EXHIBIT 3.5
B Y L A W S
Of
THE MAJESTIC STAR CASINO CAPITAL CORP.
June 18, 1999
TABLE OF CONTENTS
page
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I. OFFICES
1.01 Principal Office 1
1.02 Other Offices 1
II. PURPOSES; SEAL
2.01 Purposes 1
2.02 Seal 1
III. CAPITAL STOCK
3.01 Issuance of Shares 1
3.02 Certificates for Shares 1
3.03 Transfer of Shares 2
3.04 Registered Shareholders 2
3.05 Lost or Destroyed Certificates 2
IV. SHAREHOLDERS AND MEETINGS OF SHAREHOLDERS
4.01 Place of Meetings 2
4.02 Annual Meeting 2
4.03 Special Meetings 2
4.04 Notice of Meetings; Notice of Shareholder Proposals 3
4.05 Record Dates 3
4.06 List of Shareholders 4
4.07 Quorum 4
4.08 Proxies 4
4.09 Voting 4
4.10 Participation via Communications Equipment 5
4.11 Conduct of Meeting 5
4.12 Action Without a Meeting 5
V. DIRECTORS AND MEETINGS OF DIRECTORS
5.01 Number and Eligibility 6
5.02 Election, Resignation and Removal 6
5.03 Vacancies 6
5.04 Annual Meeting 6
5.05 Regular and Special Meetings 6
5.06 Notices 7
5.07 Quorum and Voting 7
5.08 Participation via Communications Equipment 7
5.09 Committees 7
5.10 Dissents 7
5.11 Compensation 8
5.12 Action Without a Meeting 8
VI. NOTICES AND WAIVERS OF NOTICE
6.01 Notices 8
6.02 Waiver of Notice 8
VII. OFFICERS
7.01 Number 9
7.02 Term of Office, Resignation and Removal 9
7.03 Vacancies 9
7.04 Authority 9
VIII. DUTIES OF OFFICERS
8.01 Chairman of the Board 10
8.02 President 10
8.03 Vice Presidents 10
8.04 Secretary 10
8.05 Controller 10
8.06 Assistant Secretaries and Controllers 10
IX. SPECIAL CORPORATE ACTS
9.01 Orders for Payment of Money 11
9.02 Contracts and Conveyances 11
X. BOOKS AND RECORDS
10.01 Maintenance of Books and Records 11
10.02 Reliance on Books and Records 11
XI. INDEMNIFICATION
11.01 Non-Derivative Actions 12
11.02 Derivative Actions 12
11.03 Expenses of Successful Defense 13
11.04 Definitions 13
11.05 Contract Right; Limitation on Indemnity 13
11.06 Determination that Indemnification is Proper 13
11.07 Authorization of Payment 14
11.08 Proportionate Indemnity 15
11.09 Expense Advance 15
11.10 Non-Exclusivity of Rights 15
11.11 Indemnification of Employees and Agents of the Corporation 15
11.12 Former Directors and Officers 16
11.13 Insurance 16
11.14 Changes in Indiana Law 16
11.15 Amendment or Repeal of Article XI 16
XII. AMENDMENTS
12.01 Amendments 16
BYLAWS
of
THE MAJESTIC STAR CASINO CAPITAL CORP.
June 16, 1999
ARTICLE I
Offices
1.01 Principal Office. The principal office of the corporation shall be at
such place within the State of Indiana as the Board of Directors shall determine
from time to time.
1.02 Other Offices. The corporation also may have offices at such other
places as the Board of Directors from time to time determines or the business of
the corporation requires.
ARTICLE II
Purpose; Seal
2.01 Purposes. The purpose or purposes for which the corporation is formed
is to engage in any activity within the purposes for which corporations may be
formed under the laws of Indiana.
2.02 Seal. The corporation may, but is not required to, have a seal in
such form as the Board of Directors may from time to time determine. The seal
may be used by causing it or a facsimile to be impressed, affixed, reproduced or
otherwise.
ARTICLE III
Capital Stock
3.01 Issuance of Shares. The shares of capital stock of the corporation
shall be issued in such amounts, at such times, for such consideration and on
such terms and conditions as the Board shall deem advisable, subject to the
Articles of Incorporation and any requirements of the laws of the State of
Indiana.
3.02 Certificates for Shares. The shares of the corporation shall be
represented by certificates signed by the Chairman of the Board, President or a
Vice President and also may be signed by the Controller, Assistant Controller,
Secretary or Assistant Secretary of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof. A certificate representing
shares shall state upon its face that the corporation is formed under the laws
of the State of Indiana, the name of the person to whom it is issued, the number
and class of shares, and the designation of
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the series, if any, which the certificate represents, and such other provisions
as may be required by the laws of the State of Indiana.
