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BY-LAWS
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
AS AMENDED THROUGH SEPTEMBER 22, 1993
ARTICLE I: LOCATION OF OFFICES
Section 1 - Principal Office: The principal office of
the corporation shall be at 20-24 N. W. Fourth Street,
Evansville, Vanderburgh County, 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
The corporation shall have a corporate seal with the
name of the corporation and the words "Evansville,
Indiana" inscribed about a circle and the words
"Incorporated, 1912" within such circle.
ARTICLE III: FISCAL YEAR
The fiscal year of the corporation shall begin on the
first day of January and end on the thirty-first day of
December of each year.
ARTICLE IV: SHAREHOLDERS' MEETINGS
Section 1 - Place of Meetings: All meetings of the
shareholders 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 the
Board of Directors may determine.
Section 2 - Annual Meeting: The annual meeting of the
shareholders shall be held at 3:00 o'clock P.M. on the
fourth Tuesday of March in each year, or on such other
date or time as may be fixed by the Board of Directors
and stated in the notice of the meeting, provided such
annual meeting shall be held in any event within five
(5) months after the close of the fiscal year of the
corporation for the election of Directors and the
transaction of such other business as may properly come
before the meeting.
Section 3 - Special Meetings: Except as otherwise
required by law and subject to the rights of any class
or series of stock having a preference over the common
stock as to dividends or upon liquidation, a special
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meeting of the shareholders of the corporation may be
called by the Board of Directors, the Chairman of the
Board or the Chief Executive Officer, or by the
Secretary upon the request in writing of the holders of
not less than seventy percent (70%) of the voting stock
of the corporation.
Section 4 - Notices: At least ten (10) days before any
meeting of shareholders written or printed notice
stating the place, day and hour of the meeting and, in
case of a special meeting or when required by law or by
the Amended Articles of Incorporation, 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 shareholder of
record entitled by law, these By-Laws or the Amended
Articles of Incorporation to vote at such meeting, at
such address as appears on the records of the
corporation. Notice of any shareholders' meeting may
be waived in writing by any shareholder if the waiver
sets forth in reasonable detail the purpose or purposes
for which the meeting is called and the time and place
thereof. Attendance at any meeting in person or by
proxy when the instrument of proxy sets forth in
reasonable detail the purpose or purposes for which the
meeting is called, shall constitute a waiver of notice
of such meeting. No notice of the holding of an
adjourned meeting shall be necessary. Each shareholder
who has, in the manner above provided, waived notice of
a shareholders' meeting or who personally attends a
shareholders' meeting or is represented thereat by a
proxy authorized to appear by an instrument of proxy
complying with the requirements above set forth, shall
be conclusively presumed to have been given due notice
of such meeting.
Section 5 - Quorum: Subject to the provisions of the
Amended Articles of Incorporation, at any meeting of
the shareholders one-third (1/3) of the shares of the
outstanding capital stock represented in person or by
proxy shall constitute a quorum for the transaction of
business, but a lesser number may convene and adjourn.
Section 6 - Voting: Shareholders entitled by law,
these ByLaws or the Amended Articles of Incorporation
to vote at any meeting of shareholders 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 (11) months from the
date of its execution unless a longer time is expressly
provided therein. At all meetings of the shareholders
the holder of each share of the preferred stock $100.00
par value and of the common stock shall be entitled to
one (1) vote for each share of such stock standing in
his name on the books of the corporation and the holder
of each share of the preferred stock, no par value,
shall be entitled to a fraction of one (l) vote per
share, which fraction shall be equal to the ratio of
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the involuntary liquidation value of such share to
$100.00, upon all questions; and a majority of the
votes 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 Amended
Articles of Incorporation. No shareholder shall have
cumulative voting rights in connection with the
election of Directors.
No share shall be voted at any meeting:
(1) Upon which any installment is due and unpaid, or
(2) Which belongs to the corporation.
For the purpose of determining shareholders entitled to
vote at any meeting of the shareholders or any
adjournment thereof or shareholders entitled to receive
payment of any dividend or in order to make a
determination of shareholders for any other purpose,
only those shareholders who are shareholders 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 shareholder acquiring title to
shares of stock after said record date shall, upon
written request to the shareholder of record, be
entitled to receive a proxy from such shareholder with
power of substitution to vote such stock.
