Stock Register in which shall be registered each transaction
involving the issuance, transfer and cancellation of shares of
Preferred Stock and Common Stock.
Section 2.02. Registration of Issuance of Shares. The
issuance of shares of Preferred Stock and Common Stock shall be
registered by the Secretary in the Stock Register effective as of
the date upon which all requirements imposed by the Board of
Directors in authorizing and directing the issuance of such
shares, and all requirements imposed by the Law, shall have been
satisfied. Such shares shall, for all corporate purposes, be
deemed to be duly issued only upon such registration.
Section 2.03. Registration of Transfer of Shares. The
transfer of shares of Preferred Stock and Common Stock shall be
registered by the Secretary in the Stock Register effective as of
the date upon which due presentment of such shares shall be made
to the Secretary for transfer. Such shares shall, for all
corporate purposes, be deemed to be duly transferred only upon
such registration. For purposes of this Section 2.03, due
presentment of a certificate evidencing shares of Preferred Stock
and Common Stock for transfer shall be deemed to have been made
only at the date upon which such certificate is presented to the
Secretary with a request to register the transfer and all
requirements of Section 8-401 of the Indiana Uniform Commercial
E-3
Code, as now in force or hereafter amended, have been satisfied.
Section 2.04. Registration of Cancellation of Shares. The
cancellation of shares of Preferred Stock and Common Stock shall
be registered by the Secretary in the Stock Register effective as
of the date upon which all requirements imposed by the Board of
Directors in authorizing and directing the cancellation of such
shares, and all requirements imposed by the Law, shall have been
satisfied. Such shares shall, for all corporate purposes, be
deemed to be duly cancelled only upon such registration.
Section 2.05. Lost, Destroyed or Stolen Stock Certificates.
No share certificates shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen unless the Board
of Directors is, or such officer or officers as may be designated
by the Board of Directors are, satisfied as to such loss,
destruction or theft and unless an indemnity bond acceptable to
the Board or such officers has been furnished by the owner of
such lost, destroyed or stolen certificate, or his legal
representative.
Section 2.06. Issuance of Certificates. Upon registration
of the issuance or transfer of shares of Preferred Stock and
Common Stock in the Stock Register, the Secretary shall cause to
be prepared, issued and delivered appropriate certificates
evidencing such shares, signed (either manually or in facsimile)
by the President and the Secretary. Certificates evidencing
shares of Preferred Stock shall be substantially in the form of
Exhibit 1 hereto. Certificates evidencing shares of Common Stock
shall be substantially in the form of Exhibit 2 hereto. Each
certificate shall state conspicuously on its front or back that
the Corporation will furnish the shareholder the information
described in IND. CODE 23-1-26-6(c) on request in writing and
without charge.
E-4
ARTICLE 3
---------
The Shareholders
----------------
Section 3.01. Annual Meeting. The annual meeting of
Shareholders shall be held at ten o'clock in the forenoon of the
first Tuesday in July of each year if such day is not a legal
holiday and if a holiday then on the first following day that is
not a legal holiday. Failure to hold the annual meeting at the
designated time shall not work any forfeiture or a dissolution of
the Corporation, or affect the validity of any corporate action.
The annual meeting shall be held for the purposes of electing
individuals to each position upon the Board of Directors, acting
upon such other questions or matters as are proposed to be
submitted to a vote at the meeting and acting upon such further
questions or matters as may properly come before the meeting.
The annual meeting shall be called by the Board of Directors.
Section 3.02. Special Meetings. The Shareholders may hold
a special meeting at any time for the purposes of electing
individuals to vacant positions upon the Board of Directors,
acting upon such other questions or matters as are proposed to be
submitted to a vote at the meeting and acting upon such further
questions or matters as may properly come before the meeting. A
special meeting of the Shareholders may be called by the Board of
Directors, by the Chairman of the Board, by the President or by
Shareholders holding not less than one-fourth (1/4) of the duly
authorized, issued and outstanding shares entitled to vote on the
business proposed to be conducted thereat (determined as of the
date upon which the special meeting is called).
Section 3.03. Place of Meetings. Meetings of the
Shareholders may be held at the Registered Office of the
Corporation or at any other place, within or without the State of
Indiana.
Section 3.04. Procedure for Calling Meetings. Any meeting
of the Shareholders which is called by the Board of Directors
shall be deemed duly to have been called upon the adoption of a
resolution by the Board of Directors, not less than ten (10) days
before the date of the meeting, setting forth the time, date and
place of the meeting and containing a concise statement of the
questions or matters proposed to be submitted to a vote at the
meeting. Any special meeting of the Shareholders which is called
by the Chairman of the Board or the President shall be deemed
duly to have been called upon delivery to the Secretary, not less
than ten (10) days before the date of the meeting, of a written
statement, executed by the Chairman of the Board or the
President, setting forth the time, date and place of the meeting
and containing a concise statement of the questions or matters
proposed to be submitted to a vote at the meeting. Any special
meeting of the Shareholders which is called by the Shareholders
shall be deemed duly to have been called upon delivery to the
Secretary, not less than fifty (50) days before the date of the
E-5
meeting, of a written instrument, executed by each of the
Shareholders calling the meeting, setting forth the time, date
and place of the meeting and containing a concise statement of
the questions or matters proposed to be submitted to a vote at
the meeting. Any meeting of the Shareholders with respect to
which all Shareholders either are present in person or by proxy
or duly waive written notice, either before or after the meeting,
shall also be deemed duly to have been called.
