EXHIBIT 3.12
BY-LAWS
OF
ARCLAR COMPANY
a Corporation of the State of Illinois
ARTICLE I
OFFICES
SECTION 1.1. Illinois Registered Office. The corporation
shall continuously maintain in the State of Illinois a registered office and
registered agent whose office is identical with such registered office.
SECTION 1.2. Other Offices. The corporation may have
other offices within or without the state.
ARTICLE II
SHAREHOLDERS
SECTION 2.1. Annual Meeting. An annual meeting of the
shareholders shall be held at 8:00 on the second Tuesday in March for the
purpose of electing directors and for the transaction of such other business as
may 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.
SECTION 2.2. Special Meetings. Special meetings of the
shareholders may be called either by the president, the board of directors or by
the holders of not less than one-fifth of all outstanding shares of the
corporation, for the purpose or purposes stated in the call of the meeting.
SECTION 2.3. Place of Meeting. The board of directors may
designate any place the place of meeting for any annual meeting or for any
special meeting called by the board of directors. If no designation is made, or
if a special meeting be otherwise called, the place of meeting shall be at 617
East Church Street, Harrisburg, Illinois.
SECTION 2.4. Informal Action By Shareholders. Any action
required to be taken at a meeting of the shareholders, or any other action which
may be taken at a meeting of the shareholders, may be taken without a meeting,
if a consent in writing, setting forth the action so taken, shall be signed
(a) if five days prior notice of the proposed action is
given in writing, then to all of the shareholders entitled to vote with
respect to the subject matter thereof, by the holders of outstanding
shares having no less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voting, or
(b) by all of the shareholders entitled to vote with
respect to the subject matter thereof.
SECTION 2.5. Notice of Meetings. Written notice stating
the place, date and hour of the meeting, and in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered not
less than ten nor more than sixty days before the date of the meeting, or in the
case of a merger, consolidation, share exchange, dissolution or sale, lease or
exchange of assets, not less than twenty nor more than sixty days before the
meeting, either personally or by mail, by or at the direction of the president,
or the secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited with the United States Postal
Service, addressed to the shareholder at his address as it appears on the
records of the corporation, with postage thereon prepaid. When a meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken.
SECTION 2.6. Fixing of Record Date. For the purpose of
determining the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or to receive payment of any dividend, or
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 of the corporation
may fix in advance a record date which shall not be more than sixty days and,
for a meeting of shareholders, not less than ten days, or in the case of a
merger, consolidation, share exchange, dissolution or sale, lease or exchange of
assets, not less than twenty days, immediately preceding the date of such
meeting. If no record date is fixed, the record date for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be the date on which notice of the meeting is mailed, and the record date for
the determination of shareholders for any other purpose shall be the date on
which the board of directors adopts the resolution relating thereto. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting.
SECTION 2.7. Voting Lists. The officer or agent having
charge of the transfer books for shares of the corporation
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shall make, within twenty days after record date or ten days before each meeting
of shareholders, whichever is earlier, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order, showing the
address of and the number of shares registered in the name of the shareholder,
which list, for a period of ten days prior to such meeting, shall be kept on
file at the registered office of the corporation and shall be open to inspection
by any shareholder for any purpose germane to the meeting, at any time during
usual business hours. Such list shall also be produced and kept open at the time
and place of the meeting and may be inspected by any shareholder during the
whole time of the meeting. The original share ledger or transfer book, or a
duplicate thereof kept in this State, shall be prima facie evidence as to who
are the shareholders entitled to examine such list or share ledger or transfer
book or to vote at any meeting of shareholders.
SECTION 2.8. Voting of Shares. Except as otherwise
provided in the articles of incorporation or these by-laws, each outstanding
share, regardless of class, shall be entitled to one vote upon each matter
submitted to vote at a meeting of shareholders.
SECTION 2.9. Voting of Shares by Certain Holders. Shares
standing in the name of another corporation, domestic or foreign, may be voted
by such officer, agent, or proxy as the by-laws of such corporation may
prescribe, or, in the absence of such provision, as the board of directors of
such corporation may determine.
(a) Shares standing in the name of a deceased person, a
minor ward or an incompetent person, may be voted by his administrator,
executor, court appointed guardian, or conservator, either in person or
by proxy without a transfer of such shares into the name of such
administrator, executor, court appointed guardian, or conservator.
