EXHIBIT 3.1
BYLAWS
OF
S. Y. BANCORP, INC.
ADOPTED: JANUARY 14, 1988
AMENDED: AUGUST 8, 1988
AMENDED: FEBRUARY 4, 1992
AMENDED: MARCH 14, 1995
AMENDED MARCH 12, 2002
AMENDED AUGUST 15, 2006
AMENDED DECEMBER 18, 2007
TABLE OF CONTENTS
Page
ARTICLE I IDENTIFICATION....................................................1
SECTION 1.01 NAME........................................................1
SECTION 1.02 REGISTERED AND OTHER OFFICES................................1
SECTION 1.03 SEAL........................................................1
SECTION 1.04 FISCAL YEAR.................................................1
ARTICLE II CAPITAL STOCK.....................................................1
SECTION 2.01 ISSUANCE OF SHARES..........................................1
SECTION 2.02 SHARES OF STOCK.............................................2
SECTION 2.03 TRANSFER OF SHARES..........................................2
SECTION 2.04 LOST, DESTROYED, OR STOLEN CERTIFICATES.....................3
ARTICLE III SHAREHOLDERS......................................................3
SECTION 3.01 PLACE OF MEETINGS...........................................3
SECTION 3.02 ANNUAL MEETING..............................................3
SECTION 3.03 SPECIAL MEETINGS............................................4
SECTION 3.04 NOTICE OF MEETINGS -WAIVER..................................4
SECTION 3.05 QUORUM......................................................4
SECTION 3.06 CONDUCT OF MEETINGS.........................................4
SECTION 3.07 CLOSING OF TRANSFER BOOKS AND FIXING OF RECORD DATE.........5
SECTION 3.08 VOTING LIST.................................................5
SECTION 3.09 PROXIES.....................................................5
SECTION 3.10 VOTING OF SHARES............................................6
SECTION 3.11 VOTING OF SHARES BY CERTAIN HOLDERS.........................6
SECTION 3.12 CUMULATIVE VOTING...........................................7
SECTION 3.13 SHAREHOLDER ACTION WITHOUT A MEETING........................7
SECTION 3.14 NOMINATION OF DIRECTORS.....................................7
SECTION 3.15 NOTICE OF SHAREHOLDER BUSINESS..............................8
SECTION 3.16 INSPECTORS OF ELECTIONS.....................................9
ARTICLE IV THE BOARD OF DIRECTORS............................................9
SECTION 4.01 GENERAL POWERS, NUMBER AND ELECTION.........................9
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TABLE OF CONTENTS
(continued)
Page
SECTION 4.02 QUALIFICATIONS.............................................10
SECTION 4.03 VACANCIES AND ADDITIONAL DIRECTORS.........................10
SECTION 4.04 REMOVAL OF DIRECTORS.......................................10
SECTION 4.05 PLACE OF MEETINGS..........................................11
SECTION 4.06 ORGANIZATION AND REGULAR MEETINGS..........................11
SECTION 4.07 SPECIAL MEETINGS - NOTICE..................................11
SECTION 4.08 QUORUM.....................................................11
SECTION 4.09 MANNER OF ACTING...........................................11
SECTION 4.10 DIRECTOR ACTION WITHOUT A MEETING..........................12
SECTION 4.11 COMPENSATION...............................................12
SECTION 4.12 COMMITTEES.................................................12
SECTION 4.13 EXECUTIVE COMMITTEE........................................12
ARTICLE V OFFICERS.........................................................12
SECTION 5.01 EXECUTIVE AND OTHER OFFICERS...............................12
SECTION 5.02 ELECTION AND TERM OF OFFICE................................12
SECTION 5.03 VACANCIES..................................................12
SECTION 5.04 CHAIRMAN OF THE BOARD......................................13
SECTION 5.05 PRESIDENT..................................................13
SECTION 5.06 VICE PRESIDENTS............................................13
SECTION 5.07 SECRETARY..................................................13
SECTION 5.08 TREASURER..................................................13
SECTION 5.09 TRANSFER OF AUTHORITY......................................13
SECTION 5.10 AUTHORITY OF OFFICERS......................................13
ARTICLE VI INDEMNIFICATION AND INSURANCE....................................14
SECTION 6.01 INDEMNIFICATION............................................14
SECTION 6.02 RIGHT TO INDEMNIFICATION...................................14
SECTION 6.03 RIGHT TO INDEMNIFICATION -SUCCESSFUL DEFENSE...............15
SECTION 6.04 ADVANCEMENT OF EXPENSES....................................15
SECTION 6.05 CONDUCT OF LITIGATION......................................15
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TABLE OF CONTENTS
(continued)
Page
SECTION 6.06 CLAIM FOR INDEMNIFICATION..................................16
SECTION 6.07 INDEMNIFICATION - OFFICERS AND EMPLOYEES...................16
SECTION 6.08 INDEMNIFICATION NOT EXCLUSIVE..............................16
SECTION 6.09 REPORT TO SHAREHOLDERS.....................................16
SECTION 6.10 INSURANCE..................................................16
SECTION 6.11 DEFINITIONS AND CONSTRUCTION...............................17
ARTICLE VII EMERGENCY BYLAWS.................................................18
SECTION 7.01 EXISTENCE AND EFFECT OF EMERGENCY..........................18
SECTION 7.02 EMERGENCY POWERS...........................................18
SECTION 7.03 ACTIONS DURING EMERGENCY...................................18
SECTION 7.04 AMENDMENTS.................................................18
ARTICLE VIII CORPORATE RECORDS................................................19
ARTICLE IX AMENDMENTS.......................................................19
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BYLAWS
OF
S. Y. BANCORP, INC.
ARTICLE I
IDENTIFICATION
SECTION 1.01 NAME. The name of the corporation is S. Y. BANCORP, INC. (the
"Corporation").
SECTION 1.02 REGISTERED AND OTHER OFFICES. The address of the registered
office and principal office of the Corporation is 1040 East Main Street,
Louisville, Kentucky 40206. The Board of Directors, from time to time, shall
designate a registered agent of the Corporation whose business office is
identical with such registered office and may establish and maintain branch
offices or other facilities for the conduct of the business of the Corporation
at other locations.
