RESTATED
BY-LAWS
OF
KIMBALL INTERNATIONAL, INC.
(reflecting all amendments through October 24, 1995)
ARTICLE I: LOCATION OF OFFICES
Section 1 - Principal Office: The principal office of the corporation
shall be at 1600 Royal Street, Jasper, Indiana.
Section 2 - Other Offices: The corporation may have and maintain such
other offices as the Board of Directors may deem expedient.
ARTICLE II: CORPORATE SEAL
Section 1 - The corporation shall have a corporate seal which shall be as
follows: A circular disc, on the outer margin of which shall appear the
corporate name and State of Incorporation, with the words "Corporate Seal"
through the center, so mounted that it may be used to impress these words
in raised letters upon paper.
ARTICLE III: FISCAL YEAR
Section 1 - The fiscal year of the corporation shall begin with the first
day of July and terminate on the thirtieth day of June of each year.
ARTICLE IV: STOCKHOLDERS' MEETINGS
Section 1 - Place of Meetings: All meetings of the stockholders shall be
held at the principal office of the corporation except such meetings as the
Board of Directors by resolution determine shall be held elsewhere, in
which case meetings may be held upon notice as hereinafter provided at such
place or places within or without the State of Indiana as said Board of
Directors may determine.
Section 2 - Annual Meeting: The annual meeting of the stockholders shall
be held at 10:00 o'clock A.M. on the 2nd Tuesday of October in each year or
on such other date as may be fixed by the Board of Directors, provided such
annual meeting shall be held in any event within five (5) months after the
close of each fiscal year of the corporation, for the purpose of electing
directors and for the transaction of such other business as may regularly
come before the meeting. If the day fixed for the annual meeting shall be
a legal holiday, such meeting shall be held on the next succeeding business
day.
Exhibit 3(b)
Section 3 - Special Meetings: Special meetings of the stockholders may be
called by the Board of Directors, by the President, by the Secretary under
the written direction of a majority of the directors, or by the
stockholders holding not less than one-fourth of all of the shares of
capital stock outstanding and entitled to vote.
Section 4 - Notices: A written or printed notice stating the place, day
and hour of either annual or special meetings and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered or mailed by the Secretary or by the officers or persons calling
the meeting to each holder of the capital stock of the corporation at the
time entitled to vote at such address as appears upon the records of the
corporation at least ten days before the date of the meeting. Notice of
any stockholders' meeting may be waived in writing by any stockholder if
the waiver sets forth in reasonable detail the purpose or purposes for
which the meeting is called and the time and place thereof. No notice of
the holding of an adjourned meeting shall be necessary. Each stockholder
who has in the manner above provided waived notice of a stockholders'
meeting or who is represented thereat by a proxy complying with the
requirements above set forth shall be conclusively presumed to have been
given due notice of such meeting.
Section 5 - Quorum: At any meeting of stockholders, a majority of the
shares of the capital stock outstanding and entitled by the Articles of
Incorporation to vote, represented in person or by proxy, shall constitute
a quorum for the transaction of business but a less number may convene and
adjourn.
Section 6 - Voting: Stockholders entitled by the Articles of Incorporation
shall be entitled to vote at all meetings in person or by proxy. At all
meetings, each share of stock entitled to vote by the Articles of
Incorporation shall be entitled to one vote on all questions, and a
majority of the votes of such stock cast at any such meeting shall be
sufficient for the adoption or rejection of any question presented unless
otherwise provided by law or by the Articles of Incorporation of the
corporation.
No share shall be voted at any meeting:
(1) Upon which an installment is due and unpaid; or
(2) Which belongs to the corporation.
For the purpose of determining stockholders entitled to vote at any meeting
of the stockholders or any adjournment thereof, or stockholders entitled to
receive payment of any dividend, or in order to make a determination of
stockholders for any other purpose, only those stockholders who are
stockholders of record on the record date fixed by the Board of Directors
or as provided in Article XI, Section 2 hereof, shall be entitled to vote.
Any stockholder acquiring title to shares of stock after said record date
Exhibit 3(b)
shall, upon written request to the stockholder of record, be entitled to
receive from such stockholder a proxy with power of substitution to vote
such stock.
Shares standing in the name of a corporation may be voted by such officers,
agent or proxy as the Board of Directors of such corporation may appoint.