Shares standing in the name of a trustee may be voted by him, either in
person or by proxy.
(b) Shares standing in the name of a receiver may be
voted by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer thereof
into his name if authority so to do be contained in an appropriate
order of the court by which such receiver was appointed.
(c) A shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been transferred
into the name of the pledgee, and thereafter the pledgee shall be
entitled to vote the shares so transferred.
(d) Any number of shareholders may create a voting trust
for the purpose of conferring upon a trustee or trustees the right to
vote or otherwise represent their
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share, for a period not to exceed ten years, by entering into a written
voting trust agreement specifying the terms and conditions of the
voting trust, and by transferring their shares to such trustee or
trustees for the purpose of the agreement. Any such trust agreement
shall not become effective until a counterpart of the agreement is
deposited with the corporation at its registered office. The
counterpart of the voting trust agreement so deposited with the
corporation shall be subject to the same right of examination by a
shareholder of the corporation, in person or by agent or attorney, as
are the books and records of the corporation, and shall be subject to
examination by any holder of a beneficial interest in the voting trust,
either in person or by agent or attorney, at any reasonable time for
any proper purpose.
(e) Shareholders may provide for the voting of their
shares by signing an agreement for that purpose. A voting agreement
under this subsection is not subject to the provisions of subsection
(d) above.
(f) Shares of its own stock belonging to this corporation
shall not be voted, directly or indirectly, at any meeting and shall
not be counted in determining the total number of outstanding shares at
any given time, but shares of its own stock held by it in a fiduciary
capacity may be voted and shall be counted in determining the total
number of outstanding shares at any given time.
SECTION 2.10. Proxies. Each shareholder entitled to vote
at a meeting of shareholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons to
act for him by proxy, but no such proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy.
SECTION 2.11. Cumulative Voting. Unless otherwise provided
in the articles of incorporation, in all elections for directors, every
shareholder shall have the right to vote, in person or by proxy, the number of
shares owned by him, for as many persons as there are directors to be elected,
or to cumulate said shares, and give one candidate as many votes as the number
of directors multiplied by the number of his shares shall equal, or to
distribute them on the same principle among as many candidates as he shall see
fit.
SECTION 2.12. Quorum. The holders of a majority of the
outstanding shares of the corporation, present in person or represented by
proxy, shall constitute a quorum at any meeting of shareholders; provided that
if less than a majority of the outstanding shares are represented at said
meeting, a majority of the shares so represented may adjourn the meeting at any
time without further notice. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting
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shall be the act of the shareholders, unless the vote of a greater number or
voting by classes is required by The Business Corporation Act, the articles of
incorporation or these by-laws. At any adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the original meeting. Withdrawal of shareholders from any meeting shall not
cause failure of a duly constituted quorum at that meeting.
SECTION 2.13. Inspectors. At any meeting of shareholders,
the chairman of the meeting may, or upon the request of any shareholder shall,
appoint one or more persons as inspectors for such meeting.
(a) Such inspectors shall ascertain and report the number
of shares represented at the meeting, based upon their determination of
the validity and effect of proxies; count all votes and report the
results; and do such other acts as are proper to conduct the election
and voting with impartiality and fairness to all the shareholders.
(b) Each report of an inspector shall be in writing and
signed by him or by a majority of them if there be more than one
inspector acting at such meeting. If there is more than one inspector,
the report of a majority shall be the report of the inspectors. The
report of the inspector or inspectors on the number of shares
represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
SECTION 2.14. Voting By Ballot. Voting on any question or
in any election may be by voice unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot.
ARTICLE III
DIRECTORS
SECTION 3.1. General Powers. The business of the
corporation shall be managed by, or under the direction of, its board of
directors.
SECTION 3.2. Number, Tenure and Qualifications. The
number of directors of the corporation shall be 2. Each director shall hold
office until the next annual meeting of shareholders or, thereafter, until his
successor shall have been elected. Directors need not be residents of Illinois
or shareholders of the corporation. The number of directors may be increased or
decreased from time to time by the amendment of this section; but no decrease
shall have the effect of shortening the term of any incumbent director. A
director may resign at any time by giving written notice to the board of
directors, its chairman, or to the president or secretary of the corporation. A
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resignation is effective when the notice is given unless the notice specifies a
future date. The pending vacancy may be filled before the effective date, but
the successor shall not take office until the effective date.
