BY-LAWS OF
COACHMEN INDUSTRIES, INC.
(as modified through November 20, 2000)
ARTICLE I
---------
OFFICES
Principal Offices. The principal office of the Corporation shall be in
the City of Elkhart, Indiana, and the Corporation may have such other offices,
either within or without the State of Indiana, as it may require from
time-to-time.
ARTICLE II
----------
SHAREHOLDERS
Section 2.1 - Place of Meetings. All meetings of the shareholders for
the election of Directors shall be held at the offices of the Corporation in the
City of Elkhart, State of Indiana, or elsewhere as the Board of Directors may
designate. Meetings of shareholders for any purpose may be held at such place as
shall be stated in the notice of the meeting, or in a duly executed waiver of
notice thereof.
Section 2.2 - Annual Meetings. An annual meeting of the shareholders,
commencing with the year 1983, shall be held at 10:00 a.m. on the fifth Thursday
after the end of the first quarter, but if a legal holiday, then on the next
secular day following, or at such other time as the Board of Directors shall
determine, at which they shall elect a Board of Directors and transact such
other business as may properly be brought before such meeting.
Section 2.3 - Special Meetings. Special meetings of the shareholders
may be called by the Chairman, or by a majority of the Board of Directors.
Section 2.4 - Shareholders Suits. From and after the adoption of this
Section 2.4, as a condition precedent to any shareholder in a representative
capacity bringing any action or suit against the Corporation or its directors or
officers, or any of them or any combination thereof (in their respective
capacities), including but not limited to allegations of securities
irregularities or fraud, the shareholder must enter into a written agreement
with the Corporation providing that the prevailing party(ies) shall be
reimbursed by the adverse party(ies) for its/his/their reasonable attorney's
fees, court costs and other expenses of litigation incurred in connection with
the action or suit.
Section 2.5 - Notice of Meetings. Written or printed notice stating the
place, day, and hour of the meeting of shareholders, and in case of a special
meeting, the purpose or purposes for which the meeting is called shall be
delivered not less than ten days nor more than sixty days before the meeting,
either personally or by mail, by or at the direction of the Chairman, the
President,
1
<PAGE>
or the Secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. 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. No business may be transacted at a
special meeting other than that described in the notice thereof.
Section 2.6 - Shareholders Entitled to Vote. The Board of Directors may
fix a date as the record date in order to determine the shareholders entitled to
notice of a shareholders meeting, to demand a special meeting, to vote, or to
take any other action, such date in any case to be not more than seventy days
before the meeting or action requiring a determination of shareholders.
Section 2.7 - Voting Lists. The officer or agent who has charge of the
transfer books for shares of the Corporation shall make, at least five business
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order, with the
address of and the number of shares held by each, which list, for a period
beginning five business days prior to such meeting and continuing through the
meeting, shall be kept on file at the principal office of the Corporation and
shall be subject to inspection of any shareholder in accordance with applicable
law during the whole time of the meeting. The original share ledger or transfer
book, or a duplicate thereof kept in this state shall be prima facie evidence as
to who are the shareholders entitled to examine such list or share ledger or
transfer books or to vote at any meeting of shareholders. Failure to comply with
the requirements of this Section 2.7 shall not affect the validity of any action
taken at a shareholders' meeting.
Section 2.8 - Quorum. A majority of the outstanding shares of the
Corporation entitled to vote at any meeting, represented in person or by proxy,
shall constitute a quorum at any meeting of shareholders, provided that if less
than such quorum is present, the meeting may be adjourned, in accordance with
Section 2.10 of this Article, until a quorum is present.
Section 2.9 - Manner of Acting. Every decision (other than the election
of Directors) with respect to which the votes cast in favor exceed the votes
cast in opposition shall be approved as a corporate act unless a larger
affirmative vote is required by statute, the Articles of Incorporation of the
Corporation, these by-laws, or the Board of Directors. Directors are elected by
a plurality of the votes cast by shares entitled to vote in the election at a
meeting at which a quorum is present, unless otherwise provided in the Articles
of Incorporation of the Corporation.
Section 2.10 - Adjournment. If an annual or special shareholders'
meeting is adjourned to a different date, time, or place, notice thereof need
not be given if the new time, date, or place is announced at the meeting before
the adjournment. A new record date need not be set if the adjournment is within
one hundred twenty days of the original meeting date.
