EXHIBIT 3 (ii)
Effective as of 2/14/03.
AMENDED AND RESTATED
BY-LAWS OF
FRANKLIN ELECTRIC CO., INC.
ARTICLE I.
OFFICES
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Section 1.1. Principal Office. The principal office of the Corporation
shall be in the City of Bluffton, County of Wells, State of Indiana.
Section 1.2. Other Offices. The Corporation may also have other offices
at such places within or without the State of Indiana as the Board of
Directors may from time to time determine.
Section 1.3. Registered Office and Agent. The Corporation shall maintain
a registered office and registered agent as required by the Indiana Business
Corporation Law, as now or hereafter in effect ("IBCL"). The registered office
need not be the same as the Corporation's principal office.
ARTICLE II.
SHAREHOLDERS
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Section 2.1. Annual Meeting. The annual meeting of the shareholders of
the Corporation shall be held annually on the third Friday in April of each
year 10:00 a.m., local time, at the principal office of the Corporation in
Bluffton, Indiana, or at such other place (either within or without the State
of Indiana) at a date and time as may be fixed by the Board of Directors and
designated in the notice or waiver of notice of such meeting. At the annual
meeting, the directors shall be elected, and all such other business as may
properly be brought before the meeting shall be transacted.
Section 2.2. Special Meetings. Special meetings of the shareholders may
be held at the principal office of the Corporation in Bluffton, Indiana, or at
such other place within or without the State of Indiana, as may be determined
by the Board of Directors and as may be designated in the notice or waiver of
notice of such meeting. Special meetings may be called, in writing, only by
the Chairman, the President, or a majority of the Board of Directors. Business
transacted at any special meeting shall be confined to the purpose or purposes
stated in the notice of such special meeting.
Section 2.3. Notice of Shareholders' Meetings. Notice of each meeting
of shareholders, stating the date, time and place, and, in the case of special
meetings, the purpose or purposes for which such meeting is called, shall be
given to each shareholder entitled to vote thereat not less than ten nor more
than sixty days before the date of the meeting unless otherwise prescribed by
the IBCL.
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Section 2.4. Record Dates.
(a) In order that the Corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of shares or
for the purpose of any other lawful action, the Board of Directors may
fix, in advance, a future date as the record date, which shall not be
more than seventy days nor less than ten days before the date of such
meeting or any other action requiring a determination by shareholders.
(b) If a record date has not been fixed as provided in preceding
subsection (a), then:
(i) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the
close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held;
and
(ii) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
(c) Only those who shall be shareholders of record on the record
date so fixed as aforesaid shall be entitled to such notice of, and to
vote at, such meeting and any adjournment thereof, or to receive payment
of such dividend or other distribution, or to receive such allotment of
rights, or to exercise such rights, as the case may be, notwithstanding
the transfer of any shares on the books of the Corporation after the
applicable record date; provided, however, the Corporation shall fix a
new record date if a meeting is adjourned to a date more than one
hundred twenty days after the date originally fixed for the meeting.
Section 2.5. Quorum and Adjournment. At any meeting of the shareholders
the holders of a majority of the outstanding shares of the Corporation
entitled to vote who are present in person or represented by proxy shall
constitute a quorum for the transaction of business unless otherwise
prescribed by the IBCL or the Corporation's Articles of Incorporation, as
amended (the "Articles of Incorporation"). Once a share is represented for
any purpose at a meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is set or is required to be set by the IBCL, the Articles of
Incorporation or these By-Laws.
Whether or not a quorum is present the Chairman of the meeting or
shareholders present in person or represented by proxy representing a majority
of the shares present or represented may adjourn the meeting from time to
time, without notice other than an announcement at the meeting. At any such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the original
meeting.
Section 2.6. Voting by Shareholders; Proxies. Every shareholder shall
have the right at every shareholders' meeting to one vote for each share
standing in his name on the books of the Corporation, except as otherwise
provided by the IBCL or the Articles of Incorporation, and except that no
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share shall be voted at any meeting upon which any installment is due and
unpaid, or which belongs to the Corporation. Election of directors at all
meetings of the shareholders at which directors are to be elected shall be by
ballot, and a plurality of the votes cast thereat shall be necessary to elect
any Director. Action on a matter (other than the election of directors)
submitted to shareholders entitled to vote thereon at any meeting shall be
approved if the votes cast favoring the action exceed the votes cast opposing
the action, unless a greater number of affirmative votes is required by the
IBCL or the Articles of Incorporation. A shareholder may vote either in person
or by proxy executed in writing by the shareholder or a duly authorized
attorney in fact. No proxy shall be valid after eleven months from the date of
its execution unless a longer time is expressly provided therein.