SECTION 3.3. Quorum. A majority of the number of
directors fixed by these by-laws shall constitute a quorum for transaction of
business at any meeting of the board of directors, provided that if less than a
majority of such number of directors are present at said meeting, a majority of
the directors present may adjourn the meeting at any time without further
notice.
SECTION 3.4. Manner of Acting. The act of the majority of
the directors present at a meeting at which a quorum is present shall be the act
of the board of directors, unless the act of a greater number is required by
statute, these by-laws, or the articles of incorporation.
SECTION 3.5. Regular Meetings. A regular meeting of the
board of directors shall be held without other notice than this by-law,
immediately after the annual meeting of shareholders. The board of directors may
provide, by resolution, the time and place for holding of additional regular
meetings without other notice than such resolution.
SECTION 3.6. Special Meetings. Special meetings of the
board of directors may be called by or at the request of the president or any
one or more directors. The person or persons authorized to call special meetings
of the board of directors may fix any place as the place for holding any special
meeting of the board of directors called by them.
SECTION 3.7. Notice. Notice of any special meeting shall
be given at least 5 days previous thereto by written notice to each director at
his business address. If mailed, such notice shall be deemed to be delivered
when deposited with the United States Postal Service so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegram company. The
attendance of a director at any meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 3.8. Vacancies. Any vacancy occurring in the
board of directors and any directorship to be filled by reason of an increase in
the number of directors, may be filled by election at an annual meeting or at a
special meeting of shareholders called for that purpose.
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SECTION 3.9. Removal of Directors. One or more of the
directors may be removed, with or without cause, at a meeting of shareholders by
the affirmative vote of the holders of a majority of the outstanding shares then
entitled to vote at an election of directors, except as follows:
(a) No director shall be removed at a meeting of
shareholders unless the notice of such meeting shall state that a
purpose of the meeting is to vote upon the removal of one or more
directors named in the notice. Only the named director or directors may
be removed at such meeting.
(b) In the case of a corporation having cumulative
voting, if less than the entire board is to be removed, no director may
be removed, with or without cause, if the votes cast against his or her
removal would be sufficient to elect him or her if then cumulatively
voted at an election of the entire board of directors.
(c) If a director is elected by a class or series of
shares, he or she may be removed only by the shareholders of that class
or series.
SECTION 3.10. Executive Committee. The board of directors,
by resolution adopted by a majority of the number of directors fixed by the
by-laws or otherwise, may designate two or more directors to constitute an
executive committee, which committee, to the extent provided in such resolution,
shall have and exercise all of the authority of the board of directors in the
management of the corporation, except as otherwise required by law. Vacancies in
the membership of the committee shall be filled by the board of directors at a
regular or special meeting of the board of directors. The executive committee
shall keep regular minutes of its proceedings and report the same to the board
when required,
SECTION 3.11. Action Without a Meeting. Unless
specifically prohibited by the articles of incorporation or these by-laws, any
action required to be taken at a meeting of the board of directors, or any other
action which may be taken at a meeting of the board of directors, or of any
committee thereof may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all the directors entitled
to vote with respect to the subject matter thereof, or by all the members of
such committee, as the case may be. Any such consent signed by all the
directors or all the members of the committee shall have the same effect as a
unanimous vote, and may be stated as such in any document filed with the
Secretary of State or with anyone else.
SECTION 3.12. Compensation. The board of directors, by the
affirmative vote of a majority of directors then in office, and irrespective of
any personal interest of any of its members, shall have authority to establish
reasonable
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compensation of all directors for services to the corporation as directors,
officers, or otherwise. By resolution of the board of directors, the directors
may be paid their expenses, if any, of attendance at each meeting of the board.
No such payment previously mentioned in this section shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 3.13. Presumption of Assent. A director of the
corporation who is present at a meeting of the board of directors at which
action on any corporate matter is taken shall be conclusively presumed to have
assented to the action taken unless his dissent shall be entered in the minutes
of the meeting or unless he shall file his written dissent to such action with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
ARTICLE IV
OFFICERS
SECTION 4.1. Number. The officers of the corporation
shall be a president, a secretary, a treasurer, if desired, any number of vice
presidents, treasurers, assistant treasurers, assistant secretaries or other
officers as may be elected by the board of directors. Any two or more offices
may be held by the same person.
