EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
HORIZON BANCORP
Article 1. DEFINITIONS AND ABBREVIATIONS
Section 1.1 CORPORATION. As used in these Bylaws, the term "CORPORATION"
means Horizon Bancorp.
Section 1.2 LAW. As used in these Bylaws, the term "LAW" means the Indiana
Business Corporation Law, as amended from time to time.
Section 1.3 ARTICLES OF INCORPORATION. As used in these Bylaws, the term
"ARTICLES OF INCORPORATION" means the Articles of Incorporation of the
Corporation, as amended from time to time.
Section 1.4 BYLAWS. As used in these Bylaws, the term "BYLAWS" means these
Bylaws, as amended from time to time.
Article 2. CORPORATE SEAL AND FISCAL YEAR
Section 2.1 SEAL. The seal of the Corporation shall be circular in form
and mounted upon a metal die, suitable for impressing the same upon paper, or
upon a rubber stamp suitable for stamping or printing on paper. About the upper
periphery of the seal shall appear the name of the Corporation and about the
lower periphery thereof the word "Indiana." In the center of the seal shall
appear the word "Seal."
Section 2.2 FISCAL YEAR. The fiscal year of the Corporation shall begin on
the first day of January and shall end on the last day of December of the same
year.
Article 3. CAPITAL STOCK
Section 3.1 CONSIDERATION FOR SHARES. The Board of Directors may authorize
the Corporation to issue its shares for consideration consisting of any tangible
or intangible property or benefit to the Corporation, including, but not limited
to, cash, promissory notes, services performed, contracts for services to be
performed, or other securities of the Corporation. However, if shares are issued
for promissory notes or for promises to render services in the future, the
Corporation shall report in writing to the shareholders the number of shares
authorized to be so issued with or before notice of the next shareholders'
meeting.
Section 3.2 SUBSCRIPTIONS FOR SHARES. Subscriptions for shares of the
Corporation shall be paid to the Treasurer at such time or times, in such
installments or calls, and upon such terms, as shall be determined, from time to
time, by the Board of Directors. Any call made by the Board of Directors for
payment on subscriptions shall be uniform, so far as practicable, as to all
shares of the same class or as to all shares of the same series, as the case may
be, unless the subscription agreements provide otherwise.
Section 3.3 PAYMENT FOR SHARES. When payment of the consideration for
which a share was authorized to be issued shall have been received by the
Corporation, such shares shall be declared and taken to be fully paid and not
liable to any further call or assessment, and the holder thereof shall not be
liable for any further payments thereon. In the absence of actual fraud in the
transaction, the judgment of the Board of Directors as to the value of such
property, labor, or services received as consideration for shares, or the value
placed by the Board of Directors upon the corporate assets in the event of a
share dividend, shall be conclusive.
Section 3.4 CERTIFICATES FOR SHARES. Unless the Board of Directors shall,
by resolution, authorize the issuance of uncertificated shares, each shareholder
of the Corporation shall be entitled to a certificate, signed by the President
or a Vice President and the Secretary or an Assistant Secretary of the
Corporation (either manually or by facsimile), stating: (i) the name of the
Corporation and a statement that it is organized under the laws of the State of
Indiana, (ii) the name of the registered holder, (iii) the number of shares
represented thereby and the kind and class thereof, (iv) the par value of each
share or a statement that such shares have no par value, and (v) whether such
shares have been fully paid and are non-assessable. If such certificate is
countersigned 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 countersigned 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 issued, it may
be issued by the Corporation with the same effect as if the person were such
officer, transfer agent or registrar at the date of its issue. Such certificates
shall be in such form as the Board of Directors may, from time to time, by
resolution approve. The seal of the Corporation (or a facsimile thereof), if
any, may be affixed to such certificates, but the failure to affix the
Corporation's seal to a certificate shall not affect the validity of such
certificate.
Section 3.5 TRANSFER OF SHARES. The shares of the Corporation shall be
transferable only on the books of the Corporation upon surrender of the
certificate or certificates representing the same, provided:
(a) ENDORSEMENT. The certificate is properly endorsed by the registered
holder or the holder's duly authorized attorney or accompanied by
proper evidence of succession, assignment or authority to transfer;
(b) ADVERSE CLAIMS. The Corporation has no notice of any adverse claims
or has discharged any duty to inquire into any such claims;
(c) COLLECTION OF TAXES. The requirements of any applicable law relating
to the collection of taxes has been satisfied; and
(d) OTHER REQUIREMENTS. Any other reasonable requirements imposed by the
Corporation, not inconsistent with the relevant law, are satisfied.
Section 3.6 TRANSFER AGENTS AND REGISTRARS. The Corporation may have one
or more transfer agents and one or more registrars of its shares, whose
respective duties the Board of Directors may from time to time define. No
certificate for shares shall be valid until countersigned by a transfer agent,
if the Corporation has a transfer agent, or until registered by a registrar if
the Corporation has a registrar. Shareholders shall be responsible for notifying
the transfer agent and registrar for the class of stock held by such shareholder
in writing of any changes in their addresses from time to time, and failure to
do so shall relieve the Corporation, its shareholders, directors, officers,
transfer agent and registrar of liability for failure to direct notices,
dividends, or other documents or property to an address other than the one
appearing upon the records of the transfer agent and registrar of the
Corporation.
Section 3.7 CANCELLATION. Every certificate surrendered to the Corporation
for exchange or transfer shall be cancelled, and no new certificate or
certificates shall be issued in exchange for any existing certificate until such
existing certificate shall have been so cancelled, except in cases provided for
in Section 3.8.
Section 3.8 LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may
issue a new certificate for shares of the Corporation in the place of any
certificate theretofore issued where the holder of record of the certificate:
(a) CLAIM. Makes proof in affidavit form that it has been lost,
destroyed, or wrongfully taken;
(b) TIMELY REQUEST. Requests the issuance of a new certificate before
the Corporation has notice that the certificate has been acquired by
a purchaser for value in good faith and without notice of any
adverse claim;
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(c) BOND. If the Corporation so requires, gives a bond in such form, and
with such surety or sureties, with fixed or open penalty, as the
Corporation may direct, to indemnify the Corporation against any
claim that may be made on account of the alleged loss, destruction,
or theft of the certificates; and
(d) OTHER REQUIREMENTS. Satisfies any other reasonable requirements
imposed by the Corporation.