SECTION 1.03 SEAL. The Board of Directors shall provide a corporate seal
which shall be in the form of a circle and shall have inscribed thereon the name
of the Corporation and other appropriate wording, provided, that the presence or
absence of such seal on or from a writing shall neither add to or detract from
the legality thereof or affect its validity in any manner or respect.
SECTION 1.04 FISCAL YEAR. The fiscal year of the Corporation shall begin on
the first day of January and end on the last day of December of each year, but
may be changed by resolution of the Board of Directors.
ARTICLE II
CAPITAL STOCK
SECTION 2.01 ISSUANCE OF SHARES.
(1) Any issuance of shares must be authorized by the Board of Directors or
a committee of the Board of Directors, or by a duly authorized officer or
officers of the Corporation acting pursuant to authority conferred upon them by
the Board of Directors or a committee of the Board of Directors pursuant to
paragraph (3) of this Section 2.01.
(2) Shares may be issued for consideration consisting of any tangible or
intangible property or benefit to the Corporation, including cash, promissory
notes, services performed, contracts for services to be performed or other
securities of the Corporation. A determination by the Board of Directors that
the consideration received or to be received for shares to be issued is adequate
is conclusive insofar as the adequacy of consideration for the issuance of such
shares relates to whether the shares are validly issued, fully paid and
nonassessable. Issued shares are fully paid and nonassessable when the Board of
Directors has made a determination of the adequacy of the consideration and the
Corporation has received that consideration. When, and to the extent,
consideration for the issuance of shares consists of a promissory note or
contract for services or other benefits, the shares are fully paid and
nonassessable at the time the note is issued or the contract is entered into. No
certificate shall be issued for any share until such share is fully paid.
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(3) The Board of Directors, or a committee of the Board of Directors, may
authorize one or more officers of the Corporation to approve the issuance, sale
or contract for the sale of shares or to determine the designation and relative
rights, preferences and limitations of a class or series of shares, all within
limits specifically prescribed by the Board of Directors or the committee.
SECTION 2.02 SHARES OF STOCK. The shares of stock of the Corporation shall
be represented by a certificate, provided that the Board of Directors may
provide by resolution or resolutions that some or all of any or all classes or
series of the stock of the Corporation shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
any such resolution providing for uncertificated shares, every holder of stock
of the Corporation theretofore represented by certificates and, upon request,
every holder of uncertificated shares, shall be entitled to a certificate, to be
in such form as shall be prescribed by the Board of Directors, certifying the
number of shares in the Corporation owned by such holder. Each certificate shall
at a minimum state on its face (a) the name of the Corporation and that it is
organized under the laws of the Commonwealth of Kentucky ("the Commonwealth"),
(b) the name of the person to whom it is issued, (c) the number and class of
shares and the designation of the series, if any, the certificate represents,
and (d) the par value of each share represented by such certificates or the fact
that such shares have no par value. All certificates shall (i) be consecutively
numbered, (ii) bear the facsimile signatures of any two officers of the
Corporation, (iii) be sealed with the facsimile seal of the Corporation, and
(iv) bear the manual signature of the transfer agent and registrar of the
Corporation appointed from time to time by the Board of Directors of the
Corporation.
SECTION 2.03 TRANSFER OF SHARES. Transfer of stock on the books of the
Corporation may be authorized only by the record holder of such stock, the
holder's legal representative or the holder's attorney lawfully constituted in
writing and, in the case of stock represented by a certificate or certificates,
upon surrender of the certificate or the certificates for such stock, and, in
the case of uncertificated stock, upon receipt of proper transfer instructions
and compliance with appropriate procedures for transferring stock in
uncertificated form (in each case, with such proof of the authenticity of
signature as the Corporation or its transfer agent may reasonably require).
The Corporation shall register a transfer of stock evidenced by a
certificate presented to it for transfer if:
(a) The certificate is surrendered to the Corporation for cancellation and
properly endorsed by the registered holder or by his duly authorized agent;
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(b) Reasonable assurance is given to the Corporation that the endorsements
are genuine and effective;
(c) The Corporation has no notice of any adverse claims or has discharged
any duty to inquire into any such claims; and
(d) Any applicable law relating to the collection of taxes has been
complied with.
SECTION 2.04 LOST, DESTROYED, OR STOLEN CERTIFICATES. The Corporation may
issue a new certificate in the place of any certificate previously issued by the
Corporation and alleged to have been lost, destroyed or stolen when the holder
of such lost, destroyed or stolen certificate:
(a) Makes proof in affidavit form that it has been lost, destroyed, or
wrongfully taken;
(b) Requests the issuance of a new certificate before the Corporation has
notice that the certificate has been acquired by a purchaser for value in good
faith and without notice of any adverse claim;
(c) Furnishes to the Corporation a bond in such form and amount, and with
such surety or sureties, as the Corporation may require indemnifying the
Corporation against any claim that may be made on account of the alleged loss,
destruction or wrongful taking of the Certificate; and
(d) Satisfies any other reasonable requirements imposed by the Corporation.
The Corporation may, in lieu of issuing a new certificate, issue uncertificated
shares for the same number of shares represented by the certificate alleged to
have been lost, destroyed or stolen.
ARTICLE III
SHAREHOLDERS
SECTION 3.01 PLACE OF MEETINGS. The Board of Directors may designate any
place within or without the Commonwealth as the place of meeting for the annual
or any special meeting of shareholders called by the Board of Directors. If no
designation is made, or if a special meeting of shareholders is called or
ordered held by any person other than the Board of Directors, the place of the
meeting shall be the principal office of the Corporation in the Commonwealth.
SECTION 3.02 ANNUAL MEETING. The annual meeting of shareholders shall be
held within the first one hundred eighty (180) calendar days of each fiscal
year, on such date and at such time and place as the Board of Directors shall
determine for the purpose of electing directors and for the transaction of such
other business as may come before the meeting. If the election of directors
shall not be held on the date designated for any annual meeting, or any
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the shareholders or by unanimous written consent of the
shareholders as soon thereafter as may be convenient. If an annual meeting is
not held within any eighteen (18) month period, the circuit court of the county
where the registered office of the Corporation is located may, on the
application of any shareholder, summarily order a meeting to be held.