Section 3.05. Record Date. For the purpose of determining
the Shareholders entitled to notice of, or to vote at, any
meeting of the Shareholders, for the purpose of determining the
Shareholders entitled to receive payment of any dividend or other
distribution, or in order to make a determination of the
Shareholders for any other corporate purpose, the Board of
Directors may fix in advance a date as the record date for that
determination of the Shareholders, and, in case of a meeting of
the Shareholders, not less than ten (10) days, before the date
upon which the particular action, requiring that determination of
the Shareholders, is to be taken. If no record date is fixed for
the determination of the Shareholders entitled to notice of, or
to vote at, a meeting of the Shareholders, then the date ten (10)
days before the date of the meeting shall be the record date for
the meeting. If no record date is fixed for the determination of
the Shareholders entitled to receive payment of a dividend or
other distribution, then the date upon which the resolution of
the Board of Directors declaring the dividend or other
distribution is adopted shall be the record date for the
determination of the Shareholders. When a determination of the
Shareholders entitled to notice of, or to vote at, a meeting of
the Shareholders has been made, the determination shall apply to
any adjournment of the meeting; provided, however, that, if the
meeting is adjourned to a date more than one hundred twenty (120)
days after the date of the meeting, the Board of Directors shall
fix a subsequent record date for such adjournment of the meeting.
The Shareholders upon any record date shall be the Shareholders
as of the close of business on that record date.
Section 3.06. Notice of Meetings. Notice of any meeting of
the Shareholders shall be deemed duly to have been given if, not
less than ten (10) but not more than sixty (60) days before the
date of the meeting, a written notice stating the date, time and
place of the meeting, and containing a concise statement of the
questions or matters proposed to be submitted to a vote at the
meeting, is delivered by the Secretary to each Shareholder
entitled to notice of, and to vote at, the meeting; provided
however, that notice of a meeting at which any of the following
corporate actions is to be considered shall be delivered or
mailed to all Shareholders of record, whether or not entitled to
vote at the meeting, not less than ten (10) days but not more
than sixty (60) days before the meeting:
(1) an amendment or amendments to the Articles of
Incorporation requiring Shareholder approval;
E-6
(2) an agreement of merger or share exchange requiring
Shareholder approval;
(3) the sale, lease, exchange or other disposition of all
or substantially all of the Corporation's property; or
(4) a proposal for voluntary dissolution requiring
Shareholder approval.
The written notice shall be deemed duly to have been delivered by
the Secretary to a Shareholder on the earliest dates upon which:
(1) it is delivered personally to the Shareholder;
(2) it is deposited in the United States First Class Mail,
postage prepaid, addressed to the address of the Shareholder set
forth upon the records of the Corporation; or
(3) it is deposited with a telegraph company, transmission
charges prepaid, addressed to the address of the Shareholder set
forth upon the records of the Corporation.
Written notice of the meeting shall be deemed duly to have been
waived by any Shareholder present, in person or by proxy, at the
meeting. Written notice of the meeting may be waived by any
Shareholder not present, in person or by proxy, at the meeting,
either before or after the meeting, by written instrument,
executed by the Shareholder, delivered to the Secretary.
Section 3.07. Shareholder Lists. The Secretary shall, not
less than five (5) days before the date of each meeting of the
Shareholders, prepare, or cause to be prepared, a complete list
of the Shareholders entitled to notice of the meeting. The
Shareholder list shall disclose the names and addresses of those
Shareholders, arranged in alphabetical order, and the number of
duly authorized, issued and outstanding shares held by each of
those Shareholders (determined as of the record date for the
meeting). The Secretary shall cause the Shareholder list to be
produced and kept open at the Registered Office of the
Corporation where it shall be subject to inspection by any
Shareholder during the five (5) days before the meeting. The
Secretary shall also cause the Shareholder list to be produced
and kept open at the time and place of the meeting where it shall
be subject to inspection by any Shareholder during the course of
the meeting.
Section 3.08. Quorum at Meetings. At any meeting of the
Shareholders the presence, in person or by proxy, of Shareholders
holding a majority of the duly authorized, issued and outstanding
E-7
shares entitled to vote thereat (determined as of the record date
for the meeting) shall constitute a quorum.
Section 3.09. Voting at Meetings. Any action required or
permitted to be taken at any meeting of the Shareholders with
respect to any question or matter shall be taken pursuant to the
affirmative vote of a majority of the duly authorized, issued and
outstanding shares of Common Stock (determined as of the record
date for the meeting) present and entitled to vote at the
meeting, in person or by proxy, so long as a quorum exists,
unless a greater number is required by the provisions of the Law
or the Articles of Incorporation, in which event the action shall
be taken only pursuant to the affirmative vote of that greater
number.
Section 3.10. Voting by Proxy. A Shareholder may vote at
any meeting of the Shareholders at which he is entitled to vote
either in person or by proxy. Each proxy shall be in the form of
a written instrument executed by the Shareholder or a duly
authorized agent of the Shareholder. No proxy shall be voted at
any meeting unless and until it has been filed with the
Secretary.