2
<PAGE>
Section 2.11 - Proxies. At all meetings of shareholders, a shareholder
may vote either in person or by proxy executed in writing by the shareholder or
by his duly authorized attorney in fact. Such proxy shall be filed with the
meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
Section 2.12 - Voting of Shares. At every such meeting, each
shareholder shall be entitled to cast one vote in person or proxy for each
voting share of stock held in his name upon each matter submitted to vote.
Shares of its own stock belonging to this Corporation shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time, but shares
of its own stock held by it in a fiduciary capacity may be voted and shall be
counted in determining the total number of outstanding shares at any given time.
Section 2.13 - Voting of Shares by Certain Holders. Shares standing in
the name of another corporation, domestic or foreign, may be voted by such
officer, agent or proxy as the Board of Directors of such corporation may
appoint or as the by-laws of such corporation may prescribe.
Shares standing in the name of a deceased person, a minor ward, or an
incompetent person may be voted by his administrator, executor, court appointed
guardian or conservator, either in person or by proxy without a transfer of such
shares into the name of such administrator, executor, court appointed guardian
or conservator. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy.
Shares standing in the name of a receiver or trustee in bankruptcy may
be voted by such receiver or trustee in bankruptcy, and shares held by or under
the control of a receiver or trustee in bankruptcy may be voted by such receiver
or trustee in bankruptcy without the transfer thereof into his name if authority
so to do be contained in an appropriate order of the court by which such
receiver or trustee in bankruptcy was appointed.
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 shares so transferred.
Section 2.14 - Voting by Ballot. Voting on any question may be viva
voce unless the presiding officer shall order that voting be by written ballot,
and except that voting in elections shall be by written ballot, if a shareholder
so requests.
Section 2.15 - Notice of Director Nominations and Shareholder Proposals
(a) Nominations for the election of Directors may be made by the Board
of Directors or by any stockholder entitled to vote for the
election of
3
<PAGE>
Directors. Such nomination shall be made by notice in writing,
delivered, or mailed by first-class United States mail, postage
prepaid, to the Secretary of the Corporation not less than sixty
days prior to the month and day of the last meeting of the
stockholders called for the election of Directors. Notice of
nominations which are proposed by the Board of Directors shall be
given by the Chairman on behalf of the Board.
(b) Each notice under subsection (a) must contain certain information
about each proposed nominee, including his age, business and
residence addresses, principal occupation, the number of shares of
Common Stock beneficially owned by him, and such other information
as would be required to be included in a proxy statement
soliciting proxies for the election of such proposed nominee.
(c) Stockholders wishing to bring a proposal before a meeting of
stockholders, whether or not it is to be included in a proxy
statement, must submit it to the Secretary in writing, delivered
or mailed by first class United States mail, postage prepaid, to
the Secretary of the Corporation not less than sixty days prior to
the month and day of mailing of the prior year's proxy statement,
together with identification and address of the proposing
stockholder and such other information as would be required to
determine the appropriateness of including the proposal in a proxy
statement. The Secretary, in conjunction with the Chairman and
such professional advisors as they deem necessary, shall determine
whether and in what form to include the stockholder proposal in
proxy materials.
(d) If the Chairman of the meeting of stockholders determines that a
nomination or a proposal was not made in accordance with the
foregoing procedures, such nomination is void and such proposal
shall not be submitted for consideration at the meeting.
ARTICLE III
-----------
DIRECTORS
Section 3.1 - General Powers. The business and affairs of the
Corporation shall be managed under the direction of its Board of Directors.
Section 3.2 - Number, Tenure, and Qualifications. The number of
Directors of the Corporation shall be not less than seven nor more than ten, the
exact number of Directors to be determined from time-to-time by resolution of
the Board of Directors. Each Director shall hold office until the next annual
meeting of shareholders or until his successor shall have been elected and
qualified. Directors need not be residents of Indiana or shareholders of the
Corporation. No person shall be eligible for election of the Board of Directors
who will have
4
<PAGE>
attained the full age of seventy-five years prior to the beginning of the term
for which said person is to serve as a Director.
Directors may be removed in any manner provided in the Articles of
Incorporation of the Corporation. In addition, unless the Articles of
Incorporation of the Corporation provide otherwise, a Director may be removed
with or without cause by the shareholders or Directors in the manner provided by
statute or the Articles of Incorporation of the Corporation.
