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EXHIBIT 3(b)
BY-LAWS
OF
CUMMINS INC.
(As amended and restated effective as of October 8, 2002)
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.1. ANNUAL MEETINGS. Annual meetings of the shareholders of the
Corporation shall be held each year on such date, at such hour and at such place
within or without the State of Indiana as shall be designated by the Board of
Directors. In the absence of such designation, the meeting shall be held on the
first Tuesday of April of each year at the principal office of the Corporation
at 11:00 a.m. (local time). The Board of Directors may, by resolution, change
the date or time of such annual meeting. If the day fixed for any annual meeting
of shareholders shall fall on a legal holiday, then such annual meeting shall be
held on the first following business day that is not a legal holiday.
SECTION 1.2. SPECIAL MEETINGS. Special meetings of the shareholders of the
Corporation may be called at any time only by the Board of Directors or the
Chairman of the Board.
SECTION 1.3. PROPER BUSINESS. To be properly brought before an annual meeting,
business must be specified in the notice of the meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or 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 given written notification thereof, either by personal
delivery or by United States mail, postage prepaid, to the Secretary of the
Corporation not later than 90 days in advance of the Originally Scheduled Date
of such meeting (provided, however, that if the Originally Scheduled Date of
such meeting is earlier than the date specified in these By-Laws as the date of
the annual meeting if the Board of Directors does not determine otherwise, such
written notice may be so given and received not later than the close of business
on the 10th day following the date of the first public disclosure, which may
include any public filing by the Corporation with the Securities and Exchange
Commission, of the Originally Schedule Date of such
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meeting). Any such notification by a shareholder shall set forth as to each
matter the shareholder proposes to bring before the meeting (a) brief
description of the business described to be brought before the meeting and the
reasons for conducting such business at the meeting, (b) the name and address of
the shareholder proposing such business, (c) a representation that the
shareholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business, and (d) any material interest of the shareholder in such
business. To be properly brought before a special meeting of shareholders called
pursuant to Section 1.2, business must be specified in the notice of the meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors or must otherwise be properly brought before the meeting by or at the
direction of the Board of Directors. No business shall be conducted at a meeting
of shareholders except in accordance with this paragraph, and the chairman of
any meeting of shareholders may refuse to permit any business to be brought
before a meeting without compliance with the foregoing procedures. For purposes
of these By-Laws, the "Originally Scheduled Date" of any meeting of shareholders
shall be the date such meeting is scheduled to occur in the notice of such
meeting first given to shareholders regardless of whether any subsequent notice
is given for such meeting or the record date of such meeting is changed.
SECTION 1.4. NOTICES. A written notice, stating the date, time and place of any
meeting of the shareholders, and in the case of a special meeting the purpose or
purposes for which such meeting is called, shall be delivered or mailed by the
Secretary of the Corporation, to each shareholder of record of the Corporation
entitled to notice of or to vote at such meeting no fewer than ten (10) nor more
than sixty (60) days before the date of the meeting. Notice of shareholders'
meetings, if mailed, shall be mailed, postage prepaid, to each shareholder at
the shareholder's address shown in the Corporation's current record of
shareholders.
Except as provided by the Indiana Business Corporation Law or the
Corporation's Restated Articles of Incorporation, notice of a meeting of
shareholders is required to be given only to shareholders entitled to vote at
the meeting; provided, however, notice of a meeting of shareholders shall be
given to shareholders not entitled to vote if a purpose for the meeting is to
vote on any amendment to the Corporation's Restated Articles of Incorporation, a
merger or share exchange to which the
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Corporation would be a party, a sale of the Corporation's assets, or dissolution
of the Corporation.
A shareholder or the shareholder's proxy may at any time waive notice of a
meeting if the waiver is in writing and is delivered to the Corporation for
inclusion in the minutes or filing with the Corporation's records. A
shareholder's attendance at a meeting, whether in person or by proxy, (a) waives
objection to lack of notice or defective notice of the meeting, unless the
shareholder or the shareholder's proxy at the beginning of the meeting objects
to holding the meeting or transacting business at the meeting, and (b) waives
objection to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
shareholder or the shareholder's proxy objects to considering the matter when it
is presented. Each shareholder who has in the matter above provided waived
notice or objection to notice of a shareholders' meeting shall be conclusively
presumed to have been given due notice of such meeting, including the purpose or
purposes thereof.