When a certificate has been lost, apparently destroyed, or wrongfully taken and
the holder of record fails to notify the Corporation within a reasonable time
after such holder has notice of it, and the Corporation registers a transfer of
the shares represented by this certificate before receiving such notification,
the holder of record is precluded from making any claim against the Corporation
for the transfer or for a new certificate.
Section 3.9 TREASURY SHARES. The Corporation shall have treasury shares.
Outstanding shares reacquired by the Corporation shall constitute authorized but
unissued shares, may be reissued by the Corporation, and shall not reduce the
authorized shares of the Corporation.
Article 4. MEETINGS OF SHAREHOLDERS
Section 4.1 PLACE OF MEETINGS. All meetings of the shareholders of the
Corporation shall be held at such place, within or without the State of Indiana,
as may be specified in the respective notices or waivers of notice thereof, or
proxies to represent shareholders thereat. If no designation is made, the
meeting shall be held at the principal office of the Corporation as the same is
designated in the most recent report filed with the Secretary of State of
Indiana.
Section 4.2 ANNUAL MEETING. The shareholders of the Corporation shall meet
at least once each year. The annual meeting of the shareholders for the election
of directors, and for the transaction of such other business as may properly
come before the meeting, shall be on or before the last day of May of each year,
the date to be set by the Board of Directors of the Corporation. Failure to hold
the annual meeting at the designated time shall not work any forfeiture or a
dissolution of the Corporation and shall not affect the otherwise valid
corporate acts.
Section 4.3 SPECIAL MEETINGS. Special meetings of the shareholders may be
called by the Chairman, the President, or, at the request in writing of a
majority of the members of the Board of Directors, by the Secretary.
Section 4.4 NOTICE OF MEETINGS. A written or printed notice, stating the
place, day and time of the meeting, and in case of a special meeting, or when
required by any other provision of the Law, the Articles of Incorporation, or
Bylaws, 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 the Articles of Incorporation
and by the Law to vote at such meeting. Notices shall be sent to shareholders at
such address as appears upon the records of the Corporation, at least 10 and not
more than 60 days before the date of the meeting. Notice of any meeting may be
waived in writing by any shareholder before or after the date and time stated in
the notice, 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
was called, shall constitute a waiver of notice of such meeting. 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 4.5 FIXING OF RECORD DATE. The Board of Directors may fix a date,
not more than 70 days prior to the date of any meeting of shareholders, as the
date for the determination of shareholders entitled to notice of, and to vote
at, such meeting. All persons who are holders of record of shares at the close
of business on such record date, and no others, shall be entitled to notice of,
and to vote at, such meeting.
Section 4.6 ADDRESSES OF SHAREHOLDERS. The address of any shareholder
appearing upon the records of the Corporation shall be deemed to be (i) the
latest address of such shareholder appearing on the records
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maintained by the transfer agent or registrar, as the case may be, for the class
of shares held by such shareholder, if the Corporation has a transfer agent or
registrar for such class of shares and the Board of Directors has provided in
the resolutions appointing the transfer agent or registrar that notices of
change of address shall be given to one of such agents by shareholders of such
class; or (ii) the latest address of such shareholder appearing on the records
maintained by the Secretary for the class of shares held by such shareholder, if
the Corporation has no transfer agent or registrar for such class of shares or
if it has a transfer agent or registrar for such class of shares but the
resolutions appointing the transfer agent or registrar do not provide that
notice of change of address shall be given to one of such agents by shareholders
of such class of shares.
Section 4.7 VOTING AT MEETINGS
(a) COMMON SHARES. Except as otherwise provided by the Law or by the
provisions of the Articles of Incorporation as to the voting rights
of the common shares of the Corporation, every holder of the common
shares of the Corporation shall have the right, at every
shareholders' meeting, to one vote for each share standing in the
holder's name on the books of the Corporation. Cumulative voting
shall not be permitted.
(b) PREFERRED SHARES. Except as otherwise provided by law or by the
provisions of the Articles of Incorporation as to the voting rights
of the preferred shares, if any, of the Corporation, for all matters
on which the preferred shareholders are entitled to vote, every
holder of the preferred shares, if any, of the Corporation shall
have the right to one vote for each share standing in the holder's
name on the books of the Corporation.
(c) PROHIBITION AGAINST VOTING CERTAIN SHARES. No share shall be voted
at any meeting upon which any installment is due and unpaid or which
belongs to the Corporation.
(d) VOTING OF SHARES OWNED BY OTHER CORPORATIONS. Shares of the
Corporation standing in the name of another corporation may be voted
by such officer, agent or proxy as the board of directors of such
other corporation may appoint, or as the Bylaws of such other
corporation may prescribe.
(e) VOTING OF SHARES OWNED BY FIDUCIARIES. 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 such
direction or the inability of the fiduciaries to act in accordance
therewith, the following provisions shall apply:
(i) JOINT FIDUCIARIES. Where shares are held jointly by 3 or more
fiduciaries, such shares shall be voted in accordance with the
will of the majority. (ii) EQUALLY DIVIDED FIDUCIARIES. Except
as otherwise provided by law, where the fiduciaries, or a
majority of them, cannot agree, or where they are equally
divided, upon the question 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.
(iii) PROXY OF FIDUCIARY. The general proxy of a fiduciary shall be
given the same weight and effect as the general proxy of an
individual or corporation.
(f) VOTING OF PLEDGED SHARES. Shares that are pledged may, unless
otherwise provided in the agreement of pledge, be voted by the
shareholder pledging the same until the shares shall have been
transferred to the pledgee on the books of the Corporation, and
thereafter they may be voted by the pledgee.
(g) PROXIES. A shareholder may vote either in person or by proxy
executed in writing by the shareholder or a duly authorized
attorney-in-fact. No proxy shall be valid after 11 months from the
date of its execution, unless a longer time is expressly provided
therein.
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Section 4.8 PROCEDURE FOR MEETINGS. The Secretary, who may call on any
officer or officers of the Corporation for assistance, shall make all necessary
and appropriate arrangements for the meetings of the shareholders, receive all
proxies, and ascertain and report by certificate to each meeting of the
shareholders the number of shares present in person or by proxy and entitled to
vote at such meeting. The certified report of the Secretary or an Assistant
Secretary as to the regularity of such proxies and as to the number of shares
present in person or by proxy and entitled to vote at such meeting shall be
received as PRIMA FACIE evidence of the number of shares which are present in
person or by proxy and entitled to vote, for the purpose of establishing the
presence of a quorum at such meeting, for the purpose of organizing such
meeting, and for all other purposes.