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SECTION 3.03 SPECIAL MEETINGS. Special meetings of the shareholders may be
called by the chief executive officer of the Corporation, by a majority of the
members of the Board of Directors or by the holders of not less than
thirty-three and one-third percent (33-1/3%) (or such higher or lower percentage
as may be contained in the Articles of Incorporation) of all the shares entitled
to vote on any issue proposed to be considered at such meeting.
SECTION 3.04 NOTICE OF MEETINGS -WAIVER. Written notice stating the place,
day and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
(10) nor more than sixty (60) days before the date of the meeting, by or at the
direction of the chief executive officer of the Corporation or Secretary of the
Corporation or the officer or person calling the meeting, to each shareholder of
record entitled to vote at such meeting. For purposes of this Section 3.04,
notice by electronic transmission shall constitute written notice. Electronic
transmission may include any process of communication not directly involving the
physical transfer of paper that is suitable for the retention, retrieval and
reproduction of information by the recipient. Notice may be delivered
personally, by United States mail or private carrier, electronic mail or other
electronic means, or any other means permitted by law. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the records of the
Corporation with postage thereon prepaid. Notice of any shareholders' meeting
may be waived by any shareholder at any time before or after the meeting by
delivering a signed written waiver to the Secretary of the Corporation.
Attendance by a shareholder, without objection as to notice, whether in person
or by proxy, at a shareholders' meeting shall constitute a waiver of notice of
the meeting.
SECTION 3.05 QUORUM. A majority of the outstanding shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders. If less than a majority of the outstanding shares entitled to vote
are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice except if the
adjournment is for more than one hundred twenty (120) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given. The shareholders present at a duly
organized meeting may continue to do business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a quorum.
SECTION 3.06 CONDUCT OF MEETINGS. The Board of Directors of the Corporation
may adopt by resolution such rules or regulations for the conduct of meetings of
shareholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the chair
of any meeting of shareholders shall have the right and authority to prescribe
such rules, regulations and procedures and to do all such acts as, in the
judgment of such chair, are appropriate for the proper conduct of the meeting.
Such rules, regulations or procedures, whether adopted by the Board of Directors
or prescribed by the chair of the meeting, may include, without limitation, the
following: (1) the establishment of an agenda or order of business for the
meeting; (2) rules and procedures for maintaining order at the meeting and the
safety of those present; (3) limitations on attendance at or participation in
the meeting, to shareholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chair shall permit; (4)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (5) limitations on the time allotted to questions or comments by
participants. Unless, and to the extent determined by the Board of Directors or
the chair of the meeting, meetings of shareholders shall not be required to be
held in accordance with rules of parliamentary procedure.
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SECTION 3.07 CLOSING OF TRANSFER BOOKS AND FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or 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 of the Corporation may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, seventy (70) days. If the stock transfer books shall be
closed for the purpose of determining shareholders entitled to notice of or to
vote at a meeting of shareholders, such books shall be closed for at least ten
(10) days but not more than seventy (70) days immediately preceding such
meeting. In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than seventy (70) days and,
in the case of a meeting of shareholders, not less than ten (10) days prior to
the date of which the particular action requiring such determination of
shareholders, is to be taken. If the stock transfer books are not closed and no
record date is fixed for the determination of shareholders entitled to notice of
or to vote at a meeting of shareholders, or shareholders entitled to receive
payment of a dividend, the first day on which notice of the meeting is mailed,
the date the first shareholder signs a consent with respect to actions taken in
writing without a meeting (pursuant to Section 3.13) or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, the determination shall
apply to any adjournment thereof unless the Board of Directors fixes a new
record date which it must do if the meeting is adjourned to a date more than one
hundred twenty (120) days after the date fixed for the original meeting.
SECTION 3.08 VOTING LIST. The Secretary of the Corporation shall make a
complete record of the shareholders entitled to vote at any meeting of
shareholders or any adjournment thereof, arranged by voting group (and within
each voting group by class or series of shares) and in alphabetical order within
each voting group (and within each class or series of shares) with the address
of and the number of shares held by each. Such record shall be available for
inspection by any shareholder, beginning five (5) business days before the
meeting for which the list was prepared and continuing through the meeting, at
the Corporation's principal place of business or at the place of the meeting.
Such record shall be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting for the purposes thereof. Failure to comply with the requirements
of this section shall not affect the validity of any action taken at the
meeting.
SECTION 3.09 PROXIES. At all meetings of shareholders, a shareholder may
vote either in person or by proxy. A shareholder, or his agent or
attorney-in-fact, may appoint a proxy to vote or otherwise act for the
shareholder by signing an appointment form or by electronic transmission. An
electronic transmission shall contain, or be accompanied by, information from
which one can determine that the shareholder, the shareholder's agent or the
shareholder's attorney-in-fact authorized the electronic transmission.
Electronic transmission may include any process of communication not directly
involving the physical transfer of paper that is suitable for the retention,
retrieval and reproduction of the information by the recipient. An appointment
of a proxy is effective when a signed appointment form or electronic
transmission of the appointment is received by the Secretary of the Corporation
or other officer or agent authorized to tabulate votes. No proxy shall be valid
after eleven (11) months from the date of its execution, unless otherwise
provided in the proxy, but in no event shall a proxy, unless coupled with an
interest, be voted on after three (3) years from the date of its execution. An
appointment of a proxy is revocable unless the appointment form or electronic
transmission states that it is irrevocable and the appointment is coupled with
an interest. An irrevocable appointment is revocable when the interest with
which it is coupled is extinguished, but the revocation shall not be effective
until the Secretary has received written notice of the revocation. The death or
incapacity of the shareholder appointing a proxy does not affect the right of
the Corporation to accept the proxy's authority unless notice of the death or
incapacity is received by the Secretary or other officer or agent authorized to
tabulate votes before the proxy exercises his or her authority under the
appointment.
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SECTION 3.10 VOTING OF SHARES. Except as otherwise provided in the Articles
of Incorporation of the Corporation, each outstanding share of the capital stock
of the Corporation shall be entitled to one (1) vote on each matter submitted to
vote at a meeting of shareholders.
SECTION 3.11 VOTING OF SHARES BY CERTAIN HOLDERS. At all meetings of
shareholders:
(a) Shares of the Corporation standing in the name of another corporation,
domestic or foreign, may be voted by either the president of such corporation or
by proxy appointed by him unless some other person produces a certified copy of
a resolution of the Board of Directors of such other corporation authorizing
such other person to vote such shares.