Shares held by fiduciaries may be voted by the fiduciaries in such manner
as the instrument or order appointing such fiduciaries may direct. In the
absence of any such direction or the inability of the fiduciaries to act in
accordance therewith, shares held jointly by three (3) or more fiduciaries
shall be voted in accordance with the will of the majority and, where the
fiduciaries or a majority of them cannot agree or where they are equally
divided upon the questions of voting such shares, any Court of general
equity jurisdiction may, upon petition filed by any of such fiduciaries or
by any party in interest, direct the voting of such shares as it may deem
for the best interest of the beneficiaries, and such shares shall be voted
in accordance with such direction. Shares that are pledged may, unless
otherwise provided in the agreement of pledge, be voted by the stockholder
pledging the same until the shares have been transferred to the pledgee on
the books of the corporation, and, thereafter, they may be voted by the
pledgee.
Section 7 - Voting Lists: The officer or agent having charge of the stock
transfer book shall make, at least five (5) days before each election of
directors, a complete list of the stockholders arranged in alphabetical
order with the address and number of shares held by each, which list shall
be on file at the principal office of the corporation and subject to
inspection by any stockholder. Such list shall be produced and kept open
at the time and place of election and subject to the inspection of any
stockholder during the holding of such election. The original stock
register or transfer book, or a duplicate thereof kept in the State of
Indiana, shall be the only evidence as to who are the stockholders entitled
to examine such list or the stock ledger or transfer book or to vote at any
meeting of the stockholders.
ARTICLE V: DIRECTORS
Section 1 - Number: The Board of Directors of this corporation shall
consist of eleven (11) members, ten of whom shall be elected by holders
of Class A Common Stock, voting as a class, and one of whom shall be
elected by holders of Class B Common Stock, voting as a class.
Section 2 - Election: Directors shall be elected annually at the annual
meeting of stockholders; provided that, in the event of failure to hold
such meeting or to hold such election thereat, they may be elected at any
special meeting of stockholders called for that purpose. At such election,
the President may appoint inspectors or judges who shall report to the
meeting upon the validity of all proxies received and count the votes cast
and make a report thereof to the stockholders' meeting, and, in the absence
of any such appointments, the Secretary of the corporation shall report to
the meeting upon the validity of all proxies received, count the votes cast
and make a report thereof at the stockholders' meeting.
Exhibit 3(b)
Section 3 - Term Of Office: The directors shall hold office from the date
of their election until the next succeeding annual meeting or until their
successors are elected and shall qualify.
Section 4 - Vacancies: Any vacancy, or vacancies, in the Board of
Directors, arising from any cause, shall be filled by a majority vote of
the remaining members of the Board until the next annual meeting of the
stockholders.
Section 5 - Fees: Each director of the corporation shall receive an annual
salary in an amount, plus a sum for each of the six (6) regular meetings of
the Board, all as fixed and determined from time to time by the Board of
Directors and in addition thereto, reimbursement for expenses incurred by
each member of the Board in attending each regular, special or adjourned
meeting of the Board which has been called, whether or not a quorum is
present.
ARTICLE VI: DIRECTORS' MEETINGS
Section 1 - Regular Meetings: Regular meetings of the Board of Directors
shall be held at the principal office of the corporation on the second
Tuesday in the months of February, April, June, August, October and
December of each year at 10:00 o'clock A.M., or on such other day of the
month, time of the day or place, within or without the State, as the Board
of Directors may designate.
Section 2 - Special Meetings: Special meetings of the Board of Directors
may be held at any time at the principal office of the corporation or
elsewhere within or without the State, as shall be specified in the notice
of such meeting.
The Secretary shall call a special meeting whenever and wherever so
requested by the Chairman of the Board, the President, or the Chief
Executive Officer or by three (3) directors.
Section 3 - Organization Meeting: Immediately following the meeting of the
stockholders at which the directors are elected, the Board of Directors
shall meet and organize, and they may also transact such other business as
may be presented.
Section 4 - Notice: No notice shall be required for a regular meeting of
the Board of Directors. No notice shall be required for an "organization
meeting", if held on the same day as the stockholders' meeting at which the
directors were elected. No notice of the holding of an adjourned meeting
shall be necessary. A reasonable notice of special meetings, in writing or
otherwise, shall be given to each director or sent to his residence or
place of business. Notice of a special meeting shall specify the time and
place of holding the meeting and, unless otherwise stated, any and all
business may be transacted at such special meeting.