Section 4.9 QUORUM. At any meeting of the shareholders, a majority of the
shares outstanding and entitled to vote, represented in person or by proxy,
shall constitute a quorum. The chairman of any shareholders' meeting shall have
the authority to adjourn any meeting at which a quorum is not present. Unless a
meeting is adjourned to a date that is more than 120 days after the original
meeting date, notice of the new date, time, and place of the adjourned meeting
is not required to be sent to the shareholders if such information was announced
at the original meeting prior to adjournment.
Section 4.10 PARTICIPATION IN MEETINGS. Shareholders may participate in
any meeting by means of a conference telephone or similar device by means of
which all persons participating in the meeting can hear each other at the same
time, and participation by such means shall constitute presence in person at
such meeting.
Section 4.11 VOTING LISTS. The officer or agent having charge of the share
transfer books shall prepare, at least 5 business days before any shareholders'
meeting, a complete list of the shareholders entitled by the Articles of
Incorporation to vote at such meeting, arranged in alphabetical order, with the
address and number of shares so entitled to vote held by each. The list of
shareholders shall be on file at the principal office of the Corporation and
subject to inspection by any shareholder entitled to vote at such meeting or
such shareholder's agent or attorney. Such list shall be produced and kept open
at the time and place of the meeting and subject to the inspection of any
shareholder entitled to vote at such meeting or such shareholder's agent or
attorney. The original share register or transfer book or a duplicate thereof
shall be the only 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 the
shareholders.
Section 4.12 SHAREHOLDER MEETING AGENDA AND PROCEDURES. The Board of
Directors shall fix the agenda for any annual or special meeting of shareholders
and shall determine the rules and procedures for any such meetings. The Board of
Directors shall also have authority to postpone, adjourn, or reschedule any
shareholders' meeting which power may be delegated to the chairman of any such
meeting.
Section 4.13 NOTICE OF SHAREHOLDER BUSINESS. At an annual meeting of the
shareholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before the meeting by a
shareholder. For business to be properly brought before an annual meeting by a
shareholder, the shareholder must have the legal right and authority to make the
proposal for consideration at the meeting and the shareholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a shareholder's notice must be received at the principal executive
offices of the Corporation at least 120 calendar days before the date of the
Corporation's proxy statement for the prior year. In the event that no annual
meeting was held in the prior year or the date of the annual meeting for the
current year has been changed by more than 30 days from the date of the prior
year's meeting, notice by the shareholder to be timely must be received by the
Corporation not later than the close of business on the later of (i) 120
calendar days in advance of such annual meeting or (ii) 10 calendar days after
the public announcement of the date of the meeting is first made.
A shareholder's notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the annual meeting (a) a brief description
of the business described to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (b) the name and
record
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address of the shareholder(s) proposing such business, (c) the class and number
of the Corporation's shares which are beneficially owned by such shareholder(s),
and (d) any material interest of such shareholder(s) in such business.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 4.13. The chairman of an annual meeting shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 4.13, and if the chairman should so determine, he or she shall
declare to the meeting that any such business not properly brought before the
meeting shall not be transacted.
At any special meeting of the shareholders, only such business shall be
conducted as shall have been brought before the meeting by or at the direction
of the Board of Directors.
Section 4.14 NOMINATIONS FOR DIRECTOR. Nominations for election to the
Board of Directors may be made by or at the direction of the Board of Directors
or by any nominating committee or person appointed by the Board of Directors and
given authority by the Board of Directors to make such nominations or by any
shareholder of any outstanding class of capital stock of the Corporation
entitled to vote for the election of Directors at the meeting of shareholders
called for that purpose, provided that such shareholder has complied with the
notice procedures set forth in this Section. Nominations by shareholders shall
be made in writing and shall be delivered to or mailed and received by the
President of the Corporation not less than 120 calendar days in advance of the
date of the Corporation's proxy statement released to shareholders in connection
with the previous year's annual meeting of shareholders; provided, however, that
in the event that no annual meeting was held in the previous year or the date of
the annual meeting has been changed by more than 30 days from the date
contemplated at the time of the previous year's proxy statement, notice by the
shareholder to be timely must be so received not later than the close of
business on the later of 120 calendar days in advance of such annual meeting or
10 calendar days following the date on which public announcement of the date of
the meeting is first made. All nominations by shareholders other than those for
incumbent directors, shall contain the following information:
(i) the name and record address of the shareholder giving notice;
(ii) the class and number of the Corporation's shares which are
beneficially owned by such shareholder;
(iii) the name and business and residence addresses of the nominee;
and
(iv) the principal occupation or employment of the nominee;
(v) the class and number of the Corporation's shares that are
beneficially owned by such nominee; and
(vi) to the extent reasonably available to the shareholder, any
other information relating to the nominee that is required to
be disclosed in solicitations of proxies for election of
directors, or is otherwise required pursuant to Regulation 14A
under the Securities Act of 1934, as amended.
No person shall be eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth in this Section, and each
nominee must also meet all additional qualifications for directors which may be
adopted from time to time by the Board of Directors or shareholders or as set
forth in the Nominating Committee Charter. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was
not so declared in accordance with the procedures prescribed by these Bylaws,
and if such chairman should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded. Section 4.15 CORPORATION'S
ACCEPTANCE OF VOTES.
(a) CONFORMING SIGNATURES. If the name signed on a vote, consent,
waiver, or proxy appointment corresponds to the name of a
shareholder, the Corporation if acting in good faith is entitled to
accept the vote, consent, waiver, or proxy appointment and give it
effect as the act of the shareholders.
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(b) NON-CONFORMING SIGNATURES. If the name signed on a vote, consent,
waiver, or proxy appointment does not correspond to the name of its
shareholder, the Corporation if acting in good faith is nevertheless
entitled to accept the vote, consent, waiver, or proxy appointment
and give it effect as the act of the shareholder if:
(i) the shareholder is an entity and the name signed purports to
be that of an officer or agent of the entity;
(ii) the name signed purports to be that of an administrator,
executor, guardian, or conservator representing the
shareholder and, if the Corporation requests, evidence of
fiduciary status acceptable to the Corporation has been
presented with respect to the vote, consent, waiver, or proxy
appointment;
(iii) the name signed purports to be that of a receiver or trustee
in bankruptcy of the shareholder and, if the Corporation
requests, evidence of this status acceptable to the
Corporation has been presented with respect to the vote,
consent, waiver, or proxy appointment;
(iv) the name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation
of the signatory's authority to sign for the shareholder has
been presented with respect to the vote, consent, waiver, or
proxy appointment;
(v) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at
least one of the co-owners and the person signing appears to
be acting on behalf of all the co-owners.
