BYLAWS OF
SYMONS INTERNATIONAL GROUP, INC.
(As Restated July 29, 1996)
ARTICLE I SHAREHOLDERS
Section 1. Annual Meeting
An Annual Meeting of the Shareholders shall be held
at such hour as shall be designated by the Board of
Directors on the third Thursday of May, or such other
date within five (5) months after the close of the
fiscal year of the Corporation as the Board of
Directors may select, in each year for the purpose of
electing Directors for the terms hereinafter provided
and for the transaction of such other business as may
properly come before the meeting. If the day fixed
for the Annual Meeting shall be a legal holiday in
the State of Indiana, such meeting shall be held on
the next succeeding full business day.
Section 2. Special Meetings.
Special meetings of the Shareholders may be called by
the Chief Executive Officer, by the Board of
Directors, or by Shareholders holding not less than a
majority of all votes entitled to be cast on any
issue to be considered at the special meeting who
sign, date and deliver to the Secretary of the
Corporation one or more written demands for the
meeting describing the purpose or purposes for which
it is to be held. Only business within the purpose or
purposes described in the meeting notice may be
conducted at a special Shareholders' meeting.
Section 3. Place Of Meetings.
All meetings of Shareholders shall be held at the
principal office of the Corporation in Indianapolis,
Indiana, or at such other place, either within or
without the State of Indiana, as may be designated by
the Board of Directors.
Section 4. Notice Of Meetings.
A written or printed notice, stating the place, day
and hour of the meeting, and in the case of a special
meeting or when required by law or by the Articles of
Incorporation or these Bylaws, the purpose or
purposes for which the meeting is called, shall be
delivered or mailed or sent by facsimile transmission
by or at the direction of the Secretary no fewer than
ten (10) days nor more than sixty (60) days before
the date of the meeting, to each shareholder of
record entitled to vote at such meeting at such
address as appears upon the stock records of the
Corporation.
Section 5. Quorum.
Unless otherwise provided by the Articles of
Incorporation or these Bylaws, at any meeting of
Shareholders, the majority of the outstanding shares
entitled to vote at such meeting, represented in
person or by proxy or by any means of communication
by which all Shareholders participating in the
meeting may simultaneously hear each other during the
meeting, shall constitute a quorum. If less than a
majority of such shares are represented at a meeting,
a majority of the shares so represented may adjourn
the meeting from time to time. The Shareholders
present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding
the withdrawal of enough Shareholders to leave less
than a quorum.
Section 6. Adjourned Meetings.
At any adjourned meeting at which a quorum shall be
represented, any business may be transacted as might
have been transacted at the meeting as originally
notified. If a new record date is or must be
established pursuant to law, notice of the adjourned
meeting must be given to persons who are Shareholders
as of the new record date.
Section 7. Proxies.
At all meetings of Shareholders, 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 eleven (11)
months from the date of its execution, unless
otherwise provided in the proxy.
Section 8. Voting Of Shares.
Except as otherwise provided by law, by the Articles
of Incorporation or by these Bylaws, every
Shareholder shall have the right at every
Shareholders' meeting to one vote for each share
standing in his name on the books of the Corporation
on the date established by the Board of Directors as
the record date for determination of Shareholders
entitled to vote at such meeting.
Section 9. Order Of Business.
The order of business at each Shareholders' meeting
shall be established by the person presiding at the
meeting.
Section 10. Notice Of Shareholder Business.
At any meeting of the Shareholders, only such
business may be conducted as shall have been properly
brought before the meeting, and as shall have been
determined to be lawful and appropriate for
consideration by Shareholders at the meeting. To be
properly brought before a meeting, business must be:
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(a) specified in the notice of meeting given in
accordance with Section 4 of this Article I;
(b) otherwise properly brought before the
meeting by or at the direction of the Board
of Directors or the Chief Executive Officer;
or
(c) otherwise properly brought before the
meeting by a shareholder.
