BY-LAWS OF 1ST SOURCE CORPORATION
AMENDED BY DIRECTORS
AS OF JANUARY 29, 2004.
ARTICLE 1
IDENTIFICATION
SECTION 1.01 NAME: The name of the Corporation is 1st SOURCE CORPORATION
- ------------ ----- ("Corporation").
SECTION 1.02 PLACE OF KEEPING CORPORATE BOOKS AND RECORDS:
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The Corporation shall keep a copy of the following records at its principal
office:
1. Its Articles of Incorporation ("Articles") or restated
Articles and all amendments currently in effect
2. Its By-Laws ("By-Laws") or restated By-Laws and all amendments
currently in effect.
3. Resolutions adopted by its Board of Directors ("Board") with
respect to one (1) or more classes or series of shares and
fixing their relative rights, preferences, and limitations, if
shares issued pursuant to those resolutions are outstanding.
4. The minutes of all Shareholders' meetings, and records of all
action taken by Shareholders without a meeting, for the past
three (3) years.
5. All written communications by the Corporation to Shareholders
within the past three (3) years, including the financial
statements furnished for the past three (3) years.
6. A list of the names and business addresses of its
current Directors and Officers.
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7. Its most recent annual report delivered to the Secretary
of State.
The Corporation shall also maintain and keep at its principal office, or at any
other place that the Board directs, the following records:
1. Minutes of all meetings of its Shareholders and Board, a
record of all actions taken by the Shareholders or Board
without a meeting, and a record of all actions taken by a
committee of the Board in place of the Board on behalf of the
Corporation.
2. Appropriate accounting records.
3. A record of its Shareholders, in a form that permits
preparation of a list of the names and addresses of all
Shareholders, in alphabetical order by class of shares showing
the number of shares held by each.
All of the records described in this section shall be maintained in written form
or in another form capable of conversion into written form within a reasonable
time.
SECTION 1.03 SEAL: The Board may designate the design and cause the Corporation
to obtain and use a corporate seal, but the failure of the Board to designate a
seal or the absence of the impression of the seal from any document shall not
affect in any way the validity or effect of the document.
SECTION 1.04 FISCAL YEAR: The fiscal year of the Corporation shall end at the
time determined by the Board. If the Board does not make a determination, the
fiscal year of the Corporation shall end on December 31.
SECTION 1.05 ANNUAL FINANCIAL STATEMENTS TO SHAREHOLDERS. On written request of
any Shareholder, the Corporation shall prepare and mail to the Shareholder
annual financial statements, which may be consolidated or combined statements of
the Corporation and one (1) or more of its subsidiaries, as appropriate, that
include a balance sheet as of the end of the fiscal year most recently
completed, an income statement for that year, and a statement of changes in
Shareholders' equity for that year unless that information appears elsewhere in
the financial statements. If financial statements are prepared for the
Corporation on the basis of generally accepted accounting principles, the annual
financial statements must also be prepared on that basis.
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If the annual financial statements are reported upon by a public accountant, the
public accountant's report must accompany them. If not, the statements must be
accompanied by a statement of the President or the person responsible for the
Corporation's accounting records:
1. Stating the person's reasonable belief whether the statements
were prepared on the basis of generally accepted accounting
principles and, if not, describing the basis of preparation;
and
2. Describing any respects in which the statements were not
prepared on a basis of accounting consistent with the
statements prepared for the preceding year.
ARTICLE 2
SHARES
SECTION 2.01 CERTIFICATES FOR SHARES: Each holder of the Common Stock of the
Corporation shall be entitled to a certificate in the form prescribed by the
Board from time to time, signed manually or by facsimile by the Chairman of the
Board or the President and by the Secretary or an Assistant Secretary of the
Corporation.
SECTION 2.02 TRANSFER OF SHARES: The Common Stock of the Corporation shall be
transferable only on the books of the Corporation upon surrender of the
certificate or certificates representing the same. The certificate or
certificates (or an instrument of transfer or assignment satisfactory to the
Corporation and delivered to the Corporation) must be properly endorsed by the
registered holder or by his duly authorized attorney, with the endorsement or
endorsements witnessed by one witness or guaranteed by a bank or registered
securities broker or dealer. The requirement for a witness or guarantee may be
waived in writing upon the form of endorsement by the President of the
Corporation.