Section 3.3 - Committees. The Board of Directors, by resolution adopted
by a majority of Directors, may create one or more committees and appoint
members of the Board to serve on the committee or committees. Each committee
shall have one or more members, who serve at the pleasure of the Board.
To the extent specified by the Board of Directors or in the Articles of
Incorporation or these by-laws, each committee may exercise the authority of the
Board of Directors under the Indiana Business Corporation Law, provided,
however, a committee may not: (1) authorize distributions, except a committee
may authorize or approve a reacquisition of shares if done according to a
formula or method prescribed by the Board of Directors; (2) approve or propose
to shareholders action that requires shareholders' approval under the Indiana
Business Corporation Law; (3) fill vacancies on the Board of Directors or on any
of its committee; (4) amend the Articles of Incorporation of this Corporation;
(5) adopt, amend, or repeal these by-laws; or (6) approve a plan of merger not
requiring shareholder approval.
Section 3.4 - Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this by-law, immediately
after, and at the same place as the annual meeting of shareholders. If such
meeting is not held as above provided, the election of officers may be held at
any subsequent meeting of the Board of Directors specifically called in the
manner hereinafter provided. The Board of Directors may provide, by resolution,
the time and place, either within or without the State of Indiana, for the
holding of additional regular meetings without other notice than such
resolution.
Section 3.5 - Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman or any three
Directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place, either within or without the State of
Indiana, as the place for holding any special meeting of the Board of Directors
called by them.
Section 3.6 - Notice Notice of any special meeting of Directors shall
be given to be effective at least three (3) days prior to the meeting. Notice
shall include the date, time and place of the meeting, but need not describe the
purpose of the meeting, except as may be otherwise required in these Bylaws or
the Articles of Incorporation. Written notice of any special meeting of
Directors
5
<PAGE>
shall be given as follows: by mail (which includes U.S. mail and private carrier
service); or, by electronic mail or facsimile to an address or number provided
by the Director(s) for such purposes; or, by personal delivery, telegram,
teletype or other form of wire or wireless communication; in all cases, to each
Director at his/her business address, or, in the event delivery is to be made on
a Saturday, Sunday, or legal holiday, then to the resident address of each
Director. Written notice is effective at the earliest of the following: when
received; five (5) days after the date of mailing, as evidenced by the postmark
or private carrier receipt, if correctly addressed to the address listed in the
most current records of the corporation; or, on the date shown on the return
receipt of a mailing, if the receipt is signed by or on behalf of the addressee.
If sent by electronic mail or facsimile, such notice will be presumed and
determined to be delivered when the electronic records indicate that a good
transmission was made unless proven otherwise. For purposes of dealing with an
emergency situation, as conclusively determined by the Director(s) calling the
meeting, notice may be given in person, orally or by any means that reasonably
may be expected to provide notice under the circumstances, not less than two (2)
hours prior to the meeting. If the Secretary fails or refuses to give such
notice, then the notice may be given by the Director(s) calling the meeting. Any
Director may waive notice of any meeting. The attendance of a Director at any
meeting shall constitute a waiver of notice of such meeting, except where a
Director attends and announces that the express purpose of his/her attendance at
the beginning of the meeting is to object to the holding of the meeting or the
transaction of any business because the meeting is not lawfully called or
convened, and provided that such Director does not thereafter participate in any
way, vote for or assent or dissent to or on the record abstain from voting on
any action taken at the meeting. Neither the business to be transacted at, nor
the purpose of any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 3.7 - Quorum. A majority of the number of Directors fixed by
these by-laws 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 such
Directors present may adjourn the meeting from time-to-time without further
notice.
Section 3.8 - Manner of Acting. The act of the majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
Section 3.9 - Vacancies. Any vacancy occurring in the Board of
Directors, and any Directorship to be filled by reason of an increase in the
number of Directors, may be filled by the remaining Directors, though less than
a quorum, at a regular or special meeting thereof.