For business to be properly brought before a meeting
by a Shareholder pursuant to clause (c) above, 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 delivered to
or mailed and received at the principal office of the
Corporation not less than fifty (50) days nor more
than ninety (90) days prior to the meeting; provided,
however, that in the event that less than sixty (60)
days' notice of the date of the meeting is given to
shareholders, notice by the Shareholder to be timely
must be so received not later than the close of
business on the tenth (10th) day following the day on
which such notice of the date of the meeting was
given. A Shareholder's notice to the Secretary shall
set forth as to each matter the Shareholder proposes
to bring before the meeting:
(a) a brief description of the business desired
to be brought before the meeting;
(b) the name and address, as they appear on the
Corporation's stock records, of the
Shareholder proposing such business;
(c) the class and number of shares of the
Corporation which are beneficially owned by
the Shareholders; and
(d) any interest of the Shareholder in such
business.
Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at a meeting
except in accordance with the procedures set forth in
this Section 10. The person presiding at the meeting
shall, if the facts warrant, determine and declare to
the meeting that business was not brought before the
meeting in accordance with the Bylaws, or that
business was not lawful or appropriate for
consideration by Shareholders at the meeting, and if
he should so determine, he shall so declare to the
meeting and any such business shall not be
transacted.
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Section II. Notice Of Shareholder Nominees.
Nominations of persons for election to the Board of
Directors of the Corporation may be made at any
meeting of Shareholders by or at the direction of the
Board of Directors or by any Shareholder of the
Corporation entitled to vote for the election of
Directors at the meeting. Shareholder nominations
shall be made pursuant to timely notice given in
writing to the Secretary of the Corporation in
accordance with Section 10 of this Article I. Such
Shareholder's notice shall set forth, in addition to
the information required by Section 10, as to each
person whom the Shareholder proposes to nominate for
election or re-election as a Director:
(a) the name, age, business address and
residence address of such person;
(b) the principle occupation or employment of
such person;
(c) the class and number of shares of the
Corporation which are beneficially owned by
such person;
(d) any other information relating to such
person that is required to be disclosed in
solicitation of proxies for election of
Directors, or is otherwise required, in each
case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended
(including, without limitation, such
person's written consent to being name in
the Proxy Statement as a nominee and to
serving as a Director if elected); and
(e) the qualifications of the nominee to serve
as a Director of the Corporation.
No Shareholder nomination shall be effective unless
made in accordance with the procedures set forth in
this Section 11. The person presiding at the meeting
shall, if the facts warrant, determine and declare to
the meeting that a Shareholder nomination was not
made in accordance with the Bylaws and if he should
so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
Section 12. Control Share Acquisition.
As used in this Section 12, the terms, "control
shares" and "control share acquisition" shall have
the same meanings as set forth in Indiana Code
Section 23-1-42-1, et. seq. (the "Act"). Control
shares of the Corporation acquired in a control share
acquisition shall have only such voting rights as are
conferred by the Act. Control shares of the
Corporation acquired in a control share acquisition
with respect to which the acquiring person has not
filed with the Corporation the statement required by
the Act may, at any time
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during the period ending sixty (60) days after the
last acquisition of control shares by the acquiring
person, be redeemed by the Corporation at the fair
value thereof pursuant to procedures authorized by a
resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
ARTICLE II BOARD OF DIRECTORS
Section 1. General Powers, Number Classes And Tenure.
The business of the Corporation shall be managed by a
Board of Directors. The number of Directors which
shall constitute the whole Board of Directors of the
Corporation shall be seven (7). The number of
Directors may be increased or decreased from time to
time by amendment of these Bylaws, but no decrease
shall have the effect of shortening the term of any
incumbent Director. The Directors shall be divided
into three classes, each class to consist, as nearly
as may be, of one-third of the number of Directors
then constituting the whole Board of Directors, with
one class to be elected annually by Shareholders for
a term of three (3) years, to hold office until their
respective successors are elected and qualified;
except that:
(a) the terms of office of Directors initially
elected shall be staggered so that the term
of office of one class shall expire in each
year;
(b) the term of office of a Director who is
elected by either the Directors or
Shareholders to fill a vacancy in the Board
of Directors shall expire at the end of the
term of office of the succeeded Director's
class or at the end of the term of office of
such other class as determined by the Board
of Directors to be necessary or desirable in
order to equalize the number of Directors
among the classes; and
(c) the Board of Directors may adopt a policy
limiting the time beyond which certain
Directors are not to continue to serve, the
effect of which may be to produce classes of
unequal size or to cause certain directors
either to be nominated for election for a
term of less than three (3) years or to
cease to be a Director before expiration of
the term of the Director's class.