SECTION 4.2. Election and Term of Office. The officers of
the corporation shall be elected or appointed annually by the board of directors
at the first meeting of the board of directors held after each annual meeting of
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently may be. Vacancies
may be filled or new offices created and filled at any meeting of the board of
directors. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. Election
of an officer shall not of itself create contract rights.
SECTION 4.3. Removal. Any officer elected or appointed by
the board of directors may be removed by the board of directors whenever in its
judgment the best interests of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
SECTION 4.4. President. The president shall be the
principal executive officer of the corporation. Subject to the
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direction and control of the board of directors, he shall be in charge of the
business of the corporation; he shall see that the resolutions and directions of
the board of directors are carried into effect except in those instances in
which that responsibility is specifically assigned to some other person by the
board of directors; and, in general, he shall discharge all duties incident to
the office of president and such other duties as may be prescribed by the board
of directors from time to time. He shall preside at all meetings of the
shareholders and of the board of directors. Except in those instances in which
the authority to execute is expressly delegated to another officer or agent of
the corporation or a different mode of execution is expressly prescribed by the
board of directors or these by-laws, he may execute for the corporation
certificates for its shares, and any contracts, deeds, mortgages, bonds, or
other instruments which the board of directors has authorized to be executed,
and he may accomplish such execution either under or without the seal of the
corporation and either individually or with the secretary, any assistant
secretary, or any other officer thereunto authorized by the board of directors,
according to the requirements of the form of the instrument. He may vote all
securities which the corporation is entitled to vote except as and to the extent
such authority shall be vested in a different officer or agent of the
corporation by the board of directors.
SECTION 4.5. The Vice-Presidents. The vice-president (or
in the event there be more than one vice-president, each of the vice-presidents)
shall assist the president in the discharge of his duties as the president may
direct and shall perform such other duties as from time to time may be assigned
to him by the president or by the board of directors. In the absence of the
president or in the event of his inability or refusal to act, the vice-president
(or in the event there be more than one vice-president, the vice-presidents in
the order designated by the board of directors, or by the president if the board
of directors has not made such a designation, or in the absence of any
designation, then in the order of seniority of tenure as vice-president) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. Except in
those instances in which the authority to execute is expressly delegated to
another officer or agent of the corporation or a different mode of execution is
expressly prescribed by the board of directors or these by-laws, the
vice-president (or each of them if there are more than one) may execute for the
corporation certificates for its shares and any contracts, deeds, mortgages,
bonds or other instruments which the board of directors has authorized to be
executed, and he may accomplish such execution either under or without the seal
of the corporation and either individually or with the secretary, any assistant
secretary, or any other officer thereunto authorized by the board of directors,
according to the requirements of the form of the instrument.
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SECTION 4.6. The Treasurer. The treasurer shall be the
principal accounting and financial officer of the corporation. He shall:
(a) have charge of and be responsible for the maintenance
of adequate books of account for the corporation;
(b) have charge and custody of all funds and securities
of the corporation, and be responsible therefore and for the receipt
and disbursement thereof; and
(c) perform all the duties incident to the office of
treasurer and such other duties as from time to time may be assigned to
him by the president or by the board of directors.
If required by the board of directors, the treasurer shall give a bond for the
faithful discharge of his duties in such sum and with such surety or sureties as
the board of directors may determine.
SECTION 4.7. The Secretary. The secretary shall:
(a) record the minutes of the shareholders' and of the
board of directors' meetings in one or more books provided for that
purpose;
(b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law;
(c) be custodian of the corporate records and of the seal
of the corporation;
(d) keep a register of the post-office address of each
shareholder which shall be furnished to the secretary by such
shareholder;
(e) sign with the president, or a vice-president, or any
other officer thereunto authorized by the board of directors,
certificates for shares of the corporation, the issue of which shall
have been authorized by the board of directors, and any contracts,
deeds, mortgages, bonds, or other instruments which the board of
directors has authorized to be executed, according to the requirements
of the form of the instrument, except when a different mode of
execution is expressly prescribed by the board of directors or these
by-laws;
(f) otherwise certify the by-laws, resolutions of the
shareholders and board of directors and committees thereof, and other
documents of the corporation as true and correct copies thereof;
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(g) have general charge of the stock transfer books of
the corporation; and
(h) perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to
him or her by the president or by the board of directors.