(c) REJECTION OF VOTES. The Corporation is entitled to reject a vote,
consent, waiver, or proxy appointment if the secretary of the
meeting or other officer or agent authorized to tabulate votes,
acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority
to sign for the shareholder.
(d) NO LIABILITY. The Corporation and its officer or agent who accepts
or rejects a vote, consent, waiver, or proxy appointment in
accordance with the standards of this Section are not liable in
damages to the shareholder for the consequences of the acceptance or
rejection.
(e) VALIDITY OF ACTION. Corporate action based on the acceptance or
rejection of a vote, consent, waiver, or proxy appointment under
this Section is valid unless a court of competent jurisdiction
determines otherwise.
Article 5. THE BOARD OF DIRECTORS
Section 5.1 ELECTION AND QUALIFICATION. Directors shall be elected by
plurality vote of the shareholders each year at the annual meeting of the
shareholders. Directors shall hold office until their respective successors are
duly elected and qualified or until their earlier death or resignation. The
Board of Directors shall consist of between 5 and 15 directors with the actual
number of directors being set from time to time by resolution of the Board of
Directors. No decrease in the number of directors shall have the effect of
shortening the term of any incumbent director. Directors shall also meet all
qualifications established by the Board of Directors or shareholders from time
to time, qualifications established by law, and qualifications set forth in the
Corporation's Nominating Committee Charter.
Section 5.2 VACANCIES. Any vacancy occurring in the Board of Directors
caused by resignation, death or other incapacity, or increase in the number of
directors may be filled by a majority vote of the remaining members of the Board
of Directors for the remaining term of that vacancy. If the vote of the
remaining members of the Board of Directors shall result in a tie, such vacancy,
at the discretion of the Board of Directors, may be filled by vote of the
shareholders at a special meeting called for that purpose. Until any such
vacancy is so filled, the existing directors shall constitute the Board of
Directors.
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When a vacancy on the Board of Directors has been caused by an increase in the
number of directors, the Board of Directors may designate either a one year, two
year or three year term for each director so elected provided that term is
consistent with the Articles of Incorporation provisions regarding the staggered
terms for the Board of Directors.
Section 5.3 RETIREMENT AGE AND OTHER QUALIFICATIONS. A nominee for the
Board of Directors who is not serving as a member of the Board of Directors at
the time of his or her nomination must be at least 21 years of age and not more
than 60 years of age on (i) the date of the shareholders meeting called for his
or her election to the Board of Directors, or (ii) on the date that he or she is
elected to the Board of Directors by the Board of Directors to fill a vacancy. A
director who is a sitting director prior to his or her 59th birthday may
continue to serve consecutive and uninterrupted terms without any break in
service, if so elected, until he or she reaches their 70th birthday. A break in
service of l80 days or less, for any reason, shall not be considered a break in
service under this Article and any sitting director who incurs a break in
service of 180 days or less shall be considered as having fulfilled the
requirement for a "sitting director" who "serves consecutive and uninterrupted
terms" and therefore may be reelected to the Board of Directors following their
59th birthday, but preceding their 70th birthday. Directors may serve on the
Board until the end of the year in which they reach their 70th birthday. The
Board of Directors is empowered and authorized to fix other qualifications for
directors.
Section 5.4 ANNUAL MEETING. The Board of Directors shall meet each year as
soon as reasonably possible after the annual meeting of the shareholders, at the
place where such meeting of the shareholders has been held (either within or
without the State of Indiana), for the purpose of electing officers and
consideration of any other business that may properly be brought before the
meeting. No notice of any kind to either old or new members of the Board of
Directors for such annual meeting shall be necessary. If such meeting is not
held as above provided, the election of officers may be performed at any
subsequent meeting of the Board of Directors specifically called in the manner
provided in Section 5.6 of this Article.
Section 5.5 REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without any notice whatever, at such place and times as may be fixed
from time to time by resolution of the Board of Directors. Section 5.6 SPECIAL
MEETINGS. Special meetings of the Board of Directors may be called at any time
by the Chairman of the Board, the President or by not less than a majority of
the directors. Notice of a special meeting shall be sent by the Secretary or an
Assistant Secretary to each director at the director's residence or usual place
of business by mail, hand delivery or telecopier delivered for transmission not
later than two days immediately preceding the day of the meeting, or by word of
mouth or telephone, received not later than 24 hours immediately preceding the
day of the meeting. In lieu of such notice, a director may sign a written waiver
of notice either before the time of the meeting, at the time of the meeting, or
after the time of the meeting. Neither the business to be transacted at, nor the
purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of the meeting. Any meeting of the Board of Directors
for which notice is required shall be a legal meeting, without notice thereof
having been given, if all members of the Board of Directors who have not waived
notice thereof in writing shall be present in person.
Section 5.7 PLACE AND CONDUCT OF MEETINGS. The directors may hold their
meetings, have one or more offices, and keep the books of the Corporation,
except as may be provided by law, within or without the State of Indiana, at any
office or offices of the Corporation, or at any other place, as they may from
time to time by resolution determine. If the resolution of the Board of
Directors calling a regular meeting or the written request calling a special
meeting expressly provides, a meeting of the Board of Directors may be held by
conference telephone call or any other medium which allows each director to
participate in discussions and to hear the views of the other directors. If a
meeting is held, the directors connected to the conference telephone call or
other medium shall be counted as present for the purpose of determining a
quorum.
Section 5.8 QUORUM. A majority of the actual number of directors elected
and qualified, from time to time, shall be necessary to constitute a quorum for
the transaction of any business except the filling of vacancies, and the act of
a majority of the directors present at a meeting, at which a quorum is present,
shall be the act of the Board of Directors, unless the act of a greater number
is required by the law, these Bylaws, or the Articles of Incorporation. A
director 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 (i)
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the director's dissent shall be affirmatively stated before the adjournment of
such meeting (in which event the fact of such dissent shall be entered by the
secretary of the meeting in the minutes of the meeting), or (ii) the director
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. The right of
dissent provided for by either clause (i) or clause (ii) of the immediately
preceding sentence shall not be available in respect of any matter acted upon at
any meeting to a director who voted at the meeting in favor of such matter and
did not change such vote prior to the time that the result of the vote on such
matter was announced by the chairman of such meeting.
Section 5.9 TAKING ACTION BY CONSENT. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if a written consent to such action is signed by
all members of the Board of Directors or such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board of
Directors or committee.