Section 3.10 - Compensation. By resolution of the Board of Directors,
irrespective of any personal interest of any of the members, the Directors may
be compensated for their services to the Corporation in any reasonable manner,
including but not limited to payment of their expenses, if any, of attendance at
6
<PAGE>
each meeting of the Board, or any duly organized Committee of the Board of which
they are members, and/or payment of a fixed sum for attendance at such
meeting(s) , and/or payment of a stated periodic amount for serving on the Board
and/or any committee thereof. Alternatively or additionally, the Directors may
be paid either by issuance of a fixed number of shares of the Corporation, or
payment of the fixed sums may be made by issuance of shares of the Corporation
of an equivalent value as the amount due, as determined by the Board. No such
payment shall preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 3.11 - Presumption of Assent. A Director of the Corporation who
is present at a meeting of the Board of Directors, at which action on any
corporate matter is taken, shall be conclusively presumed to have assented to
the action taken, unless his dissent shall be entered in the minutes of the
meeting, or unless he shall file his written dissent to such action with the
person acting as the secretary of the meeting before the adjournment thereof, or
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favor of such action taken.
Section 3.12 - Informal Action by Directors. Any action required to be
taken at a meeting of the Board of Directors, or any other action which may be
taken at a meeting of the Board of Directors, or any duly organized committee
thereof acting within the scope of its delegated authority, 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 entitled to vote with respect to the subject
matter thereof or by all the members of such committee, as the case may be, and
such consent is included in the minutes or filed with the corporate records
reflecting the action taken.
ARTICLE IV
----------
OFFICERS
Section 4.1 - Number. The officers of the Corporation shall include a
Chairman, a President, a Treasurer, and a Secretary, all of whom shall be
elected by the Board of Directors.
The Board of Directors may appoint such other officers as they deem
necessary which may include various levels of Vice Presidents, a Controller, a
Chief Financial Officer, a General Counsel, and others who shall have such
authority and shall perform such duties as from time to time may be prescribed
by the Board of Directors. Any two or more offices may be held by the same
person.
The officers of the Corporation shall have such powers and authority in
the control and management of the property and business of the Corporation as is
usual and proper in the case of, and incident to, such corporate offices, except
7
<PAGE>
insofar as such power and authority is limited by these by-laws or by resolution
of the Board of Directors. Officers shall report as designated by the Board of
Directors or by these Bylaws, or if there is no such designation, then as
designated by the Chairman.
Section 4.2 - Election and Term of Office. The officers of the
Corporation shall be elected annually, by the Board of Directors, at the first
meeting of the Board of Directors held after each annual meeting of
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently may be. Vacancies
may be filled, or new offices filled, at any meeting of the Board of Directors.
Each officer shall hold office until his successor shall have been duly elected
and shall have qualified, or until his death, or until he shall resign or shall
have been removed in the manner hereinafter provided.
Section 4.3 - Removal. Any officer or agent of the Corporation may be
removed at any time by the Chairman, the Chairman's designee, or by the Board of
Directors whenever, in his/its judgment, the best interests of the Corporation
would be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed; and, any such removal by the
Chairman (or the Chairman's designee) shall be subject to ratification by the
Board of Directors, provided that such ratification shall be effective
retroactive in effect to the date of removal.
Section 4.4 - Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 4.5 - Bonds. If the Board of Directors by resolution shall so
require, any officer or agent of the Corporation shall give bond to the
Corporation in such amount and with such surety as the Board of Directors may
deem sufficient, conditioned upon the faithful performance of their respective
duties and offices.
Section 4.6 - Chairman. The Chairman shall be chosen from the Board of
Directors and shall be the chief executive officer of the Corporation. The
Chairman shall have executive authority to see that all orders and resolutions
of the Board of Directors are carried into effect and, subject to the control
vested in the Board of Directors by statute, by the Articles of Incorporation or
by these by-laws, shall administer and be responsible for the overall management
of the business and affairs of the Corporation. The Chairman shall preside at
all meetings of the shareholders and of the Board of Directors, and in general
shall perform all duties incident to the office of the Chairman of the Board and
such other duties as from time-to-time may be assigned to him by the Board of
Directors.
Section 4.7 - President. The President shall be chosen by the Board of
Directors, shall be directly responsible to the Chairman, and shall be directly
in
8
<PAGE>
charge of all of the Corporation's operations. He may sign with the Secretary,
or any other proper officer of the Corporation thereunto authorized by the Board
of Directors, certificates for shares of the Corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors, or by these
by-laws, to some other officer or agent of the Corporation, or shall be required
by law to be otherwise signed or executed and, in general, shall perform all
duties as may be prescribed by the Board of Directors from time-to-time.