SECTION 4.8. Assistant Treasurers and Assistant
Secretaries. The assistant treasurers and assistant secretaries shall perform
such duties as shall be assigned to them by the treasurer or the secretary,
respectively, or by the president or the board of directors. The assistant
secretaries may sign with the president, or a vice-president, or any other
officer thereunto authorized by the board of directors, certificates for shares
of the corporation, the issue of which shall have been authorized by the board
of directors, and any contracts, deeds, mortgages, bonds, or other instruments
which the board of directors has authorized to be executed, according to the
requirements of the form of the instrument, except when a different mode of
execution is expressly prescribed by the board of directors or these by-laws.
The assistant treasurers shall respectively, if required by the board of
directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the board of directors shall determine.
SECTION 4.9. Salaries. The salaries of the officers shall
be fixed from time to time by the board of directors and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 5.1. Contracts. The board of directors may
authorize any officer or officers, agent or agents, to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific
instances.
SECTION 5.2. Loans. No loans shall be contracted on
behalf of the corporation and no evidences of indebtedness shall be issued in
its name unless authorized by a resolution of the board of directors. Such
authority may be general or confined to specific instances.
SECTION 5.3. Checks, Drafts, etc. All checks, drafts or
other orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation, shall be signed by such officer or
officers, agent or agents of the corporation and in such manner as shall from
time to time be determined by resolution of the board of directors.
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SECTION 5.4. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositaries as the board of
directors may select.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 6.1. Certificates for Shares. Certificates
representing shares of the corporation shall be signed by the president or a
vice-president or by such officer as shall be designated by resolution of the
board of directors and by the secretary or an assistant secretary, and shall be
sealed with the seal or a facsimile of the seal of the corporation. If both of
the signatures of the officers be by facsimile, the certificate shall be
manually signed by or on behalf of a duly authorized transfer agent or clerk.
Each certificate representing shares shall be consecutively numbered or
otherwise identified, and shall also state the name of the person to whom
issued, the number and class of shares (with designation of series, if any), the
date of issue, that the corporation is organized under Illinois law, and the par
value or a statement that the shares are without par value. If the corporation
is authorized and does issue shares of more than one class or of series within a
class, the certificate shall also contain such information or statement as may
be required by law. The name and address of each shareholder, the number and
class of shares held and the date on which the certificate's for the shares were
issued shall be entered on the books of the corporation. The person in whose
name shares stand on the books of the corporation shall be deemed the owner
thereof for all purposes as regard the corporation.
SECTION 6.2. Lost Certificates. If a certificate
representing shares has allegedly been lost or destroyed the board of directors
may in its discretion, except as may be required by law, direct that a new
certificate be issued upon such indemnification and other reasonable
requirements as it may impose.
SECTION 6.3. Transfers of Shares. Transfers of shares of
the corporation shall be recorded on the books of the corporation and, except in
the case of a lost or destroyed certificate, on surrender for cancellation of
the certificate for such shares. A certificate presented for transfer must be
duly endorsed and accompanied by proper guaranty of signature and other
appropriate assurances that the endorsement is effective.
ARTICLE VII
FISCAL YEAR
SECTION 7.1. Resolution of Directors. The fiscal year of
the corporation shall be fixed by resolution of the board of directors from time
to time.
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ARTICLE VIII
DIVIDENDS
SECTION 8.1. Declared by Directors. The board of
directors may from time to time declare, and the corporation may pay, dividends
on its outstanding shares in the manner and upon the terms and conditions
provided by law and its articles of incorporation.
ARTICLE IX
SEAL
SECTION 9.1. Subscription. The corporate seal, if any,
shall have inscribed thereon the name of the corporation and the words
"Corporate Seal, Illinois". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any manner reproduced.