Section 5.10 DUTIES OF DIRECTORS. A director shall perform the duties of a
director, including the duties as a member of any committee of the Board of
Directors upon which such director may serve, in good faith, in a manner which
the director reasonably believes to be in the best interests of the Corporation,
and with such care as an ordinarily prudent person in a like position would use
under similar circumstances. In performing such duties, a director shall be
entitled to rely on information, opinions, reports or statements, including
financial statements and other financial data, in each case prepared or
presented by:
(a) one or more officers or employees of the Corporation whom the
director reasonably believes to be reliable and competent in the
matter presented;
(b) legal counsel, public accountants or other persons as to matters
which the director reasonably believes to be within such person's
professional or expert competence; or
(c) a committee of the Board of Directors upon which the director does
not serve, duly designated in accordance with a provision of the
Articles of Incorporation or these Bylaws, as to matters within its
designated authority, which committee the director reasonably
believes to merit confidence;
but such director shall not be considered to be acting in good faith if that
director has knowledge concerning the matter in question that would cause such
reliance to be unwarranted. A director who performs such duties in good faith
shall have no liability by reason of being or having been a director of the
Corporation.
Section 5.11 DIVIDENDS. The Board of Directors shall have power, subject
to any limitations and restrictions imposed by applicable law or contained in
the Articles of Incorporation, to declare and pay dividends upon the outstanding
shares of the Corporation. Dividends may be paid in cash, in property, or in
other securities of the Corporation. The Board of Directors may fix a record
date for determining shareholders entitled to receive any such dividend. If the
Board of Directors fails to set a record date, the record date shall be the date
the Board of Directors authorized the dividend.
Section 5.12 COMPENSATION OF DIRECTORS. The Board of Directors is
empowered and authorized to fix and determine the compensation of the directors,
and any additional compensation for such additional services any of the
directors may perform for the Corporation. Employees and officers of the
Corporation and its affiliated companies shall receive no compensation for their
duties as directors.
Section 5.13 RESIGNATION. A director may resign at any time by filing a
written resignation with the Chairman of the Board, the Board of Directors, the
President or the Secretary of the Corporation, and such resignation shall become
effective upon delivery unless the notice specifies a later effective date.
Article 6. COMMITTEES
Section 6.1 DESIGNATION OF COMMITTEES. The Board of Directors may, from
time to time, by resolution adopted by a majority of the actual number of
directors elected and qualified, designate from among its members an Audit
Committee, a Compensation Committee, a Nominating Committee, and one or more
other committees, each of which to the extent provided in resolutions of the
Board of Directors or the committee charter, if any, may exercise all the
authority of the Board of Directors except as limited by law, these Bylaws
9
or the Articles of Incorporation. Each committee shall consist of such number of
directors as from time to time may be fixed by the Board of Directors or as
specified in the committee's charter. Members of each committee may be
designated from time to time by the Board of Directors. Any committee may be
abolished or re-designated from time to time by the Board of Directors. The
Board of Directors may, from time to time, designate members of the Board of
Directors of Horizon Bank, N.A. to serve as ex-officio members of one or more
committees.
However, no committee shall have authority to:
(a) Declare dividends or distributions except as permitted by law;
(b) Amend the Articles of Incorporation or amend or repeal these Bylaws;
(c) Approve a plan of merger or consolidation even if the plan does not
require shareholder approval;
(d) Authorize or approve the issuance, sale, or a contract for sale, of
shares or determine the designation and relative rights,
preferences, limitations of a class or series of shares except as
permitted by law;
(e) Authorize or approve the reacquisition of shares unless pursuant to
a general formula or method, or within a range, specified by the
Board of Directors;
(f) Recommend to the shareholders a voluntary dissolution of the
Corporation or a revocation thereof;
(g) Fill vacancies on the Board of Directors or any of its committees;
or
(h) Approve or propose any action which requires shareholder approval.
A member of the Board of Directors is not liable for any action taken by a
committee if such director is not a member of that committee and has acted in
good faith and in a manner the director reasonably believes is in the best
interest of the Corporation.
Section 6.2 AUDIT COMMITTEE. The Audit Committee shall consist of at least
3 members, with the actual number being set from time to time by the full Board
of Directors by majority vote. The Audit Committee, except as otherwise provided
in any resolution of the Board of Directors or the Audit Committee Charter, if
any, shall have and may exercise the authority of the Board of Directors: to
recommend to the Board of Directors the selection of the Corporation's
independent certified public accountants; to review the scope, plans and results
relating to the internal and external audits of the Corporation and its
financial statements; to review the financial condition of the Corporation; to
monitor and evaluate the integrity of the Corporation's financial reporting
processes and procedures; to assess the significant business and financial risks
and exposures of the Corporation and to evaluate the adequacy of the
Corporation's internal controls in connection with such risks and exposures,
including, but not limited to, accounting and audit controls over cash,
securities, receipts, disbursements and other financial transactions; to review
the Corporation's policies on ethical business conduct and monitor compliance
therewith; and to engage in such other activities as may be delegated to it from
time to time by the Board.
Section 6.3 COMPENSATION COMMITTEE. The Compensation Committee shall
consist of at least 3 members, with the actual number being set from time to
time by the full Board of Directors by majority vote. The Compensation
Committee, except as otherwise provided in any resolution of the Board of
Directors or the Compensation Committee Charter, if any, shall have and may
exercise all the authority of the Board of Directors: with respect to
compensation, benefits and personnel administration of the employees of the
Corporation; to, at the direction of the Board of Directors, nominate persons
for election or appointment by the Board of Directors of all principal officers
and such other officers; to evaluate the performance of, and recommend to the
Board of Directors the compensation of, such principal officers and such other
officers as the Committee may determine; to recommend to the Board of Directors
any plan to issue options for the purchase of shares of the Corporation's stock
to its officers or employees and those of its subsidiaries; and to engage in
such other activities as may be delegated to it from time to time by the Board.
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Section 6.4 NOMINATING COMMITTEE. The Nominating Committee shall consist
of at least 3 members, with the actual number being set from time to time by the
full Board of Directors by majority vote. The Nominating Committee, except as
otherwise provided in any resolution of the Board of Directors or the Nominating
Committee Charter, if any, shall have and may exercise the authority of the
Board of Directors: to make recommendations to the Board of Directors with
respect to electing directors and filling vacancies on the Board of Directors;
to review and make recommendations to the Board of Directors with respect to the
organization, structure, size, composition and operation of the Board of
Directors and its committees; to evaluate the performance of the officers of the
Corporation and, together with management, select and recommend to the Board of
Directors appropriate individuals for election, appointment and promotion as
officers of the Corporation; and to engage in such other activities as may be
delegated to it from time to time by the Board.