3.03 Transfer of Shares. The shares of the capital stock of the
corporation are transferable only on the books of the corporation upon surrender
of the certificate therefor, properly endorsed for transfer, and the
presentation of such evidences of ownership and validity of the assignment as
the corporation may require.
3.04 Registered Shareholders. The corporation shall be entitled to treat
the person in whose name any share of stock is registered as the owner thereof
for purposes of dividends and other distributions in the course of business, or
in the course of recapitalization, merger, plan of share exchange,
reorganization, sale of assets, liquidation or otherwise and for the purpose of
votes, approvals and consents by shareholders, and for the purpose of notices to
shareholders, and for all other purposes whatever, and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not the corporation shall have notice thereof,
save as expressly required by the laws of the State of Indiana.
3.05 Lost or Destroyed Certificates. Upon the presentation to the
corporation of a proper affidavit attesting the loss, destruction or mutilation
of any certificate or certificates for shares of stock of the corporation, the
Board of Directors shall direct the issuance of a new certificate or
certificates to replace the certificates so alleged to be lost, destroyed or
mutilated. The Board of Directors may require as a condition precedent to the
issuance of new certificates a bond or agreement of indemnity, in such form and
amount and with such sureties, or without sureties, as the Board of Directors
may direct or approve.
ARTICLE IV
Shareholders and Meetings of Shareholders
4.01 Place of Meetings. All meetings of shareholders shall be held at the
principal office of the corporation or at such other place as shall be
determined by the Board of Directors and stated in the notice of meeting.
4.02 Annual Meeting. The annual meeting of the shareholders of the
corporation shall be held in the fourth calendar month after the end of the
corporation's fiscal year, or at such other date as the Board of Directors shall
determine from time to time, and shall be held at such place and time of day as
shall be determined by the Board of Directors from time to time. Directors
shall be elected at each annual meeting and such other business transacted as
may come before the meeting.
4.03 Special Meetings. Special meetings of shareholders may be called by
the Board of Directors, the Chairman of the Board (if such office is filled) or
the President and shall be called by the President or Secretary at the written
request of shareholders holding a majority of the shares of
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stock of the corporation outstanding and entitled to vote. The request shall
state the purpose or purposes for which the meeting is to be called.
4.04 Notice of Meetings; Notice of Shareholder Proposal.
(a) Notice of Meetings. Except as otherwise provided by statute,
written notice of the time, place and purposes of a meeting of shareholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each shareholder of record entitled to vote at the
meeting, either personally or by mailing such notice to his last address as it
appears on the books of the corporation. No notice need be given of an
adjourned meeting of the shareholders provided the time and place to which such
meeting is adjourned are announced at the meeting at which the adjournment is
taken and at the adjourned meeting only such business is transacted as might
have been transacted at the original meeting. However, if after the adjournment
a new record date is fixed for the adjourned meeting a notice of the adjourned
meeting shall be given to each shareholder of record on the new record date
entitled to notice as provided in this Bylaw.
(b) Notice of Shareholder Proposal. The notice described above in
Section 4.04(a) shall include a notice of proposals from shareholders that are
proper subjects for shareholder action and are intended to be presented by
shareholders who have so notified the corporation in accordance with this
Section 4.04(b). A shareholder may cause the corporation to include a notice of
shareholder proposal in a notice described above in Section 4.04(a) by giving
timely written notice to the Secretary of the corporation at the principal
executive offices of the corporation. To be timely, a proposed form of notice
of shareholder proposal must be delivered or mailed and received by the
Secretary of the corporation as follows: (i) with respect to an annual meeting
of shareholders pursuant to Section 4.02 of this Article IV, not less than 120
days prior to the date set for the annual meeting in accordance with Section
4.02; and (b) with respect to a meeting which is a special meeting pursuant to
Section 4.03 of this Article IV, not less than five (5) business days after the
earlier of (A) the announcement by the corporation of the intention to call a
special meeting, or (B) if no such announcement is made, the date that notice of
such meeting special meeting is given personally or is mailed by the corporation
pursuant to Section 4.04(a) of this Article IV, in which event, the corporation
shall promptly provide or mail a revised notice of such special meeting that
includes the shareholder's proposal if it qualifies for inclusion therein as set
forth in this Section 4.04. A shareholder's notice to the Secretary of the
corporation shall set forth, as to each matter the shareholder proposes to bring
before such meeting, (x) a brief description of the business to be brought
before the meeting, (y) the name and address, as they appear on the
corporation's books, of the shareholder(s) proposing the business, and (z) any
material interest of such shareholder(s) in such business. All determinations
under this Section 4.04 as to qualification, timeliness, and the like, shall be
made by the board of directors, which determinations shall be conclusive. This
Section 4.04(b) shall be of no force and effect during any time when the
corporation has a class of securities registered under Section 12 of the
Securities Exchange Act of 1934, as amended (or any successor thereto).