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SECTION 2.03 LOST, STOLEN OR DESTROYED CERTIFICATES: The Corporation may issue a
new certificate for shares of Common Stock in the place of any certificate
alleged to have been lost, stolen or destroyed, but the Board, the Chairman of
the Board, the Executive Committee, or the President may require the owner of
the lost, stolen or destroyed certificate, or his legal representative, to
furnish an affidavit as to the loss, theft or destruction and to give a bond in
such form and substance, and with such surety or sureties, with fixed or open
penalty, as it may direct to indemnify the Corporation against any claim that
may be made on account of the alleged loss, theft or destruction of the
certificate. A new certificate may be issued without requiring any bond when, in
the judgment of the Board, the Chairman of the Board, the Executive Committee,
or the President, it is not imprudent to do so.
SECTION 2.04 SHARES ISSUED FOR NOTES OR FUTURE SERVICES. If the Corporation
authorizes the issuance of shares for promissory notes or for promises to render
services in the future, the Corporation shall report in writing to the
Shareholders the number of shares authorized to be so issued with or before the
notice of the next Shareholders' meeting.
ARTICLE 3
MEETINGS OF SHAREHOLDERS
SECTION 3.01 PLACE OF MEETINGS: All meetings of Shareholders of the Corporation
shall be held at the principal office of the Corporation or at any other place,
within or without the State of Indiana, as may be specified in the notices or
waivers of notice of the meeting.
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SECTION 3.02 ANNUAL MEETING: Unless otherwise determined by the Board, the
annual meeting of the Shareholders for the election of Directors, and for the
transaction of other business which may properly come before the meeting, shall
be held in April each year, the exact date and time to be established by the
Board of Directors. Failure to hold the annual meeting at the designated time
shall not work any forfeiture or a dissolution of the Corporation. If, for any
reason, the annual meeting is not held at the time aforesaid, the Directors
shall fix another date for such meeting.
SECTION 3.03 SPECIAL MEETINGS: Special meetings of the Shareholders may be
called by the President, by the Chairman of the Board of Directors or by the
Board, and shall be called by the President if Shareholders holding of record
not less than one-fourth (1/4) of all the shares of Stock outstanding and
entitled to vote on the business proposed to be transacted sign, date and
deliver to the Secretary of the Corporation one or more written demands for the
meeting. Any request or demand for a special meeting of the Shareholders shall
state the purpose or purposes of the proposed meeting. Any notice of a special
meeting shall specify by whom such meeting was called.
SECTION 3.04 RECORD DATE: The Board of Directors may fix a record date, not
exceeding seventy (70) days prior to the date of any meeting of Shareholders,
for the purpose of determining the Shareholders entitled to notice of and to
vote at the meeting. In the absence of action by the Board fixing a record date,
the record date shall be the tenth (10th) day prior to the date of the meeting.
SECTION 3.05 NOTICE OF MEETINGS: A notice stating the place, day and hour of the
meeting, and, in the case of a special meeting or when otherwise required by any
provision of the Indiana Business Corporation Law (the "Act"), the Articles or
the By-Laws, the purpose or purposes for which the meeting is called, shall be
delivered or mailed to each holder of Stock of the Corporation entitled to vote
or otherwise entitled to notice under the Act, at the address which appears on
the records of the Corporation, or shall be given orally in person or by
telephone, at least ten (10) days but not more than sixty (60) days before the
date of the meeting.
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SECTION 3.06 WAIVER OF NOTICE: Notice of any meeting may be waived before or
after the date and time stated in the notice in writing by any Shareholder if
the waiver is delivered to the Corporation for inclusion in the minutes or
filing with the corporate records. Attendance at any meeting in person or by
proxy waives objection to lack of notice of defective notice of the meeting
unless the Shareholder (or his proxy) at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting, and 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
his proxy) objects to considering the matter when it is presented.