Section 6.5 COMMITTEE CHARTERS AND PROCEEDINGS. Each committee may,
subject to approval of the Board of Directors, adopt a charter specifying the
number of members, any qualifications of members, and the duties and
responsibilities of its members. Each committee may also fix its own rules of
procedure and may meet at such place (within or without the State of Indiana),
at such time and upon such notice, if any, as it shall determine from time to
time. Each committee shall keep minutes of its proceedings and shall report such
proceedings to the Board of Directors at the meeting of the Board of Directors
next following any such proceedings.
Section 6.6 QUORUM AND MANNER OF ACTING. Except as may be otherwise
provided in the resolution creating such committee or any subsequent resolution
of the Board of Directors, at all meetings of any committee the presence of
members constituting a majority of the total membership of such committee shall
constitute a quorum for the transaction of business. The act of the majority of
the members present at any meeting at which a quorum is present shall be the act
of such committee. Any action required or permitted to be taken at any meeting
of any such committee may be taken without a meeting, if all members of such
committee shall consent to such action in writing and such writing or writings
are filed with the minutes of the proceedings of the committee. The members of
any committee shall act only as a committee, and the members of any committee
shall have no power to act individually.
Section 6.7 ACTION BY TELEPHONIC COMMUNICATIONS. Members of any committee
designated by the Board of Directors may participate in a meeting of such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting.
Section 6.8 RESIGNATIONS. Any member of any committee may resign at any
time by delivering a written notice of resignation, signed by such member, to
the Chairman or the President. Unless otherwise specified therein, such
resignation shall take effect upon delivery.
Section 6.9 REMOVAL. Any member of any committee may be removed from the
position as a member of such committee at any time, either for or without cause,
by resolution adopted by a majority of the whole Board of Directors.
Section 6.10 VACANCIES. If any vacancy shall occur in any committee, by
reason of death, resignation, removal or otherwise, the remaining members shall
continue to act, and any such vacancy may be filled by majority vote of the
entire Board of Directors.
Article 7. THE OFFICERS
Section 7.1 NUMBER. The officers of the Corporation shall consist of the
Chairman of the Board of Directors, the President, the Treasurer, the Secretary,
one or more Executive Vice Presidents, if elected, one or more Senior Vice
Presidents, if elected, one or more Vice Presidents, if elected, and such other
officers and assistants as the Board of Directors may determine. Any two or more
offices may be held by the same person. No person shall be eligible to hold the
office of Chairman of the Board or President who is not a director of the
Corporation.
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Section 7.2 ELECTION, TERM OF OFFICE AND QUALIFICATION. The offices of
Chairman of the Board, President, Treasurer, Secretary and Executive Vice
President shall be elected at the annual meeting of the Board of Directors. The
President shall have the authority to appoint one or more other officers. Each
officer shall hold office until the officer's successor is elected and
qualified, until the officer's death or until the officer shall have resigned or
shall have been removed in the manner hereinafter provided. The appointed
officers of the Corporation shall be appointed annually by the President.
Section 7.3 REMOVAL. Any officer may be removed by the Board of Directors
at any time with or without cause, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Any officer appointed
by the President may also be removed by the President, at any time with or
without cause, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 7.4 RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors, the Chairman, the President or the
Secretary. Such resignation shall take effect at the time it is delivered to the
Corporation's representative, unless the notice specifies a later date. Unless
otherwise specified in the resignation, the acceptance of such resignation shall
not be necessary to make it effective.
Section 7.5 RETIREMENT. Each employee (including officers) may serve
through the calendar year during which the employee reaches the age of 70 and
must then retire from active service with the Corporation. No employee may hold
an elected or appointed office which has day to day management responsibility
within the Corporation beyond the calendar year in which that employee reaches
the age of 70.
Section 7.6 VACANCIES. Any vacancy in any office because of death,
resignation, removal or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these Bylaws for election or
appointment to such office.
Section 7.7 SALARIES. The salaries of the elected officers shall be fixed,
from time to time, by the Board of Directors or committee thereof or such other
person as may be authorized by the Board of Directors. No officer shall be
prevented from receiving such salary by reason of the fact such officer is also
a director of the Corporation. The salaries of appointed officers may also be
fixed by the President.
Section 7.8 CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
chosen from among the directors, shall preside at all meetings of the Board of
Directors and the shareholders and shall perform such other duties as the Board
of Directors may from time to time assign.
Section 7.9 PRESIDENT. The President shall be the Chief Executive Officer
of the Corporation, shall be chosen from among the directors, and shall report
directly to the Chairman of the Board and the Board of Directors. The President
shall have general executive powers and shall exercise the policies of the
Corporation as may be adopted and approved by the Board of Directors; shall
exercise the powers conferred by these Bylaws, law or regulations; shall have
full custody and control over the assets and liabilities of the Corporation and
is empowered to take any lawful actions necessary to properly conduct the
Corporation's business; may delegate such of his powers as he may deem
necessary; and shall perform such other duties and powers as, from time to time,
may be assigned to him by the Board of Directors. In the absence of the Chairman
of the Board, the President shall preside at all meetings of the shareholders
and meetings of the Board of Directors and shall perform the other duties and
responsibilities of the Chairman. The President shall perform such other duties
as may be prescribed from time to time by the Board of Directors or by these
Bylaws. In the case of the death of the President, or in the case of the
President's absence or inability to act without having designated an officer to
act temporarily in the President's place, the officer so to perform the duties
of the President shall be designated by the Board of Directors.
Section 7.10 EXECUTIVE VICE PRESIDENT. The Board may elect one or more
Executive Vice Presidents who shall collaborate with the Chairman of the Board
and the President in the overall administration of the Corporation. An Executive
Vice President shall have those responsibilities and authorities as may be
assigned and delegated by the President and shall perform such other duties as
from time to time may be conferred or assigned by the Board of Directors.
Section 7.11 SENIOR VICE PRESIDENT. The Board of Directors may elect or
the President may appoint one or more Senior Vice Presidents who shall have
those responsibilities and authorities as may be assigned
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and delegated by the President and shall perform such other duties as from time
to time may be conferred or assigned by the Board of Directors.
Section 7.12 VICE PRESIDENT. The Board of Directors may elect or the
President may appoint one or more Vice Presidents who shall have those
responsibilities and authorities as may be assigned and delegated by the
President and shall perform such other duties as from time to time may be
conferred or assigned by the Board of Directors.