(b) Shares of the Corporation held by an administrator, executor, guardian
or conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares standing in the name of a trustee
may be voted by him, either in person or by proxy, but such trustee shall not be
entitled to vote shares held by him unless such shares are transferred into his
name.
(c) Shares of the Corporation held jointly by three (3) or more fiduciaries
shall be voted in a manner determined by the majority of such fiduciaries unless
the instrument or order appointing the fiduciaries or applicable law otherwise
directs.
(d) Shares of the Corporation standing in the name of a receiver may be
voted by such receiver and such shares held by or under the control of a
receiver may be voted by such receiver without transfer thereof unto his name if
authority to do so is contained in an appropriate order of the court by which
such receiver was appointed.
(e) A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
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SECTION 3.12 VOTING FOR DIRECTORS. Unless otherwise provided in the
Articles of Incorporation of the Corporation, directors shall be elected by a
plurality of votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present. A "plurality" means that the individuals
receiving the largest number of votes are elected as directors up to the maximum
number of directors to be chosen at the election. Shareholders shall not have
the right to cumulate their votes for directors unless the Articles of
Incorporation of the Corporation so provide.
SECTION 3.13 SHAREHOLDER ACTION WITHOUT A MEETING.
(1) Any action required to be taken at a meeting of shareholders of the
Corporation, or any action which may be taken at a meeting of such shareholders,
may be taken without a meeting if a consent in writing, setting forth the action
so taken shall be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof. Such consent shall have the same effect
as an unanimous vote of shareholders, and may be stated as such in any articles
or documents filed with the Secretary of State of Kentucky. Action taken without
a meeting in this manner shall be effective when consents representing the votes
necessary to take the action are delivered to the Corporation, unless a
different date is specified in the consent.
(2) Any shareholder giving a consent may revoke it in a writing received by
the Corporation prior to the time consents representing votes sufficient to take
the action have been delivered to the Corporation.
(3) Prompt notice of the taking of any action by shareholders without a
meeting by less than unanimous consent (if allowed by the Articles of
Incorporation) shall be given to those shareholders entitled to vote who did not
deliver a written consent.
(4) If applicable law requires the giving of notice of proposed action to
nonvoting shareholders and the action will be taken by consent without a
meeting, the Corporation shall give nonvoting shareholders and voting
shareholders, if any, whose consent is not solicited at least ten days' notice
before the action is taken. The notice shall contain or be accompanied by the
same material that applicable law would have required to be sent to nonvoting
shareholders in a notice of a meeting at which the proposed action would have
been submitted to shareholders.
SECTION 3.14 NOMINATION OF DIRECTORS.
(1) Only persons who are nominated in accordance with the procedures set
forth in these Bylaws shall be eligible to serve as Directors. Nominations of
persons for election to the Board of Directors of the Corporation may be made at
a meeting of shareholders (a) by or at the direction of the Board of Directors
or (b) by any shareholder of the Corporation who is a shareholder of record at
the time of giving of notice provided for in this Section 3.14, who shall be
entitled to vote for the election of directors at the meeting and who complies
with the notice procedures set forth in this Section 3.14.
(2) Nominations by shareholders shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation (a) in the case of an annual meeting, not less than
90 days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
changed by more than 30 days from such anniversary date, notice by the
shareholder to be timely must be so received not later than the close of
business on the 10th day following the earlier of the day on which notice of the
date of the meeting was mailed or public disclosure was made, and (b) in the
case of a special meeting at which directors are to be elected, not later than
the close of business on the 10th day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure was made. Such
shareholder's notice shall set forth (a) as to each person whom the shareholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations 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 such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (b) as to the shareholder
giving the notice (i) the name and address, as they appear on the Corporation's
books, of such shareholder and (ii) the class and number of shares of the
Corporation which are beneficially owned by such shareholder and also which are
owned of record by such shareholder; and (c) as to the beneficial owner, if any,
on whose behalf the nomination is made, (i) the name and address of such person
and (ii) the class and number of shares of the Corporation which are
beneficially owned by such person. At the request of the Board of Directors, any
person nominated by the Board of Directors for election as a director shall
furnish to the Secretary of the Corporation that information required to be set
forth in a shareholder's notice of nomination which pertains to the nominee.
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(3) No person shall be eligible to serve as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section
3.14. The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provision of this Section 3.14, a shareholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulation thereunder with respect to
the matters set forth in this Section 3.14.
SECTION 3.15 NOTICE OF SHAREHOLDER BUSINESS.
(1) At an annual meeting of the shareholders, only such business shall be
conducted as shall have been brought before the meeting (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any shareholder of the Corporation who is a shareholder of
record a the time of giving of the notice provided for in this Section 3.15, who
shall be entitled to vote at such meeting and who complies with the notice
procedures set fort in this Section 3.15.
(2) For business to be properly brought before an annual meeting by a
shareholder pursuant to clause (c) of paragraph (1) of this Section 3.15, the
shareholder must have given timely notice thereof in writing to the Secretary of
the Corporation and such business must be a proper subject for shareholder
action under the Kentucky Business Corporation Act. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 days prior to
the first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the meeting is changed by more than 30 days
from such anniversary date notice by the shareholder to be timely must be
received no later than the close of business on the 10th day following the
earlier of the day on which notice of the date of the meeting was mailed or
public disclosure was made. A shareholder's notice to the Secretary shall set
forth as to each matter the shareholder proposes to before the meeting (a) a
brief description of the business desired to be brought before the meeting and
the reasons for conduct such business at the meeting, (b) the name and address,
as they appear on the Corporation's books, of the shareholder proposing such
business, and the name and address of the beneficial owner, if any, one whose
behalf the proposal is made, (c) the class and number of shares of the
Corporation which are owned beneficially and of record by such shareholder of
record and by the beneficial owner, if any, on whose behalf the proposal is made
and (d), any material interest of such shareholder of record and the beneficial
owner, if any, on whose behalf the proposal is made in such business.
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(3) Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 3.15. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the procedures described by
these Bylaws, and if he should so determine, he shall so declare to the meeting
any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing, provision of this Section 3.15, a
shareholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1964, as amended and the rules and regulation thereunder with
respect to the matters set forth in this Section 3.15.