Section 3.11. Action Without Meeting. Any action required
or permitted to be taken at any meeting of the Shareholders with
respect to any question or matter may be taken without a meeting
if a unanimous written consent to that action is executed by all
Shareholders entitled to vote with respect to the subject matter
thereof (determined as of the date upon which the written consent
is first executed) and the written consent is delivered to the
Corporation for filing with the minutes of the proceedings of the
Shareholders.
Section 3.12. Participation in Meetings by Electronic
Communications. Any or all Shareholders may participate in an
annual or special meeting of the Shareholders by, or through the
use of, any means of communication by which all Shareholders
participating may simultaneously hear each other during the
meeting. Participation by any such Shareholder by this means
shall be deemed to constitute presence in person at such meeting.
ARTICLE 4
---------
The Board of Directors
----------------------
Section 4.01. Number of Members. The Board of Directors
consists of eleven (11) members.
Section 4.02. Qualification of Members. Each member of the
Board of Directors shall be an adult individual. Members of the
Board of Directors need not be Shareholders and need not be
residents of the State of Indiana or citizens of the United
States of America.
E-8
Section 4.03. Election of Members. The members of the
Board of Directors shall be elected by the holders of the duly
authorized, issued and outstanding shares of Preferred Stock and
Common Stock. Vacancies in the membership of the Board of
Directors shall be filled as provided in the Articles of
Incorporation. Each member of the Board of Directors shall serve
as such until his successor is chosen and qualified. Each member
of the Board of Directors shall be deemed to have qualified as
such upon his election.
Section 4.04. Removal of Members. Any member of the Board
of Directors may be removed as provided in the Articles of
Incorporation.
Section 4.05. Resignations of Members. Any member of the
Board of Directors may resign at any time, with or without cause,
by delivering written notice of his resignation to the Board of
Directors. The resignation shall take effect at the time
specified in the written notice or upon receipt by the Board of
Directors, as the case may be, and, unless otherwise specified in
the written notice, the acceptance of the resignation shall not
be necessary to make it effective.
Section 4.06. Annual Meeting. The Board of Directors shall
hold its annual meeting immediately following the annual meeting
of the Shareholders for the purposes of electing individuals to
each of the offices of the Corporation and acting upon such other
questions or matters as may properly come before the meeting.
Section 4.07. Special Meetings. The Board of Directors may
hold a special meeting at any time for the purposes of electing
individuals to each vacant position on the Board of Directors,
electing individuals to each vacant office of the Corporation and
acting upon such other questions and matters as may properly come
before the meeting. A special meeting of the Board of Directors
may be called by any member of the Board of Directors.
Section 4.08. Place of Meetings. The annual meeting of the
Board of Directors shall be held at the same place at which the
annual meeting of the Shareholders is held. Special meetings of
the Board of Directors may be held at the Registered Office of
the Corporation or at any other place, within or without the
State of Indiana.
Section 4.09. Procedure for Calling Meetings. Special
meetings may be held upon the call of the Chairman of the Board,
or any two members of the Board of Directors, at any place within
or without the State of Indiana, upon forty-eight hours' notice,
specifying the date, time and place of the meeting, given to each
director personally, by mailing, by telecopy or by telephone.
Section 4.10. Notice of Meetings. (Repealed April 7, 1993)
E-9
Section 4.11. Waiver of Notice. A member of the Board of
Directors may waive notice required thereunder or under law
either before or after the date and time stated in the notice.
Except as hereinafter provided, the waiver must be in writing,
signed by the member of the Board of Directors and filed with the
minutes or corporate records. For purposes of this Section, a
waiver granted by telegram, telex, telecopy or other document
transmitted electronically by a member of the Board of Directors
shall be deemed "signed by the member of the Board of Directors."
A member of the Board of Director's attendance at or
participation in a meeting waives any required notice unless the
member of the Board of Directors at the beginning of the meeting
(or promptly upon the member of the Board of Director's arrival)
objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to the action
taken at the meeting.
Section 4.12. Quorum at Meetings. At any meeting of the
Board of Directors the presence of a majority of the then duly
elected and qualified members of the Board of Directors shall
constitute a quorum; provided, however, that in no event shall a
quorum consist of fewer than one-third of the number of Directors
prescribed by Section 4.01.
Section 4.13. Voting at Meetings. Any action required or
permitted to be taken at any meeting of the Board of Directors
with respect to any question or matter shall be taken pursuant to
the affirmative vote of a majority of the then duly elected and
qualified members of the Board of Directors present at the
meeting, so long as a quorum exists, unless a greater number is
required by the provisions of the Law, in which event the action
shall be taken only pursuant to the affirmative vote of that
greater number.
Section 4.14. Action Without Meeting. Any action which may
be taken at a meeting of the Board of Directors may be taken
without a meeting if evidenced by one or more written consents
describing the action taken, signed by each member of the Board
of Directors and included in the minutes or filed with the
corporate records reflecting the action taken. For purposes of
this Section, a consent granted by telegram, telex, telecopy or
other document transmitted electronically by a member of the
Board of Directors shall be deemed "signed by a member of the
Board of Directors." Action taken by written consent is
effective when the last member of the Board of Directors signs
the consent unless the consent specifies a different prior or
subsequent effective date.
Section 4.15. Participation in Meetings by Electronic
Communications. Any or all members of the Board of Directors may
participate in a meeting of the Board of Directors by any means
of communication by which all members of the Board of Directors
participating may simultaneously hear each other during the
meeting. A member of the Board of Directors participating in a
E-10
meeting by this means is deemed to be present in person at the
meeting.