SECTION 3.07 PROXIES: A Shareholder entitled to vote at any meeting of
Shareholders may vote either in person or by proxy appointed in a writing signed
by the Shareholder or a duly authorized attorney-in-fact of such Shareholder. An
appointment of a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes. The general proxy of a fiduciary
shall be given the same effect as the general proxy of any other Shareholder.
No appointment of a proxy shall be valid after eleven (11) months from the date
of its execution unless it expressly provides a longer time.
SECTION 3.08 QUORUM: At any meeting of Shareholders, the holders of a majority
of the outstanding shares which may be voted on the business to be transacted at
the meeting, represented at the meeting in person or by proxy, shall constitute
a quorum, and action on a matter, except election of Directors, is approved if
votes cast favoring the action exceed the votes cast opposing the action, unless
a greater number is required by law, the Articles or the By-Laws. Directors
shall be elected by a plurality of the votes cast by the shares entitled to vote
in the election at a meeting at which a quorum is present. If a quorum is not
present at any meeting, the holders of record of a majority of shares present in
person or by proxy may adjourn the meeting from time to time, without notice,
other than announcement at the meeting, until a quorum shall be present or
represented, unless the Board fixes a new record date, which it must do if the
meeting is adjourned to a date more than one hundred twenty (120) days after the
date fixed for the original meeting. At any adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally scheduled.
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SECTION 3.09 VOTING LISTS: The Secretary of the Corporation shall make a
complete list of the Shareholders entitled to notice of each meeting, arranged
in alphabetical order by voting group (and within each voting group by class or
series of shares), with the address and number of shares held by each, which
list shall be on file at the principal office of the Corporation, or at a place
identified in the meeting notice in the city where the meeting will be held, and
subject to inspection by any Shareholder on written demand at any time during
regular business hours for a period of five (5) days before the meeting. The
list shall be produced at the meeting and subject to inspection by any
Shareholder during the meeting. The original stock register or transfer book, or
a duplicate kept in the State of Indiana, shall be the only evidence as to who
are the Shareholders entitled to examine the list, or to notice of or to vote at
any meeting of the Shareholders.
SECTION 3.10 ACTION WITHOUT MEETING: Any action required or permitted to be
taken at any meeting of the Shareholders may be taken without a meeting if one
or more consents in writing setting forth the action taken are signed by all the
Shareholders entitled to vote on the action, and the written consents are
delivered to the Corporation for inclusion in the minutes or filing with the
corporate records. Action taken under this section is effective when the last
Shareholder signs the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 3.11 MEETING BY TELEPHONE, ETC.: Any or all Shareholders may participate
in any meeting of Shareholders by, or through the use of, any means of
communication by which all Shareholders participating may simultaneously hear
each other during the meeting. A shareholder so participating is deemed to be
present in person.
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SECTION 3.12 ORDER OF BUSINESS: The order of business at the annual meeting and,
so far as practical, at all other meetings, shall be as follows:
1. Determination of shares present.
2. Reading and disposal of any unapproved minutes.
3. Reports of officers and committees.
4. Election of directors.
5. Unfinished business.
6. New business.
ARTICLE 4
BOARD OF DIRECTORS
SECTION 4.01 DUTIES AND NUMBER: The business and affairs of the Corporation
shall be managed under the direction of a Board consisting of not fewer than
three (3) nor more than twenty-five (25) members. The actual number of Directors
may be fixed or changed, from time to time, within the maximum and minimum, by
the Board.
SECTION 4.02 ELECTION, TERM OF OFFICE AND QUALIFICATION:
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1. If there are nine (9) or more Directors, their terms shall
be staggered by dividing the total number of Directors into
three (3) groups, with each group containing one-third (1/3)
of the total as near as may be. In that event the terms of
Directors in the first group expire at the first Annual
Shareholders Meeting after their election, the terms of the
second group expire at the second Annual Shareholders
Meeting after their election, and the terms of the third
group expire at the third Annual Shareholders Meeting after
their election. At each Annual Shareholders Meeting held
thereafter, Director shall be chosen for a term of two (2)
years or three (3) years as the case may be, to succeed
those whose terms expire. Election at each Annual Meeting
shall be by a plurality of the votes cast by the holders of
the stock entitled by the Article to elect Directors.