SECTION 3.16 INSPECTORS OF ELECTIONS. The Corporation shall, in advance of
any meeting of shareholders, appoint one or more inspectors of election to act
at the meeting and make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails
to act. In the event that no inspector so appointed or designated is able to act
at a meeting of shareholders, the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the number of shares of capital stock of the
Corporation outstanding and the voting power of each such share, (ii) determine
the shares of capital stock of the Corporation represented at the meeting and
the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares of capital stock of the Corporation
represented at the meeting and such inspectors' count of all votes and ballots.
Such certification shall specify such other information as may be required by
law. In determining the validity and counting of proxies and ballots cast at any
meeting of shareholders of the Corporation, the inspectors may consider such
information as is permitted by applicable law. No person who is a candidate for
an office at an election may serve as an inspector at such election.
ARTICLE IV
THE BOARD OF DIRECTORS
SECTION 4.01 GENERAL POWERS, NUMBER AND ELECTION. The business and affairs
of the Corporation shall be managed and conducted by or under the direction of a
Board of Directors of not less than nine (9) nor more than twenty-five (25)
directors. The directors shall be divided into three (3) classes, each class to
consist, as nearly as may be, of one-third of the number of directors
constituting the whole Board. Each director shall hold office for a term of
three (3) years or until his successor shall have been elected and qualified,
whichever period is longer. Within the limits specified above, the number of
directors to be elected at each annual meeting of shareholders may be fixed,
from time to time, by resolution adopted by the Board of Directors prior to the
giving of notice of such meeting as provided in Section 3.04 of these Bylaws;
PROVIDED that (a) any such resolution of the Board of Directors fixing the
number of directors to be so elected shall be subject to any later resolution
adopted by the shareholders of the Corporation at such annual meeting, or (b) if
the number of directors to be elected at any annual meeting is not fixed by the
Board of Directors, the number of directors to be so elected shall be fixed by
the shareholders at such annual meeting.
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SECTION 4.02 QUALIFICATIONS.
(a) A director need not be a resident of the Commonwealth or a shareholder
of the Corporation.
(b) No person shall be eligible for election as a director of the
Corporation if he or she has attained the age of seventy (70) years on the date
of the annual meeting of shareholders at which he or she would be nominated for
election or reelection.
SECTION 4.03 VACANCIES AND ADDITIONAL DIRECTORS.
(a) Any vacancy occurring in the Board of Directors by reason of the death,
removal, resignation, disqualification or inability to act of any director may
be filled by the affirmative vote of the majority of the remaining directors
even though less than a quorum of the Board of Directors. A director elected to
fill any such vacancy shall be elected for the remainder of the full term of
office of the class of directors in which the vacancy occurred and until his
successor shall be elected and qualified.
(b) The Board of Directors may, from time to time but within the limits
specified in Section 4.01 of these Bylaws, increase the number of directors of
the Corporation, and any directorship to be filled by reason of such increase
may be filled by the affirmative vote of a majority of the full Board of
Directors for a term of office continuing until the expiration of the full term
of office of the class of directors to which the new director is added and until
his successor shall be elected and qualified.
(c) A vacancy that will occur at a specific later date (such as a
resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
SECTION 4.04 REMOVAL OF DIRECTORS.
(a) Shareholders may remove one or more directors, but only upon a showing
of cause. For purposes of this Section 4.04, "cause" shall mean the
participation by a director in any transaction in which his personal financial
interests are in conflict with the financial interests of the Corporation or its
shareholders; any act or omission not in good faith or which involves
intentional misconduct or which is known to a director to be a violation of law;
or the participation by a director in any transaction from which the director
derived an improper personal benefit.
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(b) If cumulative voting is authorized, a director may not be removed if
the number of votes sufficient to elect him or her under cumulative voting is
voted against his or her removal. If cumulative voting is not authorized, a
director may be removed only if the number of votes cast to remove him or her
exceeds the number of votes cast not to remove him or her. A director may be
removed by the shareholders only at a meeting called for the purpose of removing
him or her and the meeting notice shall state that the purpose, or one of the
purposes, of the meeting is removal of the director.
SECTION 4.05 PLACE OF MEETINGS. Subject to the terms of this Section 4.05,
all meetings of the Board of Directors shall be held at the principal office of
the Corporation. The Board of Directors may permit any or all directors to
participate in a regular or special meeting by, or conduct the meeting through
the use of, any means of communication by which all directors participating may
simultaneously hear each other during the meeting. A director participating in a
meeting by this means shall be deemed to be present at the meeting.
SECTION 4.06 ORGANIZATION AND REGULAR MEETINGS. The organization meeting of
the Board of Directors shall be held without other notice than this Bylaw
immediately after the annual meeting of shareholders for the purpose of
organization, election of officers, appointment of committees and consideration
of such other business as may properly come before the meeting. Regular
quarterly meetings of the Board of Directors shall be held, without notice other
than this Bylaw, at 3:30 P.M. (local time) on the first Tuesday of March, June,
September and December of each year. The Board of Directors may, by resolution,
change the date or time of such regular quarterly meetings and may provide, by
resolution, the date and time for the holding of additional regular meetings of
the Board of Directors, such changed or additional regular meetings to be held
without notice other than such resolution.
SECTION 4.07 SPECIAL MEETINGS - NOTICE. Special meetings of the Board of
Directors may be called by the chief executive officer of the Corporation or a
majority of the independent directors of the Corporation. Notice of any special
meeting shall be in writing and may be given in person, by mail or other method
of delivery or by electronic means received not later than the close of business
on the business day immediately preceding the day of the meeting. Any director
may waive notice of any special meeting. The attendance of a director at any
special meeting shall constitute a waiver of notice of such meeting, except
where a director attends such meeting for the express purpose of objecting to
the transaction of any business because the meeting was not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
special meeting of the Board of Directors, need be specified in the notice or
waiver of notice of such meeting.
SECTION 4.08 QUORUM. A majority of the members of the Board of Directors
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors, provided that if less than a majority of the directors are
present at such meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice.
SECTION 4.09 MANNER OF ACTING. The affirmative vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors, unless the affirmative vote by a greater number is
required by statute, the Articles of Incorporation or these Bylaws.