ARTICLE 5
---------
The Executive Committee
-----------------------
Section 5.01. Establishment of Executive Committee. The
Board of Directors may designate, by resolution adopted by a
majority of the actual number of directors elected and qualified,
from time to time, two (2) or more of its members to constitute
an Executive Committee.
Section 5.02. Powers of Executive Committee. During the
intervals between the meetings of the Board of Directors, the
Executive Committee shall have and may exercise all powers of the
Board of Directors except that the Executive Committee shall have
no power to:
(1) declare dividends or distributions;
(2) amend the Articles of Incorporation or this Code of By-
laws;
(3) approve a plan of merger or consolidation even if the
plan does not require a shareholder approval;
(4) reduce earned or capital surplus;
(5) authorize or approve the reacquisition of shares unless
pursuant to general formula or
method specified by the Board of Directors; or
(6) recommend to the shareholders a voluntary dissolution
of the Corporation or a
revocation thereof.
The Executive Committee shall have, but is not limited to, such
powers as are coterminous with the authority provided by
resolution of the Board of Directors to the committees other than
the Executive Committee except for such authority expressly
reserved by resolution solely and exclusively for any such
committee.
Section 5.03. Qualifications of Members. Each member of
the Executive Committee shall be a duly elected and qualified
member of the Board of Directors.
Section 5.04. Election of Members. The members of the
Executive Committee shall be elected by the Board of Directors.
Each member of the Executive Committee shall serve as such for a
term coextensive with his term as a member of the Board of
Directors, except as hereinafter provided. Each member of the
E-11
Executive Committee shall be deemed to have qualified as such
upon his election.
Section 5.05. Removal of Members. Any member of the
Executive Committee may be removed at any time, with or without
cause, by the Board of Directors.
Section 5.06. Resignations of Members. Any member of the
Executive Committee may resign at any time, with or without
cause, by delivering written notice of his resignation to the
Board of Directors. The resignation shall take effect at the
time specified in the written notice or upon receipt, as the case
may be, and, unless otherwise specified in the written notice,
the acceptance of the resignation shall not be necessary to make
it effective.
Section 5.07. Filling of Vacancies. Any vacancies in the
membership of the Executive Committee because of death,
adjudication of incompetency, resignation or removal of a member
of the Executive Committee, or caused by an increase in the
number of members of the Executive Committee, shall be filled for
the unexpired portion of the term of such position by the Board
of Directors.
Section 5.08. Meetings. The Executive Committee may hold
meetings at any time for the purpose of acting upon such
questions and matters as may properly come before such meeting.
A meeting of the Executive Committee may be called by any member
of the Executive Committee.
Section 5.09. Place of Meetings. Meetings of the Executive
committee may be held at the Registered Office of the Corporation
or at any other place, within or without the State of Indiana.
Section 5.10. Procedure for Calling Meetings. Any meeting
of the Executive Committee shall be deemed duly to have been
called by a member of the Executive Committee upon delivery to
the Secretary, not less than three (3) days before the date of
the meeting, of a written instrument, executed by the member of
the Executive Committee calling the meeting, setting forth the
time, date and place of such meeting. The written instrument may
also contain, at the option of the member of the Executive
Committee calling the meeting, a concise statement of the
questions or matters proposed to be submitted to vote, or
discussed, at the meeting. Any meeting of the Executive
Committee with respect to which all members of the Executive
committee either are present or duly waive written notice, either
before or after the meeting, shall also be deemed duly to have
been called.
Section 5.11. Notice of Meetings. Notice of any meeting of
the Executive Committee shall be deemed duly to have been given
if, at least three (3) days before the date of the meeting, a
written notice stating the date, time and place of the meeting,
and to the extent set forth in the written instrument by which
E-12
the meeting is called, containing a concise statement of the
questions or matter proposed to be submitted to a vote at the
meeting is delivered by the Secretary to each of the members of
the Executive Committee. The written notice shall be deemed duly
to have been delivered by the Secretary to a member of the
Executive Committee on the earliest of the dates upon which:
(1) it is delivered personally to the member of the
Executive Committee;
(2) it is deposited in the United States First Class Mail,
postage prepaid, addressed to the
last known address of the member of the Executive
Committee; or
(3) it is deposited with a telegraph company, transmission
charges prepaid, addressed to the
last known address of the member of the Executive
Committee.
Section 5.12. Waiver of Notice. A member of the Executive
Committee may waive notice required hereunder or under law either
before or after the date and time stated in the notice. Except
as hereinafter provided, the waiver must be in writing, signed by
the member of the Executive Committee and filed with the minutes
or corporate records. For purposes of this Section, a waiver
granted by telegram, telex, telecopy or other document
transmitted electronically by a member of the Executive Committee
shall be deemed "signed by the member of the Executive
Committee." A member of the Executive Committee's attendance at
or participation in a meeting waives any required notice unless
the member of the Executive Committee at the beginning of the
meeting (or promptly upon the member of the Executive Committee's
arrival) objects to holding the meeting or transacting business
at the meeting and does not thereafter vote for or assent to the
action taken at the meeting.