Shares standing in the name of a corporation (other
than Southern Indiana Gas and Electric Company) may be
voted by such officers, agents 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. 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 interests 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 shareholder 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: At least five (5) days
before each election of Directors, the officer or agent
having charge of the stock transfer books shall make a
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complete list of the shareholders, arranged in
alphabetical order, with the address and number of
shares and votes held by each, which list shall be on
file at the principal office of the company and subject
to inspection by any shareholder. Such list shall be
produced and kept open at the time and place of
election and subject to the inspection of any
shareholder during the holding of such election. The
original stock register or transfer books, or
duplicates thereof kept in the State of Indiana, shall
be the only evidence as to who are the shareholders
entitled to examine such list or the stock ledger or
transfer book or to vote at any meeting of the
shareholders.
ARTICLE V: DIRECTORS
Section 1 - Number: The Board of Directors of this
corporation shall consist of eleven (11) members.
Section 2 - Classes: The Board of Directors shall be
and is divided into three (3) Classes - Class I, Class
II and Class III - which will be as nearly equal in
number as possible. No Class shall include less than
three (3) Directors.
Section 3 - Election: At the annual meeting of
shareholders during which the members of the Board of
Directors are initially divided into the above
described Classes by appropriate amendment of the
Amended Articles of Incorporation of the corporation,
those Directors who are assigned to Class I shall be
elected for one-year terms, those assigned to Class II
shall be elected for two-year terms and those assigned
to Class III shall be elected for three-year terms. At
each succeeding annual meeting of the shareholders, an
election of Directors of the corporation shall be held
for the Class of Directors whose terms of office expire
at such time. In the event of a failure to hold an
annual meeting of the shareholders or to conduct an
election of Directors at any annual meeting of
shareholders which-is held, the Directors to be elected
at such meeting may be elected at any special meeting
of the shareholders called for that purpose. At any
election of Directors, the Chairman of the Board, if
presiding, or the Chief Executive Officer, if other
than the Chairman of the Board, may appoint inspectors
or judges who shall report to the meeting upon the
validity of all proxies received, count the votes cast
and make a report thereof at such meeting.
Section 4 - Term of Office, Qualification and
Retirement:
A. With Respect to Each Director Elected Prior to
July 23, 1985, except for each initial Director in
Class I and Class II who shall serve for the
respective terms designated in the preceding
Section 3, each such Director shall serve for a
term ending on the date of the third annual
meeting of shareholders following the annual
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meeting at which such Director was elected;
provided, however, that any Director who arrives
at the age of seventy-two (72) years subsequent to
January 1, 1991, shall tender his resignation to
become effective at the end of the calendar year
prior to the year of expiration of the term during
which the Director attains his seventy-second
(72nd) birthday, and his successor shall be chosen
in accordance with the provisions of Section 5 of
this Article V.
B. With Respect to Each Director Elected After July
22, 1985, each such Director shall serve for a
term ending on the date of the third annual
meeting of shareholders following the annual
meeting at which such Director was elected;
provided, however, that any such Director who
arrives at the age of seventy (70) years during
his elected term shall tender his resignation to
become effective at the end of the calendar year
during which he attains his seventieth (70th)
birthday, and his successor shall be chosen in
accordance with the provisions of Section 5 of
this Article V.
C. By invitation of the Board of Directors, board
members who have held the position of Chairman of
the Board or Chief Executive Officer of the
Company may, upon retirement from the Board of
Directors, be elected, on an annual basis, to
serve in the capacity of an advisory board member.
Advisory board members are entitled to receive the
annual stipend portion of the regularly
established directors compensation then in effect
pursuant to Section 7 of this Article V; however,
they shall not enjoy voting privileges.
Furthermore, advisory board members shall not
receive regular committee assignments, but may,
from time to time, be called for committee service
for which they will be compensated at the
established per meeting fee.
Section 5 - Vacancies: Each Director shall serve until
his successor is elected and qualified or until his
death, retirement, resignation or removal. Should a
vacancy occur or be created, whether arising through
the death, resignation or removal of a Director or
through an increase in the number of Directors, such
vacancy shall be filled by a majority vote of the
remaining Directors of all Classes of the Board of
Directors or, at the discretion of the Board of
Directors, such vacancy may be filled by vote of the
shareholders at a special meeting called for that
purpose. A Director so elected to fill a vacancy shall
serve for the remainder of the then-present term of
office of the Class to which such Director was elected.