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4.05 Record Dates. The Board of Directors may fix in advance a date as the
record date for the purpose of determining shareholders entitled to notice of
and to vote at a meeting of shareholders or an adjournment thereof, or to
express consent or to dissent from a proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of a dividend or
allotment of a right, or for the purpose of any other action. The date fixed
shall not be more than sixty (60) nor less than ten (10) days before the date of
the meeting, nor more than sixty (60) days before any other action. In such
case only such shareholders as shall be shareholders of record on the date so
fixed shall be entitled to notice of and to vote at such meeting or adjournment
thereof, or to express consent or to dissent from such proposal, or to receive
payment of such dividend or to receive such allotment of rights, or to
participate in any other action, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation, or otherwise, after any
such record date. Nothing in this Bylaw shall affect the rights of a
shareholder and his transferee or transferor as between themselves.
4.06 List of Shareholders. The Secretary of the corporation or the agent
of the corporation having charge of the stock transfer records for shares of the
corporation shall make and certify a complete list of the shareholders entitled
to vote at a shareholders' meeting or any adjournment thereof. The list: shall
be arranged alphabetically within each class and series, with the address of,
and the number of shares held by, each shareholder; shall be produced at the
time and place of the meeting; shall be subject to inspection by any shareholder
during the whole time of the meeting; and shall be prima facie evidence as to
who are the shareholders entitled to examine the list or vote at the meeting.
4.07 Quorum. Unless a greater or lesser quorum is required by the laws of
the State of Indiana, the shareholders present at a meeting in person or by
proxy who, as of the record date for such meeting, were holders of a majority of
the outstanding shares of the corporation entitled to vote at the meeting shall
constitute a quorum at the meeting. Whether or not a quorum is present, a
meeting of shareholders may be adjourned by a vote of a majority of the shares
present in person or by proxy. When the holders of a class or series of shares
are entitled to vote separately on an item of business, this Bylaw applies in
determining the presence of a quorum of such class or series for transaction of
such item of business.
4.08 Proxies. A shareholder entitled to vote at a meeting of shareholders
or to express consent or dissent without a meeting may authorize other persons
to act for the shareholder by proxy. A proxy shall be signed by the shareholder
or the shareholder's authorized agent or representative and shall not be valid
after the expiration of three years from its date unless otherwise provided in
the proxy. A proxy is revocable at the pleasure of the shareholder executing it
except as otherwise provided by the laws of the State of Indiana.
4.09 Voting. Each outstanding share is entitled to one vote on each matter
submitted to a vote, unless otherwise provided in the Articles of Incorporation.
Votes may be cast orally or in writing, but if more than 25 shareholders of
record are entitled to vote, then votes shall be cast in writing signed by the
shareholder or the shareholder's proxy. When an action, other than the election
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of directors, is to be taken by the vote of the shareholders, it shall be
authorized by a majority of the votes cast by the holders of shares entitled to
vote thereon, unless a greater plurality is required by the Articles of
Incorporation or by the laws of the State of Indiana. Except as otherwise
provided by the Articles of Incorporation, directors shall be elected by a
plurality of the votes cast at any election.
4.10 Participation via Communications Equipment. A shareholder may
participate in a meeting of shareholders by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can communicate with each other if all participants are advised of
the communications equipment and the names of the participants in the conference
are divulged to all participants. Participation in a meeting in this manner
constitutes presence in person at the meeting.
4.11 Conduct of Meeting. At each meeting of shareholders, a chair shall
preside. In the absence of a specific selection by the board of directors, the
chair shall be the Chairman of the Board as provided in Section 8.01 of these
Bylaws. The chair shall determine the order of business and shall have the
authority to establish rules for the conduct of the meeting which are fair to
shareholders. The chair of the meeting shall announce at the meeting when the
polls close for each matter voted upon. If no announcement is made, the polls
shall be deemed to have closed upon the final adjournment of the meeting. After
the polls close, no ballots, proxies or votes, nor any revocations or changes
thereto may be accepted.
4.12 Action Without a Meeting.
(a) Unanimous Consent. Except as may be provided otherwise in the
Articles of Incorporation, any action required or permitted by Indiana law to be
taken at an annual or special meeting of shareholders may be taken without a
meeting, without prior notice and without a vote, if before or after the action
all the shareholders entitled to vote consent in writing.