Directors need not be Shareholders of the Corporation. No
decrease in the number of Directors shall have the affect of
shortening the term of any incumbent Director.
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2. No person shall be nominated for re-election as a Director
when any one of the following conditions apply:
a. The said Director is no longer active in his/her chosen
business or occupation; or
b. The health of said Director does not permit him/her to
actively participate as a member of the Board of Directors.
The eligibility of nominees for the Board of Directors
shall be determined by the Board of Directors.
The Board of Directors or authorized committee thereof may
as it deems appropriate waive the requirement for
nomination of a director for re-election to the Board
that such director be active in his/her business,
occupation or profession.
3. Effective with the election of Directors at the April 19,
1993 Shareholders Meeting of this Corporation, any Director
who shall become seventy (70) years of age during the term
of office shall, prior to the next Annual Meeting of
Shareholders, resign his/her position as Director. No
Director shall stand for election or re-election who shall
become 70 years of age as of the date of said election.
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SECTION 4.03 POWERS OF DIRECTORS: The Board shall exercise all the powers of the
Corporation, subject to the restrictions imposed by law, the Articles
or the By-Laws.
SECTION 4.04 ANNUAL MEETING: Unless otherwise determined by the President or the
Board, the Board shall meet each year immediately after the annual meeting of
the Shareholders, at the place where the meeting of the Shareholders was held,
for the purpose of electing Officers and considering any other business that may
properly be brought before the meeting. No notice shall be necessary for the
holding of this annual meeting. If the annual meeting is not held as above
provided, the election of Officers may be held at any subsequent duly
constituted meeting of the Board.
SECTION 4.05 OTHER MEETINGS: Regular meetings of the Board may be held, without
notice, at the time as may from time to time be fixed by resolution of the
Board. Special meetings of the Board may be called at any time by the Chairman
of the Board of Directors, by a Vice Chairman of the Board of Directors, or by
the President, and shall be called on request of not less than a majority of the
members of the Board and on request of the Executive Committee. Special meetings
may be held at any place within or without the State of Indiana. Notice of a
special meeting shall be sent by the person or persons calling the meeting to
each Director at his residence or usual place of business by letter sent by
first class, certified, or registered United States mail, postage prepaid, or
private carrier service, fees prepaid or billed to sender, or by telegram,
telegraph, teletype, or other form of wire or wireless communication, and shall
be effective if received on or before the day preceding the day of the meeting
or five (5) days after mailing; or may be personally delivered or given orally
to a Director in person or by telephone at any time on or before the day
preceding the day of the meeting. A Director may waive any required notice
before or after the date and time stated in the notice. Except as provided in
the next sentence, the waiver must be in writing, signed by the Director
entitled to the notice, and 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 vote for or assent
to action taken at the meeting.
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SECTION 4.06 MEETING BY TELEPHONE, ETC.: Any or all of the members of the Board
or of any committee designated by the Board may participate in a meeting of the
Board or the committee by means of conference telephone or similar
communications equipment by which all Directors participating may simultaneously
hear each other during the meeting, and participation by these means constitutes
presence in person at the meeting.
SECTION 4.07 QUORUM: A majority of the number of Directors designated for a full
Board shall be necessary to constitute a quorum for transacting any business
except filling vacancies, and the act of the majority of the Directors present
at a meeting at which a quorum is present shall be the act of the Board unless
the act of a greater number is required by law, the Articles or the By-Laws.
SECTION 4.08 ACTION WITHOUT MEETING: Any action required or permitted to be
taken at any meeting of the Board or of any committee of the Board may be taken
without a meeting if one or more written consents setting forth the action taken
are signed by all members of the Board or of the committee, as the case may be,
and the written consents are included in the minutes of proceedings of the Board
or committee or filed with the corporate records. Action taken in this manner is
effective when the last director signs the consent unless the consent specifies
a different prior or subsequent effective date.