In case of any increase in the number of Directors,
the additional Directors shall be distributed among
the several classes to make the size of the classes
as equal as possible.
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Section 2. Regular Meetings.
A regular meeting of the Board of Directors shall be
held without other notice than this Bylaw immediately
after, and at the same place as the Annual Meeting of
Shareholders. The Board of Directors may provide, by
resolution, the time and place, either within or
without the State of Indiana, for the holding of
additional regular meetings without other notice than
such Resolution.
Section 3. Special Meetings.
Special meetings of the Board of Directors may be
called by the Chief Executive Officer. The Secretary
shall call special meetings of the Board of Directors
when requested in writing to do so by a majority of
the members thereof. Special meetings of the Board of
Directors may be held within or without the State of
Indiana.
Section 4. Notice Of Meetings.
Except as otherwise provided in these Bylaws, notice
of any meeting of the Board of Directors shall be
given not less than two (2) days before the date
fixed for such meeting by oral, telegraphic,
telephonic, electronic or written communication
stating the time and place thereof and delivered
personally to each member of the Board of Directors
or telegraphed or mailed to him at his business
address as it appears on the books of the
Corporation; provided, that 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.
Section 5. Quorum.
A majority of the whole Board of Directors,
represented in person or by any means of
communication by which all Directors participating
may simultaneously hear each other, shall be
necessary to constitute a quorum for the transaction
of any business except the filling of vacancies, but
if less than such majority is present at a meeting, a
majority of the Directors present may adjourn the
meeting from time to time without further notice.
Section 6. Manner Of Acting.
The act of a majority of the Directors present at any
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 law or by the Articles
of Incorporation or these Bylaws. Unless otherwise
provided by the Articles of Incorporation, any action
required or permitted to be taken at any meeting of
the Board of Directors may be taken without a
meeting, if such action is evidenced by one or more
written consents, describing the action taken, signed
by all members of the Board of Directors and such
written consent is filed with the minutes
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of proceedings of the Board of Directors. Action
taken by means of a written consent is effective when
the last member of the Board of Directors signs a
written consent, unless the written consent specifies
a different prior or subsequent date. Written
consents may be signed in counterparts. Unless
otherwise provided by the Articles of Incorporation,
any or all members of the Board of Directors may
participate in a meeting of the Board of Directors by
means of a conference telephone or similar
communications equipment by which all persons
participating in the meeting can communicate with
each other, and participation in this manner
constitutes presence in person at the meeting.
Section 7. Vacancies.
Except as otherwise provided in the Articles of
Incorporation, any vacancy occurring in the Board of
Directors may be filled by a majority vote of the
remaining Directors, though less than a quorum of the
Board of Directors, or, at the discretion of the
Board of Directors, any vacancy may be filled by a
vote of the Shareholders.
Section 8. Notice To Shareholders.
Shareholders shall be notified of any increase in the
number of Directors and the name, address, principal
occupation and other pertinent information about any
Director elected by the Board of Directors to fill
any vacancy. Such notice shall be given the next
mailing sent to Shareholders following any such
increase or election, or both, as the case may be.
ARTICLE III OFFICERS
Section 1. Elected Officers.
The elected Officers of the Corporation shall be a
Chief Executive Officer, President, a Secretary and a
Treasurer and may also include a Chairman of the
Board, a Vice Chairman, one or more Vice Presidents
as the Board of Directors may determine and such
other Officers as the Board of Directors may
determine. The Chairman of the Board and the Vice
Chairman, if any, shall be chosen from among the
Directors. Any two or more offices may be held by the
same person.
Section 2. Appointed Officers.
The appointed Officers of the Corporation shall be a
Controller and one or more Assistant Vice Presidents,
Assistant Treasurers, Assistant Secretaries and
Assistant Controllers.