Section 5.13. Quorum at Meetings. At any meeting of the
Executive Committee the presence of a majority of the then duly
elected and qualified members of the Executive Committee shall
constitute a quorum.
Section 5.14. Voting at Meetings. Any action required or
permitted to be taken at any meeting of the Executive Committee
with respect to any question or matter shall be taken pursuant to
a vote of a majority of the then duly elected and qualified
members of the Executive Committee present at the meeting, so
long as a quorum exists, unless a greater number is required by
the provisions of the Law, in which event the action shall be
taken only pursuant to the vote of that greater number.
Section 5.15. Action Without Meeting. Any action which may
be taken at a meeting of the Executive Committee may be taken
without a meeting if evidenced by one or more written consents
describing the action taken, signed by each member of the
E-13
Executive Committee and included in the minutes or filed with the
corporate records reflecting the action taken. For purposes of
this Section, a consent granted by telegram, telex, telecopy or
other document transmitted electronically by a member of the
Executive Committee shall be deemed "signed by a member of the
Executive Committee." Action taken by written consent is
effective when the last member of the Executive Committee signs
the consent unless the consent specifies a different prior or
subsequent effective date.
Section 5.16. Participation in Meetings by Electronic
Communications. Any or all members of the Executive Committee
may participate in a meeting of the Executive Committee by any
means of communication by which all members of the Executive
Committee participating may simultaneously hear each other during
the meeting. A member of the Executive Committee participating
in a meeting by this means is deemed to be present in person at
the meeting.
ARTICLE 6
---------
Other Committees
----------------
Section 6.01. Establishment of Other Committees. The Board
of Directors, by resolution adopted by a majority of the actual
number of directors elected and qualified, from time to time, may
designate from its members an Audit Committee, Compensation
Committee, Nominating Committee, or any such other committee or
committees permitted by law (individually a "Committee" and
collectively the "Committees"). Each of the Committees shall
consist of two (2) or more persons.
Section 6.02. Powers of the Committees. During the
intervals between the meetings of the Board of Directors, each of
the Committees shall have and may exercise any and all such
powers that the Board of Directors provide it by resolution
except that no Committee shall have the power to:
(1) declare dividends or distributions;
(2) amend the Articles of Incorporation or this Code of By-
Laws;
(3) approve a plan of merger or consolidation even if the
plan does not require shareholder approval;
(4) reduce earned or capital surplus;
(5) authorize or approve the reacquisition of shares unless
pursuant to a general formula or method specified by the Board of
Directors; or
(6) recommend to the shareholders a voluntary dissolution
of the Corporation or a revocation thereof.
E-14
Section 6.03. Qualifications of Members. Each member of a
Committee shall be a duly elected and qualified member of the
Board of Directors.
Section 6.04. Election of Members. The members of each of
the Committees shall be elected by the Board of Directors. Each
member of a Committee shall serve as such for a term coextensive
with his term as a member of the Board of Directors, except as
hereinafter provided. Each member of a Committee shall be deemed
to have qualified as such upon his election.
Section 6.05. Removal of Members. Any member of a
Committee may be removed at any time, with or without cause, by
the Board of Directors.
Section 6.06. Resignations of Members. Any member of a
Committee may resign at any time, with or without cause, by
delivering written notice of his resignation to the Board of
Directors. The resignation shall take effect at the time
specified in the written notice or upon receipt, as the case may
be, and, unless otherwise specified in the written notice, the
acceptance of the resignation shall not be necessary to make it
effective.
Section 6.07. Filling of Vacancies. Any vacancies in the
membership of a Committee because of death, adjudication of
incompetency, resignation or removal of a member of a Committee,
or caused by an increase in the number of members of a Committee,
shall be filled for the unexpired portion of the term of such
position by the Board of Directors.
Section 6.08. Meetings. A Committee may hold meetings at
any time for the purpose of acting upon such questions and
matters as may properly come before such meeting. A meeting of a
Committee may be called by any member of the Committee.
Section 6.09. Place of Meetings. Meetings of a Committee
may be held at the Registered Office of the Corporation or at any
other place, within or without the State of Indiana.
Section 6.10. Procedure for Calling Meetings. Any meeting
of a Committee shall be deemed duly to have been called by a
member of the Committee upon delivery to the Secretary, not less
than three (3) days before the date of the meeting, of a written
instrument, executed by the member of the Committee calling the
meeting, setting forth the time, date and place of such meeting.
The written instrument may also contain, at the option of the
member of the Committee calling the meeting, a concise statement
of the questions or matters proposed to be submitted to vote, or
discussed, at the meeting. Any meeting of a Committee with
respect to which all members of the Committee either are present
or duly waive written notice, either before or after the meeting,
shall also be deemed duly to have been called.
E-15
Section 6.11. Notice of Meetings. Notice of any meeting of
a Committee shall be deemed duly to have been given if, at least
three (3) days before the date of the meeting, a written notice
stating the date, time and place of the meeting and, to the
extent set forth in the written instrument by which the meeting
is called, containing a concise statement of the question or
matters proposed to be submitted to a vote at the meeting is
delivered by the Secretary to each of the members of the
Committee. The written notice shall be deemed duly to have been
delivered by the Secretary to a member of the Committee on the
earliest of the dates upon which:
(1) it is delivered personally to the member of the
Committee;
(2) it is deposited in the United States First Class Mail,
postage prepaid, addressed to the
last known address of the member of the Committee; or
(3) it is deposited with a telegraph company, transmission
charges prepaid, addressed to the
last known address of the member of the Committee.