Section 7.13 SECRETARY. The Secretary shall have the custody and care of
the corporate seal, records, minutes and share books of the Corporation. The
Secretary shall attend all meetings of the shareholders and of the Board of
Directors, and shall keep, or cause to be kept in a book provided for the
purpose, a true and complete record of the proceedings of such meetings, and
shall perform a like duty for all standing committees appointed by the Board of
Directors, when required. The Secretary shall attend to the giving and serving
of all notices of the Corporation, shall file and take charge of all papers and
documents belonging to the Corporation, shall authenticate the records of the
Corporation when necessary or appropriate, and shall perform all duties incident
to the office of Secretary and such other duties as these Bylaws may require or
the Board of Directors or President may prescribe.
Section 7.14 TREASURER. The Treasurer shall be the Chief Financial and
Chief Accounting Officer of the Corporation. The Treasurer shall have charge and
custody of, and be responsible for, all funds and securities of the Corporation,
and deposit all such monies in the name of the Corporation under dual control in
such banks, trust companies and other depositories as shall be selected by the
Board of Directors; shall receive, and give receipts for, monies due and payable
to the Corporation from any source whatsoever; and, in general, shall perform
all the duties as, from time to time, may be assigned by the Board of Directors
or by the President. The Treasurer shall render to the President and the Board
of Directors, whenever the same shall be required, an account of all of the
Treasurer's transactions and all the financial conditions of the Corporation.
The Treasurer shall give such bond, if any, for the faithful discharge of his
duties as the Board of Directors may require.
Section 7.15 OTHER OFFICERS. All other officers elected by the Board of
Directors or appointed by the President shall have those responsibilities and
authorities as may be assigned by the Chief Executive Officer and shall perform
such other duties as from time to time may be conferred or assigned by the
Board.
Section 7.16 MINUTES AND ACCOUNTING RECORDS. The Corporation shall keep as
permanent records minutes of all meetings of its shareholders and Board of
Directors, a record of all actions taken by the shareholders or Board of
Directors without a meeting, and a record of all actions taken by a committee of
the Board of Directors in place of the Board of Directors on behalf of the
Corporation. The Corporation shall maintain appropriate accounting records.
Article 8. SPECIAL CORPORATE ACTS, NEGOTIABLE INSTRUMENTS, DEEDS, CONTRACTS, AND
SHARES
Section 8.1 EXECUTION OF ORDINARY CONTRACTS AND AGREEMENTS. All written
contracts and agreements into which the Corporation enters in the ordinary
course of its business shall be executed on behalf of the Corporation by any
duly elected officer of the Corporation or by any other employee or agent of the
Corporation expressly authorized by resolution of the Board of Directors to
execute any such contracts or agreements.
Section 8.2 EXECUTION OF DEEDS, MORTGAGES, NOTES AND NON-ORDINARY
CONTRACTS AND AGREEMENTS. Unless otherwise required by law, all deeds,
mortgages, deeds of trust, notes, assignments and other instruments made by the
Corporation and all written contracts and agreements entered into by the
Corporation, other than those contracts and agreements entered into in the
ordinary course of its business, shall be executed on behalf of the Corporation
by the President or the Chief Financial Officer of the Corporation and, when
required, attested by the Secretary or an Assistant Secretary of the
Corporation; provided, however, that the Board of Directors may expressly
authorize by resolution any officer, employee, or agent of the Corporation to
execute any such deed, mortgage, assignment, instrument, contract or agreement
on behalf of the
13
Corporation singly and without the necessity of any additional execution or
attestation by any other officer of the Corporation.
Section 8.3 EXECUTION AND ENDORSEMENT OF CHECKS AND DRAFTS. Unless
otherwise required by law, all checks, drafts, bills of exchange and other
orders for the payment of money (other than notes) by or to the Corporation
shall be executed or endorsed on behalf of the Corporation by the President or
Chief Financial Officer. However, the Board of Directors may expressly authorize
by resolution any one or more officers or other employees of the Corporation to
execute or endorse any checks, drafts, or other orders for the payment of money
on behalf of the Corporation, singly and without any additional signature,
endorsement or attestation by any other officer of the Corporation.
Section 8.4 VOTING OF SHARES OWNED BY THE CORPORATION. Subject always to
the further orders and directions of the Board of Directors, any share or shares
issued by any other corporation and owned or controlled by the Corporation may
be voted at any shareholders' meeting of such other corporation by the President
or Chief Financial Officer of the Corporation. Whenever, in the judgment of the
President or the Chief Financial Officer, it is desirable for the Corporation to
execute a proxy or give a shareholders' consent with respect to any share or
shares issued by any other corporation and owned by the Corporation, such proxy
or consent shall be executed in the name of the Corporation by the President or
the Chief Financial Officer of the Corporation and shall be attested by the
Secretary or an Assistant Secretary of the Corporation under the corporate seal,
if any. Any person or persons designated in the manner above stated as the proxy
or proxies of the Corporation shall have full right, power and authority to vote
the share or shares issued by such other corporation and owned by the
Corporation, the same as if such share or shares might be voted by the
Corporation.
Article 9. CONTROL SHARE ACQUISITION CHAPTER.
Section 9.1 CORPORATION'S ABILITY TO REDEEM CONTROL SHARES. In the event
(i) that no acquiring person statement complying with I.C. 23-1-42-6 has been
delivered to the Corporation with respect to a control share acquisition on or
before the date of mailing a notice of redemption of control shares pursuant to
Section 9.3, or (ii) that control shares are not accorded full voting rights by
the shareholders pursuant to I.C. 23-1-42-9, the Corporation shall have the
power, at its option, to redeem any or all control shares at the fair value
thereof, in accordance with the time and other requirements specified by I.C.
23-1-42-10 and this Section.
Section 9.2 "FAIR VALUE" DEFINED. "Fair Value" shall be deemed to be equal
to the fair market value per share of the class or series of which the control
shares are part immediately prior to the first public announcement of the intent
or plan of the acquiring person to make a control share acquisition
("ANNOUNCEMENT DATE"). Such fair market value shall be determined by (i) the
highest reported closing sale price during the thirty-day period immediately
preceding the Announcement Date if such shares are listed on a securities
exchange registered under the Securities Exchange Act of 1934 or if closing
sales prices are reported on the National Association of Securities Dealers,
Inc. Automatic Quotation System ("NASDAQ"), or any similar system of automated
dissemination of quotations of securities prices then in common use, or (ii) if
such shares are not listed on any such exchange or such closing sales prices are
not reported on NASDAQ, the highest closing bid quotation with respect to such
shares during the thirty-day period immediately preceding the Announcement Date
as reported on NASDAQ or any similar system then in use, or (iii) if no such
quotations are available, the fair market value of such shares immediately prior
to the Announcement Date as determined by the Board of Directors in good faith
by such other reasonable method as the Board of Directors of the Corporation
shall, in its discretion, selects and applies.