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Section 3. Election Or Appointment And Term Of Office.
The elected Officers of the Corporation shall be
elected annually by the Board of Directors at the
first meeting of the Board of Directors held after
each Annual Meeting of the Shareholders. The
appointed Officers of the Corporation shall be
appointed annually by the Chief Executive Officer
immediately following the first meeting of the Board
of Directors held after each Annual Meeting of the
Shareholders. Additional elected Officers may be
elected at any regular or special meeting of the
Board of Directors to serve until the regular meeting
of the Board held after the next Annual Meeting of
Shareholders and additional appointed Officers may be
appointed by the Chief Executive Officer at any time
to serve until the next annual appointment of
Officers. Each officer shall hold office until his
successor shall have been duly elected or appointed
and shall have been qualified or until his death or
until he shall resigned or retire or shall have been
removed.
Section 4. Removal.
Any Officer may be removed by the Board of Directors
and any appointed Officer may be removed by the Chief
Executive Officer, whenever in their judgment, the
best interests of the Corporation will be served
thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so
removed.
Section 5. Vacancies.
A vacancy in the office of Chief Executive Officer,
President, Secretary or Treasurer because of death,
resignation, retirement, removal or otherwise, shall
be filled by the Board of Directors, and a vacancy in
any other elected office may be filled by the Board
of Directors.
Section 6. Chief Executive Officer.
The Chief Executive Officer of the Corporation shall
be, subject to the Board of Directors, in general
charge of the affairs of the Corporation. The Chief
Executive Officer shall also have the authority to
contract loans and issue evidences of indebtedness on
behalf of the Corporation on a per transaction basis
in a principal amount not in excess of One Million
($1,000,000) Dollars. In the absence of the Chairman
of the Board, or if such office be vacant, the Chief
Executive Officer shall have all the powers of the
Chairman of the Board and shall perform all his
duties.
Section 7. Chairman Of The Board.
The Chairman of the Board shall preside at all
meetings of the Shareholders and of the Board of
Directors at which he may be present and shall have
such other powers and duties as may be determined by
the Board of Directors.
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Section 8. Vice Chairman.
The Vice Chairman, if any, shall have such powers and
duties as may be determined by the Board of Directors
or the Chief Executive Officer.
Section 9. President.
The President shall have such powers and duties as
may be determined by the Board of Directors or the
Chief Executive Officer.
Section 10. Vice Presidents.
A Vice President shall perform such duties as may be
assigned by the Chief Executive Officer or the Board
of Directors. In the absence of the President and in
accordance with such order of priority as may be
established by the Board of Directors, he may 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.
Section 11. Assistant Vice Presidents.
An Assistant Vice President shall perform such duties
as may be assigned by the Chief Executive Officer or
the Board of Directors.
Section 12. Secretary.
The Secretary shall (a) keep the minutes of the
shareholders' and 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 Bylaws or as required by law, (c)
be custodian of the corporate records and of the
seal, if any, of the corporation, and (d) in general
perform all duties incident to the Office of
Secretary and such other duties as may be assigned by
the Chief Executive Officer or the Board of
Directors.
Section 13. Assistant Secretaries.
In the absence of the Secretary, an Assistant
Secretary shall have the power to perforrn his duties
including the certification, execution and
attestation of corporate records and corporate
instruments. Assistant Secretaries shall perform such
other duties as may be assigned to them by the Chief
Executive Officer or the Board of Directors.
Section 14. Treasurer.
The Treasurer shall (a) have charge and custody of
all funds and securities of the corporation, (b)
receive and give receipts for the monies due and
payable to the corporation from any source
whatsoever, (c) deposit all such monies in the name
of the corporation in such depositories as are
selected by the Board of Directors or Chief Executive
Officer, and (d) in general perform all duties
incident to the Office of Treasurer and such other
duties as may be
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assigned by the Chief Executive Officer or 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 form and with such
surety or sureties as the Board of Directors shall
determine.
Section 15. Assistant Treasurers.
In the absence of the Treasurer, an Assistant
Treasurer shall have the power to perform his duties.
Assistant treasurers shall perform such other duties
as may be assigned to them by the Chief Executive
Officer or the Board of Directors.
