BYLAWS
OF
HEARTHMARK, INC.
ARTICLE I
RECORDS PERTAINING TO SHARE OWNERSHIP
Section 1. Recognition of Shareholders. Hearthmark, Inc. (the
"Corporation") is entitled to recognize a person registered on its books as the
owner of shares of the Corporation as having the exclusive right to receive
dividends and to vote those shares, notwithstanding any other person's equitable
or other claim to, or interest in, those shares.
Section 2. Transfer of Shares. Shares are transferable only on the
books of the Corporation, subject to any transfer restrictions imposed by the
Articles of Incorporation, these Bylaws, or an agreement among shareholders and
the Corporation. Shares may be so transferred upon presentation of the
certificate representing the shares, endorsed by the appropriate person or
persons, and accompanied by (a) reasonable assurances that those endorsements
are genuine and effective, and (b) a request to register the transfer. Transfers
of shares are otherwise subject to the provisions of the Indiana Business
Corporation Law (the "Act") and Article 8 of the Indiana Uniform Commercial
Code.
Section 3. Certificates. Each shareholder is entitled to a certificate
signed (manually or in facsimile) by the President and the Secretary or an
Assistant Secretary, setting forth (a) the name of the Corporation, and that it
was organized under Indiana law, (b) the name of the person to whom issued, and
(c) the number of shares represented. The Board of Directors shall prescribe the
form of the certificate.
Section 4. Lost or Destroyed Certificates. A new certificate may be
issued to replace a lost or destroyed certificate. Unless waived by the Board of
Directors, the shareholder in whose name the certificate was issued shall make
an affidavit or affirmation of the fact that his certificate is lost or
destroyed, shall advertise the loss or destruction in such manner as the Board
of Directors may require, and shall give the Corporation, a bond of indemnity in
the amount and form which the Board of Directors may prescribe.
ARTICLE II
MEETINGS OF THE SHAREHOLDERS
Section 1. Annual Meeting. Annual meetings of the shareholders shall be
held on such date as may be designated by the Board of Directors.
Section 2. Special Meetings. Special meetings of the shareholders may
be called by the President or by the Board of Directors. Special meetings of the
shareholders shall be called upon delivery to the Secretary of the Corporation
of one or more written demands for a special meeting of the shareholders
describing the purposes of that meeting and signed and dated by the holders of
at least 25% of all the votes entitled to be cast on any issue proposed to be
considered at that meeting.
Section 3. Notice of Meetings. The Corporation shall deliver or mail
written notice stating the date, time, and place of any shareholders' meeting
and, in the case of a special shareholders' meeting or when otherwise required
by law, a description of the purposes for which the meeting is called, to each
shareholder of record entitled to vote at the meeting, at such address as
appears in the records of the Corporation and at least 10, but no more than 60,
days before the date of the meeting. A shareholders' meeting shall be held at
such place, either in or out of the State of Indiana, as may be specified by the
Board of Directors in the respective notice for such meeting.
Section 4. Waiver of Notice. A shareholder may waive notice of any
meeting, before or after the date and time of the meeting as stated in the
notice, by delivering a signed waiver to the Corporation for
inclusion in the minutes. A shareholder's attendance at any meeting, in person
or by proxy (a) waives objection to lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting, and (b) waives
objection to consideration of a particular matter at the meeting that is not
within the purposes described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
Section 5. Record Date. The Board of Directors may fix a record date,
which may be a future date, for the purpose of determining the shareholders
entitled to notice of a shareholders' meeting, to demand a special meeting, to
vote, or to take any other action. A record date may not exceed 70 days before
the meeting or action requiring a determination of shareholders. If the Board of
Directors does not fix a record date, the record date shall be the 10th day
prior to the date of the meeting or other action.
Section 6. Voting by Proxy. A shareholder may appoint a proxy to vote
or otherwise act for the shareholder pursuant to a written appointment form
executed by the shareholder or the shareholder's duly authorized
attorney-in-fact. An appointment of a proxy is effective when received by the
Secretary or other officer or agent of the Corporation authorized to tabulate
votes. The general proxy of a fiduciary is given the same effect as the general
proxy of any other shareholder. A proxy appointment is valid for 11 months
unless otherwise expressly stated in the appointment form.