(b) Less than Unanimous Consent. Except as may be provided otherwise
in the Articles of Incorporation, any action required or permitted by Indiana
law to be taken at an annual or special meeting of shareholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take the action at a meeting at which all shares
entitled to vote thereon were present and voted. The written consents shall
bear the date of signature of each shareholder who signs the consent. No
written consents shall be effective to take the corporate action referred to
unless, within 60 days after the record date for determining shareholders
entitled to express consent to or dissent from a proposal without a meeting,
written consents dated not more than ten (10) days before the record date and
signed by a sufficient number of shareholders to take the action are delivered
to the corporation. Delivery shall be to the corporation's registered office,
its principal place of business, or an officer or agent of the corporation
having custody of the minutes of the proceedings of its shareholders. Delivery
made to a corporation's registered office shall be by hand or by certified or
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registered mail, return receipt requested. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to shareholders would have been entitled to notice of the shareholder
meeting if the action had been taken at a meeting and who have not consented in
writing.
ARTICLE V
Directors
5.01 Number and Eligibility. The business and affairs of the corporation
shall be managed by a Board comprised of not less than one (1) nor more than
seven (7) directors as shall be determined from time to time by the Board of
Directors and/or by the shareholders. The directors need not be residents of
Indiana or shareholders of the corporation.
5.02 Election, Resignation and Removal. Directors shall be elected at each
annual meeting of the shareholders, each to hold office until the next annual
meeting of shareholders and until the director's successor is elected and
qualified, or until the director's resignation or removal. A director may
resign by written notice to the corporation. The resignation is effective upon
its receipt by the corporation or a subsequent time as set forth in the notice
of resignation. Except as otherwise provided in the Articles of Incorporation,
a director or the entire Board of Directors may be removed, with or without
cause, by vote of the holders of a majority of the shares entitled to vote at an
election of directors.
5.03 Vacancies. Vacancies in the Board of Directors occurring by reason of
death, resignation, removal, increase in the number of directors or otherwise
shall be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors, unless filled by proper
action of the shareholders of the corporation. Each person so elected shall be
a director for a term of office continuing only until the next election of
directors by the shareholders. A vacancy that will occur at a specific date, by
reason of a resignation effective at a later date or otherwise, may be filled
before the vacancy occurs, but the newly elected director may not take office
until the vacancy occurs.
5.04 Annual Meeting. The Board of Directors shall meet each year
immediately after the annual meeting of the shareholders, or within three (3)
days of such time excluding Sundays and legal holidays if such later time is
deemed advisable, at the place where such meeting of the shareholders has been
held or such other place as the Board may determine, for the purpose of election
of officers and consideration of such business that may properly be brought
before the meeting; provided, that if less than a majority of the directors
appear for an annual meeting of the Board of Directors the holding of such
annual meeting shall not be required and the matters which might have been taken
up therein may be taken up at any later special or annual meeting, or by consent
resolution.
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5.05 Regular and Special Meetings. Regular meetings of the Board of
Directors may be held at such times and places as the majority of the directors
may from time to time determine at a prior meeting or as shall be directed or
approved by the vote or written consent of all the directors. Special meetings
of the Board may be called by the Chairman of the Board (if such office is
filled) or the President and shall be called by the President or Secretary upon
the written request of any two directors.
5.06 Notices. No notice shall be required for annual or regular meetings
of the Board or for adjourned meetings, whether regular or special. Three (3)
days' written notice shall be given for special meetings of the Board, and such
notice shall state the time, place and purpose or purposes of the meeting.
5.07 Quorum and Voting. A majority of the Board of Directors then in
office, or of the members of a committee thereof, constitutes a quorum for the
transaction of business. The vote of a majority of the directors present at any
meeting at which there is a quorum shall be the acts of the Board or of a
committee, except as a larger vote may be required by the laws of the State of
Indiana or by the Articles of Incorporation.
5.08 Participation via Communications Equipment. A member of the Board or
of a committee designated by the Board may participate in a meeting by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can communicate with each other.
Participation in a meeting in this manner constitutes presence in person at the
meeting.
5.09 Committees.
(a) Executive Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint three or more members of the
Board as an executive committee to exercise all powers and authorities of the
Board in management of the business and affairs of the corporation, except that
the committee shall not have power or authority to: (i) amend the Articles of
Incorporation; (ii) adopt an agreement of merger or consolidation; (iii)
recommend to shareholders the sale, lease or exchange of all or substantially
all of the corporation's property and assets; (iv) recommend to shareholders a
dissolution of the corporation or revocation of a dissolution; (v) amend these
Bylaws; (vi) fill vacancies in the Board; or (vii) unless expressly authorized
by the Board, declare a dividend or authorize the issuance of stock.