Notice of any meeting may be waived in writing.
Exhibit 3(b)
Section 5 - Quorum: At all meetings of the Board of Directors, a majority
of the whole Board shall be necessary to constitute a quorum for the
transaction of any business except the filling of vacancies but a lesser
number may convene and adjourn.
Section 6 - Voting: All questions coming before any meeting of the Board
of Directors for action shall be decided by a majority vote of the
directors present at said meeting unless otherwise provided by law or by
these By-laws.
ARTICLE VII: EXECUTIVE COMMITTEE
Section 1 - Number, Qualifications, Appointment: The Board of Directors
may appoint not less than two (2) directors who, together with the
Chairman, the President, and the Chief Executive Officer, shall constitute
the Executive Committee of the corporation. The Chief Executive Officer
shall serve as chairman of said committee.
Section 2 - Powers and Duties: - The Executive Committee shall advise with
and aid the officers of the corporation in all matters concerning its
interests and the management of its business, and, when the Board of
Directors is not in session, the Executive Committee shall have and may
exercise all of the powers of the Board of Directors with reference to the
conduct of the business of the corporation.
Section 3 - Term of Office: The members of the Executive Committee shall
hold office from the date of their appointment until the next succeeding
organization meeting of the directors, provided that the Board of Directors
shall at all times have the power to remove any member of the Executive
Committee.
Section 4 - Vacancies: Any vacancy, or vacancies, in the Executive
Committee, arising from any cause, shall be filled by a majority vote of
the remaining members of the Board until the next annual or special meeting
of the shareholders.
Section 5 - Fees: Members of the Executive Committee, as such, shall not
receive any stated salary for their services, but expenses, if any, of
attendance and a fee in such an amount as may be determined by the Board of
Directors from time to time shall be paid for attendance at each such
Executive Committee meeting.
Section 6 - Meetings: The Executive Committee shall meet at such times and
places as the Chairman of the Board or the Chief Executive Officer may
designate, provided that reasonable notice of such meeting shall be given
to each member of the committee. A majority of the Executive Committee
shall constitute a quorum for the transaction of all business.
Exhibit 3(b)
ARTICLE VIII: AUDIT COMMITTEE
The Board of Directors shall appoint an Audit Committee consisting of three
(3) members of the Board of Directors of which at least two shall not be
officers of the corporation as defined in Article IX of these By-laws. The
third member of the Audit Committee may be an officer of the corporation
who is a member of the Board of Directors who is not either the Chairman of
the Board of Directors, the President, or the Chief Executive Officer. The
committee shall have such responsibilities and powers appropriate to the
nature of said committee including review of the annual audit prepared by
the independent auditors appointed by the Board of Directors with respect
to the corporation within the scope and area of responsibility of said
committee.
ARTICLE IX: OFFICERS
Section 1 - Titles: The officers of the corporation shall consist of the
Chairman of the Board of Directors, the President, the Chief Executive
Officer, an Assistant to the Chief Executive Officer, a Chief Financial
Officer, a Chief Administrative Officer, an Assistant to the Chief
Administrative Officer, one or more Chief Operations Officer(s), a
Secretary, a Treasurer, and a Chief Accounting Officer. The Board of
Directors may elect, at the request of the Chairman of the Board, the
President, or the Chief Executive Officer, one or more Senior Executive
Vice Presidents, Executive Vice Presidents, or Vice Presidents, and one or
more Assistants to the officers of the corporation.
Section 2 - Qualifications of the Chairman of the Board, President, and
Chief Executive Officer. The Chairman of the Board of Directors, the
President, and the Chief Executive Officer shall be chosen from among the
members of the Board of Directors.
Section 3 - Election of Officers: The officers elected by the Board of
Directors shall be elected annually at the organization meeting of the
Board, provided that any officers not so elected at such meeting may be
elected subsequently at any regular or special meeting of the Board.
Section 4 - Term of Office: All officers shall serve at the pleasure of
the Board and shall hold office from the date of their election until the
next succeeding annual organization meeting of the Board of Directors or
until their successors are elected and shall qualify.
Section 5 - Vacancies: Any vacancy or vacancies among the officers,
arising from any cause, shall be filled by the Board of Directors.