Section 7. Voting Lists. After a record date for a shareholders'
meeting has been fixed, the Secretary shall prepare an alphabetical list of all
shareholders entitled to notice of the meeting showing the address and number of
shares held by each shareholder. The list shall be kept on file at the principal
office of the Corporation or at a place identified in the meeting notice in the
city where the meeting will be held. The list shall be available for inspection
and copying by any shareholder entitled to vote at the meeting, or by the
shareholder's agent or attorney authorized in writing, at any time during
regular business hours, beginning 5 business days before the date of the meeting
through the meeting. The list shall also be made available to any shareholder,
or to the shareholder's agent or attorney authorized in writing, at the meeting
and any adjournment thereof. Failure to prepare or make available a voting list
with respect to any shareholder's meeting shall not affect the validity of any
action taken at such meeting.
Section 8. Quorum; Approval. At any meeting of shareholders, a majority
of the votes entitled to be cast on a matter at the meeting constitutes a
quorum. If a quorum is present when a vote is taken, action on a matter is
approved if the votes cast in favor of the action exceed the votes cast in
opposition to the action, unless a greater number is required by law, the
Articles of Incorporation, or these Bylaws.
Section 9. Action by Consent. Any action required or permitted to be
taken at a shareholders' meeting may be taken without a meeting if the action is
taken by all the shareholders entitled to vote on the action. The action must be
evidenced by one or more written consents describing the action taken, signed by
all the shareholders entitled to vote on the action, and delivered by hand or
certified or registered mail, return receipt requested or by facsimile to the
Corporation for inclusion in the minutes. If not otherwise determined pursuant
to Section 5 of this Article II, the record date for determining shareholders
entitled to take action without a meeting is the date the first shareholder
signs the consent to such action.
Section 10. Presence. Any or all shareholders may participate in any
annual or special shareholders' meeting by, or through the use of, any means of
communication by which all shareholders participating may simultaneously hear
each other during the meeting. A shareholder so participating is deemed to be
present in person at the meeting.
Section 11. Place of Meetings. Meetings of the shareholders of the
Corporation shall be held at such place, either in or out of the State of
Indiana, as may be specified by the Board of Directors.
ARTICLE III
Board of Directors
Section 1. Powers and Duties. All corporate powers are exercised by or
under the authority of, and the business and affairs of the Corporation are
managed under the direction of, the Board of Directors, unless otherwise
provided in the Articles of Incorporation.
Section 2. Number and Terms of Office; Qualifications. The Corporation
shall have 3 directors. Directors are elected at each annual shareholders'
meeting and serve for a term expiring at the following annual shareholders'
meeting. A director who has been removed pursuant to Section 3 of this Article
III ceases to serve immediately upon removal; otherwise, a director whose term
has expired continues to serve until a successor is elected and qualifies or
until there is a decrease in the number of directors. A person need not be a
shareholder or an Indiana resident to qualify to be a director.
Section 3. Removal. Any director may be removed with or without cause by action
of the shareholders taken at any meeting the notice of which states that one of
the purposes of the meeting is removal of the director.
Section 4. Vacancies. If a vacancy occurs on the Board of Directors, including a
vacancy resulting from an increase in the number of directors, the Board of
Directors may fill the vacancy. If the directors remaining in office constitute
fewer than a quorum of the Board, the directors remaining in office may fill the
vacancy by the affirmative vote of a majority of those directors. Any director
elected to fill a vacancy holds office until the next annual meeting of the
shareholders and until a successor is elected and qualifies.
Section 5. Annual Meetings. Unless otherwise agreed by the Board of Directors,
the annual meeting of the Board of Directors shall be held immediately following
the annual meeting of the shareholders, at the place where the meeting of
shareholders was held, for the purpose of electing officers and considering any
other business which may be brought before the meeting. Notice is not necessary
for any annual meeting.