If an annual or special shareholders' meeting is adjourned to a different
date, time or place, notice need not be given of the new date, time or place if
the new date, time or place is announced at the meeting before adjournment,
unless a new record date is or must be established for the adjourned meeting.
SECTION 1.5. VOTING. Except as otherwise provided by the Indiana Business
Corporation Law or the Corporation's Restated Articles of Incorporation, each
share of the capital stock of any class of the Corporation that is outstanding
at the record date established for any annual or special meeting of shareholders
and is outstanding at the time of and represented in person or by proxy at the
annual or special meeting, shall entitle the record holder thereof, or the
record holder's proxy, to one (1) vote on each matter voted on at the meeting.
SECTION 1.6. QUORUM. Unless the Corporation's Restated Articles of
Incorporation or the Indiana Business Corporation Law provides otherwise, at all
meetings of shareholders a majority of the votes entitled to be cast on a
matter, represented in person or by proxy, constitutes a quorum for action on
the matter. Action may be taken at a shareholders' meeting only on matters with
respect to which a quorum exists; provided, however, that any meeting of
shareholders, including annual and special meetings and any adjournments
thereof, may be adjourned to a later date although less than a quorum is
present. Once a share is
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represented for any purpose at a meeting, it is deemed present for quorum
purposes for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for that adjourned meeting.
SECTION 1.7. VOTE REQUIRED TO TAKE ACTION. If a quorum exists as to a matter to
be considered at a meeting of shareholders, action on such matter (other than
the election of Directors) is approved if the votes properly cast favoring the
action exceed the votes properly cast opposing the action, except as the
Corporation's Restated Articles of Incorporation or the Indiana Business
Corporation Law require a greater number of affirmative votes. Directors shall
be elected by a plurality of the votes properly cast.
SECTION 1.8. RECORD DATE. Only such persons shall be entitled to notice of or
to vote, in person or by proxy, at any shareholders' meeting as shall appear as
shareholders upon the books of the Corporation as of such record date as the
Board of Directors shall determine, which date may not be earlier than the date
seventy (70) days immediately preceding the meeting. In the absence of such
determination, the record date shall be the fiftieth (50th) day immediately
preceding the date of such meeting. Unless otherwise provided by the Board of
Directors, shareholders shall be determined as of the close of business on the
record date.
SECTION 1.9. PROXIES. A shareholder's shares may be voted either in person or
by proxy. A shareholder may appoint a proxy to vote or otherwise act for the
shareholder (including authorizing the proxy to receive, or to waive, notice of
any shareholders' meetings within the effective period of such proxy) by signing
an appointment form, either personally or by the shareholder's attorney-in-fact.
An appointment of a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes and is effective for eleven (11)
months unless a shorter or longer period is expressly provided in the
appointment form. The proxy's authority may be limited to a particular meeting
or may be general and authorize the proxy to represent the shareholder at any
meeting of shareholders held within the time provided in the appointment form.
Subject to the Indiana Business Corporation Law and to any express limitation on
the proxy's authority appearing on the face of the appointment form, the
Corporation is entitled to accept the proxy's vote or other action as that of
the shareholder making the appointment.
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SECTION 1.10. ORGANIZATION. At every meeting of the shareholders, the Chairman
of the Board, or, in the Chairman's absence, a person designated by the Chairman
shall act as a chairman. The Secretary of the Corporation shall act as secretary
of such meeting or, in the Secretary's absence, the chairman shall appoint a
secretary.
SECTION 1.11. VOTING LISTS. At least five business days before each meeting of
shareholders, the officer or agent having charge of the stock transfer books
shall make a complete list of the shareholders entitled to notice of a
shareholders' meeting, arranged in alphabetical order, with the address and
number of shares so entitled to vote held by each, which list shall be on file
at the principal office of the Corporation and subject to inspection by any
shareholder entitled to vote at the meeting. Such list shall be produced and
kept open at the time and place of the meeting and subject to the inspection of
any shareholder during the holding of such meeting. The original stock register
or transfer book, or a duplicate thereof, kept in this state, shall be the only
evidence as to who are the shareholders entitled to examine such list or the
stock ledger or transfer book or to vote at any meeting of the shareholders.