(b) Other Committees. The Board of Directors from time to time may,
by like resolution, appoint such other committees of one or more directors to
have such authority as shall be specified by the Board in the resolution making
such appointments. The Board of Directors may designate one or more directors
as alternate members of any committee who may replace an absent or disqualified
member at any meeting thereof.
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5.10 Dissents. A director who is present at a meeting of the Board of
Directors, or a committee thereof of which the director is a member, at which
action on a corporate matter is taken is presumed to have concurred in that
action unless the director's dissent is entered in the minutes of the meeting or
unless the director files a written dissent to the action with the person acting
as secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the corporation promptly after
the adjournment of the meeting. Such right to dissent does not apply to a
director who voted in favor of such action. A director who is absent from a
meeting of the Board, or a committee thereof of which the director is a member,
at which any such action is taken is presumed to have concurred in the action
unless the director files a written dissent with the Secretary of the
corporation within a reasonable time after the director has knowledge of the
action.
5.11 Compensation. The Board of Directors, by affirmative vote of a
majority of directors in office and irrespective of any personal interest of any
of them, may establish reasonable compensation of directors for services to the
corporation as directors or officers.
5.12 Action Without a Meeting -- Unanimous Consent. Except as may be
provided otherwise in the Articles of Incorporation, action required or
permitted to be taken under authorization voted at any meeting of the board of
directors or a committee of the board may be taken without a meeting, if, before
or after the action, all members of the board then in office or of the
committee, as the case may be, consent to the action in writing. The written
consents shall be filed with the minutes of the proceedings of the board or
committee. The consent has the same effect as a vote of the board or committee
for all purposes.
ARTICLE VI
Notices and Waivers of Notice
6.01 Notices. All notices of meetings required to be given to
shareholders, directors or any committee of directors may be given by mail
(registered, certified or other first class mail, with postage pre-paid),
overnight carrier, telecopy, telegram, computer transmission, radiogram,
cablegram or other similar form of communication, addressed to any shareholder,
director or committee member at his last address as it appears on the books of
the corporation. The corporation shall have no duty to change the written
address of any shareholder, director or committee member unless the secretary of
the corporation receives written notice of such address change. Such notice
shall be deemed to have been duly given as follows: (a) if physically
delivered, at the time of delivery; (b) if telephonically transmitted by
facsimile transmission, at the time of such transmission, if such transmission
is confirmed by delivery by certified or registered United States Mail (with
first class postage pre-paid) or guaranteed overnight delivery; (c) if
transmitted via e-mail, at the time of such transmission, if such transmission
is confirmed by delivery by certified or registered United States Mail (with
first class postage pre-paid) or guaranteed overnight delivery; (d) five (5)
business days after having been deposited in the United States Mail, as
certified or registered mail (with return receipt requested and with first class
postage pre-paid), or (e) one (1) business day after having been
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transmitted to a third party providing delivery services in the ordinary course
of business which guarantees delivery on the next business day after such
transmittal (e.g., via Federal Express).
6.02 Waiver of Notice. Notice of the time, place and purpose of any
meeting of shareholders, directors or committee of directors may be waived by
telecopy, telegram, radiogram, cablegram or other writing, either before or
after the meeting, or in such other manner as may be permitted by the laws of
the State of Indiana. Attendance of a person at any meeting of shareholders, in
person or by proxy, or at any meeting of directors or of a committee of
directors, constitutes a waiver of notice of the meeting except as follows:
(a) In the case of a shareholder, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, or unless with respect to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, the shareholder objects to considering the matter when it is
presented.
(b) In the case of a director, unless he or she at the beginning of
the meeting, or upon his or her arrival, objects to the meeting or the
transacting of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting.
ARTICLE VII
Officers
7.01 Number. The Board of Directors shall elect or appoint a President, a
Secretary and a Controller, and may select a Chairman of the Board, and one or
more Vice Presidents, Assistant Secretaries or Assistant Controllers. Any two
or more of the above offices, except those of President and Vice President, may
be held by the same person. No officer shall execute, acknowledge or verify an
instrument in more than one capacity if the instrument is required by law, the
Articles of Incorporation or these Bylaws to be executed, acknowledged, or
verified by one or more officers.