SECTION 4.09 RESIGNATIONS: Any Director may resign at any time by giving written
notice to the Board, the President or the Secretary. Such resignation shall take
effect when delivered unless the notice specifies a later effective date, and
unless otherwise specified in the resignation, the acceptance of the resignation
shall not be necessary to make it effective.
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SECTION 4.10 REMOVAL: Any Director may be removed, either with or without cause,
at any meeting of the Shareholders or Directors called for that purpose if the
meeting notice states that the purpose or one of the purposes of the meeting is
removal of the Director and if the number of votes cast to remove the Director
exceeds the number of votes cast not to remove the Director. If the removal
occurs at a meeting of the Shareholders and the notice so provides, the vacancy
caused by the removal may be filled at the meeting by vote of the holders of a
majority of the outstanding shares present and entitled to vote for the election
of Directors.
SECTION 4.11 VACANCIES: Any vacancy occurring in the Board, caused by removal,
resignation, death or other incapacity, or increase in the number of Directors,
may be filled by the Board, or, if the Directors remaining in office constitute
fewer than a quorum of the Board, they may fill the vacancy by a majority vote
of the remaining members of the Board, until the next annual meeting of the
Shareholders. Shareholders shall be notified of any increase in the number of
Directors and of the name, address, and principal occupation of any Director
elected by the Board to fill any vacancy in the next mailing sent to the
Shareholders following any such increase or election.
If the vote of the remaining members of the Board results in a tie, the vacancy
shall be filled by vote of the Shareholders at a special meeting called for the
purpose.
SECTION 4.12 COMPENSATION OF DIRECTORS: The Board is authorized to fix the
compensation of Directors for attendance at meetings of the Board and additional
compensation for additional services which any Director may perform for the
Corporation.
SECTION 4.13 ORDER OF BUSINESS: The regular order of business of the meetings of
directors, so far as practical, shall be as follows:
1. Reading and disposal of any unapproved minutes.
2. Reports of officers and committees.
3. Unfinished business.
4. New business.
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ARTICLE 5
COMMITTEES OF THE BOARD
SECTION 5.0. DESIGNATION OF COMMITTEES: The Board, by resolution adopted by the
greater of a majority of the actual number of Directors elected and qualified or
the number of Directors required to take action under Section 4.07 of these
By-Laws, may designate two (2) or more of its number to constitute one or more
committees, and may, at any time, increase or decrease the number of members of
any committee, fill vacancies, change any member, and change the functions or
terminate the existence of any committee.
SECTION 5.02 EXECUTIVE COMMITTEE: The Board of Directors may, by resolution,
designate three (3) or more of its members to constitute an Executive Committee.
During the intervals between meetings of the Board, and subject to any
limitations required by law or by resolution of the Board, the Executive
Committee shall have and may exercise all of the authority of the Board, except
that the Committee shall not have authority to: (i) authorize distributions,
except that the Committee (or an executive officer of the Corporation designated
by the Board) may authorize or approve a reacquisition of shares or other
distribution if done according to a formula or method, or within a range,
prescribed by the Board; (ii) approve or propose to the Shareholders action that
by law is required to be approved by the Shareholders; (iii) fill vacancies on
the Board or on any of its committees; (iv) except to the extent permitted by
subsection (vii) below, amend the Articles when no Shareholder action is
required by law; (v) adopt, amend, or repeal By-Laws; (vi) approve a plan of
merger not requiring Shareholder approval; or (vii) authorize or approve the
issuance or sale or a contract for sale of shares, or determine the designation
and relative rights, preferences, and limitations of a class or series of
shares, except the Board may authorize the Committee (or an executive officer of
the Corporation designated by the Board) to take the action described in this
subsection within limits prescribed by the Board.
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SECTION 5.03 MEETINGS; PROCEDURE; QUORUM: The provisions of these By-Laws and
those required by law applicable to the Board respecting meetings, action
without meetings, notice and waiver of notice, and quorum and voting requirement
apply to the committees and their members as well. The members of any committee
shall act only as a committee, and the individual members shall have no power as
such. Each committee shall appoint a secretary, who need not be a member of the
committee, to keep minutes of meetings of the committee. All minutes of meetings
of committees shall be submitted to the next succeeding meeting of the Board for
approval; but failure to submit the minutes or to receive approval shall not
invalidate any action taken by the Corporation upon authorization by a
committee.