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Section 6 - Removal: Any Director, or the entire
Board of Directors, may be removed; provided, however,
that such removal must be for cause and must be
approved in accordance with provisions of this Section
6. Removal for cause must be approved by at least
seventy percent (70%) of the combined voting power of
the outstanding shares of stock of the corporation then
entitled to be voted at an election for that Director,
voting together as a single Class, and the action for
removal must be brought within three (3) years of the
occurrence of such cause.
Section 7 - Compensation: The Directors shall receive
such compensation for their service as Directors and as
members of any committee appointed by the Board as may
be prescribed by the Board of Directors. The Directors
shall also be reimbursed for ordinary and reasonable
expenses incurred in the performance of their duties.
No such payment shall preclude any Director from
serving the corporation in any other capacity and
receiving compensation therefor.
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 third Tuesday of each
month 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
Chief Executive Officer or any three (3) Directors.
Section 3 - Organization Meeting: Immediately
following the meeting of the shareholders at which the
members of any Class of Directors are elected, the
members of all Classes of the Board of Directors shall
meet and organize and transact such other business as
may properly be presented at such meeting.
Section 4 - Notice: No notice shall be required for a
regular meeting of the Board of Directors or of an
adjourned meeting. 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. Unless
otherwise stated in the notice thereof, any and all
business may be transacted at a special meeting of the
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Board of Directors. No notice shall be required to be
given to any Director who signs a written waiver of
notice before the meeting, at the time of the meeting
or at any time thereafter.
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 all Classes of the Board
of Directors present at such meeting unless otherwise
provided by law, the Amended Articles of Incorporation
or the other provisions of these By-Laws.
ARTICLE VII: EXECUTIVE COMMITTEE
Section 1 - Number, Qualification, Appointment,
Alternates: The Board of Directors shall appoint not
less than two (2) Directors who, together with the
Chairman of the Board and the Chief Executive Officer
(if other than the Chairman), shall constitute the
Executive Committee. The Board of Directors in its
discretion may also appoint one (1) or more Directors
as alternate members of the Executive Committee to
serve in place of any regular member of the Executive
Committee (other than the Chairman of the Board or the
Chief Executive Officer) during any period of time when
such regular member is unavailable as a member of the
Executive Committee on account of illness, absence or
otherwise. The Chief Executive Officer of the
corporation shall serve as Chairman of the Executive
Committee.
Section 2 - Powers and Duties: The Executive Committee
shall have and exercise all the authority of the entire
Board of Directors when the Board is not in session
with respect to all matters except the following:
(1) Amending the Amended Articles of Incorporation;
(2) Adopting an Agreement or a Plan of Merger,
Consolidation or other "Business Combination" as
that term is defined in Article XI of the Amended
Articles of Incorporation;
(3) Proposing a special corporate transaction such as
the sale, lease, exchange, mortgage, pledge or
disposition of all fixed assets of the
corporation; or
(4) Terminating, winding up and/or changing the nature
of the corporation's business.
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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 the remaining Directors.
Section 5 - Fees: Members of the Executive Committee,
as such, shall not receive any stated salary for their
services, but expenses of attendance, if any, 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 Executive Committee meeting.
Section 6 - Meetings: The Executive Committee shall
meet at such times and places as the Chairman of the
Board or Chief Executive Officer or a majority of the
Committee members may designate, provided that
reasonable notice of such meeting shall be given each
member. A majority of the Executive Committee shall
constitute a quorum for the transaction of all
business.
Section 7 - Minutes: The Executive Committee shall
keep minutes of all its meetings which shall be
recorded in the minute book of the corporation and
shall be promptly submitted to the Board of Directors
for approval.
ARTICLE VIII: AUDIT COMMITTEE
The Board of Directors shall appoint an Audit Committee
consisting of not less than three (3) nor more than
five (5) members of the Board of Directors, none of
whom shall be an officer of the corporation. Each
member of the Audit Committee shall receive a fee fixed
by the Board of Directors for attendance at each
meeting of the Audit Committee.