7.02 Term of Office, Resignation and Removal. An officer shall hold office
for the term for which he is elected or appointed and until his successor is
elected or appointed and qualified, or until his resignation or removal. An
officer may resign by written notice to the corporation. The resignation is
effective upon its receipt by the corporation or at a subsequent time specified
in the notice of resignation. An officer may be removed by the Board with or
without cause. The removal of an officer shall be without prejudice to his
contract rights, if any. The election or appointment of an officer does not of
itself create contract rights.
7.03 Vacancies. The Board of Directors may fill any vacancies in any
office occurring for whatever reason.
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7.04 Authority. All officers, employees and agents of the corporation
shall have such authority and perform such duties in the conduct and management
of the business and affairs of the corporation as may be designated by the Board
of Directors and these Bylaws.
ARTICLE VIII
Dutices of Officers
8.01 Chairman of the Board. The Chairman of the Board, if such office is
filled, shall preside at all meetings of the shareholders (in accordance with
Section 4.11 hereof) and of the Board of Directors at which the Chairman is
present and shall perform such other duties as the Board of Directors may from
time to time prescribe.
8.02 President. The President shall be the chief executive officer of the
corporation. The President shall see that all orders and resolutions of the
Board are carried into effect and shall have the general powers of supervision
and management usually vested in the chief executive officer of a corporation,
including the authority to vote all securities of other corporations and
business organizations which are held by the corporation. In the absence or
disability of the Chairman of the Board, or if that office has not been filled,
the President also shall perform the duties and execute the powers of the
Chairman of the Board as set forth in these Bylaws.
8.03 Vice Presidents. The Vice Presidents, in the order designated by the
Board of Directors or, lacking such designation, in the order of their
seniority, shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President and shall perform such other
duties as the Board of Directors or the President may from time to time
prescribe.
8.04 Secretary. The Secretary shall attend all meetings of the Board of
Directors and of shareholders and shall record all votes and minutes of all
proceedings in a book to be kept for that purpose, shall give or cause to be
given notice of all meetings of the shareholders and of the Board of Directors,
and shall keep in safe custody the seal of the corporation and, when authorized
by the Board, affix the same to any instrument requiring it, and when so affixed
it shall be attested by the signature of the Secretary, or by the signature of
the Controller or an Assistant Secretary. The Secretary may delegate any of the
duties, powers and authorities of the Secretary to one or more Assistant
Secretaries, unless such delegation is disapproved by the Board.
8.05 Controller. The Controller shall have the custody of the corporate
funds and securities; shall keep full and accurate accounts of receipts and
disbursements in books of the corporation; and shall deposit all moneys and
other valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors. The Controller
shall render to the President and directors, whenever they may require it, an
account of his or her transactions as Controller and of the financial condition
of the corporation. The Controller may delegate any of his or her duties,
powers and authorities to one or more Assistant Controllers unless such
delegation is disapproved by the Board of Directors.
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8.06 Assistant Secretaries and Controllers. The Assistant Secretaries, in
order of their seniority, shall perform the duties and exercise the powers and
authorities of the Secretary in the event that the Secretary is absent, disabled
or otherwise unavailable. The Assistant Controllers, in the order of their
seniority, shall perform the duties and exercise the powers and authorities of
the Controller in the event that the Controller is absent, disabled or otherwise
unavailable. The Assistant Secretaries and Assistant Controllers shall also
perform such duties as may be delegated to them by the Secretary and Controller,
respectively, and also such duties as the Board of Directors and/or the
President may prescribe from time to time.
ARTICLE IX
Special Corporate Acts
9.01 Orders for Payment of Money. All checks, drafts, notes, bonds, bills
of exchange and orders for payment of money of the corporation shall be signed
by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
9.02 Contracts and Conveyances. The Board of Directors of the corporation
may in any instance designate the officer and/or agent who shall have authority
to execute any contract, conveyance, mortgage or other instrument on behalf of
the corporation, or may ratify or confirm any execution. When the execution of
any instrument has been authorized without specification of the executing
officers or agents, the Chairman of the Board, the President or any Vice
President, and the Secretary or Assistant Secretary or Controller or Assistant
Controller, may execute the same in the name and on behalf of this corporation
and may affix the corporate seal thereto.
ARTICLE X
Books and Records
10.01 Maintenance of Books and Records. The proper officers and agents
of the corporation shall keep and maintain such books, records and accounts of
the corporation's business and affairs, minutes of the proceedings of its
shareholders, Board and committees, if any, and such stock ledgers and lists of
shareholders, as the Board of Directors shall deem advisable, and as shall be
required by the laws of the State of Indiana and other states or jurisdictions
empowered to impose such requirements. Books, records and minutes may be kept
within or without the State of Indiana in a place which the Board shall
determine.