Section 4.8 - Vice Presidents and Other Officers. Any Vice President
may sign with the Secretary, or an Assistant Secretary, certificates for shares
of the Corporation. Vice Presidents and other Officers shall have such authority
within an appointed area as determined by the Board of Directors, and shall
perform such other duties as from time to time may be assigned to them by the
President, the Chairman, or the Board of Directors.
Section 4.9 - Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
shall: (a) have charge and custody of and be responsible for all funds and
securities of the Corporation; receive and give receipts for moneys due and
payable to the Corporation from any source whatsoever, and deposit all such
moneys in the name of the Corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of Article V
of these by-laws; (b) in general, perform all duties incident to the office of
Treasurer and such other duties as from time-to-time may be assigned to him by
the Chairman, the President or the Board of Directors.
Section 4.10 - Secretary. The Secretary shall: (a) keep the minutes of
the shareholders and Board of Directors' meetings in one or more books provided
for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these by-laws or as required by law; (c) be custodian of the
Corporate records and of the seal of the Corporation and see that the seal of
the Corporation is affixed to all documents, the execution of which on behalf of
the Corporation under its seal is duly authorized in accordance with the
provisions of these by-laws; (d) keep a register of the post office address of
each shareholder; (e) have general charge of the share transfer books of the
Corporation; (f) in general, perform all duties incident to the office of
Secretary and such other duties as from time-to-time may be assigned to him by
the Chairman, the President or by the Board of Directors.
Section 4.11 - Assistant Treasurers and Assistant Secretaries. The
Assistant Treasurers shall, respectively, if required by the Board of Directors,
give bonds for the faithful discharge of their duties in such sums and with such
sureties as the Board of Directors shall determine. The Assistant Secretaries,
as thereunto authorized by the Board of Directors, may sign with the President
or a Vice President, certificates for shares of the Corporation the issue of
which shall
9
<PAGE>
have been authorized by a resolution of the Board of Directors. The Assistant
Treasurers and Assistant Secretaries, in general, shall perform such duties as
shall be assigned to them by the Treasurer or the Secretary, respectively, or
by, the Chairman, the President or the Board of Directors.
Section 4.12 - Compensation. The compensation of the officers
shall be fixed from time-to-time by the Board of Directors and no officer shall
be prevented from receiving such compensation by reason of the fact that he is
also a Director of the Corporation.
Section 4.13 - Succession. In case of the unexplained absence of, or
inability to reach, the Chairman for a period of forty-eight (48) hours, or in
the event of the Chairman's inability to act or his refusal to act in accordance
with the law or the directives of the Board of Directors, the President shall
perform the duties of the Chairman.
In case of the unexplained absence of, or inability to reach, the
President for a period of forty-eight (48) hours, or in the event of the
President's inability to act or his refusal to act in accordance with the law or
the directives of the Board of Directors, the Chairman or any other officer whom
the Chairman shall designate shall perform the duties of the President.
In case of the unexplained absence or inability to reach both the
President and the Chairman for a period of forty eight (48) hours, or the
inability to act of both the Chairman and the President, then the officer: in
the order previously designated by the Board of Directors; or, in the absence of
any designation by the Board of Directors, in the order previously designated by
the Chairman; or, in the absence of any designation by either of them, first the
Executive Vice President(s), then the Senior Vice President(s) and then the Vice
President(s), each in the order of their last appointment, shall temporarily
perform the duties of President and Chairman until action by the Board of
Directors. Such officer shall call a Special Meeting of the Board of Directors
within seven (7) days of assuming the duties of President and Chairman, for the
express purpose of filling those vacancies and appointing new officers, as
appropriate, unless the President and the Chairman resume their duties in the
interim.
ARTICLE V
---------
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Section 5.1 - Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of, and on behalf of, the Corporation, and
such authority may be general or confined to specific instances.
Section 5.2 - Loans. No loans shall be contracted on behalf of the
Corporation, and no evidences of indebtedness shall be issued in its name
10
<PAGE>
unless authorized by a resolution of the Board of Directors. Such authority may
be general or confined to specific instances.
Section 5.3 - Checks, Drafts, Etc. All checks, drafts, or other order
for the payment of money, notes, or other evidences of indebtedness issued in
the name of the Corporation shall be signed by such officer or officers, agent
or agents of the Corporation, and in such manner as shall from time-to-time be
determined by resolution of the Board of Directors.