SECTION 1.12. INSPECTORS OF ELECTION. The Board of Directors may appoint
Inspectors of Election to serve at meetings of shareholders. If, at the time of
any meeting, any Inspector so appointed shall be absent, the presiding officer
may appoint an Inspector to serve in place of the absent Inspector.
SECTION 1.13. CONDUCT OF MEETING. At any meeting of shareholders of the
Corporation, the Chairman of the Board (or, in the absence of the Chairman of
the Board, such person designated by the Chairman pursuant to Section 1.10 of
these By-Laws) shall prescribe the order of business to be conducted at the
meeting and establish procedures incident thereto.
ARTICLE II
DIRECTORS
SECTION 2.1. NUMBER, QUALIFICATION AND TERMS. The business and affairs of the
Corporation shall be managed under the direction of a Board of Directors. The
number of Directors shall be fixed by resolution of the Board of Directors from
time to time. It shall be the policy of the Corporation that no person
seventy-two years of age or more shall be elected to the Board of Directors. Any
Director who attains the age of seventy-two years during the
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Director's term of office shall be eligible to remain a Director for the
duration of the term for which the Director was elected but shall not be
eligible for re-election.
Each Director shall be elected for a term of office to expire at the annual
meeting of shareholders next following the Director's election, except that each
Director elected pursuant to Section 2.2 of this Article II shall hold office
until the next annual meeting of shareholders. Despite the expiration of a
Director's term, the Director shall continue to serve until the Director's
successor is elected and qualified, or until the earlier of the Director's
death, resignation, disqualification or removal, or until there is a decrease in
the number of Directors.
The Directors and each of them shall have no authority to bind the
Corporation except when acting as a Board.
SECTION 2.2. VACANCIES. Any vacancy occurring in the Board of Directors, from
whatever cause arising, including an increase in the number of Directors, shall
be filled by selection of a successor by a majority vote of the remaining
members of the Board of Directors (although less than a quorum) until the next
annual meeting of the shareholders.
SECTION 2.3. QUORUM AND VOTE REQUIRED TO TAKE ACTION. A majority of the whole
Board of Directors shall be necessary to constitute a quorum for the transaction
of any business, except the filling of vacancies; provided that less than two
Directors shall not constitute a quorum. If a quorum is present when a vote is
taken, the affirmative vote of a majority of the Directors present shall be the
act of the Board of Directors, unless the act of a greater number is required by
the Indiana Business Corporation Law, the Corporation's Restated Articles of
Incorporation or these By-Laws.
SECTION 2.4. REGULAR MEETINGS. The Board of Directors shall meet regularly,
without notice, at such times and places as may be specified from time to time
by the Board of Directors or the Chairman of the Board (but no fewer than one
time annually) for the purpose of transacting such business as properly may come
before the meeting.
SECTION 2.5. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the Chairman of the Board or a majority of the Directors upon not
less than twenty-four (24) hours' notice given to each Director of the date,
time and place of the meeting, which notice need not specify the purpose or
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purposes of the special meeting. Such notice may be communicated in person
(either in writing or orally), by telephone, telegraph, teletype or other form
of wire or wireless communication, or by mail, and shall be effective at the
earlier of the time of its receipt or, if mailed, five (5) days after its
mailing. Notice of any meeting of the Board may be waived in writing at any time
if the waiver is signed by the Director entitled to the notice and is filed with
the minutes or corporate records. A Director's attendance at or participation in
a meeting waives any required notice to the Director of the meeting, unless the
Director at the beginning of the meeting (or promptly upon the Director's
arrival) objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
SECTION 2.6. WRITTEN CONSENTS. Any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting if the
action is taken by all members of the Board. The action must be evidenced by one
(1) or more written consents describing the action taken, signed by each
Director, and included in the minutes or filed with the corporate records
reflecting the action taken. Action taken under this Section 2.6. is effective
when the last Director signs the consent, unless the consent specifies a
different prior or subsequent effective date, in which cases the action is
effective on or as of the specified date. A consent signed under this Section
2.6 shall have the same effect as a unanimous meeting vote of all members of the
Board and may be described as such in any document.