Section 16. Controller.
The Controller shall perform such duties as may be
assigned by the Chief Executive Officer or the Board
of Directors.
Section 17. Assistant Controller.
In the absence of the Controller, an Assistant
Controller shall have the power to perform his
duties. Assistant Controllers shall perform such
other duties as may be assigned to them by the Chief
Executive Officer or the Board of Directors.
ARTICLE IV COMMITTEES
Section 1. Board Committees.
The Board of Directors may, by resolution adopted by
a majority of the whole Board of Directors, from time
to time designate from among its members one or more
Committees each of which, to the extent provided in
such resolution and except as otherwise provided by
law, shall have and exercise all the authority of the
Board of Directors. Each such Committee shall serve
at the pleasure of the Board of Directors. The
designation of any such Committee and the delegation
thereto of authority shall not operate to relieve the
Board of Directors, or any member thereof, of any
responsibility imposed by law, Each such Committee
shall keep a record of its proceedings and shall
adopt its own rules of procedure. It shall make such
reports to the Board of Directors of its actions as
may be required by the Board.
Section 2. Advisory Committees.
The Board of Directors may, by resolution adopted by
a majority of the whole Board of Directors, from time
to time designate one or more Advisory Committees, a
majority of whose members shall be Directors. An
Advisory Committee shall serve at the pleasure of the
Board of Directors, keep a record of its proceeding
and adopt its own rules of procedure. It shall make
such reports to the Board of Directors of its actions
as may be required by the Board.
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Section 3. Manner Of Acting.
Unless otherwise provided by the Articles of
Incorporation, any action required or permitted to be
taken at any meeting of a Committee established under
this Article IV may be taken without a meeting if
such action is evidenced by one or more written
consents, describing the action taken, signed by all
members of the Committee, and such written consent is
filed with the minutes of proceedings of the
Committee. Action taken by means of a written consent
is effective when the last member of the Committee
signs a written consent, unless the written consent
specifies a different prior or subsequent date.
Written consents may be signed in counterparts.
Unless otherwise provided by the Articles of
Incorporation, any or all members of such Committee
may participate in a meeting of the Committee by
means of a conference telephone or similar
communications equipment by which all persons
participating in the meeting can communicate with
each other, and participation in this manner
constitutes presence in person at the meeting.
ARTICLE V. CORPORATE INSTRUMENTS AND LOANS.
Section 1. Corporate Instruments.
The Board of Directors may authorize any Officer or
Officers to execute and deliver any instrument in the
name of or on behalf of the corporation, and such
authority may be general or confined to specific
instances.
Section 2. Loans.
No loans the principal amount of which is in excess
of One Million Dollars ($1,000,000) shall be
contracted on behalf of the corporation and no
evidences of indebtedness the principal amount of
which is in excess of One Million Dollars
($1,000,000) 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.
ARTICLE VI STOCK CERTIFICATES, TRANSFER OF SHARES, STOCK
RECORDS
Section 1. Certificates For Shares.
Each shareholder shall be entitled a certificate,
signed by the Chief Executive Officer, President or a
Vice President and the Secretary or any Assistant
Secretary of the corporation, certifying the number
of shares owned by him in the corporation. 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
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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 he were such
Officer, transfer agent, or registrar at the date of
its issue. Certificates representing shares of the
corporation shall be in such form consistent with the
laws of the State of Indiana as shall be determined
by the Board of Directors. All certificates for
shares shall be consecutively numbered or otherwise
identified. The name and address of the person to
whom the shares represented thereby are issued, with
the number of shares and date of issue, shall be
entered on the stock transfer records of the
corporation.
Section 2. Transfer Of Shares.
Transfer of shares of the corporation shall be made
on the stock transfer records of the corporation by
the holder of record thereof or by his legal
representative who shall furnish proper evidence of
authority to transfer, or by his attorney thereunto
authorized by power of attorney duly executed and
filed with the corporation, and, except as otherwise
provided in these Bylaws, on surrender for
cancellation of the certificates for such shares.
Section 3. Lost, Destroyed Or Wrongfully Taken Certificates.