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SECTION 4.10 DIRECTOR ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at a meeting of the directors of the Corporation or of a
committee thereof, may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the directors, or
all of the members of the committee, as the case may be. Such consent shall have
the same effect as an unanimous vote.
SECTION 4.11 COMPENSATION. Directors, as such, shall not receive any stated
salaries for their services, but the Board of Directors may, by resolution, from
time to time determine the amount, manner and conditions of payment of
compensation payable to directors for their services and for attendance at
meetings of the Board of Directors or committees thereof. Nothing in this
section shall be construed to preclude any director from serving the Corporation
in any other capacity and receiving compensation therefore.
SECTION 4.12 COMMITTEES. The Board of Directors may, from time to time,
appoint such committees as it may deem necessary or appropriate with such powers
and duties as may be provided in the resolution appointing such committees.
SECTION 4.13 EXECUTIVE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate from among
its members an Executive Committee which, to the extent provided for in such
resolution, shall have and may exercise all the authority of the Board of
Directors or any standing or special committee thereof, but the Executive
Committee so designated shall not have any authority to amend the articles of
incorporation of the Corporation, adopt a plan of merger or consolidation,
recommend to the shareholders the sale, lease, exchange or other disposition of
all or substantially all the property and assets of the Corporation otherwise
than in the usual and regular course of its business, recommend to the
shareholders a voluntary dissolution of the Corporation or a revocation thereof
or amend the Bylaws of the Corporation.
ARTICLE V
OFFICERS
SECTION 5.01 EXECUTIVE AND OTHER OFFICERS. The officers of the Corporation
shall consist of a President, Secretary, a Treasurer and such Vice Presidents
and other officers as the Board of Directors may, from time to time, elect with
such authority and duties as the Board of Directors may determine. The Board of
Directors may also elect a Chairman of the Board and create and elect such
assistant officers as it may from time to time determine.
SECTION 5.02 ELECTION AND TERM OF OFFICE. Each officer of the Corporation
shall be elected by the Board of Directors at any regular or special meeting of
the Board of Directors, and shall serve at the pleasure of the Board of
Directors. The Board of Directors may remove any officer at any time with or
without cause whenever, in its 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. Election of an officer shall
not of itself create contract rights.
SECTION 5.03 VACANCIES. Whenever any vacancy occurs in the office of
President, Secretary or Treasurer by death, resignation, removal or otherwise,
such vacant office shall be filled by the Board of Directors as soon as
convenient at any regular or special meeting of the Board of Directors.
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SECTION 5.04 CHAIRMAN OF THE BOARD. If the Board of Directors elects a
Chairman of the Board, he shall, if so designated by the Board of Directors at
the time of his election, be the chief executive officer of the Corporation. In
such event, the Chairman of the Board, subject to the control of the Board of
Directors, shall have general charge of the business affairs and property of the
Corporation and control over and supervision of its several officers. He shall
preside at all meetings of the shareholders and of the Board of Directors at
which he shall be present, discharge all the duties that devolve upon a
presiding officer and perform such other duties as the Bylaws provide or the
Board of Directors may prescribe.
SECTION 5.05 PRESIDENT. If a Chairman of the Board is not elected by the
Board of Directors or, if at the time of his election, is not designated as
chief executive officer of the Corporation, then the President shall be the
chief executive officer of the Corporation and shall have all the powers and
duties specified in Section 5.04 of this Article V. If a Chairman of the Board
is elected by the Board of Directors and designated chief executive officer of
the Corporation, the President shall have such powers and perform such duties as
the Bylaws provide or the Board of Directors may prescribe.
SECTION 5.06 VICE PRESIDENTS. All Vice Presidents elected by the Board of
Directors shall perform such duties as the Board of Directors or the chief
executive officer of the Corporation may prescribe.
SECTION 5.07 SECRETARY. The Secretary shall attend all meetings of the
shareholders and of the Board of Directors and shall keep, or cause to be kept,
in a book provided for such purpose, a true and complete record of the
proceedings of such meetings. He shall be custodian of the records and the seal
of the Corporation and see that the seal is affixed to all documents, the
execution of which on behalf of the Corporation under its seal may be required.
He shall attend to the giving of all notices and shall perform such other duties
as the Board of Directors or the chief executive officer of the Corporation may
prescribe.
SECTION 5.08 TREASURER. The Treasurer shall be the chief financial officer
of the Corporation and, in general, perform all duties and have all powers
incident thereto and shall perform such other duties as the Board of Directors
or the chief executive officer of the Corporation may prescribe.
SECTION 5.09 TRANSFER OF AUTHORITY. In case of the absence of any officer
of the Corporation or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors, by the majority vote of the full Board of
Directors, may transfer the powers or duties of that officer to any other
officer or to any director or employee of the Corporation.
SECTION 5.10 AUTHORITY OF OFFICERS. All officers of the Corporation elected
as such by the Board of Directors are each vested with the full authority to
transact for, and in the name of the Corporation, all matters incident to the
business of the Corporation including, without limitation, the authority to:
(a) Execute deeds, contracts and other instruments in writing;
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(b) Sign checks and drafts of the Corporation;
(c) Certify or countersign all bonds and certificates of stock requiring
the signature of the Corporation; and
(d) Vote, in person or by proxy, any stock standing in the Corporation's
name, except that such stock shall not be voted in any manner whatsoever
contrary to specific instructions contained in a resolution adopted by the Board
of Directors of the Corporation.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
SECTION 6.01 INDEMNIFICATION. The Corporation shall indemnify, to the
fullest extent authorized by the Kentucky Business Corporation Act (as the same
exists or may hereafter be amended), any person made a Party to any Proceeding
against all Liability incurred by such person in the Proceeding by reason of the
fact that he is or was a Director of the Corporation if (a) he conducted himself
in good faith; and (b) he reasonably believed (1) in the case of conduct in his
official capacity with the Corporation, that his conduct was in its best
interests; and (2) in all other cases, that his conduct was at least not opposed
to the Corporation's best interests; and (c) in the case of any criminal
Proceeding, he had no reasonable cause to believe his conduct was unlawful.