Section 9.3 NOTICE OF REDEMPTION. In case the Corporation shall desire to
exercise its right to redeem control shares pursuant to this Article, notice of
such redemption shall be given to the holder of the control shares to be
redeemed by mailing to such holder, within the time period, if any, specified by
I.C. 23-1-42-10, a notice of such redemption by first class mail, postage
prepaid, not less than thirty (30) days prior to the redemption date, to the
holder's last address as it shall appear upon the stock transfer records of the
Corporation. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives the notice, as of the date of mailing of the notice. In any
14
case, failure to give due notice by mail to the holder of any control share, or
any defect in such notice, shall not affect the validity of the proceedings for
the redemption of any other control share. Each such notice shall specify the
redemption date, the number of control shares to be redeemed held by such
holder, the place of redemption and the redemption price at which the control
shares are to be redeemed. Such notice shall further state that payment of the
redemption price will be made upon presentation and surrender of the
certificate(s) representing the control shares (with such instruments of
transfer and other assurances as the Corporation may reasonably request) and
that from and after the redemption date such holder shall have no rights with
respect to such control shares (including no rights to vote or to receive
distributions in respect thereof with respect to matters for which the record
date shall fall on or after the redemption date) except the right to receive the
redemption price (without interest) upon compliance with the procedures
specified by this Section.
Section 9.4 OTHER BOARD POWERS. The Board of Directors may by resolution
specify such other procedures as may in its discretion be deemed necessary or
advisable for the purpose of implementing this Article and is hereby empowered
to determine, on the basis of the information known to it, all matters with
respect to which a determination is required under I.C. 23-1-42 in connection
with redemption of control shares.
Section 9.5 DEFINED TERMS. Terms used in this Article not otherwise
defined shall, unless the context otherwise requires, have the meanings assigned
to them by I.C. 23-1-42.
Article 10. GENERAL
Section 10.1 AMENDMENTS. The power to make, alter, amend, or repeal these
Bylaws is vested in the Board of Directors, but the affirmative vote of a
majority of the actual number of directors elected and qualified, from time to
time, shall be necessary to effect any alteration, amendment or repeal of these
Bylaws.
Section 10.2 RECORDS. The Articles of Incorporation, these Bylaws and the
proceedings of all meetings of the shareholders, the Board of Directors, and
standing committees of the Board of Directors, shall be recorded in appropriate
minutes books provided for the purpose. The minutes of each meeting shall be
signed by the Secretary or another officer appointed to act as secretary of the
meeting.
Section 10.3 INSPECTION. A copy of the Bylaws, with all amendments
thereto, shall at all times be kept in a convenient place at the principal
office of the Corporation, and shall be open for inspection to all shareholders,
during business hours.
Section 10.4 OTHER RULES. The provisions of these Bylaws are in addition
to any provisions established by any applicable existing law or regulation and
the Articles of Incorporation. Should any law, regulation or the Articles of
Incorporation negate any part of these Bylaws, it shall not negate the Bylaws in
the entirety.
Article 11. EMERGENCY SUCCESSION
Section 11.1 PURPOSE. This Article provides for the affairs of the
Corporation to be properly and legally carried out (i) in the event of a
national emergency declared by the President of the United States or the person
performing the duties of that office or (ii) in the event of a regional or local
emergency which impairs the ability of the Board of Directors to function under
normal rules and practices and/or impairs the ability of an officer or any
number of officers to perform their respective duties.
Section 11.2 BOARD OF DIRECTORS. In the event of such an emergency if the
members of the Board of Directors cannot be located and/or brought together in a
manner which will enable the Board of Directors to function under normal rules
and practices, such as lacking a quorum, then the Directors available and able
to perform shall gather together and, with the available executive officers, may
act for the full Board of Directors by simple majority vote.
Section 11.3 CHAIRMAN. In the event of such an emergency if the Chairman
of the Board of Directors cannot be located or is unable to assume or to
continue the duties required of this office, then the authority and duties of
this office shall, without further action by the Board of Directors, be
automatically assumed by one of the following persons in the order designated:
15
(i) President
(ii) Executive Vice President
(iii) Chief Financial Officer
Section 11.4 PRESIDENT. In the event of such an emergency if the President
of the Corporation cannot be located or is unable to assume or to continue the
duties required of this office, then the authority and duties of this office
shall, without further action by the Board of Directors, be automatically
assumed by one of the following persons in the order designated:
(i) Chairman
(ii) Executive Vice President
(iii) Chief Financial Officer
Section 11.5 SECRETARY. In the event of such an emergency if the Secretary
cannot be located or is unable to assume or to continue the duties required of
this office, then the authority and duties of this office shall, without further
action by the Board of Directors, be automatically assumed by one of the
following persons in the order designated:
(i) Chairman
(ii) President
(iii) Assistant Secretary
Section 11.6 NEXT QUALIFIED SUCCESSOR. In the event of such an emergency
if one person, upon succession to another office, is the holder of two offices
simultaneously of which the two offices together hold the authority to render
important decisions, sign drafts or authorizations, or in any way transact the
business of the Corporation which is usually dependent upon the act of two
separate individuals, then the person to whom the higher office has succeeded
shall appoint the next qualified successor as stated herein to the lesser of the
two offices. If the next qualified successor as stated herein cannot be located
or is unable to assume or to continue the duties required of that office, then
the successor or the higher office shall appoint a qualified available and
capable officer or director to fulfill the responsibility of the lesser of the
two offices.
Section 11.7 TERM OF SERVICE. Any one of the above persons who in
accordance with this Article assumes the authority and duties of an office which
is vacant because of such an emergency shall continue to serve until he resigns,
until a higher named successor shall become available, until the normally
elected office holder shall become available, or until the then constituted
Board of Directors shall otherwise enact under this Article those measures which
may be deemed necessary at the time.
Section 11.8 RECORDS. Actions taken under this Article shall be documented
in writing and all officers and/or directors a party to or witness of or
otherwise able to attest to such action shall do so by signing the written
document.
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