ARTICLE 6
OFFICERS
SECTION 6.01 NUMBER AND QUALIFICATIONS: The Officers of the Corporation shall
consist of the Chairman of the Board of Directors, the President, the Secretary,
the Treasurer, and any other officers chosen by the Board or the Chairman of the
Board at the times, in the manner and for the terms prescribed by the Board or
the Chairman of the Board, respectively. Any two (2) 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 6.02 ELECTION AND TERM OF OFFICE: The Officers shall be chosen annually
by the Board, except that Assistant Officers may be designated as provided in
Section 6.12 of these By-Laws. Each Officer shall hold office until his
successor is chosen and qualified, or until his death, or until he resigns or is
removed in the manner provided in these By-Laws.
SECTION 6.03 RESIGNATIONS: Any Officer may resign at any time by giving written
notice to the Board, the President or the Secretary. A resignation shall take
effect when the notice is delivered unless the notice specifies a later
effective date. Unless the notice specifies otherwise, the acceptance of a
resignation shall not be necessary to make it effective.
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SECTION 6.04 REMOVAL: Any Officer, excepting an Officer who is also a Director,
may be removed either with or without cause, at any time, by the Board or by
such Officer or Officers to whom he is directly responsible. Any Officer who is
a Director may be discharged at any time by the Board of Directors or the
Executive Committee. The employment of all Officers shall be for an indefinite
time terminable at will.
SECTION 6.05 VACANCIES: Whenever a vacancy occurs in any office by reason of
death, resignation, removal, increase in the number of offices of the
Corporation, or otherwise, it shall be filled by the Board, and the Officer so
chosen shall hold office during the remainder of the term for which his
predecessor was chosen or as otherwise provided in these By-Laws. Assistant
Officers may be designated to fill vacancies in the manner provided inn Section
6.12 of these By-Laws.
SECTION 6.06 CHAIRMAN OF THE BOARD OF DIRECTORS: The Chairman of the Board of
Directors shall be a Director. The Chairman shall preside at all meetings of the
Shareholders and at all meetings of the Board of Directors. The Chairman shall
also perform all such other duties as are incidental to the office or properly
required by the Board of Directors.
SECTION 6.07 VICE CHAIRMAN OF THE BOARD OF DIRECTORS: The Vice Chairman shall be
a Director. In the absence of the Chairman, the Vice Chairman shall preside at
all meetings of the Shareholders and at all meetings of the Board of Directors.
The Vice Chairman shall perform such other duties as are properly required by
the Board of Directors.
SECTION 6.08 PRESIDENT: Subject to the general control of the Board, the
President shall manage and supervise all the affairs and personnel of the
Corporation and shall discharge all the usual functions of the chief executive
officer of a corporation. In the absence of the Chairman of the Board and the
Vice Chairman of the Board (if any), he shall preside at all meetings of
Shareholders and Directors, discharge all the duties which devolve upon a
presiding officer, and perform such other duties as the By-Laws or the Board may
prescribe. The President shall have full authority to execute proxies in behalf
of the Corporation, to vote stock owned by it in any other corporation, and to
execute, with the Secretary, powers of attorney appointing other corporations,
partnerships, or individuals the agent of the Corporation, all subject to the
provisions of the Act, the Articles and the By-Laws. The President shall be a
Director.
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SECTION 6.09 VICE-PRESIDENTS: Each Vice-President shall have general supervision
of those affairs of the Corporation designated for his attention by the Officer
to whom he is directly responsible and may employ and discharge subordinate
officers, employees, clerks and agents under his supervision. Each Vice
President shall perform all such duties as are incidental to his office or
properly required of him by the Board of Directors, Chairman of the Board of
Directors and such other Officer or Officers to whom he is directly responsible.