Section 2.7. Shareholder List. At lease five business days before each
shareholders' meeting, the Secretary of the Corporation shall make, or cause
to be made, an alphabetical list of the names of the shareholders entitled to
notice of and to vote at the meeting, arranged by voting group (and within
each voting group by class or series of shares) and showing the address of and
the number of shares held by each shareholder.
Beginning five business days before the date of the meeting and
continuing through the meeting, the list shall be on file at the principal
office of the Corporation (or at the place identified in the meeting notice in
the city where the meeting will be held) and shall be available for inspection
by any shareholder entitled to vote at the meeting for the purpose and to the
extent permitted by law. During this period a shareholder, or the
shareholder's agent or attorney authorized in writing, is entitled on written
demand to inspect and copy the list during regular business hours and at the
shareholder's expense.
Section 2.8. Conduct of Business.
(a) Presiding Officer. The Chairman of the Board of Directors, when
present, and in the absence of the Chairman the President, shall be the
presiding officer at all meetings of shareholders, and in the absence of
the Chairman and the President, the Board of Directors shall choose a
presiding officer. The presiding officer of the meeting shall have
plenary power to determine procedure and rules of order (including with
respect to the opening and the closing of the polls for each matter upon
which shareholders will vote at the meeting) and make definitive rulings
at meetings of the shareholders.
(b) Annual Meetings of Shareholders.
(i) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business
to be considered by the shareholders may be made at an
annual meeting of shareholders (A) pursuant to the
Corporation's notice of meeting, (B) by or at the direction
of the Board of Directors or (C) by any shareholder of the
Corporation who was a shareholder of record at the time of
giving of notice provided for in this Section 2.8, who is
entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section 2.8.
(ii) For director nominations or other business to be properly
brought before any annual meeting by a shareholder pursuant to
clause (C) of paragraph (b)(i) of this Section 2.8, the
shareholder must have given timely notice thereof in writing to
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the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to the Secretary at the principal
business office of the Corporation not later than ninety days
prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than thirty days or delayed by
more than sixty days from such anniversary date, notice by the
shareholder to be timely must be so delivered not later than the
ninetieth day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such
meeting is first made. Such shareholder's notice shall set forth
(A) as to each person whom the shareholder proposes to nominate
for election or reelection as a director all information relating
to such person that is required to be disclosed in solicitations
of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as
a nominee and to serving as a director if elected); (B) as to any
other business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at
the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the
proposal is made; and (C) as to the shareholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination
or proposal is made (x) the name and address of such shareholder,
as they appear on the Corporation's books, and of such beneficial
owner and (y) the class and number of shares of the Corporation
which are owned beneficially and of record by such shareholder and
such beneficial owner.
(iii) The notice procedures of this Section 2.8 shall not apply to
any annual meeting if the Corporation shall not have set forth in
its proxy statement for the preceding annual meeting of
shareholders the date by which notice of nominations by
shareholders of persons for election as directors or of other
business proposed to be brought by shareholders at the next annual
meeting of shareholders must be received by the Corporation to be
considered timely pursuant to this Section 2.8.
(c) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of shareholders at which directors are
to be elected pursuant to the Corporation's notice of meeting (A) by or
at the direction of the Board of Directors or (B) by any shareholder of
the Corporation who was a shareholder of record at the time of giving of
notice provided for in this Section 2.8, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this
Section 2.8. Nominations by shareholders of persons for election to the
Board of Directors may be made at such a special meeting of shareholders
if a shareholder's notice containing the information set forth in
paragraph (b)(ii) of this Section 2.8 shall be delivered to the
Secretary at the principal executive offices of the Corporation not
later than the 90th day prior to such special meeting or the tenth day
following the date on which public announcement is first made of the
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date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(d) General.
(i) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.8 shall be eligible to
serve as directors and only such business shall be conducted at
a meeting of shareholders as shall have been brought before the
meeting in accordance with the procedures set forth in this
Section 2.8. The presiding officer at the meeting shall have the
power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance
with the procedures set forth in this Section 2.8 and, if any
proposed nomination or business is not in compliance with this
Section 2.8, to declare that such defective proposal shall be
disregarded.
(ii) For purposes of this Section 2.8, "public announcement"
shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news
service or a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14
or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section
2.8, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
2.8. Nothing in this Section 2.8 shall be deemed to affect any
rights of shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
Section 2.9. Organization of Meetings. The Secretary, who may call on any
officer or officers of the Corporation for assistance, shall make all
necessary and appropriate arrangements for all meetings of shareholders,
receive all proxies and ascertain and report to each meeting of shareholders
the number of shares present, in person and by proxy. The certificate and
report of the Secretary, as to the regularity of such proxies and as to the
number of shares present, in person and by proxy, shall be received as prima
facie evidence of the number of shares present in person and by proxy for the
purpose of establishing the presence of a quorum at such meeting and for
organizing the same, and for all other purposes.