SECTION 2.7. PARTICIPATION BY CONFERENCE TELEPHONE. The Board of Directors may
permit any or all Directors to participate in a regular or special meeting by,
or through the use of, any means of communication, such as conference telephone,
by which all Directors participating may simultaneously hear each other during
the meeting. A Director participating in a meeting by such means shall be deemed
to be present in person at the meeting.
SECTION 2.8. ORGANIZATION. At every meeting of the Board of Directors, the
Chairman of the Board, or in the Chairman's absence, a person designated by the
Chairman, shall act as chairman. The Secretary of the Corporation shall act as
secretary of such meeting or, in the Secretary's absence, the Chairman shall
appoint a secretary.
SECTION 2.9. RESIGNATION. A Director may resign at any time by delivering
written notice to the Chairman of the Board, the
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Secretary of the Corporation, the Board of Directors, or such other officer as
the Board of Directors may designate, and such resignation shall become
effective upon such delivery unless the notice specifies a later effective date.
SECTION 2.10. COMPENSATION. Any Director who is also an officer of the
Corporation shall receive no separate compensation for serving as Director. Each
Director who is not an officer of the Corporation shall be paid such
compensation, by way of salary, fees for attendance at meetings of the Board of
Directors, special consulting fees, or other remuneration, as shall be fixed
from time to time by resolution of the Board of Directors. Each Director shall
be reimbursed by the Corporation for travel expenses incurred in attending such
meetings.
SECTION 2.11. NOMINATIONS. Nominations for the election of Directors may be made
by the Board of Directors or by any shareholder entitled to vote for the
election of Directors who complies fully with the requirements of these By-Laws.
Any shareholder entitled to vote for the election of Directors at a meeting may
nominate a person or persons for election as Directors only if written notice of
such shareholder's intent to make such nominations is given, either by personal
delivery or by United States mail, postage prepaid, to the Secretary of the
Corporation not later than 90 days in advance of the Originally Scheduled Date
of such annual meeting (provided, however, that if the Originally Scheduled Date
of such meeting is earlier than the date specified in these By-Laws as the date
of the annual meeting if the Board of Directors does not determine otherwise,
such written notice may be so given and received not later than the close of
business on the 10th day following the date of the first public disclosure,
which may include any public filing by the Corporation with the Securities and
Exchange Commission, of the Originally Scheduled Date of such meetings). Each
such notice shall set forth (a) the name and address of the shareholder who
intends to make the nomination and of the person or persons to be nominated; (b)
a representation that the shareholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the shareholder; (d) such other information regarding each nominee proposed by
such shareholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and
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Exchange Commission had each nominee been nominated, or intended to be
nominated, by the Board of Directors; and (e) the consent of each nominee to
serve as a Director of the Corporation if so elected. The chairman of any
meeting of shareholders to elect Directors and the Board of Directors may refuse
to acknowledge the nomination of any person not made in compliance with the
foregoing procedure. This Section 2.11 shall not affect the right of the holders
of either Preference or Preferred Stock to nominate and elect Directors in the
event such right arises.
SECTION 2.12. CHAIRMAN OF THE EXECUTIVE COMMITTEE. The Board of Directors shall
elect a Chairman of the Executive Committee from among the members of the Board
of Directors. The Chairman of the Executive Committee shall preside at meetings
of the Executive Committee, and shall perform such other duties and functions as
may be assigned to the Chairman of such Committee from time to time by the Board
of Directors.
ARTICLE III
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 3.1. GENERAL.
(a) The Board of Directors may create one (1) or more committees and
appoint members of the Board of Directors to serve on them, by resolution of the
Board of Directors adopted by a majority of all the Directors in office when the
resolution is adopted. Each committee may have one (1) or more members, and all
the members of a committee shall serve at the pleasure of the Board of
Directors.