Any person claiming a certificate of stock to have
been lost, destroyed or wrongfully taken, and who
requests the issuance of a new certificate before the
corporation has notice that the certificate alleged
to have been lost, destroyed or wrongfully taken has
been acquired by a bona fide purchaser, shall make an
affidavit of that fact and shall give the corporation
and its transfer agents and registrars a bond of
indemnity with unlimited liability, in form and with
one or more corporate sureties satisfactory to the
Chief Executive Officer or Treasurer of the
corporation (except that the Chief Executive Officer
or Treasurer may authorize the acceptance of a bond
of different amount, or a bond with personal surety
thereon,, or a personal agreement of indemnity),
whereupon in the discretion of the Chief Executive
Officer or the Treasurer and except as otherwise
provided by law a new certificate may be issued of
the same tenor and for the same number of shares as
the one alleged to have been lost, destroyed or
wrongfully taken. In lieu of a separate bond of
indemnity in each case, the Chief Executive Officer
of the corporation may accept an assumption of
liability under a blanket bond issued in favor of the
corporation and its transfer agents and registrars by
one or more corporate sureties satisfactory to him.
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Section 4. Transfer Agent And Registrars.
The Board of Directors by resolution may appoint a
transfer agent or agents or a registrar or registrars
of transfer, or both. All such appointments shall
confer such powers, rights, duties and obligations
consistent with the laws of the State of Indiana as
the Board of Directors shall determine. The Board of
Directors may appoint the Treasurer of the
corporation and one or more Assistant Treasurers to
serve as transfer agent or agents. Any signature
required of a transfer agent or registrar may be
accomplished manually or by facsimile.
Section 5. Record Date.
For the purposes of determining Shareholders entitled
to vote at any meeting of Shareholders or any
adjournment thereof, or Shareholders entitled to
receive payment of any dividend, or in order to make
a determination of Shareholders for any other proper
purpose, the Board of Directors shall fix in advance
a date as a record date for any such determination of
Shareholders, such date in any case to be not more
than seventy days (70) before the meeting or action
requiring a determination of Shareholders.
ARTICLE VII LIABILITY.
Section 1. No person or his personal representatives shall be
liable to the corporation for any loss or damage
suffered by it on account of any action taken or
omitted to be taken by such person in good faith as
an Officer or employee of the corporation, or a
director, officer, partner. trustee, employee, or
agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit
plan, or other enterprise, whether for profit or not,
which he serves or served at the request of the
corporation, if such person (a) exercised and used
the same degree of care and skill as a prudent man
would have exercised and used under like
circumstances, charged with a like duty, or (b) took
or omitted to take such action in reliance upon
advice of counsel for the corporation or such
enterprise or upon statements made or information
furnished by persons employed or retained by the
corporation or such enterprise upon which he had
reasonable grounds to rely. The foregoing shall not
be exclusive of other rights and defenses to which
such person or his personal representatives may be
entitled under law.
ARTICLE VIII INDEMNIFICATION
Section 1. Actions By A Third Party.
The corporation shall, to the fullest extent to which
it is empowered to do so by the Indiana Business
Corporation Law, or any other applicable laws, as
from time to time in effect, indemnify any person who
is or was a party, or
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is threatened to be made a defendant or respondent,
to a proceeding, including any threatened, pending or
completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than
actions by or in the right of the corporation), and
whether formal or informal, who is or was a Director,
Officer, employee, or agent of the corporation or
who, while a Director, Officer, employee, or agent of
the corporation, is or was serving at the
corporation's request as a Director, Officer,
partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other
enterprise, whether for profit or not, against:
(a) any reasonable expenses (including
attorneys' fees) incurred with respect to a
proceeding, if such person is wholly
successful on the merits or otherwise in the
defense of such proceeding, or
(b) judgments, settlements, penalties, fines
(including excise taxes assessed with
respect to employee benefit plans) and
reasonable expenses (including attorneys'
fees) incurred with respect to a proceeding
where such person is not wholly successful
on the merits or otherwise in the defense of
the proceeding if:
(i) the individual's conduct was in
good faith; and
(ii) the individual reasonably believed:
(A) in the case of conduct in
the individual's official
capacity as a Director,
Officer, employee or agent
of the corporation, that
the individual's conduct
was in the corporation's
best interests; and
(B) in all other cases, that the
individual's conduct was at
least not opposed to the
corporation's best interests;
and
(iii) in the case of any criminal
proceeding, the individual either:
(A) had reasonable cause to believe
the individual's conduct was
lawful; or
(B) had no reasonable cause to
believe the individual's
conduct was unlawful.