Section 2.10. Inspectors. At every meeting of shareholders there shall be
appointed by the Board of Directors three inspectors of election to receive
and count the votes of shareholders. Each inspector shall take an oath to
fairly and impartially perform the duties of an inspector of the election and
to honestly and truly report the results thereof. Such inspectors shall be
responsible for tallying and certifying the vote taken on any matter at each
meeting which is required to be tallied and certified by them in the
resolution of the Board of Directors appointing them or the appointment of the
presiding officer at such meeting as the case may be. Except as otherwise
provided by these By-Laws or by law, such inspectors shall also decide all
questions touching upon the qualification of voters, the validity of proxies
and ballots, and the acceptance and rejection of votes. The Board of Directors
shall have the authority to make rules establishing presumptions as to the
validity and sufficiency of proxies.
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ARTICLE III.
DIRECTORS
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Section 3.1. Number and Classes. The Board of Directors shall consist of
no more than ten and no fewer than five members, the actual number to be set
by the Board by resolution. Subject to the rights of the holders of any series
of Preferred Stock outstanding, the directors shall be divided into three
classes, designated as Class I, Class II and Class III, respectively, which at
all times shall be as nearly equal in number as possible. One class of
directors shall be elected annually to serve for a term of three years or
until their successors shall have been elected and qualified.
Section 3.2. Resignation, Vacancies and Removal of Directors. Any
director may resign his office at any time by delivering his resignation in
writing to the Board of Directors, its Chairman, or the Secretary of the
Corporation, and the acceptance of such resignation, unless required by the
terms thereof, shall not be necessary to make such resignation effective. The
resignation shall be effective when the notice is delivered unless the notice
specifies a later effective date. If any vacancy occurs on the Board of
Directors caused by resignation, death, or other incapacity, or increase in
the number of directors, then (a) the Board of Directors may fill the vacancy;
or (b) if the directors remaining in office constitute fewer than a quorum of
the Board, they may fill the vacancy by the affirmative vote of a majority of
all directors remaining in office; or (c) if a majority of the directors
remaining in office are unable to agree on a person to fill the vacancy, then
the remaining directors may call a special shareholders' meeting to fill the
vacancy. The term of a director elected to fill a vacancy expires at the end
of the term for which the director's predecessor was elected. Prior to the
completion of their term of office, a director may only be removed in the
manner as provided in the Articles of Incorporation.
Section 3.3. Regular Meetings. A regular meeting of the Board of
Directors will be held at the place of (or reasonably near thereto) and
promptly following the annual meeting of the shareholders. At the annual
meeting, the Board shall elect the officers of the Corporation for the ensuing
year and transact such other business as may properly come before the meeting.
Other regular meetings may be held at the principal office of the Corporation
or at any other place and at such times as the Board may fix from time to
time. Notice shall be given in accordance with Article IV of these By-Laws.
Section 3.4. Special Meetings. Special meetings of the Board of Directors
shall be held at the principal office of the Corporation or at any other place
reasonably convenient for directors to attend whenever called by the Chairman
or the President or a majority of the Board of Directors. Notice shall be
given in accordance with the Article IV of these By-Laws.
Section 3.5. Quorum and Voting. Except as provided in Section 3.2, a
majority of the actual number of directors elected and qualified from time to
time shall be necessary to constitute a quorum for the transaction of any
business at any meeting of the Board of Directors. The affirmative vote of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors, unless the act of a greater number
is expressly required by the IBCL, the Articles of Incorporation, or these By-
Laws. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present may adjourn the meeting from time to time,
without notice other than an announcement at the meeting, until a quorum is
present.
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Section 3.6. Compensation. Each member of the Board of Directors shall
be paid such compensation as shall be fixed by the Board of Directors,
provided, that nothing herein contained shall be construed to preclude any
director from serving in any other capacity and receiving compensation
therefore.
Section 3.7. Qualification. Upon attaining the age of seventy years, a
director shall submit a written notice of resignation to the Board of
Directors effective as of the end of the next regularly scheduled meeting of
the Board of Directors. Any employee director (other than the President or
Chairman) whose employment with the Corporation is terminated prior to
attaining the age of seventy years shall submit a written notice of
resignation to the Board of Directors effective immediately. The Board, at
its discretion, may determine not to accept, or may defer the effective date
of, any resignation received pursuant to this Section 3.7.
Section 3.8. Committees.
(a) The Board of Directors may from time to time, in its
discretion, by resolution passed by a majority of the Board,
designate, and appoint, from the directors, committees of one or more
persons which shall have and may exercise such lawfully delegable
powers and duties conferred or authorized by the resolutions of
designation and appointment. The Board of Directors shall have power
at any time to change the members of any such committee, to fill
vacancies, and to discharge any such committee.