10.02 Reliance on Books and Records. In discharging his or her duties,
a director or an officer of the corporation, when acting in good faith, may rely
upon information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by any of the
following:
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(a) One or more directors, officers, or employees of the corporation,
or of a business organization under joint control or common control, whom the
director or officer reasonably believes to be reliable and competent in the
matters presented.
(b) Legal counsel, public accountants, engineers, or other persons as
to matters the director or officer reasonably believes are within the person's
professional or expert competence.
(c) A committee of the board of which he or she is not a member if the
director or officer reasonably believes the committee merits confidence.
A director or officer is not entitled to rely on the information set forth above
if he or she has knowledge concerning the matter in question that makes reliance
otherwise permitted unwarranted.
ARTICLE XI
Indemnification
11.01 Non-Derivative Actions. Subject to all of the other provisions
of this Article XI, the corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director or officer of the corporation, or, while serving as a director or
officer of the corporation, 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 or other enterprise,
whether for profit or not, against expenses (including actual and reasonable
attorneys' fees), judgments, penalties, fines, and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders, and, with respect to any criminal action or
proceeding, if the person had no reasonable cause to believe his or her conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably believed to be in
or not opposed to the best interests of the corporation or its shareholders,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
11.02 Derivative Actions. Subject to all of the provisions of this
Article XI, the corporation shall indemnify any person who was or is a party to
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that the person is or was a director or officer
of the corporation, or, while serving as a director or officer of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another
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foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, whether for profit or not, against expenses (including attorneys'
fees) and amounts paid in settlement actually and reasonably incurred by the
person in connection with such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation or its shareholders. However,
indemnification shall not be made for any claim, issue or matter in which such
person has been found liable to the corporation unless and only to the extent
that the court in which such action or suit was brought has determined upon
application that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for the reasonable expenses incurred.
11.03 Expenses of Successful Defense. To the extent that a person has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 11.01 or 11.02 of these Bylaws, or in defense
of any claim, issue or matter in the action, suit or proceeding, the person
shall be indemnified against actual and reasonable expenses (including
attorneys' fees) incurred by such person in connection with the action, suit or
proceeding and any action, suit or proceeding brought to enforce the mandatory
indemnification provided by this Section 11.03.
11.04 Definitions. For the purposes of Sections 11.01 and 11.02, "other
enterprises" shall include employee benefit plans; "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
"serving at the request of the corporation" shall include any service as a
director, officer, employee, or agent of the corporation which imposes duties
on, or involves services by, the director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
considered to have acted in a manner "not opposed to the best interests of the
corporation or its shareholders" as referred to in Sections 11.01 and 11.02.
11.05 Contract Right; Limitation on Indemnity. The right to
indemnification conferred in this Article XI shall be a contract right, and
shall apply to services of a director or officer as an employee or agent of the
corporation as well as in such person's capacity as a director or officer.
Except as provided in Section 11.03 of these Bylaws, the corporation shall have
no obligations under this Article XI to indemnify any person in connection with
any proceeding, or part thereof, initiated by such person without authorization
by the Board of Directors.
11.06 Determination That Indemnification is Proper. Any indemnification
under Section 11.01 or 11.02 of these Bylaws (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 person is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
Section 11.01 or 11.02, whichever is applicable, and upon an evaluation of the
reasonableness of expenses and amount paid in settlement. Such determination and
evaluation shall be made in any of the following ways:
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(a) By a majority vote of a quorum of the Board consisting of
directors who are not parties or threatened to be made parties to such action,
suit or proceeding.
(b) If the quorum described in clause (a) above is not obtainable,
then by a majority vote of a committee of directors duly designated by the Board
of Directors and consisting solely of two or more directors who are not at the
time parties or threatened to be made parties to the action, suit or proceeding.
(c) By independent legal counsel in a written opinion, which counsel
shall be selected in one of the following ways: (i) by the board or its
committee in the manner prescribed in subparagraph (a) or (b), or (ii) if a
quorum of the board cannot be obtained under subparagraph (a) and a committee
cannot be designated under subparagraph (b), by the board.
(d) By the shareholders, but shares held by directors or officers who
are parties or threatened to be made parties to the action, suit or proceeding
may not be voted.
(e) By all independent directors who are not parties or threatened to
be made parties to the action, suit, or proceeding.