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The termination of a proceeding by a judgment, order,
settlement, conviction, or upon a plea of nolo
contendere or its equivalent is not, of itself,
determinative that the Director, Officer, or employee
did not meet the standard of conduct described in
this Section.
Section 2. Actions By Or In The Right Of The Corporation.
The corporation shall, to the fullest extent to which
it is empowered to do so by the Indiana Business
Corporation Law, or any other applicable laws, as
from time to time in effect, indemnify any person who
is or was a party, or is threatened to be made a
defendant or respondent, to a proceeding, including
any threatened, pending or completed action, suit or
proceeding, 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 or is or was
serving at the request of the corporation as a
Director, Officer, partner, trustee, employee, or
agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit
plan, or other enterprise, whether for profit or not,
against any reasonable expenses (including attorneys'
fees):
(a) if such person is wholly successful on the
merits or otherwise in the defense of such
proceeding, or
(b) if not wholly successful:
(i) the individual's conduct was in
good faith; and
(ii) the individual reasonably believed:
(A) in the case of conduct in
the individual's official
capacity as a Director,
Officer, or employee of the
corporation, that the
individual's conduct was in
the corporation's best
interests; and
(B) in all other cases, that
the individual's conduct
was at least not opposed to
the corporation's best
interests.
Section 3. Methods Of Determining Whether Standards For
Indemnification Have Been Met.
Any indemnification under Sections 1 or 2 of this
Article VIII (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 has
met the applicable standards of conduct set forth in
Section 1 or 2. In the case of
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Directors of the corporation such determination shall
be made by any one of the following procedures:
(a) by the Board of Directors by a majority vote
of a quorum consisting, of Directors not at
the time parties to the proceeding;
(b) if a quorum cannot be obtained under (a), by
majority vote of a Committee duly designated
by the Board of Directors (in which
designation Directors who are parties may
participate), consisting solely of two or
more Directors not at the time parties to
the proceeding; or
(c) by special legal counsel:
(i) selected by the Board of Directors
or a Committee thereof in the
manner proscribed in (a) or (b); or
(ii) if a quorum of the Board of
Directors cannot be obtained under
(a) and a Vommittee cannot be
designated under (b), selected by a
majority vote of the full Board of
Directors (in which selection
directors who are parties may
participate).
In the case of persons who are not Directors of the
corporation, such determination shall be made (a) by
the Chief Executive Officer of the corporation or (b)
if the Chief Executive Officer so directs or in his
absence, in the manner such determination would be
made if the person were a Director of the
corporation.
Section 4. Good Faith Defined.
For purposes of any determination under Section 1 or
2, a person shall be deemed to have acted in good
faith and to have otherwise met the applicable
standard of conduct set forth in such Section if his
action is based on information, opinions, reports, or
statements, including financial statements and other
financial data, if prepared or presented by (1) one
or more Officers or employees of the corporation or
another enterprise whom he reasonably believes to be
reliable and competent in the matters presented; (2)
legal counsel, public accountants, appraisers or
other persons as to matters he reasonably believes
are within the person's professional or expert
competence; or (3) a Committee of the Board of
Directors of the corporation or another enterprise of
which the person is not a member if he reasonably
believes the Committee merits confidence. The term
"another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other
enterprise of which such
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person is or was serving at the request of the
corporation as a Director, Officer, partner, trustee,
employee or agent. The provisions of this Section 4
shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be
deemed to have met the applicable standards of
conduct set forth in Section 1 or 2.
Section 5. Advancement Of Defense Expenses.