(b) Unless the Board of Directors shall provide otherwise, the
presence of one-half of the total membership of any committee of the
Board of Directors shall constitute a quorum for the transaction of
business at any meeting of such committee and the affirmative vote of
a majority of those present shall be necessary and sufficient for the
taking of any action thereat.
Section 3.9. Directors' or Committee Action by Consent in Lieu of
Meeting. Any action required or permitted to be taking at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting if
the action is taken by all members of the Board or such committee as the case
may be. The action shall be evidenced by one or more written consents
describing the action taken, signed by each director, and included in the
minutes or filed with the Corporation's records reflecting the action taken.
Any such written consent is effective when the last director signs the
consent, unless the consent specifies a different prior or subsequent
effective date.
Section 3.10. Meetings by Telephone or Other Communications. Members of
the Board of Directors, or any committee of the Board, may participate in a
meeting of the Board or such committee by means of telephone or other
communication by which all directors participating may simultaneously hear
each other during the meeting. A director participating in a meeting by this
means is deemed to be present in person at the meeting.
Section 3.11. Assent by Director to Action Taken at a Meeting. A director
who is present at a meeting of the Board of Directors or a committee of the
Board at which action on any corporate matter is taken is deemed to have
assented to the action taken unless:
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(a) The director objects at the beginning of the meeting (or promptly
upon the director's arrival) to holding it or transacting business at
the meeting;
(b) The director's dissent or abstention from the action taken is
entered in the minutes of the meeting; or
(c) The director delivers written notice of the director's dissent or
abstention to the presiding officer of the meeting before its
adjournment or to the Secretary of the Corporation immediately after
adjournment of the meeting.
The right of dissent or abstention is not available to a director who
votes in favor of the action taken.
ARTICLE IV.
NOTICES
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Section 4.1. Notices. Notices to directors and shareholders shall be in
writing and delivered personally or mailed to their addresses appearing on the
records of the Corporation or, with respect to directors only, by telegram,
cable, telephone, telecopy, facsimile or a nationally recognized overnight
delivery service. Notice to directors of special meetings by mail shall be
given at least two days before the meeting. Notice to directors of special
meetings by personal delivery, telegram, cable, telephone, telecopy or
facsimile shall be given a reasonable time before the meeting, but in no event
less than one hour before the meeting. Notice by mail or recognized overnight
delivery service shall be deemed to be given when sent to the director at his
or her address appearing on the records of the Corporation. Notice by telegram
or cable shall be deemed to be given when the telegram or cable addressed to
the director at his or her address appearing on the records of the Corporation
is delivered to the telegraph company. Notice by telephone, telecopy or
facsimile shall be deemed to be given when transmitted by telephone, telecopy
or facsimile to the telephone, telecopy or facsimile number appearing on the
records of the Corporation for the director (regardless of whether the
director shall have personally received such telephone call or telecopy or
facsimile message).
Section 4.2. Waiver of Notice. Whenever any notice is required, a waiver
thereof signed by the person entitled to such notice, whether before or after
the time stated therein, and filed with the minutes or corporate records,
shall be deemed equivalent to the giving of notice. Attendance of any person
at any meeting of shareholders or directors shall constitute a waiver of
notice of such meeting, except when such person attends only for the express
purpose of objecting, at the beginning of the meeting (or in the case of a
director's meeting, promptly upon such director's arrival), to the transaction
of any business at the meeting and does not thereafter vote for or assent to
action taken at the meeting.
ARTICLE V.
OFFICERS
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Section 5.1. Officers (Including Removal). The officers of the
Corporation may consist of a Chairman of the Board, a President, one or more
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Vice Presidents, a Treasurer, and a Secretary, all of whom shall be elected by
the Board of Directors of the Corporation at the first meeting thereof
immediately following the annual meeting of the shareholders (or at such other
time as the Board deems appropriate), and shall hold office until their
successors are elected and qualify. One person may hold more than one office.
The Board of Directors shall have the power from time to time to appoint such
other officers as may be necessary for the proper conduct of the business of
the Corporation. Any officer elected or appointed by the Board of Directors
may be removed at any time with or without cause by the affirmative vote of a
majority of the whole Board of Directors.
Section 5.2. Compensation. The compensation of the officers of the
Corporation elected or appointed by the Board of Directors, shall be fixed by
the Board of Directors or a committee of the Board.
Section 5.3. Chairman. The Chairman shall be the chief executive officer
of the Corporation and shall have general authority and supervision over the
management and direction of the affairs of the Corporation and supervision of
all departments and of all officers of the Corporation. The Chairman shall,
subject to the other provisions of these By-Laws, have such other powers and
perform such other duties as usually devolve upon the chief executive officer
of a corporation or as may be prescribed by the Board of Directors, and shall,
when present, preside at all meetings of the shareholders and of the Board of
Directors. In case of the absence, disability, death, resignation or removal
from office of the Chairman, the powers and duties of the Chairman shall, for
the time being, devolve upon and be exercised by the President, unless
otherwise ordered by the Board of Directors.