Section 6.12. Waiver of Notice. A member of a Committee
may waive notice required hereunder or under law either before or
after the date and time stated in the notice. Except as
hereinafter provided, the waiver must be in writing, signed by
the member of the Committee and filed with the minutes or
corporate records. For purposes of this Section, a waiver
granted by telegram, telex, telecopy or other document
transmitted electronically by a member of a Committee shall be
deemed "signed by the member of the Committee." A member of a
Committee's attendance at or participation in a meeting waives
any required notice unless the member of the Committee at the
beginning of the meeting (or promptly upon the member of the
Committee's arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote
for or assent to the action taken at the meeting.
Section 6.13. Quorum at Meetings. At any meeting of a
Committee the presence of a majority of the then duly elected and
qualified members of the Committee shall constitute a quorum.
Section 6.14. Voting at Meetings. Any action required or
permitted to be taken at any meeting of a Committee with respect
to any question or matter shall be taken pursuant to a vote of a
majority of the then duly elected and qualified members of the
Committee present at the meeting, so long as a quorum exists,
unless a greater number is required by the provisions of the Law,
in which event the action shall be taken only pursuant to the
vote of that greater number.
Section 6.15. Action Without Meeting. Any action which may
be taken at a meeting of a Committee may be taken without a
E-16
meeting if evidenced by one or more written consents describing
the action taken, signed by each member of the Committee and
included in the minutes or filed with the corporate records
reflecting the action taken. For purposes of this Section, a
consent granted by telegram, telex, telecopy or other document
transmitted electronically by a member of a Committee shall be
deemed "signed by a member of the Committee." Action taken by
written consent is effective when the last member of a Committee
signs the consent unless the consent specifies a different prior
or subsequent effective date.
Section 6.16. Participation in Meetings by Electronic
Communications. Any or all members of a Committee may
participate in a meeting of the Committee by any means of
communication by which all members of the Committee participating
may simultaneously hear each other during the meeting. A member
of a Committee participating in a meeting by this means is deemed
to be present in person at the meeting.
ARTICLE 7
---------
The Officers
------------
Section 7.01. Number of Officers. The officers of the
Corporation consist of a Chairman of the Board, a President, a
Secretary and a Treasurer, and may, in addition, consist of one
or more Vice Presidents, one or more Assistant Secretaries and
one or more Assistant Treasurers. Any two or more offices may be
held by the same person except that the offices of President and
Secretary shall not be held by the same person.
Section 7.02. Qualifications of Officers. Each officer of
the Corporation shall be an adult individual. The Chairman of
the Board shall be a duly elected and qualified member of the
Board of Directors. The other officers of the Corporation may,
but need not be, chosen from among the duly elected and qualified
members of the Board of Directors. The officers of the
Corporation need not be Shareholders and need not be residents of
the State of Indiana or citizens of the United States of America.
Section 7.03. Election of Officers. The officers of the
Corporation shall be elected by the Board of Directors. The
Chairman of the Board shall serve as such for a term coextensive
with his term as a member of the Board of Directors.
Notwithstanding the foregoing, the Board, upon the vote of a
majority of the directors, may at any time remove the Chairman
with or without cause and elect a new Chairman of the Board.
Each other officer shall serve as such until the next ensuing
annual meeting of the Board of Directors or until his successor
shall have been duly elected and shall have qualified, except as
hereinafter provided. Each officer shall be deemed to have
qualified as such upon his election.
E-17
Section 7.04. Removal of Officers. Any officer of the
Corporation may be removed at any time, with or without cause, by
the Board of Directors.
Section 7.05. Resignation of Officers. Any officer of the
Corporation may resign at any time, with or without cause, by
delivering written notice of his resignation to the Board of
Directors. The resignation shall take effect at the time
specified in the written notice, or upon receipt by the Board of
Directors, as the case may be, and, unless otherwise specified in
the written notice, the acceptance of the resignation shall not
be necessary to make it effective.
Section 7.06. Filling of Vacancies. Any vacancies in the
offices of the Corporation because of death, adjudication of
incompetency, resignation, removal or any other cause shall be
filled for the unexpired portion of the term of that office by
the Board of Directors.
Section 7.07. Compensation of Officers. The salaries or
other compensation of the officers of the Corporation shall be
fixed from time to time by the Board of Directors, but no officer
shall be prevented from receiving such salary or other
compensation by reason of the fact that he is a member of the
Board of Directors of the Corporation.
Section 7.08. The Chairman of the Board. The Chairman of
the Board shall preside at all meetings of the Shareholders and
the Board of Directors and shall assist the President in the
performance of his duties. In addition, he shall have such
further powers and perform such further duties as are specified
in this Code of By-Laws or as the Board of Directors may, from
time to time, assign or delegate to him. The Chairman of the
Board shall, in the case of the death, resignation, absence or
inability to act of the President, have the powers and perform
the duties of the President.