(b) To the extent specified by the Board of Directors in the resolution
creating a committee (as such resolution may be amended by the Board of
Directors from time to time), and except as otherwise provided in the Indiana
Business Corporation Law, each committee may exercise all of the authority of
the Board of Directors.
(c) Except to the extent inconsistent with the resolutions creating a
committee, the provisions of these By-Laws which govern meetings, action without
meetings, notice and waiver of notice, quorum and voting requirements and
telephone participation in meetings of the Board of Directors, apply to each
committee and its members as well.
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(d) A member of a committee of the Board of Directors who is also an
officer of the Corporation shall receive no separate compensation for serving as
a member of such committee. Each member of a committee of the Board of Directors
who is not an officer of the Corporation shall be paid such compensation for
attendance at committee meetings as shall be fixed from time to time by
resolution of the Board of Directors. Committee members shall be reimbursed by
the Corporation for travel expenses incurred in attending committee meetings.
SECTION 3.2. EXECUTIVE COMMITTEE.
(a) The Board of Directors shall elect from its members an Executive
Committee consisting of not less than three members to serve at the pleasure of
the Board of Directors. During the intervals between the meetings of the Board
of Directors, the Executive Committee shall possess and may exercise, except as
described in Section 3.1(b) of this Article III, all the power of the Board of
Directors in the management and direction of the business and affairs of the
Corporation. All Directors, including those Directors who are not designated
members of the Executive Committee, may attend meetings of the Executive
Committee. The Chairman of the Executive Committee shall preside at all meetings
of such Committee. The Secretary of the Corporation, or, in the Secretary's
absence, a person appointed by the Chairman of the Executive Committee, shall
act as secretary of such Committee.
(b) The Executive Committee shall keep regular minutes of its proceedings
and all action by the Committee shall be reported to the Board of Directors at
its meeting next following the meeting of the Committee.
ARTICLE IV
OFFICERS
SECTION 4.1. DESIGNATION AND SELECTION. The Board of Directors shall elect as
officers of the Corporation a Chairman of the Board and a Chief Executive
Officer. The Chief Executive Officer shall appoint a Secretary and such other
officers of the Corporation as the Chief Executive Officer deems appropriate,
which appointments shall be presented to the Board of Directors for
ratification.
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SECTION 4.2. DUTIES AND FUNCTIONS.
(a) CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a member of
the Board of Directors and shall, when present, preside at all meetings of the
Board of Directors and of the shareholders. The Chairman of the Board shall
perform such other duties and functions as may be assigned to the Chairman of
the Board from time to time by the Board of Directors.
(b) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be a member
of the Board of Directors and shall perform such other duties and functions as
may be assigned from time to time by the Board of Directors.
(c) SECRETARY. The Secretary shall keep a record of proceedings at all
meetings of the Board of Directors and of the shareholders, shall have custody
of the corporate records and seal of the Corporation, shall be responsible for
authenticating records of the Corporation, and shall perform such other duties
and functions as may be assigned to the Secretary from time to time by the
Chairman of the Board.
(d) OTHER OFFICERS. Each other officer appointed by the Chairman of the
Board shall have and perform such powers, duties and functions as may be
assigned to such officer from time to time by the Board of Directors, the
Chairman of the Board or the Chief Executive Officer.
SECTION 4.3. REMOVAL. The Board of Directors may remove any officer at any time
with or without cause by resolution adopted by a majority of the whole Board of
Directors. An officer appointed by the Chairman of the Board may also be removed
at any time, with or without cause, by the Chairman of the Board.
SECTION 4.4. RESIGNATIONS. Any corporate officer may resign at any time by
delivering written notice thereof to the Board of Directors, the Chairman of the
Board or the Secretary. Such resignation shall take effect at the time delivered
unless a later time is specified therein. The acceptance of such resignation
shall not be necessary to make it effective.
SECTION 4.5. COMPENSATION. The Board of Directors shall fix the salary and
other compensation for officers of the Corporation who are also Directors of the
Corporation and may delegate to the Chairman of the Board authority to fix
salaries and other compensation of all remaining officers of the Corporation.