Section 5.4. President. The President shall be the chief operating
officer of the Corporation and shall have such general authority and
supervision over the management and direction of the affairs of the
Corporation, subject to the authority of the Chairman. The President shall,
subject to the other provisions of these By-Laws, have such other powers and
perform such other duties as usually devolve upon the President of a
corporation, and such further duties as may be prescribed by the Chairman or
the Board of Directors. In case of the absence, disability, death, resignation
or removal from office of the President, the powers and duties of the
President shall, for the time being, devolve upon and be exercised by the
Chairman, and in case of the absence, disability, death, resignation, or
removal from office of both the Chairman and the President, the powers and
duties of the President shall, for the time being, devolve upon and be
exercised by the Vice President so appointed by the Board of Directors.
Section 5.5. Vice Presidents. Each of the Vice Presidents shall have such
powers and duties as may be prescribed by the Board of Directors, the Chairman
or the President. The Board of Directors, the Chairman or the President may
designate one or more of such Vice Presidents as Executive Vice President,
Senior Vice President or Assistant Vice President.
Section 5.6. Secretary. The Secretary shall attend and keep the minutes
of all meetings of the Board of Directors and of the shareholders. The
Secretary shall have charge and custody of the corporate records and corporate
seal of the Corporation, and shall in general perform all duties incident to
the office of secretary of a corporation, subject at all times to the
direction and control of the Board of Directors, the Chairman and the
President.
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Section 5.7. Treasurer. The Treasurer shall have charge of, and shall be
responsible for, the collection, receipt, custody and disbursement of the
funds of the Corporation, and shall also have the custody of all securities
belonging to the Corporation. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper
receipts or making proper vouchers for such disbursements, and shall at all
times preserve the same during the term of office. When necessary or proper,
the Treasurer shall endorse, on behalf of the Corporation, all checks, notes,
or other obligations payable to the Corporation or coming into possession of
the Treasurer for and on behalf of the Corporation, and shall deposit the
funds arising therefrom, together with all other funds of the Corporation
coming into possession of the Treasurer, in the name and to the credit of the
Corporation in such bank or banks as the Board of Directors shall from time to
time by resolution direct. The Treasurer shall perform all duties incident to
the office of treasurer of a corporation, subject at all time to the direction
and control of the Board of Directors, the Chairman and the President.
ARTICLE VI.
CAPITAL STOCK
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Section 6.1. Certificates for Shares. Unless the Articles of
Incorporation provide otherwise, all shares of stock of the Corporation shall
be represented by a certificate. The certificates for shares of the
Corporation shall be in such form not inconsistent with the Articles of
Incorporation and the IBCL and as shall be approved by the Board of Directors.
At a minimum, each certificate for shares must state on its face:
(a) The name of the Corporation and that it is organized under the law
of the State of Indiana;
(b) The name of the person to whom issued; and
(c) The number and class of shares and the designation of the series, if
any, the certificate represents.
Each certificate must be signed (either manually or in facsimile) by the
Chairman or the President and Secretary or such other two officers as may be
designated by the Board. Share certificates which have been signed (whether
manually or in facsimile) by officers may be used and shall continue to be
valid even though any individual whose signature appears on a certificate
shall no longer be an officer of the Corporation at the time of the issue of
the certificate.
Section 6.2. Registration of Transfer and Registered Shareholders.
Registration of transfer of shares and issuance of a new certificate or
certificates therefor shall be made only upon surrender to the Corporation or
its transfer agent and cancellation of a certificate or certificates for a
like number of shares of the same class, properly endorsed for transfer,
accompanied by (a) such assurance as the Corporation or transfer agent may
require as to the genuineness and effectiveness of each necessary endorsement,
(b) satisfactory evidence of compliance with all laws relating to collection
of taxes, and (c) satisfactory evidence of compliance with or removal of any
restriction on transfer of which the Corporation or transfer agent may have
notice.
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As respects the Corporation, its stock record books shall be conclusive
as to the ownership of its shares for all purposes and the Corporation shall
not be bound to recognize adverse claims.
Section 6.3. Consideration for Issue of Shares. The shares of the capital
stock of the Corporation may be issued by the Corporation from time to time
for such an amount of consideration as may be fixed by the Board of Directors
and consisting of any tangible or intangible property or benefit to the
Corporation, including cash, promissory notes, services performed, contracts
for services to be performed, or other securities of the Corporation. When
payment of the consideration for which any share was authorized to be issued
shall have been received by the Corporation, the shares issued therefor shall
be fully paid and nonassessable. Shares may be issued to the Corporation's
shareholders without consideration to the extent permitted by the IBCL and
shares so issued shall be fully paid and nonassessable. 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 issued with or before the
notice of the next shareholders' meeting. The Board may (but is not required)
to place in escrow shares issued for a contract for future services or
benefits or a promissory note or may make such other arrangements or
conditions or place such other restrictions on the transfer of the shares
until the services are performed, the note is paid, or the benefits are
received.