Section 7.09. The President. The President is the Chief
Executive Officer of the Corporation. He shall be responsible
for the active overall and day-to-day direction and
administration of the affairs of the Corporation, subject,
however, to the control of the Board of Directors. In general,
he shall have such powers and perform such duties as are incident
to the office of President and Chief Executive Officer of a
business corporation and shall, in addition, have such further
powers and perform such further duties as are specified in this
Code of By-Laws or as the Board of Directors may, from time to
time, delegate to him. In the case of the death, resignation,
absence or inability to act of the Chairman of the Board, the
President shall preside at meetings of the Shareholders and the
Board of Directors and have the other powers and perform the
other duties of the Chairman of the Board.
Section 7.10. The Vice Presidents. Each Vice President (if
one or more Vice Presidents are elected) shall have such powers
E-18
and perform such duties as the Board of Directors or the
President may, from time to time, assign or delegate to him. The
Board of Directors may designate one or more Vice Presidents as
Senior Vice President. In the case of the death, resignation,
absence or inability to act of the President and the Chairman of
the Board, the Senior Vice President who has been so designated
by the Board of Directors shall have the power and perform the
duties of the President and the Chairman of the Board. In
general, however, each Vice President shall have the power to
perform the duties of the President and the Chairman of the Board
in connection with the direction and administration of the day-to-
day affairs of the Corporation, except that each Vice President
shall be subject to the control and direction of each Senior Vice
President.
Section 7.11. The Secretary. The Secretary is the chief
custodial officer of the Corporation. He shall keep or cause to
be kept, in the minute books provided for the purpose, the
minutes of the proceedings of the Shareholders and the Board of
Directors. He shall see that all notices are duly given in
accordance with the provisions of this Code of By-Laws and as
required by law. He shall be custodian of the minute books,
archives, records and the seal of the Corporation and see that
the seal is affixed to all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized by
the Shareholders, the Board of Directors, the Chairman of the
Board or the President, or as required by law. In general, he
shall have such powers and perform such duties as are incident to
the office of Secretary of a business corporation and shall, in
addition, have such further powers and perform such further
duties as are specified in this Code of By-Laws or as the Board
of Directors, the Chairman of the Board or the President may,
from time to time, assign or delegate to him.
Section 7.12. The Assistant Secretaries. Each Assistant
Secretary (if one or more Assistant Secretaries are elected)
shall assist the Secretary in his duties, and shall have such
other powers and perform such other duties as the Board of
Directors, the President or the Secretary may, from time to time,
assign or delegate to him. At the request of the Secretary, any
Assistant Secretary may, in the case of the absence or inability
to act of the Secretary, temporarily act in his place. In the
case of the death or resignation of the Secretary, or in the case
of his absence or inability to act without having designated an
Assistant Secretary to act temporarily in his place, the
Assistant Secretary so to perform the duties of the Secretary
shall be designated by the Chairman of the Board.
Section 7.13. The Treasurer. The Treasurer is the chief
financial officer of the Corporation. He shall have charge of
and be responsible for all funds of the Corporation with such
banks, trust companies or other depositaries as shall be selected
by the Board of Directors. He shall keep full and accurate books
of account of all assets, liabilities, commitments, receipts,
disbursements and other financial transactions of the
Corporation. He shall see that all expenditures are made in
E-19
accordance with procedures duly established, from time to time,
by the Board of Directors, the Chairman of the Board or the
President. He shall render such financial statements and reports
as shall be requested by the Board of Directors, the Chairman of
the Board or the President, and, in general, he shall have such
powers and perform such duties as are incident to the office of
Treasurer of a business corporation and have such further powers
and perform such further duties as are specified in this Code of
By-Laws or as the Board of Directors, the Chairman of the Board
or the President may, from time to time, assign or delegate to
him.
Section 7.14. The Assistant Treasurers. Each Assistant
Treasurer (if one or more Assistant Treasurers are elected) shall
assist the Treasurer in his duties, and shall have such other
powers and perform such other duties as the Board of Directors,
the Chairman of the Board, the President or the Treasurer may,
from time to time, assign or delegate to him. At the request of
the Treasurer, any Assistant Treasurer may, in the case of the
absence or inability to act of the Treasurer, temporarily act in
his place. In the case of the death or resignation of the
Treasurer, or in the case of his absence or inability to act
without having designated an Assistant Treasurer to act
temporarily in his place, the Assistant Treasurer so to perform
the duties of the Treasurer shall be designated by the Chairman
of the Board.
Section 7.15. Function of Officers. The officers of the
Corporation are established in order to facilitate the day to day
administration of the affairs of the Corporation in the ordinary
course of its business and to provide an organization capable of
executing and carrying out the decisions and directions of the
Board of Directors. The officers of the Corporation shall have
such powers and perform such duties as may be necessary or
desirable to conduct and effect all transactions in the ordinary
course of the business of the Corporation without further
authorization by the Board of Directors and such further powers
as are granted by this Code of By-Laws or are otherwise granted
by the Board of Directors.
ARTICLE 8
---------
Miscellaneous Matters
---------------------
Section 8.01. Fiscal Year. The fiscal year of the
Corporation shall begin on the first day of April of each year
and shall end on the last day of March next ensuing.
Section 8.02. Negotiable Instruments. All checks, drafts,
bills of exchange and orders for the payment of money may, unless
otherwise directed by the Board of Directors, or unless otherwise
required by law, be executed in its name by the Chairman of the
Board, the President, a Vice President or the Treasurer, singly
and without necessity of countersignature. The Board of
E-20
Directors may, however, authorize any other officer or employee
of the Corporation to sign checks, drafts, and orders for the
payment of money, singly and without necessity of
countersignature.