Indemnification shall be made against judgments, penalties, fines, settlements
and reasonable expenses (including attorneys' fees and disbursements) actually
incurred by the person in connection with the Proceeding, except that if the
Proceeding was by or in the right of the Corporation, indemnification may be
made only against such reasonable Expenses and shall not be made in respect of
any Proceeding in which the person shall have been adjudged to be liable to the
Corporation. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, be determinative that the person did not meet the requisite standard of
conduct as set forth in this section; PROVIDED, that a Director shall not be
indemnified under this section in respect of any proceeding charging improper
personal benefit to the Director, whether or not involving action in his
official capacity, in which he shall have been adjudged to be liable on the
basis that personal benefit was improperly received by him, and PROVIDED
FURTHER, that except as to actions to enforce indemnification rights pursuant to
Section 6.06 of this Article VI, the Corporation shall indemnify any Director
seeking indemnification in connection with a Proceeding (or part thereof)
initiated by such Director only if the Proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
SECTION 6.02 RIGHT TO INDEMNIFICATION. No indemnification under Section
6.01 of this Article VI shall be made by the Corporation unless authorized in
the specific case after a determination has been made that indemnification of
the Director is permissible in the circumstances because he has met the standard
of conduct set forth in Section 6.01. Such determination shall be made (a) by
the Board of Directors by a majority vote of a quorum consisting of Directors
not at the time Parties to the Proceeding; or (b) if such a quorum cannot be
obtained, then by a majority vote of a committee of the board, duly designated
to act in the matter by a majority vote of the full board (in which designation
Directors who are Parties may participate), consisting solely of two (2) or more
Directors not at the time Parties to the Proceeding; or (c) by special legal
counsel selected by the Board of Directors or a committee thereof by vote as set
forth in clauses (a) or (b) of this section, or if the requisite quorum of the
full board cannot be obtained therefor and such committee cannot be established,
by a majority vote of the full board (in which selection Directors who are
Parties may participate); or (d) by the shareholders, but shares owned by or
voted under the control of Directors who are at the time Parties to the
Proceeding shall not be voted on the determination. Authorization of
indemnification and determination as to reasonableness of expenses shall be made
in the same manner as the determination that indemnification is permissible,
except that if the determination that indemnification is permissible is made by
special legal counsel, authorization of indemnification and determination as to
reasonableness of expenses shall be made in a manner specified in clause (c) of
this section in the preceding sentence for the selection of such counsel. Shares
held by Directors who are Parties to the Proceeding shall not be voted on the
subject matter under this section.
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SECTION 6.03 RIGHT TO INDEMNIFICATION -SUCCESSFUL DEFENSE. A Director who
has been wholly successful, on the merits or otherwise, in the defense of any
Proceeding referred to in Section 6.01, shall be indemnified by the Corporation
against reasonable Expenses incurred by him in connection with the Proceeding.
SECTION 6.04 ADVANCEMENT OF EXPENSES. Reasonable Expenses incurred by a
Director who is a Party to a Proceeding may be paid or reimbursed by the
Corporation in advance of the final disposition of such Proceeding upon receipt
by the Corporation of: (a) a written affirmation by the Director of his good
faith belief that he has met the standard of conduct necessary for
indemnification by the Corporation as authorized in this Article VI, and (b) a
written undertaking, executed by or on behalf of the Director, to repay such
amount if it shall ultimately be determined that he has not met such standard of
conduct, and after a determination that the facts then known to those making the
determination would not preclude indemnification under this Article VI. If
requested by the Board of Directors in its discretion, the undertaking required
by clause (b) of this section shall be secured by collateral sufficient to cover
all amounts advanced. Determinations and authorizations of payments under this
section shall be made in the manner specified in Section 6.02.
SECTION 6.05 CONDUCT OF LITIGATION.
(a) If any claim or action is made or brought against a Director for which
the Director may be indemnified under these Bylaws, the Director shall, to the
extent not inconsistent with any private insurance coverage obtained by the
Corporation:
(1) Permit the Corporation to conduct the Director's defense of the
claim or action at the Corporation's expense and with the use of counsel
selected by the Corporation; or
(2) Retain counsel acceptable to the Director and the Corporation to
defend the claim or action, and permit the Corporation to monitor and direct the
Director's defense.
(b) The Corporation shall at all times have the option to undertake the
Director's defense of any claim or action for which the Director may be
indemnified under these Bylaws. If the Corporation elects to conduct the
Director's defense, the Director shall cooperate fully with the Corporation in
the defense of the claim or action. If the Corporation elects to conduct the
Director's defense after the Director proceeds under Section 6.05 (a) (2), the
Corporation shall reimburse the Director for the reasonable costs, including
attorneys' fees, incurred by the Director in enabling the Corporation to
undertake the Director's defense.
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SECTION 6.06 CLAIM FOR INDEMNIFICATION.
(a) If a claim for indemnification or payment of Expenses (including
attorneys' fees) under this Article VI is not paid in full within sixty (60)
days after a written claim therefor has been received by the Corporation, the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense
(including attorneys' fees) of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not entitled
to the requested indemnification or payment of Expenses under this Article VI or
otherwise.
(b) If the Corporation brings suit to recover any advance of expenses
(whether pursuant to the terms of an undertaking or otherwise), the Corporation
shall have the burden of proving that the recipient was not entitled to the
advance under this Article VI or otherwise.
SECTION 6.07 INDEMNIFICATION - OFFICERS AND EMPLOYEES. The Corporation
shall indemnify and advance Expenses to an officer, employee or agent of the
Corporation to the same extent that it indemnifies and advances Expenses to
Directors pursuant to this Article VI, and to such further extent, consistent
with law, as may be provided by general or specific action of the Board of
Directors, contract or otherwise; provided, however, no such indemnification or
advancement of Expenses may be made pursuant to this Section 6.07 in connection
with any Proceeding (or part thereof) initiated by the Corporation against an
officer, employee or agent alleging conduct detrimental to the best interests of
the Corporation unless the indemnification or advancement of Expenses is
specifically authorized by the Board of Directors upon a determination that the
indemnification or advancement of Expenses is appropriate in the circumstances.
SECTION 6.08 INDEMNIFICATION NOT EXCLUSIVE.
(a) The Corporation, in addition to indemnification provided for in this
Article VI, shall indemnify and advance expenses to a Director to such further
extent, consistent with law, as may be provided by general or specific action of
the Board of Directors, contract or otherwise. Nothing contained in this Article
VI shall limit the Corporation's power to pay or reimburse Expenses incurred by
a Director in connection with his appearance as a witness in a Proceeding at a
time when he has not been made a named defendant or respondent in the
Proceeding.