Section 6.4. Lost, Stolen or Destroyed Certificates. No certificate for
shares of the capital stock of the Corporation shall be issued in place of any
certificate alleged to have been lost, stolen or destroyed except upon proper
evidence to the satisfaction of the Board of Directors of such loss, theft, or
destruction, and (unless waived by the Board of Directors) except upon
delivery to the Corporation of a bond of indemnity in such amount as may be
fixed by the Board of Directors, executed by the person to whom the new
certificate or certificates should be issued and also by a surety company
approved by the Board of Directors, indemnifying the Corporation against any
claim upon or in respect of such lost, stolen, or destroyed certificate;
provided, however, that whenever this Corporation has a duly appointed,
qualified and acting transfer agent for its said shares, the Board of
Directors may delegate to said transfer agent the authority to determine the
sufficiency of the proof of such loss, theft or destruction and to issue a new
certificate or certificates in replacement thereof, and the Board of Directors
may waive the necessity of obtaining a separate bond of indemnity in
connection with the issuance of each certificate replacing such lost, stolen
or destroyed certificates and in lieu thereof may authorize such transfer
agent to obtain a blanket lost original instruments bond naming this
Corporation and such transfer agent as the obligees therein.
Section 6.5. Transfer Agents and Registrars. The Board of Directors may
from time to time appoint a transfer agent and a registrar in one or more
cities, may require all certificates evidencing shares of the Corporation to
bear signatures of a transfer agent and a registrar, may provide that such
certificates shall be transferable in more than one city, and may provide for
the functions of transfer agent and registrar to be combined in one agency.
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ARTICLE VII.
CONDUCT OF BUSINESS
-------------------
Section 7.1. Contracts, Deeds and Other Instruments. All agreements
evidencing obligations of the Corporation, including but not limited to
contracts, trust deeds, promissory notes, sight drafts, time drafts and
letters of credit (including applications therefor), may be signed by any one
of the Chairman, the President, any Vice President, the Treasurer, the
Secretary, and any person authorized by a resolution of the Board of
Directors.
A certified copy of these By-Laws and/or any authorization given
hereunder may be furnished as evidence of the authorities herein granted, and
all persons shall be entitled to rely on such authorities in the case of a
specific contract, conveyance or other transaction without the need of a
resolution of the Board of Directors specifically authorizing the transaction
involved.
Section 7.2. Checks. Checks and other negotiable instruments for the
disbursement of Corporation funds may be signed by any one of the Chairman,
the President, any Vice President and the Treasurer. In addition to the
foregoing, other persons may sign instruments for the disbursement of
Corporation funds under written authorization signed by any two of the
foregoing officers acting jointly. Electronic or wire transfers of funds may
be authorized by any officer of the Corporation who is authorized pursuant to
this Section 7.2 to disburse Corporation funds by check or other negotiable
instrument.
Section 7.3. Deposits. Securities, notes and other evidences of
indebtedness shall be kept in such places, and deposits of checks, drafts and
funds shall be made in such banks, trust companies or depositories, as shall
be recommended and approved by any two of the Chairman, the President, any
Vice President and the Treasurer.
Section 7.4. Voting of Stock. Unless otherwise ordered by the Board of
Directors, the Chairman, the President or any Vice President shall have the
power to execute and deliver on behalf of the Corporation proxies on stock
owned by the Corporation appointing a person or persons to represent and vote
such stock at any meeting of stockholders, with full power of substitution,
and shall have power to alter or rescind such appointment. Unless otherwise
ordered by the Board of Directors, the Chairman, the President or any Vice
President shall have the power on behalf of the Corporation to attend and to
act and vote at any meeting of stockholders of any corporation in which the
Corporation holds stock and shall possess and may exercise any and all rights
and powers incident to the ownership of such stock, which, as the owner
thereof, the Corporation might have possessed and exercised if present. The
Board of Directors may confer like powers upon any other person or persons.
Section 7.5. Transfer of Stock. Such form of transfer or assignment
customary or necessary to effect a transfer of stocks or other securities
standing in the name of the Corporation shall be signed by the Chairman, the
President, any Vice President or the Treasurer, and the Secretary shall sign
as witness if required on the form. A corporation or person transferring any
such stocks or other securities pursuant to a form of transfer or assignment
so executed shall be fully protected and shall be under no duty to inquire
whether the Board of Directors has taken action in respect thereof.
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ARTICLE VIII.