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SECTION 4.6. SPECIAL AUTHORITY. The Chairman of the Board, or other officers
designated by the Chairman, shall have authority to execute guarantees,
indentures for monies borrowed by the Corporation, appointments of powers of
attorney and proxies to act on behalf of the Corporation, instruments for the
devise or conveyance of real estate or creation of mortgages, bank forms
required to open, maintain or close bank accounts, and any other written
agreements to which the Corporation shall be a party which pertain to the
routine operation of the Corporation and are regularly being made in the
ordinary course of carrying on such operations.
ARTICLE V
STOCK
SECTION 5.1. EXECUTION. The certificates of stock of the Corporation shall be
signed by the Chief Executive Officer or a Vice President and the Secretary;
provided, however, that where such certificates are also signed by a transfer
agent or a registrar or both, the signature of such corporate officers 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 such
person were such officer, transfer agent, or registrar at the date of its issue.
SECTION 5.2. CONTENTS. Each certificate shall state on its face the name of the
Corporation and that it is organized under the laws of the State of Indiana, the
name of the person to whom it is issued, and the number and class of shares and
the designation of the series, if any, the certificate represents, and shall
state conspicuously on its front or back that the Corporation will furnish the
shareholder, upon the shareholder's written request and without charge, a
summary of the designations, relative rights, preferences and limitations
applicable to each class and the variations in rights, preferences and
limitations determined for each series (and the authority of the Board of
Directors to determine variations for future series).
SECTION 5.3. 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
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has a transfer agent or until registered by a registrar if the Corporation has a
registrar.
SECTION 5.4. TRANSFERS. Shares of stock shall be transferable on the books of
the Corporation by the person named in the certificate or by such person's
attorney upon surrender of the certificate properly endorsed. The Corporation
may deem and treat the person in whose name shares of stock stand on the books
of the Corporation as the owner thereof for purposes of voting, dividends and
all other purposes.
SECTION 5.5. STOCK TRANSFER RECORDS. There shall be entered upon the stock
records of the Corporation the number of each certificate issued, the name and
address of the registered holder of such certificate, the number, kind and class
of shares represented by such certificate, the date of issue, whether the shares
are originally issued or transferred, the registered holder from whom
transferred and such other information as is commonly required to be shown by
such records. The stock records of the Corporation shall be kept as its
principal office, unless the Corporation appoints a transfer agent or registrar,
in which case the Corporation shall keep at its principal office a complete and
accurate shareholders' list giving the names and addresses of all shareholders
and the number and class of shares held by each. If a transfer agent is
appointed by the Corporation, shareholders shall give written notice of any
changes in their addresses from time to time to the transfer agent.
SECTION 5.6. LOSS, DESTRUCTION OR MUTILATION OF CERTIFICATES. The holder of any
shares of the capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of the certificate therefor,
and the Board of Directors may, in its discretion, cause to be issued to the
holder a new certificate or certificates of stock, upon the surrender of the
mutilated certificate, or, in the case of loss or destruction, upon satisfactory
proof of such loss or destruction. The Board of Directors may, in its
discretion, require the holder of the lost or destroyed certificate or the
holder's legal representative to give the Corporation a bond in such sum and in
such form, and with such surety or sureties as it may direct, to indemnify the
Corporation, its transfer agents and registrars, if any, against any claim that
may be made against them or any of them with respect to the capital stock
represented by the certificate or certificates alleged to have been lost or
destroyed, but the Board of Directors may, in its discretion,
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refuse to issue a new certificate or certificates, save upon the order of a
court having jurisdiction in such matters.
SECTION 5.7. FORM OF CERTIFICATES. The form of the certificates for shares of
the capital stock of the Corporation shall conform to the requirements of
Section 5.2 of the By-Laws and be in such printed form as shall from time to
time be approved by resolution of the Board of Directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 6.1. MANDATORY. The Corporation shall, to the fullest extent permitted
by Sections 1 through 13 of Indiana Code Ch. 23-1-37 as in effect April 1, 1986,
(i) indemnify any person who is or was a Director or officer of the Corporation
(and the heirs and legal representatives thereof) against expenses (including
attorneys' fees), judgments, fines, and penalties and amounts paid in settlement
resulting from any action, suit or proceeding threatened or brought against such
person by reason of such person's serving in such position or serving another
enterprise in any capacity at the request of the Corporation, and (ii) pay for
or reimburse the reasonable expenses incurred by such person in advance of the
final disposition of the action, suit or proceeding.