Section 6 - Combining Offices: Any two or more offices may be held by the
same person except that the duties of President and Secretary shall not be
performed by the same person.
Exhibit 3(b)
ARTICLE X: POWER AND DUTIES OF DIRECTORS AND OFFICERS
Section 1 - Directors: The business and affairs of the corporation shall
be managed by a Board of Directors except where specifically excepted by
law and these By-laws.
Section 2 - Executive Committee: In the interim between meetings of the
Board of Directors, the Executive Committee shall have and exercise all the
powers and authority of the Board of Directors, provided that no action of
the committee shall conflict with action had or taken by the Board of
Directors.
Section 3 - Chairman of the Board: The Chairman of the Board shall preside
at all meetings of the Board of Directors and shall have general control
and management of the business of the corporation. In general, he shall
perform all duties incident to the office of Chairman of the Board and such
other duties as may be assigned to him from time to time by the Board of
Directors.
Section 4 - President: In the absence of both the Chairman and the Chief
Executive Officer, the President shall have the general control and
management of the business and affairs of the corporation. In the absence
of the Chairman of the Board and the Chief Executive Officer, he shall
preside at meetings of the Board of Directors, the Executive Committee, and
shareholders. As the President, he shall perform all duties incident to
the office of the President and such other duties as may be assigned to him
from time to time by the Board of Directors.
Section 5 - Chief Executive Officer: The Chief Executive Officer shall
have day-to-day control and management of business and affairs of the
corporation subject to the control of the Board of Directors. He shall
preside at all meetings of shareholders and, in the absence of the Chairman
of the Board, at meetings of the Board of Directors. The Chief Executive
Officer shall have specific charge and supervision of all subordinate
officers and all employees of the corporation and may delegate or assign to
such officers and employees such of his duties and responsibilities as he
may elect which are not specifically prescribed by the By-laws or
resolutions of the Board of Directors. As the Chief Executive Officer, he
shall perform all duties incident to the office of Chief Executive Officer
and such other duties as may be assigned to him from time to time by the
Board of Directors.
Section 6 - Assistant to the Chief Executive Officer: The Assistant to the
Chief Executive Officer shall perform such duties incident to the office of
Assistant to the Chief Executive Officer and such other duties as may be
assigned to him from time to time by the Board of Directors.
Section 7 - Chief Financial Officer: The Chief Financial Officer shall be
responsible for all financial matters of the corporation.
Exhibit 3(b)
Section 8 - Chief Operations Officer(s): The Chief Operations Officer(s)
shall be responsible for all manufacturing and production of the
corporation.
Section 9 - Chief Administrative Officer: The Chief Administrative Officer
shall be responsible for all administrative functions of the corporation
affecting the corporation as a whole.
Section 10 - Assistant to the Chief Administrative Officer: The Assistant
to the Chief Administrative Officer shall perform such duties incident to
the Assistant to the Chief Administrative Officer and such other duties as
may be assigned to him from time to time by the Board of Directors.
Section 11 - Vice Presidents: The Senior Executive, or other Vice
Presidents shall perform such duties as may be respectively assigned to
them from time to time by the Board of Directors, the Executive Committee,
or the Chief Executive Officer. The Board of Directors or Executive
Committee may designate one or more of the Vice Presidents as Senior
Executive Vice Presidents or Executive Vice Presidents.
Section 12 - Secretary: Subject to the Board of Directors, the Executive
Committee, the Chairman of the Board, the President, and the Chief
Executive Officer, the Secretary shall have the custody of the corporate
seal and records of the corporation and charge of all the records of the
corporation. He shall act as Secretary at meetings of the stockholders,
directors and the Executive Committee and enter the minutes of such
meetings in a book provided for that purpose and shall attend to
publishing, giving and serving all official notices of the corporation. He
shall perform such other duties as may be assigned to him.
Section 13 - Assistant Secretaries: In the absence or disability of the
Secretary, the Assistant Secretaries shall act with all the powers of the
Secretary. They shall perform such other duties as may be assigned to
them.
Section 14 - Treasurer: Subject to the Board of Directors and the
Executive Committee, the Treasurer shall have the custody of all negotiable
instruments and securities of the corporation and shall have responsibility
for all collections and disbursements of corporate funds. He may endorse
all commercial documents requiring endorsement for or on behalf of the
corporation. He shall perform other duties as may be assigned to him by
the Board of Directors.