INDEMNIFICATION
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Section 8.1. Definitions. As used in this Article VIII:
(a) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation,
is or was serving at the Corporation's request as a director, officer,
partner, member, manager, trustee, employee, or agent of another foreign
or domestic corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan, or other enterprise, whether for
profit or not. A director is considered to be serving an employee
benefit plan at the Corporation's request if the director's duties to
the Corporation also impose duties on, or otherwise involve services by,
the director to the plan or to participants in or beneficiaries of the
plan. "Director" includes, unless the context requires otherwise, the
estate or personal representative of a director.
(b) "Expenses" include counsel fees.
(c) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expenses incurred with respect to
a proceeding.
(d) "Officer" means an individual who is or was an officer of the
Corporation or an individual who, while an officer of the Corporation,
is or was serving at the Corporation's request as a director, officer,
partner, member, manager, trustee, employee, or agent of another foreign
or domestic corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan, or other enterprise, whether for
profit or not. An officer is considered to be serving an employee
benefit plan at the Corporation's request if the officer's duties to the
Corporation also impose duties on, or otherwise involve services by, the
officer to the plan or to participants in or beneficiaries of the plan.
"Officer" includes, unless the context requires otherwise, the estate or
personal representative of an officer.
(e) "Official capacity" means:
(1) When used with respect to a director, the office of director
in the Corporation;
(2) When used with respect to an officer, the office of the
Corporation held by the officer; and
(3) When used with respect to an individual other than an officer
or director, the employment or agency relationship undertaken by
the employee or agent on behalf of the Corporation.
"Official capacity" does not include service for any other foreign or
domestic corporation or any partnership, limited liability company,
joint venture, trust, employee benefit plan, or other enterprise,
whether for profit or not.
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(f) "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
Section 8.2. Indemnification.
(a) The Corporation shall indemnify an individual made a party to a
proceeding because the individual is or was a director or officer
against any liability incurred in the proceeding if:
(1) The individual's conduct was in good faith; and
(2) The individual reasonably believed:
(A) In the case of conduct in the individual's official
capacity with the Corporation, that the individual's conduct
was in the Corporation's best interest; and
(B) In all other cases, that the individual's conduct was at
least not opposed to the Corporation's best interest; and
(3) In the case of any criminal proceeding, the individual
either:
(A) Had reasonable cause to believe the individual's conduct
was lawful; or
(B) Had no reasonable cause to believe the individual's
conduct was unlawful.
(b) A director's or officer's conduct with respect to an employee
benefit plan for a purpose the director or officer reasonably believed
to be in the interests of the participants in and beneficiaries of the
plan is conduct that satisfies the requirement of subsection (a)(2)(B)
of this Section 8.2.
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not,
of itself, determinative that the director or officer did not meet the
standard of conduct described in this Section 8.2.
Section 8.3. Additional Indemnification. In addition to the
indemnification to which a director or officer may be entitled pursuant to
Section 8.2, the Corporation shall indemnify a director or officer who was
wholly successful, on the merits or otherwise, in the defense of any
proceeding to which the director or officer was a party because the director
or officer was a director or officer of the Corporation against reasonable
expenses incurred by the director or officer in connection with the
proceeding.
Section 8.4. Advance Indemnification.
(a) The Corporation shall pay for or reimburse the reasonable expenses
incurred by a director or officer who is a party to a proceeding in
advance of final disposition of the proceeding if:
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(1) The director or officer furnishes the Corporation a written
affirmation of the director's or officer's good faith belief that
the director or officer has met the standard of conduct described
in Section 8.2.
(2) The director or officer furnishes the Corporation a written
undertaking, executed personally or on the director's or officer's
behalf, to repay the advance if it is ultimately determined that
the director or officer did not meet the standard of conduct; and
(3) A determination is made that the facts then known to those
making the determination would not preclude indemnification
under this Article VIII.
(b) The undertaking required by subsection (a)(2) of this Section 8.4
must be an unlimited general obligation of the director or officer but
need not be secured and may be accepted without reference to financial
ability to make repayment.
(c) Determinations and authorizations of payments under this section
shall be made in the manner specified in Section 8.5 below.
Section 8.5. Procedure for Determining Indemnification.
(a) The Corporation may not indemnify a director or officer under
Section 8.2 of this Article VIII unless authorized in the specific case
after a determination has been made that indemnification of the director
or officer is required in the circumstances because the director or
officer has met the standard of conduct set forth in Section 8.2 of this
Article VIII.
(b) The determination shall be made by any one of the following
procedures:
(1) By the Board of Directors by majority vote of a quorum
consisting of directors not at the time parties to the proceeding.