SECTION 6.2. DISCRETIONARY. Separate and apart from, and in addition to, the
mandatory indemnification required under Section 6.1 of this Article, the
Corporation may, in its sole discretion, provide for indemnification of any
person in accordance with the provisions of Indiana Code Ch. 23-1-37, as from
time to time amended, or superseding statutory provisions.
SECTION 6.3. OTHER CAPACITY SERVICE. Any Director or officer of the Corporation
serving in any capacity (i) another corporation, of which a majority of the
shares entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation, or (ii) any employee benefit plan of the
Corporation or of another corporation described in Subsection (i) of this
Section, shall be deemed to be doing so at the request of the Corporation.
SECTION 6.4. APPLICABLE LAW. Any person entitled to be indemnified as a matter
of right pursuant to this Article VI may
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elect to have the right to indemnification interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events
giving rise to the action, suit or proceeding, to the extent permitted by
Indiana law, or on the basis of the applicable law in effect at the time
indemnification is sought.
SECTION 6.5. RIGHTS. The right to be indemnified pursuant to this Article VI
(i) shall be a contract right of each individual entitled to be indemnified
hereunder, (ii) is intended to be retroactive and shall be available with
respect to events occurring prior to the adoption hereof, and (iii) shall
continue to exist with respect to events occurring prior to any rescission or
restrictive modification of this Article VI.
SECTION 6.6. CLAIMS. If a claim for indemnification pursuant to this Article VI
is not paid in full by the Corporation within ninety days after a written
request therefor has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled also to be paid the expense of prosecuting such claim. Neither the
failure of the Corporation (including its Board of Directors, special legal
counsel or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because the claimant has met the applicable standard of
conduct, nor an actual determination by the Corporation (including its Board of
Directors, special legal counsel or its shareholders) that the claimant had not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant had not met the applicable standard of
conduct.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. INDIANA BUSINESS CORPORATION LAW. The provisions of the Indiana
Business Corporation Law, as amended, applicable to all matters relevant to, but
not specifically covered by, these By-Laws are hereby, by reference,
incorporated in and made a part of these By-Laws.
SECTION 7.2. FISCAL YEAR. The fiscal year of the Corporation shall end on the
31st of December of each year.
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SECTION 7.3. CONTROL SHARE ACT. The provisions of Chapter 42 of the Indiana
Business Corporation Law, Ind. Code Section 23-1-42-1 ET SEQ., shall not apply
to control share acquisitions of shares of the Corporation.
SECTION 7.4. SEAL. The Corporation shall have a corporate seal, which shall
have inscribed the name of the Corporation and the word "INDIANA" around the
outer edge and the words "CORPORATE SEAL" in the center.
SECTION 7.5. CONTRACTS AND OTHER INSTRUMENTS. Bonds, contracts, deeds, leases
and other obligations and instruments of the Corporation may be signed in the
name of and on behalf of the Corporation by (i) officers or their designees, and
(ii) agents of the Corporation as may be specifically authorized by resolution
of the Board of Directors.
SECTION 7.6. BOOKS AND RECORDS. Subject to the laws of the State of Indiana,
the books of account, records, documents and papers of the Corporation may be
kept at any place or places within or without the State of Indiana.
SECTION 7.7. AMENDMENTS. These By-Laws may be rescinded, changed or amended,
and provisions hereof may be waived, at any meeting of the Board of Directors by
the affirmative vote of a majority of the entire number of Directors at the
time, except as otherwise required by the Corporation's Restated Articles of
Incorporation or by the Indiana Business Corporation Law.
SECTION 7.8. DEFINITION OF ARTICLES OF INCORPORATION AND RESTATED ARTICLES OF
INCORPORATION. The term "Articles of Incorporation" and "Restated Articles of
Incorporation" as used in these By-Laws mean the Restated Articles of
Incorporation of the Corporation as from time to time in effect.
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