Section 15 - Assistant Treasurers: In the absence or disability of the
Treasurer, the Assistant Treasurers shall act with all the powers of the
Treasurer. They shall perform such other duties as may be assigned to
them.
Section 16 - Chief Accounting Officer: Subject to the Board of Directors,
the Executive Committee, the Chairman of the Board, the President, and the
Chief Executive Officer, the Chief Accounting Officer shall have general
supervision of the accounting of the corporation. He shall perform such
other duties as may be assigned to him.
Exhibit 3(b)
ARTICLE XI: STOCK
Section 1 - Stock Certificates: Each stockholder shall be entitled to a
certificate signed by the President or a Vice President and the Secretary
or an Assistant Secretary of the corporation and sealed with the corporate
seal of the corporation, certifying to the number of shares owned by him in
the corporation. Where such certificate is also signed by a transfer agent
and a registrar, the signatures of any such President, Vice President,
Secretary or Assistant Secretary and the seal of the corporation may be
facsimiles. In case any officer or officers who shall have signed or whose
facsimile signature shall have been used on any such certificate or
certificates shall cease to be such officer or officers of the corporation
before such certificate or certificates shall have been delivered by the
corporation, such certificate or certificates may, nevertheless, be issued
and delivered by the corporation with the same effect as if such officer or
officers had not ceased to be such at the date of its issue.
Section 2 - Transfer of Shares: Stock shall be transferable on the stock
transfer books of the corporation in person or by an attorney duly
authorized and upon surrender and cancellation of the old certificates
therefor.
The Board of Directors of the corporation may close its stock transfer
books for a period of time up to the maximum period of time permitted by
rules and regulations of the Securities and Exchange Commission and the
Indiana Business Corporation Law preceding the date of any meeting of
stockholders or the date for the payment of any dividend, provided,
however, that in lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date pursuant to any applicable rules and
regulations of the Securities and Exchange Commission (which, as to
stockholders' meetings, shall be a date not more than seventy (70) days
prior to the meeting), as the record date for the determination of the
stockholders entitled to notice of and to vote at any such meeting, or
entitled to receive payment of any such dividend, and in such case such
stockholders and only such stockholders as shall be stockholders of record
on the date so fixed shall be entitled to such notice of and to vote at
such meeting, or to receive payment of such dividend, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation
after such record date fixed as aforesaid. If the stock transfer books are
not closed, and no record date is fixed by the Board of Directors, no
shares shall be voted at any meeting which shall have been transferred on
the books of the corporation within ten (10) days next preceding the date
of such meeting.
Section 3 - Replacing Certificates: In case of the loss or destruction of
any certificate of stock and the submission of proper proof thereof by the
owner, a new certificate may be issued in lieu thereof under such
regulations and restrictions as the Board of Directors may prescribe.
Exhibit 3(b)
ARTICLE XII: AUTHORIZED SIGNATURES
Section 1 - The Chairman of the Board, the President, the Chief Executive
Officer, and the Assistant to the Chief Executive Officer are authorized to
sign any check, draft or negotiable instrument on behalf of and in the name
of the corporation or to initiate electronic funds transfers without any
countersignature or counterauthorization of any other officer or employee
of the corporation. The Board of Directors may authorize the use of
facsimile signatures for certain types of accounts maintained by the
corporation or with respect to checks or drafts which are less than
a designated amount. As to all other officers or employees of the
corporation, all checks, drafts, other negotiable instruments and
electronic funds transfers shall be made in the name of the corporation and
signed or authorized by one of the said officers or by such other employee
of the corporation and shall be countersigned or counterauthorized by such
other officer or by such other employee of the corporation provided that
the same officer or employee shall not sign and countersign or
counterauthorize the same instrument or transfer. The Chairman of the
Board, the President, or the Chief Executive Officer are authorized and
empowered to designate in writing both officer and non-officer employees of
this corporation who shall be empowered to sign or countersign checks,
drafts, and negotiable instruments for and on behalf of the corporation,
and any such written designation shall have the same force and binding
legal effect on the corporation as a resolution of the Board of Directors
so empowering such officer or non-officer employees. Any such written
designation may be revoked at any time by the Chairman of the Board, the
President, or the Chief Executive Officer, and, in their absence or
unavailability, any member of the Executive Committee of the Board of
Directors may revoke such written designation.