The corporation shall pay for or reimburse the
reasonable expenses incurred by a Director, Officer,
employee or agent who is a party to a proceeding
described in Section 1 or 2 of this Article VIII in
advance of the final disposition of said proceeding
if:
(a) the Director, Officer, employee or agent
furnishes the corporation a written
affirmation of his good faith belief that he
has met the standard of conduct described in
Section 1 or 2; and
(b) the Director, Officer, employee or agent
furnishes the corporation a written
undertaking, executed personally or on his
behalf, to repay the advance if it is
ultimately determined that the Director,
Officer, employee or agent did not meet the
standard of conduct; and
(c) a determination is made that the facts then
known to those making the determination
would not preclude indemnification under
Section 1 or 2.
The undertaking required by this Section 5 must be an
unlimited general obligation of the Director,
Officer, employee or agent but need not be secured
and may be accepted by the corporation without
reference to the financial ability of such person to
make repayment.
Section 6. Non-Exclusiveness Of Indemnification.
The indemnification and advancement of expenses
provided for or authorized by this Article VIII do
not exclude any other rights to indemnification or
advancement of expenses that a person may have under:
(a) the corporation's Articles of Incorporation
or Bylaws;
(b) any resolution of the Board of Directors or
the Shareholders of the corporation;
(c) any other authorization adopted by the
Shareholders;
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(d) any Director and Officer insurance policy,
or any other type of insurance policy; or
(e) otherwise as provided by law, both as to
such person's actions in his capacity as a
Director, Officer, employee or agent of the
corporation and as to actions in another
capacity while holding such office.
Such indemnification shall continue as to a person
who has ceased to be a Director, Officer, or
employee, and shall inure to the benefit of the heirs
and personal representatives of such person.
Section 7. Vested Right To Indemnification.
The right of any individual to indemnification under
this Article VIII shall vest at the time of
occurrence or performance of any event, act or
omission giving rise to any action, suit or
proceeding of the nature referred to in Section I or
2 and, once vested, shall not later be impaired as a
result of any amendment, repeal, alteration or other
modification of any or all of these provisions.
Notwithstanding the foregoing, the indemnification
afforded under this Article VIII shall be applicable
to all alleged prior acts or omissions of any
individual seeking indemnification hereunder,
regardless of the fact that such alleged acts or
omissions may have occurred prior to the adoption of
this Article VIII. To the extent such prior acts or
omissions cannot be deemed to be covered by this
Article VIII, the right of any individual to
indemnification shall be governed by the
indemnification provisions in effect at the time of
such prior acts or omissions.
Section 8. Insurance.
The corporation may purchase and maintain insurance
covering any person who 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, partner, trustee, employee or
agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other
enterprise, against any liability asserted against or
incurred by the individual in that capacity or
arising from the individual's status as a Director,
Officer, employee or agent, whether or not the
corporation would have power to indemnify the
individual against the same liability under this
Article VIII.
Section 9. Additional Definitions.
For purposes of this Article VIII, references to the
corporation shall include any domestic or foreign
predecessor entity of the corporation in a merger or
other transaction in which the predecessor's
existence ceased upon consummation of the
transaction.
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For purposes of this Article VIII, "serving an
employee benefit plan 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 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 it "not opposed to the best interest of
the corporation" referred to in this Article VII.
For purposes of this Article VIII, "official
capacity", when used with respect to a Director,
shall mean the Office of Director of the corporation;
and when used with respect to an individual other
than a Director, shall mean the office in the
corporation held by the Officer or the employment or
agency relationship undertaken by the employee or
agent on behalf of the corporation. "Official
capacity" does not include service for any other
foreign or domestic corporation or any partnership,
joint venture, trust, employee benefit plan. or other
enterprise, whether for profit or not.
Section 10. Payments A Business Expense.
Any payments made to any indemnified party under this
Article VIII or under any other right to
indemnification shall be deemed to be an ordinary and
necessary business expense of the corporation, and
payment thereof shall not subject any person
responsible for the payment, or the Board of
Directors, to any action for corporate waste or to
any similar action.
ARTICLE IX Amendments.
Section 1. These bylaws may be altered, amended or repealed and
new bylaws may be made by a majority of the whole
Board of Directors at any regular or special meeting
of the Board of Directors.
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