Section 6. Regular and Special Meetings. Regular meetings of the Board of
Directors may be held pursuant to a resolution of the Board of Directors
establishing a method for determining the date, time, and place of those
meetings. Notice is not necessary for any regular meeting. Special meetings of
the Board of Directors may be held upon the call of the President or of any 2
directors and upon 24 hours' written or oral notice specifying the date, time,
and place of the meeting. Notice of a special meeting may be waived in writing
before or after the time of the meeting. The waiver must be signed by the
director entitled to the notice and filed with the minutes of the meeting.
Attendance at or participation in a meeting waives any required notice of the
meeting, unless at the beginning of the meeting (or promptly upon the director's
arrival) the director objects to holding the meeting or transacting business at
the meeting and does not thereafter vote for or assent to action taken at the
meeting.
Section 7. Quorum. A quorum for the transaction of business at any meeting of
the Board of Directors consists of a majority of the number of directors
specified in Section 2 of this Article III. If a quorum is present when a vote
is taken, action on a matter is approved if the action receives the affirmative
vote of a majority of the directors present.
Section 8. Action by Consent. Any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting if the
action is taken by all directors then in office. The action must be evidenced by
one or more written consents describing the action taken, signed by each
director, shall be delivered by hand or certified or registered mail, return
receipt requested or by facsimile, and included in the minutes. Action of the
Board of Directors taken by consent is effective when the last director signs
the consent, unless the consent specifies a prior or subsequent effective date.
Section 9. Committees. The Board of Directors may create one or more committees
and appoint members of the Board of Directors to serve on them. Each committee
may have one or more members, who serve at the pleasure of the Board of
Directors. The creation of a committee and appointment of members to it must
be approved by the greater of (a) a majority of all the directors in office when
the action is taken, or (b) the number of directors required under Section 7 of
this Article III to take action. All rules applicable to action by the Board of
Directors apply to committees and their members. The Board of Directors may
specify the authority that a committee may exercise; however, a committee may
not (a) authorize distributions, except a committee may authorize or approve a
reacquisition of shares if done according to a formula or method prescribed by
the Board of Directors, (b) approve or propose to shareholders action that must
be approved by shareholders, (c) fill vacancies on the Board of Directors or on
any of its committees, (d) amend the Articles of Incorporation, (e) adopt,
amend, or repeal these Bylaws, (f) approve a plan of merger not requiring
shareholder approval, or (g) authorize or approve the issuance or sale or a
contract for the sale of shares, or determine the designation and relative
rights, preferences, and limitations of a class or series of shares, except the
Board of Directors may authorize a committee to so act within limits prescribed
by the Board of Directors.
Section 10. Presence. The Board of Directors may permit any or all directors to
participate in any annual, regular, or special meeting by any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director so participating is deemed to be present in
person at the meeting.
Section 11. Compensation. Each director shall receive such compensation for
service as a director as may be fixed by the Board of Directors.
ARTICLE IV
OFFICERS
Section 1. Officers. The Corporation shall have a President, a Secretary and a
Treasurer and such assistant officers as the Board of Directors or the President
designates. The Corporation may have one or more Vice Presidents as may be
designated by the Board of Directors. The same individual may simultaneously
hold more than one office.
Section 2. Terms of Office. Officers are elected at each annual meeting of the
Board of Directors and serve for a term expiring at the following annual meeting
of the Board of Directors. An officer who has been removed pursuant to Section 4
of this Article IV ceases to serve as an officer immediately upon removal;
otherwise, an officer whose term has expired continues to serve until a
successor is elected and qualifies.
Section 3. Vacancies. If a vacancy occurs among the officers, the Board of
Directors may fill the vacancy. Any officer elected to fill a vacancy holds
office until the next annual meeting of the Board of Directors and until a
successor is elected and qualifies.
Section 4. Removal. Any officer may be removed by the Board of Directors at any
time with or without cause.
Section 5. Compensation. Each officer shall receive such compensation for
service in office as may be fixed by the Board of Directors.
Section 6. President. The President is the chief executive officer of the
Corporation and is responsible for managing and supervising the affairs and
personnel of the Corporation, subject to the general control of the Board of
Directors. The President presides at all meetings of shareholders and directors.