ARTICLE XIII: FIDELITY BONDS
Section 1 - The officers and employees of the corporation shall, in the
discretion of the Chief Executive Officer, give bonds for the faithful
discharge of their respective duties, in such form and such amounts as may
be directed by the Chief Executive Officer.
ARTICLE XIV: INDEMNIFICATION
Section 1 - Every person (and the heirs, executors and administrators of such
person) who is or was a director or officer of this corporation or of any
subsidiary of this corporation or who, at the request of the Board of Directors
of this corporation, served in any position or capacity or on any committee for
this corporation or for or in any other corporation, partnership, association,
trust, foundation, not-for-profit corporation, employee benefit plan or other
organization or entity, shall be indemnified by the corporation against any and
all liability and reasonable expense that may be incurred by him in connection
with or resulting from any claim, action, suit or proceeding in which either (i)
such person is wholly successful, thereby entitling such person to Mandatory
Indemnification, or (ii) such person is not wholly successful but it is
nevertheless determined, pursuant to the procedures set forth below in Section 2
Exhibit 3(b)
of this Article XIV of these By-laws, that such person acted in good faith and
that such person reasonably believed that (a) in the case of conduct in his
official capacity, his conduct was in the corporation's best interests, or (b)
in all other cases, his conduct was at least not opposed to the best interests
of such corporation, entity or organization, and, in addition with respect to
any criminal action or proceeding, either had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his conduct was
unlawful, thereby entitling such person to Permissive Indemnification. A person
shall be considered to have been serving an employee benefit plan at the request
of the corporation if his duties to the corporation also impose duties on, or
otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan. The terms "claim", "action", "suit" or "proceeding"
shall mean and include any threatened, pending or completed claim, action, suit
or proceeding (whether brought by or in the right of the corporation of any
other corporation or otherwise), and all appeals thereof, whether civil,
criminal, administrative or investigative, formal or informal, in which any
person described in the first sentence of this section may become involved as a
party or otherwise:
(a) by reason of his being or having been a director or officer of the
corporation, or of any subsidiary corporation of the corporation, or of any
other corporation where he served as such at the request of the corporation,
or
(b) by reason of his acting or having acted in any position or capacity or on
any committee for this corporation or any subsidiary corporation of this
corporation, or in any position or capacity in or for a partnership,
association, trust, foundation, not-for-profit corporation, employee benefit
plan or other organization or entity where he served as such at the request
of the corporation, or
(c) by reason of any action taken or not taken by him in any such capacity,
whether or not he continues in such capacity at the time such liability or
expense shall have been incurred.
The terms "liability" and "expenses" shall include, but shall not be limited to,
counsel fees and disbursements and amounts of judgements, fines or penalties
against, and amounts paid in settlement by or on behalf of, a person, and excise
taxes assessed with respect to an employee benefit plan, but shall not in any
event include any liability or expenses on account of profits realized by him in
the purchase or sale of securities of the corporation. The term "wholly
successful" shall mean (a) termination of any action, suit or proceeding against
the person in question without any finding of liability or guilt against him,
(b) the expiration of a reasonable period of time after the making of any claim
or threat of an action, suit or proceeding without the institution of the same,
without any payment or promise made to induce a settlement, or (c) approval by a
court, with knowledge of the indemnity herein provided, of a settlement of any
claim, action, suit or proceeding. The termination of any claim, action, suit
or proceeding by judgment, order, settlement (whether with or without court
approval), or conviction or upon a plea of guilty or of nolo contendere, or its
equivalent, shall not by itself create a presumption that a person did not meet
Exhibit 3(b)
the standards of conduct for Permissive Indemnification. The actions of a
person with respect to an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974 shall be deemed to have been taken in
what the person reasonably believed to be the best interests of the corporation
if the person reasonably believed he was acting in conformity with the
requirements of such Act or he reasonably believed his actions to be in the
interests of the participants in or beneficiaries of the plan.