Section 8.03. Notes and Obligations. All notes and
obligations of the Corporation for the payment of money other
than those to which reference is made in Section 8.02 of this
Code of By-Laws, may, unless otherwise directed by the Board of
Directors, or unless otherwise required by law, be executed in
its name by the Chairman of the Board, the President or a Vice
President, singly and without necessity of either attestation or
affixation of the corporate seal by the Secretary or an Assistant
Secretary.
Section 8.04. Deeds and Contracts. All deeds and mortgages
made by the Corporation and all other written contracts and
agreements to which the Corporation shall be a party may, unless
otherwise directed by the Board of Directors, or unless otherwise
required by law, be executed in its name by the Chairman of the
Board, the President or a Vice President singly and without
necessity of either attestation or affixation of the corporate
seal by the Secretary or an Assistant Secretary.
Section 8.05. Endorsement of Stock Certificates. Any
certificate for shares of stock issued by any corporation and
owned by the Corporation (including Preferred Stock and Common
Stock held by the Corporation as treasury stock) may, unless
otherwise required by law, be endorsed for sale or transfer by
the Chairman of the Board, the President or a Vice President, and
attested by the Secretary or an Assistant Secretary; the
Secretary or an Assistant Secretary, when necessary or required,
may affix the corporate seal to the certificate.
Section 8.06. Voting of Stock. Any shares of stock issued
by any other corporation and owned by the Corporation may be
voted at any shareholders' meeting of the other corporation by
the Chairman of the Board, the President or a Vice President.
Whenever, in the judgment of the Chairman of the Board or the
President, it is desirable for the Corporation to execute a proxy
or to give a shareholders' consent with respect to any shares of
stock issued by any other corporation and owned by the
Corporation, the proxy or consent may be executed in the name of
the Corporation by the Chairman of the Board, the President or a
Vice President singly and without necessity of either attestation
or affixation of the corporate seal by the Secretary or an
Assistant Secretary. Any person or persons designated in the
manner above stated as the proxy or proxies of the Corporation
shall have full right, power and authority to vote the share or
shares of stock issued by the other corporation and owned by the
Corporation the same as the shares might be voted by the
Corporation.
Section 8.07. Corporate Seal. The corporate seal of the
Corporation shall be circular in form and mounted on a metal die,
suitable for impressing the same on paper. About the upper
E-21
periphery of the seal shall appear the words "Forum Group, Inc.,"
and about the lower periphery of the seal shall appear the words
"Corporate Seal." No instrument executed by any of the officers
of the Corporation shall be invalid or ineffective in any respect
by reason of the fact that the corporate seal has not been
affixed to it.
Section 8.08. Place of Keeping Corporate Books and Records.
The books of account, records, documents and papers of the
Corporation shall be kept at the Registered Office of the
Corporation.
ARTICLE IX
----------
Indemnification
---------------
Section 9.01. Definitions. Terms defined in Chapter 37 of
the Indiana Business Corporation Law (IND. CODE 23-1-37, et
seq.), as amended from time to time, which are used in this
Article 9 shall have the same definitions for purposes of this
Article 9 as they have in such chapter of the Indiana Business
Corporation Law.
Section 9.02. Indemnification of Directors and Officers.
The Corporation shall indemnify any individual who is or was a
director or officer of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, partner or
trustee of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
whether or not for profit, against liability and expenses,
including attorneys' fees, incurred by him in any action, suit,
or proceeding, whether civil, criminal, administrative, or
investigative, and whether formal or informal, in which he is
made or threatened to be made a party by reason of being or
having been in any such capacity, or arising out of his status as
such, except (i) in the case of any action, suit, or proceeding
terminated by judgment, order, or conviction, in relation to
matters as to which he is adjudged to have breached or failed to
perform the duties of his office and the breach or failure to
perform constituted willful misconduct or recklessness; and (ii)
in any other situation, in relation to matters as to which it is
found by a majority of a committee composed of all directors not
involved in the matter in controversy (whether or not a quorum)
that the person breached or failed to perform the duties of his
office and the breach or failure to perform constituted willful
misconduct or recklessness. The Corporation shall promptly pay
for or reimburse reasonable expenses incurred by a director or
officer in defending any action, suit, or proceeding in advance
of the final disposition thereof upon receipt of (i) a written
affirmation of the director's or officer's good faith belief that
such director or officer has met the standard of conduct
prescribed by Indiana law; and (ii) an undertaking of the
director or officer to repay the amount paid by the Corporation
if it is ultimately determined that the director or officer is
not entitled to indemnification by the Corporation.
E-22
Section 9.03. Other Employees or Agents of the Corporation.
The Corporation may, in the discretion of the Board of Directors,
fully or partially provide the same rights of indemnification and
reimbursement as hereinabove provided for directors and officers
of the Corporation to other individuals who are or were employees
or agents of the Corporation or who are or were serving at the
request of the Corporation as employees or agents of another
foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise whether or not
for profit.
Section 9.04. Non-exclusive Provision. The indemnification
authorized under Section 9.02 above is in addition to all rights
to indemnification granted by Chapter 37 of the Indiana Business
Law (IND. CODE 23-1-37, et seq.), as amended from time to
time, and in no way limits the indemnification provisions of such
Chapter.
E-23