SECTION 6.10 SECRETARY: The Secretary shall authenticate records of the
Corporation, attend all meetings of the Shareholders and of the Board, keep or
cause to be kept a true and complete record of the proceedings of Directors' and
Shareholders' meetings, perform a like duty, when required, for all committees
appointed by the Board, and perform any other duties which the By-Laws, the
Board, the Chairman of the Board or the President may prescribe. He shall give
all notices of the Corporation; however, in case of his absence, negligence or
refusal so to do, any notice may be given by a person directed by the President
or by the requisite number of Directors or Shareholders upon whose request the
meeting is called.
SECTION 6.11 TREASURER: The Treasurer shall perform all such duties as are
incidental to his office or properly required of him by the Board of Directors
or such Officer or Officers to whom he is directly responsible.
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SECTION 6.12 ASSISTANT OFFICERS: The Board, the Chairman of the Board, or the
Vice Chairman of the Board may from time to time designate and elect Assistant
Officers who shall have the powers and duties as the Officers whom they are
elected to assist shall specify and delegate to them, and any other powers and
duties which the By-Laws, the Board or the Chairman of the Board may prescribe.
An Assistant Secretary may in the absence or disability of the Secretary, attest
the execution of all documents by the Corporation.
SECTION 6.13 DELEGATION OF AUTHORITY: In case of the absence of any Officer of
the Corporation, or for any other reason that the Board may deem sufficient, the
Board may temporarily delegate the powers or duties of the Officer to any other
Officer or Assistant Officer or to any Director.
ARTICLE 7
AMENDMENTS
SECTION 7.01 AMENDMENT OF BY-LAWS: These By-Laws may be amended, altered or
revoked at any meeting of the Board by the affirmative vote of a majority of the
Board.
ARTICLE 8
INDEMNIFICATION
SECTION 8.01 INDEMNIFICATION:
A. Every person who is or was a Director or Officer of the
Corporation shall be indemnified by the Corporation against
all liability, including any obligation to pay a judgment,
settlement, penalty, excise tax, or fine, and against
reasonable expenses, including counsel fees, actually incurred
by such person in his or her Official Capacity, provided that
such person is determined in the manner specified in D below
to have met the standard of conduct specified in E below. Upon
demand for such indemnification, the Corporation shall proceed
as provided in D below to determine whether such person is so
entitled to indemnification.
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B. Every person who is or was a Director or Officer of the
Corporation shall be indemnified by the Corporation against
reasonable expenses, including counsel fees, actually incurred
by such person in connection with any Proceeding to which such
person was a party because of such person serving in his or
her Official Capacity if such person was wholly successful, on
the merits or otherwise, in the defense of such Proceeding.
C. The Corporation may, upon authorization of those entitled to
select counsel under D.(3) below, pay for or reimburse the
reasonable expenses, including counsel fees, incurred by any
person who is or was a Director or Officer of the Corporation
in connection with any Proceeding to which such person is a
Party because of such person serving in his or her Official
Capacity in advance of final disposition of the Proceeding if:
(1) The person furnishes the Corporation a written affirmation
of the person's good faith belief that the person has met the
standard of conduct specified in E below;
(2) The person furnishes the Corporation an unlimited
general written undertaking, executed personally or on the
person's behalf, to repay the advance if it is ultimately
determined that the person did not meet such standard of
conduct; and
(3) A determination is made in the manner specified in D below
that the facts then known to those making the determination
would not preclude indemnification under A above.
D. The determination shall be made by any one of the following
procedures, as selected by the Board of Directors by majority
vote of the entire Board of Directors:
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(1) By the Board of Directors by majority vote of a quorum
consisting of Directors not at the time parties to the
proceeding as to which indemnification or advancement of
expenses is at issue.
(2) If a quorum cannot be obtained under Subdivision (1), by
majority vote of a committee duly designated by the Board of
Directors (in which designation Directors who are Parties may
participate), consisting solely of two or more Directors not
at the time Parties to the Proceeding.