Section 2 - With regard to Permissive Indemnification, the determination that a
person acted in good faith and that such person reasonably believed that (a) in
the case of conduct in his official capacity, his conduct was in the
corporation's best interests, or (b) in all other cases, his conduct was at
least not opposed to the best interests of the corporation, and, in addition,
with respect to any criminal action or proceeding, either had reasonable cause
to believe that his conduct was lawful or had no reasonable cause to believe
that his conduct was unlawful with regard to a specific claim, action, suit or
proceeding in or as to which such person is not wholly successful shall be made
by or for the Board of Directors of the corporation in the manner herinafter
described. Any requests for such indemnification must first be proposed to the
Board of Directors of the corporation, and a motion for such indemnification may
be made by any director of the corporation, including a director who is seeking
such indemnification for himself. If a quorum of directors eligible to decide
the matter exists within the limitations and requirements of I.C. 23-1-37-12 (b)
(1), such directors may either (i) decide the question themselves; (ii) refer
the matter to Special Legal Counsel for decision pursuant to I.C. 23-1-37-12 (b)
(3) (A); or (iii) decline to take any action to either decide the question of
such indemnification or refer the matter for decision to Special Legal Counsel.
If there does not exist a quorum of directors eligible to decide the matter
within the limitations and requirements of I.C. 23-1-37-12 (b) (1), a majority
of the entire Board of Directors may either (i) refer the matter to a committee
of two or more directors who are eligible to vote thereon pursuant to I.C.
23-1-37-12 (b) (2) who may either decide the matter themselves or refer the
matter to Special Legal Counsel for decision pursuant to I.C. 23-1-37-12 (b) (3)
(A); (ii) if such a committee cannot be appointed, refer the matter to Special
Legal Counsel pursuant to the procedures described in I.C. 23-1-37-12 (b) (3)
(B); or (iii) decline to take any action to refer the matter of such
indemnification to a committee or to Special Legal Counsel. Any decision on the
question of entitlement to such Permissive Indemnification by a majority of a
quorum of the Board of Directors eligible to vote pursuant to I.C. 23-1-37-12
(b) (1); by a special committee of eligible directors pursuant to I.C.
23-1-37-12 (b) (2); or by Special Legal Counsel duly appointed pursuant to the
provisions of I.C. 23-1-37-12 (b) (3), shall be in the sole and absolute
discretion of such person or persons who are to make such determination. If it
is determined and decided that such Permissive Indemnification should be given
in a specific situation, the authorization for such indemnification and a
determination of the amount thereof shall be made in accordance with the
procedures and requirements of I. C. 23-1-37-12 (c). For purposes of this
Section 2, Permissive Indemnification shall be deemed to have been denied (i) if
a majority of any group of persons who are to decide the question do not vote in
favor of the proposed indemnification; (ii) if the Board of Directors or any
committee thereof declines to take any permitted action to either decide the
Exhibit 3(b)
question, refer it to a committee, or refer it to Special Legal Counsel; (iii)
if no decision is made by the person or persons who were to decide such question
within a period of six (6) months after such indemnification was first proposed
to the Board of Directors of the corporation; or (iv) to the extent that the
dollar amount of any indemnification to be made by the corporation is less than
the total dollar amount of indemnification proposed or requested to be made. If
proposed Permissive Indemnification is denied, the question may not be
reconsidered at any subsequent time by the corporation.
Section 3 - Expenses incurred with respect to any claim, action, suit or
proceeding may be advanced by the corporation (by action of the Board of
Directors, whether or not a disinterested quorum exists) prior to the final
disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount unless he is entitled to indemnification under
this Article of these By-laws.
Section 4 - The rights of mandatory and Permissive Indemnification provided in
this Article of the By-laws shall be in addition to any rights to which any such
person may otherwise be entitled by contract, as matter of law, or pursuant to
I.C. 23-1-37. Any person claiming the right to indemnification pursuant to any
provisions of these By-laws may at any time apply for indemnification to or seek
review of any decision denying indemnification or determining the amount thereof
by a court pursuant to I.C. 23-1-37-11. Persons who are not directors or
officers of the corporation but who are directors or officers of any subsidiary
may be indemnified to the extent authorized at any time or from time to time by
the Board of Directors.
Section 5 - Irrespective of the provisions of this Article of the By-laws, the
Board of Directors may, at any time or from time to time, approve
indemnification of directors and officers or other persons to the full extent
permitted by the provisions of the Indiana Business Corporation Law at the time
in effect, whether on account of past or future transactions.