The President, or proxies appointed by the President, may vote shares of other
corporations owned by the Corporation. The President has authority to execute,
with the Secretary, powers of attorney appointing other corporations,
partnerships, or individuals as the agents of the Corporation, subject to law,
the Articles of Incorporation, and these Bylaws. The President has such other
powers and duties as the Board of Directors may from time to time prescribe.
Section 7. Secretary. The Secretary is responsible for (a) attending all
meetings of the shareholders and the Board of Directors, (b) preparing true and
complete minutes of the proceedings of all meetings of the shareholders, the
Board of Directors, and all committees of the Board of Directors, (c)
maintaining and safeguarding the books (except books of account) and records of
the Corporation, and (d) authenticating the records of the Corporation. If
required, the Secretary attests the execution of deeds, leases, agreements,
powers of attorney, certificates representing shares of the Corporation, and
other official documents by the Corporation. The Secretary serves all notices of
the Corporation required by law, the Board of Directors, or these Bylaws. The
Secretary has such other duties as the Board of Directors may from time to time
prescribe.
Section 8. Treasurer. The Treasurer is responsible for (a) keeping correct and
complete books of account which show accurately at all times the financial
condition of the Corporation, (b) safeguarding all funds, notes, securities, and
other valuables which may from time to time come into the possession of the
Corporation, and (c) depositing all funds of the Corporation with such
depositories as the Board of Directors shall designate. The Treasurer shall
furnish at meetings of the Board of Directors, or when otherwise requested, a
statement of the financial condition of the Corporation. The Treasurer has such
other duties as the Board of Directors may from time to time prescribe.
Section 9. Vice Presidents. The Board of Directors may from time to time
designate and elect a Vice President or Vice Presidents who shall have such
powers and duties as the Board of Directors may from time to time prescribe.
Section 10. Assistant Officers. The Board of Directors or the President may from
time to time designate and elect assistant officers who shall have such powers
and duties as the officers whom they are elected to assist specify and delegate
to them, and such other powers and duties as the Board of Directors or the
President may from time to time prescribe. An Assistant Secretary may, during
the absence or disability of the Secretary, discharge all responsibilities
imposed upon the Secretary of the Corporation, including, without limitation,
attest the execution of all documents by the Corporation.
ARTICLE V
MISCELLANEOUS
Section 1. Records. The Corporation shall keep as permanent records minutes of
all meetings of the shareholders, the Board of Directors, and all committees of
the Board of Directors, and a record of all actions taken without a meeting by
the shareholders, the Board of Directors, and all committees of the Board of
Directors. The Corporation or its agent shall maintain a record of the
shareholders in a form that permits preparation of a list of the names and
addresses of all shareholders, in alphabetical order showing the number of
shares held by each. The Corporation shall maintain its records in written form
or in a form capable of conversion into written form within a reasonable time.
The Corporation shall keep a copy of the following records at its principal
office: (a) the Articles of Incorporation then currently in effect, (b) the
Bylaws then currently in effect, (c) minutes of all shareholders' meetings, and
records of all actions taken by shareholders without a meeting, for the past 3
years, (d) all written communications to shareholders generally during the past
3 years, including annual financial statements furnished upon request of the
shareholders, (e) a list of the names and business addresses of the current
directors and officers, and (f) the most recent annual report filed with the
Indiana Secretary of State.
Section 2. Execution of Contracts and Other Documents. Unless otherwise
authorized or directed by the Board of Directors, all written contracts and
other documents entered into by the Corporation shall be executed on behalf of
the Corporation by the President or his or her designee and, if required,
attested by the Secretary or an Assistant Secretary.
Section 3. Accounting Year. The accounting year of the Corporation begins on
January 1 of each year and ends on the December 31 immediately following.
Section 4. Corporate Seal. The Corporation has no seal.
ARTICLE VI
AMENDMENT
These Bylaws may be amended or repealed only by the Board of Directors. The
affirmative vote of a majority of all the directors is necessary to amend or
repeal these Bylaws.