ARTICLE X
WAIVER OF NOTICE
SECTION 10.1. Waiver in Lieu of Notice. Whenever any
notice is required to be given under the provisions of these by-laws or under
the provisions of the articles of incorporation or under the provisions of The
Business Corporation Act of the State of Illinois, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice. Attendance at any meeting shall constitute waiver of notice thereof
unless the person at the meeting objects to the holding of the meeting because
notice was not given.
ARTICLE XI
AMENDMENTS
SECTION 11.1. Determined by Directors. Unless reserved to
the shareholders by the articles of incorporation, the by-laws of the
corporation may be made, altered, amended or repealed by the shareholders or the
board of directors, but no by-law adopted by the shareholders may be altered,
amended or repealed by the board of directors if the by-laws so provide. The
by-laws may contain any provisions for the regulation and management of the
affairs of the corporation not inconsistent with law or the articles of
incorporation.
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ARTICLE XII
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
SECTION 12.1. Power to Hold Harmless. The corporation
shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation, or
who is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment or
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interest of the corporation, or with respect to any criminal
action or proceeding, that the person had reasonable cause to believe that his
or her conduct was unlawful.
SECTION 12.2. Power to Indemnify Litigant. The corporation
shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that such person is or was a director, officer, employee or agent of
the corporation, of is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to the best
interests of the corporation, provided that no indemnification shall be made in
respect of any claim, issue or matter as to which such persons shall have been
adjudged to be liable for negligence or misconduct in the performance of his or
her duty to the corporation, unless, and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper.
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SECTION 12.3. Reimbursement Authorized. To the extent that
a director, officer, employee, or agent of a corporation has been successful, on
the merits or otherwise, in defense of any action, suit or proceeding referred
to in Sections 12.1 and 12.2 above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
SECTION 12.4. Determination if Reimbursement is Proper.
Any indemnification under Sections 12.1 and 12.2 above (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case,
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in Sections 12.1 or 12.2 above. Such determination
shall be made:
(a) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such action,
suit or proceeding, or
(b) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or
(c) by the shareholders.
SECTION 12.5. Advance of Expenses. Expenses incurred in
defending a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding, as authorized by the board of directors in the specific case, upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount, unless it shall ultimately be determined that he or
she is entitled to be indemnified by the corporation as authorized in this
Article.
SECTION 12.6. Non-Exclusivity. The indemnification
provided by this article shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any contract, agreement, vote of
shareholders or disinterested directors, or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 12.7. Right to Acquire Insurance. The corporation
shall have power to purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation, as a director, officer, employee
or
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agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of his 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.
SECTION 12.8. Notice to Shareholders. If a corporation has
paid indemnity or has advanced expenses to a director, officer, employee or
agent, the corporation shall report the indemnification or advance in writing to
the shareholders with or before the notice of the next shareholders meeting.
SECTION 12.9. "Corporation"; Definition. For purposes of
this Article, references to "the corporation" shall include, in addition to the
surviving corporation, any merging corporation (including any corporation having
merged with a merging corporation) absorbed in a merger which, if its separate
existence had continued, would have had the power and authority to indemnify its
directors, officers, and employees or agents, so that any person who was a
director, officer, employee or agent of such merging corporation, or was serving
at the request of such merging corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article with respect to the surviving corporation as such person would have with
respect to such merging corporation if its separate existence had continued.
SECTION 12.10. Miscellaneous Definitions. For purposes of
this Article, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or involves
services by such director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries. A person who acted in
good faith and in a manner he or she reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interest of
the corporation" as referred to in this Article.
ARTICLE XIII
REPAYMENT OF DISALLOWED DEDUCTION
SECTION 13.1. Full Reimbursement by Officers Any payments
made to an officer of the corporation such as salary, commission, bonus,
interest, rent, medical reimbursement or entertainment expense incurred by him
which, for Federal income
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tax purposes, shall be disallowed in whole or in part as a deductible expense by
the Internal Revenue Service, shall be reimbursed by such officer to the
corporation to the full extent of such disallowance.
SECTION 13.2. Security for Repayment. It shall be the duty
of the directors, as a board, to enforce payment of such amount disallowed. In
lieu of payment by the officer, subject to the determination of the directors,
proportionate amounts may be withheld from his future compensation payments
until the amount owed to the corporation has been recovered.
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