(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:
(A) Selected by the Board of Directors or its committee in
the manner prescribed in subdivision (1) or (2); or
(B) If a quorum of the Board of Directors cannot be obtained
under subdivision (1) and a committee cannot be designated
under subdivision (2), selected by majority vote of the full
Board of Directors (in which selection directors who are
parties may participate).
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding
may not be voted on the determination.
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(c) Authorization of indemnification and evaluation as to reasonableness
of expenses shall be made in the same manner as the determination that
indemnification under Section 8.2 is required, except that if the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall be
made by those entitled under subsection (b)(3) of this Section 8.5 to
select counsel.
Section 8.6. Indemnification of Agents and Employees.
(a) The Corporation may indemnify and advance expenses under this
Article VIII to an employee, or agent of the Corporation, whether or not
an officer or director, to the same extent as to a director or officer;
and
(b) The Corporation may also indemnify and advance expenses to an
officer, employee or agent, whether or not a director, to the extent,
consistent with public policy, that may be provided by the Articles of
Incorporation, general or specific action of the Board of Directors, or
contract.
Section 8.7. Indemnification Not Exclusive.
(a) The indemnification and advance for expenses provided for or
authorized by this Article VIII does not exclude any other rights to
indemnification and advance for expenses that a person may have under:
(1) the IBCL;
(2) the Corporation's Article of Incorporation or By-Laws;
(3) a resolution of the Board of Directors or of the shareholders;
(4) any contract or policy of insurance; or
(5) any other authorization, whenever adopted, after notice, by a
majority vote of all the voting shares then issued and
outstanding.
(b) Without limiting the foregoing subsection (a), nothing contained in
this Article VIII shall be construed to limit in any manner the
indemnification or advance for expenses that may be permitted or
required, in the absence of the provisions of this Article VIII,
pursuant to the IBCL.
(c) This Article VIII does not limit the Corporation's power to pay or
reimburse expenses incurred by a director, officer, employee, or agent
in connection with the person's appearance as a witness in a proceeding
at a time when the person has not been made a named defendant or
respondent to the proceeding.
Section 8.8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation or who while a director, officer, employee or
agent of the Corporation is or was serving at the request of the Corporation
as a director, officer, partner, member, manager, trustee, employee, or agent
of another foreign or domestic corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan, or other enterprise,
17
against any liability asserted against him or her and incurred by him or her
in any such capacity, or arising out of his or her status as such, whether or
not the Corporation would have the power to indemnify him or her against such
liability under the provisions of this Article VIII or under the IBCL.
Section 8.9. Contract With The Corporation. The provisions of this
Article VIII shall be deemed to be a contract between the Corporation and each
director or officer who serves in any such capacity at any time while this
Article VIII is in effect, and any repeal or modification of any provisions of
this Article VIII shall not affect any rights or obligations theretofore
accruing under this Article VIII with respect to any state of facts then or
theretofore existing or any claim, action, suit or proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
ARTICLE IX.
SEAL
----
If a corporate seal is used, it shall have inscribed thereon the name
"Franklin Electric Co., Inc." around the circumference thereof and the word
"Seal" in the center thereof. The seal can be used by causing it or a
facsimile thereof to be impressed, affixed, reproduced or otherwise.
ARTICLE X.
FISCAL YEAR
-----------
The fiscal year of the Corporation shall end with the Saturday nearest to
December 31 and begin with the Sunday following the Saturday nearest to
December 31.
ARTICLE XI.
AMENDMENT
---------
These By-Laws may be amended by the Board of Directors, by the
affirmative vote of a majority of all the members of the Board of Directors,
at any regular or special meeting, notice of which contains the proposed
amendment or a digest thereof; or at any meeting, regular or special, at which
all directors are present, or by the written consent of all directors pursuant
to Section 3.2 of Article III of these By-Laws.
ARTICLE XII.
CONTROL SHARES
--------------
The terms "control shares" and "control share acquisition" used in this
Article XII shall have the meanings set forth in Indiana Business Corporation
Law Section 23-1-42-1, et seq. (the "Act"). Control shares of the Corporation
acquired in a control share acquisition shall have only such voting rights as
are conferred by the Act.
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Control shares of the Corporation acquired in a control share acquisition
with respect to which the acquiring person has not filed with the Corporation
the acquiring person statement required by the Act may, at any time during the
period ending sixty days after the last acquisition of control shares by the
acquiring person, be redeemed by the Corporation at the fair value thereof
pursuant to procedures authorized by a resolution of the Board of Directors.
Such authority may be exercised generally or confined to specific instances.
Control shares of the Corporation acquired in a control share acquisition
with respect to which the acquiring person was not granted full voting rights
by the shareholders as provided in the Act may, at any time after the
shareholder vote required by the Act, be redeemed by the Corporation at the
fair value thereof pursuant to procedures authorized by a resolution of the
Board of Directors. Such authority may be exercised generally or confined to
specific instances.
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