ARTICLE IX: OFFICERS
Section 1 - Titles: The mandatory officers of the
corporation shall consist of a Chairman of the Board, a
President, a Secretary and a Treasurer. In addition,
the Chairman of the Board or the President shall be
elected by the Board of Directors to be Chief Executive
Officer of the corporation. In the event of a vacancy
in the office of Chief Executive Officer, or the
absence or disability of the officer serving in such
capacity, then the other officer eligible to be elected
to such office (if not one and the same person) shall
perform the duties of Chief Executive Officer. The
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Board of Directors may elect, at the request of the
Chief Executive Officer, one (1) or more Executive Vice
Presidents, one (1) or more Senior Vice-Presidents, one
(1) or more Vice-Presidents, one (1) Controller, one
(1) or more Assistant Controllers, one (1) or more
Assistant Secretaries, one (1) or more Assistant
Treasurers, Assistant or Assistants to the President or
any Executive Vice-President or Vice-President.
The Board of Directors may designate the President or
any Vice President as the Chief Operating Officer of
the Corporation and may designate any Vice President or
the Secretary or the Treasurer as the Chief Financial
Officer of the Corporation.
Section 2 - Qualifications of the Chairman of the Board
and President: The Chairman of the Board and the
President shall be chosen from among the members of the
Board of Directors.
Section 3 - Election of Officers: The mandatory
officers of the corporation shall be elected annually
at the organization meeting of the Board of Directors.
Any other 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 Qualification and
Retirement: 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;
provided, however, that any officer, except those
having attained age 64 as of January 1, 1989, shall
tender his resignation to become effective at the end
of the calendar month during which the officer attains
his sixty-fifth (65th) birthday.
Section 5 - Vacancies: Any vacancy or vacancies among
the officers arising from any cause may be filled by
the Board of Directors.
Section 6 - Compensation of Officers: The Board of
Directors shall fix the compensation of the Chief
Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer and the Chairman
of the Board, when said Chairman is also serving as an
active employee of the Company. The compensation of
all other officers shall be fixed by the Chief
Executive Officer.
Section 7 - Combining Offices: Any two (2) 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.
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ARTICLE X: POWERS AND DUTIES OF DIRECTORS AND OFFICERS
Section 1 - Directors: The business and affairs of the
corporation shall be managed by the Board of Directors,
except where specifically excepted by law, the Amended
Articles of Incorporation or the other provisions of
these By-Laws.
Section 2 - Chairman of the Board: The Chairman of the
Board shall preside at all meetings of the Board of
Directors and at all meetings of shareholders and shall
in general 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. The Chairman of the Board when acting as
the Chief Executive Officer shall also exercise the
duties set forth in Section 3 of this Article X.
Section 3 - Chief Executive Officer: The Chief
Executive Officer of the corporation shall have the
general control and management of its business and
affairs subject to the control of the Board of
Directors.
Section 4 - President: The President shall perform all
duties as may be assigned to him from time to time by
the Chief Executive Officer (if other than the
President) or by the Board of Directors. The President
when acting as the Chief Executive Officer of the
corporation shall also exercise the duties set forth in
Section 3 of this Article X.
Section 5 - Vice-Presidents: The Executive, Senior or
other Vice-Presidents shall have such responsibilities
and 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.
In the absence or disability of the President, an
Executive Vice-President or a Senior Vice-President may
be designated by the Board of Directors or Executive
Committee to perform and exercise all of the powers of
the President.
Section 6 - Secretary: The Secretary shall have the
custody of the corporate seal and records of the
corporation and be in charge of all the records and
accounts of the corporation. He shall act as Secretary
at meetings of the shareholders, Directors and
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 7 - 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.
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Section 8 - Treasurer: The Treasurer shall have the
custody of all negotiable instruments and securities of
the corporation and be in charge of collection of
amounts due the corporation. He shall disburse the
funds of the corporation only by check upon properly
authorized vouchers and shall keep a record of all
receipts and disbursements by him. He shall have
authority to give receipts for moneys paid to the
corporation and to endorse checks, drafts and other
instruments for the payment of money for deposit or
collection where necessary or proper and to deposit the
same to the credit of the corporation in such bank or
banks or depositary as the Board of Directors or the
Executive Committee may designate and he may endorse
all commercial documents requiring endorsements for or
on behalf of the corporation. He shall perform such
other duties as may be assigned to him.
Section 9 - 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 10 - Controller: The Controller shall have
general supervision of the accounting of the
corporation including the preparation of all pertinent
accounting reports. He shall perform such other duties
as may be assigned to him. In the event that a
Controller has not been elected by the Board of
Directors, the powers and duties of the Controller
shall be assigned to the Treasurer.