(3) By special legal counsel selected by the Board of
Directors or its committee in the manner prescribed in
Subdivision (1) or (2); or, if a quorum of the Board of
Directors cannot be obtained under Subdivision (1) and a
committee cannot be designated under Subdivision (2), by
special legal counsel selected by majority vote of the full
Board of Directors (in which selection Directors who are
Parties may participate).
(4) By a majority vote of shareholders excluding shares owned
or controlled by Directors or Officers who at the time of the
vote are Parties to the Proceeding.
E. The standard of conduct for any act or omission is as follows:
(1) In the case of any criminal Proceeding, the person either
had reasonable cause to believe that the person's conduct was
lawful, or, had no reasonable cause to believe the person's
conduct was unlawful.
(2) In all other cases, either (a)(i) the person's conduct was
in good faith, and (ii) the person reasonably believed that
the person's conduct was in the Corporation's best interest,
or, in the situation described in F.(3)(c) below, the person
reasonably believed that the person's conduct was not opposed
to the Corporation's best interests; or (b) the person's
breach of or failure to act in accordance with the standard
set forth in E.(2)(a) above did not constitute willful
misconduct or recklessness. A person's conduct with respect to
an employee benefit plan for a purpose which the person
reasonably believed to be in the interests of the participants
in and beneficiaries of the plan is conduct that satisfies the
requirements of E.(2)(b).
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(3) The termination of a Proceeding by judgment, order,
agreement, or settlement, or upon conviction or a plea of nolo
contendere, or the equivalent of any of the foregoing, is not,
of itself, determinative that the person did not meet the
standard of conduct.
F. As used hereinabove with respect to indemnification, the
following terms have the following meanings:
(1) DIRECTOR means an individual who is or was a director of
the Corporation. "Director" includes the heirs, estate,
executors, administrators, and personal representatives of a
Director.
(2) OFFICER means an individual who is or was an officer of
the Corporation. "Officer" includes the heirs, estate,
executors, administrators, and personal representatives of an
Officer.
(3) OFFICIAL CAPACITY means: (a) when used with respect to a
Director, the position of Director of the Corporation; (b)
when used with respect to an Officer, the office in the
Corporation held by an Officer, and (c) when used with respect
to a Director or Officer, any service by a person while a
Director or Officer of the Corporation at the Corporation's
specific request, as a Director, Officer, partner, trustee,
employee, or agent of the Corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise,
whether for profit or not. For these purposes, a person is
considered to be serving an employee benefit plan at the
Corporation's specific request of the person's duties to the
Corporation also impose duties on, or otherwise involve
services by, such person to the plan or to participants in or
beneficiaries of the plan.
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(4) PARTIES means persons who were, are, or are threatened to
be named defendant or respondent in a Proceeding.
(5) PROCEEDING means any threatened, pending, or completed
action, suit, proceeding, or appeal therefrom, whether civil,
criminal, administrative, regulatory, or investigative, and
whether formal or informal.
G. The Corporation reserves the right to purchase and maintain
insurance for the matters covered by these provisions and to
the extent of such insurance payments these provisions shall
not be effective.
ARTICLE 9
CERTAIN CONFLICTS OF INTEREST
SECTION 9.01 CERTAIN CONFLICTS OF INTEREST:
A. No contract or transaction between the Corporation and one or
more of its Directors, or between the Corporation and any
other corporation, partnership, association, or other
organization in which one or more of its directors, officers,
trustees, or general partners are Directors of this
Corporation, or in which any Director of the Corporation has a
material financial interest, shall be void or voidable solely
for this reason, or solely because the Director is present at
or participates in the meeting of the Board or committee
thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such
purpose, if:
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(1) The material facts as to his interest and as to the
contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or
committee authorizes, approves or ratifies the contract or
transaction by a majority vote without counting the vote of
the interested Director or Directors, provided, that more than
one disinterested Director is required to act under this
section;
(2) The material facts as to his interest and as to the
contract or transaction are disclosed or are known to the
stockholders entitled to vote, and the contract or transaction
is authorized, approved, or ratified by majority vote of the
Stockholders; or
(3) The contract or transaction was fair to the Corporation.
B. Common or interested Directors may be counted in determining
the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
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