Section 6 - To the extent not inconsistent with Indiana law as in effect from
time to time, the Board of Directors may, at any time or from time to time,
approve the purchase and maintenance of insurance on behalf of any person
described in the first sentence of Section 1 of this Article XIV against any
liability asserted against him in his capacity or arising out of his status as
such a person, whether or not the corporation would have the power to indemnify
him under the provisions of this Article of the By-laws. In the event that any
expense or liability otherwise subject to indemnification hereunder is covered
entirely or in part by any insurance, the indemnification provided for by this
Article of these By-laws shall only be available, if at all, as to any uninsured
liability or expense or that portion which is in excess of the amount of all
available insurance coverage. Under no circumstances shall any insurer or other
person making payment under such an insurance policy or contract be subrogated
to the rights of any person entitled to indemnification under this Article of
these By-laws.
Section 7 - Any and all references contained in Article XIV of these By-laws to
any provision, section, subsection or portion of the Indiana Code (I.C.) shall
Exhibit 3(b)
mean the Indiana Code as the same existed on December 9, 1986, and no subsequent
amendment, repeal, modification, change, or judicial invalidation of any
provision of the Indiana Code subsequent to December 9, 1986, shall alter,
modify, or otherwise affect these By-laws, and these By-laws shall be construed
and interpreted under the statutory law of the State of Indiana as it existed as
of the date of adoption of these By-laws.
Section 8 - The indemnification herein required or permitted by these amended
indemnification By-laws shall be a contractual obligation, undertaking and
commitment of the corporation as to any person who either continued to serve or
commenced to serve, following the date of the adoption of these amended
indemnification By-laws, as a director or officer of this corporation or any
subsidiary of this corporation, or in any other position or capacity, at the
request of this corporation or any subsidiary corporation, on any committee,
partnership, association, trust, foundation, not-for-profit corporation,
employee benefit, plan, or other organization or entity, and no subsequent
amendment or repeal of these By-laws and no judicial decision invalidating the
legislation authorizing the indemnification provided for by these By-laws or
invalidating all or any part of these indemnification By-laws shall in any
manner deny, diminish, limit, restrict, or qualify the indemnification herein
provided for, for any such person who so continued to serve or commenced to
serve with regard to any claim concerning any matter which occurred, which
commenced to occur, or which continued to occur subsequent to the adoption of
these amended indemnification By-laws and prior to any such amendment, repeal,
or judicial invalidation.
ARTICLE XV: REGULATION OF SHAREHOLDERS
Section 1 - Election not to be governed by Chapter 42 (Control Share
Acquisitions) of 1986 Indiana Business Corporation Law. This Corporation,
having filed with the Indiana Secretary of State on August 18, 1986, its
resolution electing to be governed by the Indiana Business Corporation Law,
I.C. 23-1-18 through I.C. 23-1-54, effective September 15, 1986, now
elects, pursuant to the provisions of I.C. 23-1-42-5, not to be governed by
the provisions of Chapter 42 of the 1986 Indiana Business of Corporation
Law (I.C. 23-1-42), the same being Section 26 of House Enrolled Act No.
1257 as enacted by the General Assembly of the State of Indiana at the
Second Regular Session of the 104th General Assembly.
Section 2 - Election not to be governed by Chapter 43 [Five-Year Freeze
(Business Combinations) provisions] of the 1986 Indiana Business
Corporation Law. This Corporation, having filed with the Indiana Secretary
of State on August 18, 1986, its resolution electing to be governed by the
Indiana Business Corporation Law, I.C. 23-1-18 through I.C. 23-1-54,
effective September 15, 1986, now, within 30 days of the effective date of
such new law and pursuant to the provisions of I.C. 23-1-43-22 (B), hereby
expressly elects not to be governed by the provisions of Chapter 43 of the
1986 Indiana Business Corporation Law (I.C. 23-1-43), the same being
Section 27 of House Enrolled Act No. 1257 as enacted by the General
Assembly of the State of Indiana at the Second Regular Session of the 104th
General Assembly.
Exhibit 3(b)
ARTICLE XVI: MISCELLANEOUS
Section 1 - Depositories: The funds of the corporation shall be deposited
in the name of the corporation with such depositories as may be designated
by the Board of Directors.
ARTICLE XVII: AMENDMENTS
Section 1 - These By-laws may be altered, amended or repealed by a majority
vote of the whole Board of Directors at any meeting, the notice of which
includes notice of the proposed alteration, amendment or repeal.
Exhibit 3(b)