Section 11 - Assistant Controllers: In the absence or
disability of the Controller, the Assistant Controllers
shall act with all the powers of the Controller. They
shall perform such other duties as may be assigned to
them.
ARTICLE XI: STOCK
Section 1 - Stock Certificates: Each shareholder shall
be entitled to a certificate signed by the President or
a VicePresident 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. If
such certificate is counter-signed by the written
signature of a transfer agent other than the
corporation or its employee, the signatures of the
officers of the corporation may be facsimiles. If such
certificate is counter-signed by the written signature
of a registrar other than the corporation or its
employee, the signatures of the transfer agent and the
officers of the corporation may be facsimiles. In case
any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is
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issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent
or registrar 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 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 not exceeding fifty
(50) days preceding the date of any meeting of
shareholders or the date for the payment of any
dividend. In lieu of closing the stock transfer books
the Board of Directors may fix in advance a date not
more than fifty (50) days prior to the date of any
meeting of shareholders or the date for the payment of
any dividend as the record date for the determination
of the shareholders entitled to notice of and to vote
at any such meeting or entitled to receive payment of
such dividend; and such shareholders, and only such
shareholders, as shall be shareholders of record on the
date so fixed shall be entitled to such notice of and
to vote at such meeting or be entitled to receive
payment of such dividend, as the case may be,
notwithstanding the 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.
ARTICLE XII: AUTHORIZED SIGNATURES
All checks, drafts and other negotiable instruments
issued by the corporation shall be made in the name of
the corporation and shall be signed by such one (1) of
the officers of the corporation and countersigned by
such other officer of the corporation or by such other
person as the Board of Directors from time to time
direct; provided, however, that the same person shall
not both sign and countersign the same instrument;
provided further, that dividend checks, payroll checks,
customer deposit refund checks and cashier's checks
drawn upon special accounts with designated
depositaries need not be countersigned.
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ARTICLE XIII: FIDELITY BONDS
The officers and employees of the corporation shall, in
the discretion of the Board of Directors, Executive
Committee or Chief Executive Officer, give bonds for
the faithful discharge of their respective duties in
such form and for such amounts as they or any of them
may direct.
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 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 of this Article IX 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. The terms
"claim", "action", "suit" or "proceeding" shall mean
and include any claim, action, suit or proceeding
(whether brought by or in the right of the corporation
or any other corporation or otherwise), civil,
criminal, administrative or investigative action, or
threat thereof, in which a director or officer of the
corporation (or his heirs, executors or administrators)
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
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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 judgments, 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 on account of
profits realized by him in the purchase or sale of
securities of the corporation. The term "wholly
successful" shall mean termination of any action, suit
or proceeding against the person in question without
any finding of liability or guilt against him or the
expiration of a reasonable period of time after the
making of any claim or threat of an action, suit or
proceeding with out the institution of the same,
without any payment or promise made to induce a
settlement.
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 hereinafter described. Any
request 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
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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)(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. 23-1-27-12(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 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
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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 employees or agents of the
corporation or any subsidiary or 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 such director, officer or other person
against any liability asserted against him in his
capacity or arising out of his status as a director,
officer, employee or agent of the corporation or any
corporation, partnership, association, employee benefit
plan, trust, foundation, not-for-profit corporation or
other organization or entity in which he served as such
at the request of the corporation, 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, sub-
section or portion of the Indiana Code (I.C.) shall
mean the Indiana Code as the same existed on June 26,
1987, and no subsequent amendment, repeal,
modification, change, or judicial invalidation of any
provision of the Indiana Code subsequent to June 26,
1987, 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.
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Section 8 - The indemnification herein required or
permitted by these By-Laws shall be a contractual
obligation, under-taking 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 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 indemnification By-Laws and prior to
any such amendment, repeal, or judicial invalidation.
ARTICLE XV: MISCELLANEOUS
Section 1 - Depositaries: The funds of the corporation
shall be deposited in the name of the corporation with
such depositaries as may be designated by the Board of
Directors.
Section 2 - Gender: The masculine pronoun wherever
used in these By-Laws shall mean or include the
feminine pronoun where applicable.
ARTICLE XVI: AMENDMENTS
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 shall include notice of
the proposed alteration, amendment or repeal.