11.07 Authorizations of Payment.
(a) Authorizations of payment under Sections 11.01 and 11.02 shall be
made in any of the following ways:
(i) By the Board of Directors:
(A) if there are two or more directors who are not parties
or threatened to be made parties to the action, suit or proceeding, by
a majority vote of all such directors (a majority of whom shall for
this purpose constitute a quorum)or by a majority of the members of a
committee of two or more directors who are not parties or threatened
to be made parties to the action, suit or proceeding; or
(B) if the corporation has one or more independent directors
who are not parties or threatened to be made parties to the action,
suit or proceeding, by a majority vote of all such directors (a
majority of whom shall for this purpose constitute a quorum); or
(C) if there are no independent directors and fewer than two
directors who are not parties or threatened to be made parties to the
action, suit or proceeding, by the vote necessary for action by the
board in accordance with Section 5.07, in which authorization all
directors may participate; or
(ii) By the shareholders, but shares held by directors, officers,
employees,
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or agents who are parties or threatened to be made parties to
the action, suit, or proceeding may not be voted on the authorization.
(b) To the extent that the Articles of Incorporation include a
provision eliminating or limiting the liability of a director pursuant to
Indiana statute(s), the corporation may indemnify a director for the expenses
and liabilities described below without a determination that the director has
met the standard of conduct set forth in Sections 11.01 and 11.02, but no
indemnification may be made (except to the extent expressly authorized in
Indiana statutory provisions), if the director (i) received a financial benefit
to which he or she was not entitled, (ii) intentionally inflicted harm on the
corporation or its shareholders, (iii) intentionally violated criminal law. In
connection with an action or suit by or in the right of the corporation, as
described in Section 11.02, indemnification under this Section 11.07(b) may be
for expenses, including attorneys' fees, actually and reasonably incurred. In
connection with an action, suit or proceeding other than one by or in the right
of the corporation, as described in Section 11.01, indemnification under this
Section 11.07(b) may be for expenses, including attorneys' fees, actually and
reasonably incurred, and for judgments, penalties, fines, and amounts paid in
settlement actually and reasonably incurred.
11.08 Proportionate Indemnity. If a person is entitled to
indemnification under Section 11.01 or 11.02 of these Bylaws for a portion of
expenses, including attorneys' fees, judgments, penalties, fines, and amounts
paid in settlement, but not for the total amount thereof, the corporation shall
indemnify the person for the portion of the expenses, judgments, penalties,
fines, or amounts paid in settlement for which the person is entitled to be
indemnified.
11.09 Expense Advance. The corporation may pay or reimburse the
reasonable expenses incurred by a person referred to in Sections 11.01 or 11.02
of these Bylaws who is a party or threatened to be made a party to an action,
suit, or proceeding in advance of final disposition of the proceeding if both of
the following apply: (a) the person furnishes the corporation a written
affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct set forth in Sections 11.01 or 11.02; and (b) the
person furnishes the corporation a written undertaking executed personally, or
on his or her belief, to repay the advance if it is ultimately determined that
he or she did not meet the standard of conduct. Determinations and evaluations
under this Section 11.09 shall be made as specified in Section 11.06 and
authorizations shall be made in the manner specified in Section 11.07. A
provision in the Articles of Incorporation, these Bylaws, a resolution by the
board or the shareholders, or an agreement making indemnification mandatory
shall also make advancement of expenses mandatory unless the provision
specifically provides otherwise.
11.10 Non-Exclusivity of Rights. The indemnification or advancement of
expenses provided under this Article XI is not exclusive of other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under a contractual arrangement with the corporation. However, the
total amount of expenses advanced or indemnified from all sources combined shall
not exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses.
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11.11 Indemnification of Employees and Agents of the Corporation. The
corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the corporation to the fullest extent of the provisions
of this Article XI with respect to the indemnification and advancement of
expenses of directors and officers of the corporation.
11.12 Former Directors and Officers. The indemnification provided in
this Article XI continues as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
11.13 Insurance. The corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against the person and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation would
have power to indemnify the person against such liability under these Bylaws or
the laws of the State of Indiana.
11.14 Changes in Indiana Law. In the event of any change of the
Indiana statutory provisions applicable to the corporation relating to the
subject matter of Article XI of these Bylaws, then the indemnification to which
any person shall be entitled hereunder shall be determined by such changed
provisions, but only to the extent that any such change permits the corporation
to provide broader indemnification rights than such provisions permitted the
corporation to provide prior to any such change. Subject to Section 11.15, the
Board of Directors is authorized to amend these Bylaws to conform to any such
changed statutory provisions.
11.15 Amendment or Repeal of Article XI. No amendment or repeal of
this Article XI shall apply to or have any effect on any director or officer of
the corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
ARTICLE XII
Amendments
12.01 Amendments. Unless otherwise provided herein, the Bylaws of the
corporation may be amended, altered or repealed, in whole or in part, by the
shareholders or by the Board of Directors.
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