(b) The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 6.09 REPORT TO SHAREHOLDERS. Any indemnification of, or advancement
of Expenses to, a Director in accordance with this Article VI, if arising out of
a Proceeding by or in the right of the Corporation, shall be reported in writing
to the shareholders with or before the notice of the next shareholders' meeting.
SECTION 6.10 INSURANCE. The Corporation shall have the power to and may
purchase and maintain insurance on behalf of any person 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 request of the Corporation as a Director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, other enterprise or employee benefit plan, against any Liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the Corporation has the power to indemnify
him against such Liability under the provisions of this Article VI.
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SECTION 6.11 DEFINITIONS AND CONSTRUCTION. For purposes of this Article VI:
(a) "Director" means any person who is or was a director of the Corporation
and any person who, while a director 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, other enterprise or employee benefit plan.
(b) "Corporation" includes any domestic or foreign predecessor entity of
the Corporation in a merger, consolidation or other transaction in which the
predecessor's existence ceased upon consummation of such transaction.
(c) "Expenses" include attorneys' fees and disbursements.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable Expenses incurred with respect to a Proceeding.
(e) "Official capacity" means: (i) when used with respect to a director,
the office of the director in the Corporation, and (ii) when used with respect
to a person other than a director as contemplated in Section 6.07 of this
Article VI, the elective or appointive office in the Corporation held by the
officer or the employment or agency relationship undertaken by the employee or
agent in behalf of the Corporation; but in each case does not include service
for any other foreign or domestic corporation or any partnership, joint venture,
trust, other enterprise or employee benefit plan.
(f) "Party" includes a person who was, is, or is threatened to be made a
named defendant or respondent, or is involved as a witness, in a Proceeding.
(g) "Proceeding" means any threatened, pending or completed action, suit or
proceeding, including any and all appeals thereof, whether civil, criminal,
administrative or investigative.
(h) The Corporation shall be deemed to have requested a director, officer,
employee or agent of the Corporation to serve an employee benefit plan whenever
the performance by him of his duties to the Corporation also imposes duties on,
or otherwise involved services by, him with respect to the plan or participants
or beneficiaries of the plan. Excise taxes assessed on a director with respect
to an employee benefit plan pursuant to applicable law shall be deemed "fines";
and action taken or omitted by him with respect to an employee benefit plan in
the performance of his duties for a purpose reasonably believed by him to be in
the interest of the participants and beneficiaries of the plan shall be deemed
to be for a purpose which is not opposed to the best interests of the
Corporation.
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ARTICLE VII
EMERGENCY BYLAWS
SECTION 7.01 EXISTENCE AND EFFECT OF EMERGENCY. Notwithstanding any
different provision in the preceding or succeeding Articles of these Bylaws or
in the Articles of Incorporation of the Corporation, or the Kentucky Business
Corporation Act, the Emergency Bylaws provided in this Article VII shall be
operative during any emergency in the conduct of the business of the Corporation
resulting from an attack on the United States or on the locality in which the
Corporation conducts its business or customarily holds meetings of its Board of
Directors or its shareholders or during any nuclear or atomic disaster, or
during the existence of any catastrophe, or other similar emergency condition,
as a result of which a quorum of the Board of Directors or a standing committee
thereof cannot readily be convened for action. To the extent not inconsistent
with the provisions of this Article, the Bylaws provided in the preceding or
succeeding Articles shall remain in effect during such emergency and upon its
termination these Emergency Bylaws shall cease to be operative.
SECTION 7.02 EMERGENCY POWERS. During any such emergency:
(1) A meeting of the Board of Directors may be called by any officer
or director of the Corporation. Notice of the time and place of the meeting
shall be given by the person calling the meeting to such of the directors as it
may be feasible to reach by any available means of communication. Such notice
shall be given at such time in advance of the meeting as circumstances permit in
the judgment of the person calling the meeting.
(2) At any such meeting of the Board of Directors, a quorum shall
consist of the director or directors in attendance.
(3) The Board of Directors, either before or during any such
emergency, may provide, and from time to time modify, lines of succession in the
event that during such an emergency any or all officers or agents of the
Corporation shall for any reason be rendered incapable of discharging their
duties.
(4) The Board of Directors, either before or during any such
emergency, may, effective in the emergency, change the principal office of the
Corporation or designate several alternative offices or branch offices, or
authorize the officers so to do.
SECTION 7.03 ACTIONS DURING EMERGENCY. No officer, director or employee of
the Corporation acting in accordance with these Emergency Bylaws shall be liable
except for willful misconduct, nor shall such officer, director or employee be
liable for any action taken by him in good faith in such emergency in
furtherance of the ordinary business affairs of the Corporation even though not
authorized by the Bylaws then in effect.
SECTION 7.04 AMENDMENTS. These Emergency Bylaws shall be subject to repeal
or change by further action of the Board of Directors or by action of the
shareholders, but no such repeal or change shall modify the provisions of
Section 7.03 with regard to action taken prior to the time of such repeal or
change. Any amendment of these Emergency Bylaws may make any further or
different provision that may be practical and necessary for the circumstances of
the emergency.
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ARTICLE VIII
CORPORATE RECORDS
The Corporation shall keep as permanent records minutes of all meetings of
the shareholders and the Board of Directors and a record of all actions taken by
the shareholders or the Board of Directors without a meeting. The Corporation
shall maintain appropriate accounting records. The Corporation or its agent
shall maintain a record of the shareholders, in a form that permits preparation
of a list of their names and addresses showing the number (and class and series,
if any) of the shares held by each. The Corporation shall keep such other
records as may be required by law.
ARTICLE IX
AMENDMENTS
The Board of Directors of the Corporation shall have the power to alter,
amend or repeal the Bylaws of the Corporation or adopt new Bylaws, at any
regular or special meeting at which a quorum is present, by vote of a majority
of the whole Board of Directors, subject, however, to repeal or change by action
of the shareholders at any annual or special meeting of shareholders at which a
quorum is present by vote of a majority of the shares entitled to vote at such
meeting provided that the notice of such shareholders' meeting shall have
included notice of any such shareholders' proposed repeal or change.
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