Section 5.4 - Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time-to-time to the credit of the Corporation
in such banks, trust companies, or other depositaries as the Board of Directors
may select.
ARTICLE VI
----------
SHARES, CERTIFICATES FOR SHARES, AND TRANSFER OF SHARES
Section 6.1 - Regulation. The Board of Directors may make such rules
and regulations as it may deem expedient concerning the issuance, transfer, and
registration of certificates for shares of the Corporation, including the
appointment of transfer agents and registrars.
Section 6.2 - Certificates for Shares. Certificates representing shares
of the Corporation shall be respectively numbered serially for each class of
shares, or series thereof, as they are issued, may be impressed with the
Corporate seal, or a facsimile thereof, and shall be signed by the Chairman,
President or a Vice President, and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, provided that such signatures may be
facsimile if the certificate is counter signed by a transfer agent, or
registered by a registrar other than the Corporation itself or its employee.
Each certificate shall state the name of the Corporation, the fact that the
Corporation is organized or incorporated under the laws of the State of Indiana,
the name of the person to whom issued, the date of issue, the class (or series
of any class), the number of shares thereby or a statement that such shares are
without par value. If the Articles of Incorporation of the Corporation authorize
the issuance of more than one class of shares, a statement of the designations,
preferences, qualifications, limitations, restrictions and special or relative
rights of the shares of each class shall be set forth in full or summarized on
the face or back of the certificates which the Corporation shall issue or in
lieu thereof, the certificate may set forth that such a statement or summary
will be furnished to any shareholder upon request without charge. Each
certificate shall be otherwise in such form as may be prescribed by the Board of
Directors and as shall conform to the rules of any stock exchange on which the
shares may be listed.
The Corporation shall not issue certificates representing fractional
shares and shall not be obligated to make any transfers creating a fractional
interest in a share of stock. The Corporation may, but shall not be obligated
to, issue script in
11
<PAGE>
lieu of any fractional shares, such scrip to have terms and conditions specified
by the Board of Directors.
Section 6.3 - Cancellation of Certificates. All certificates
surrendered to the Corporation for transfer shall be cancelled and no new
certificates shall be issued in lieu thereof until the former certificate for a
like number of shares shall have been surrendered and cancelled, except as
herein provided with respect to lost, stolen, or destroyed certificates.
Section 6.4 - Lost, Stolen, or Destroyed Certificates. Any shareholder
claiming that his certificate for shares is lost, stolen, or destroyed may make
an affidavit or affirmation of that fact and lodge the same with the Secretary
of the Corporation, accompanied by a signed application for a new certificate.
Thereupon, and upon the giving of a satisfactory bond of indemnity to the
Corporation not exceeding in amount double the value of the shares represented
by such certificate, such value to be determined by the Chairman and Treasurer
of the Corporation, a new certificate may be issued of the same tenor and
representing the same number, class, and series of shares as were represented by
the certificate alleged to be lost, stolen, or destroyed.
Section 6.5 - Transfer of Shares. Shares of the Corporation shall be
transferable on the books of the Corporation by the holder thereof in person or
by his duly authorized attorney, upon the surrender and cancellation of a
certificate or certificates for a like number of shares. Upon presentation and
surrender of a certificate for shares properly endorsed and payment of all taxes
therefor, the transferee shall be entitled to a new certificate or certificates
in lieu thereof. As against the Corporation, a transfer of shares can be made
only on the books of the Corporation and in the manner hereinabove provided, and
the Corporation shall be entitled to treat the holder of record of any share as
the owner thereof and shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person, whether or
not it shall have express or other notice thereof, save as expressly provided by
the statutes of the State of Indiana.
ARTICLE VII
-----------
FISCAL YEAR
The fiscal year of the Corporation shall end of the last day of
December in each calendar year.
ARTICLE VIII
------------
DIVIDENDS
The Board of Directors may from time-to-time fix a record date,
declaration date, and payment date with respect to any share dividend or
distribution to
12
<PAGE>
shareholders in the manner and upon the terms and conditions provided by law and
its Articles of Incorporation.
ARTICLE IX
----------
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 the words "Corporate Seal, Indiana."
ARTICLE X
---------
WAIVER OF NOTICE
Whenever any notice is required to be given under the provisions of
these by-laws or under the provisions of the Articles of Incorporation or under
the provisions of the Indiana Business Corporation Law, or otherwise, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Attendance at any meeting, in person, or by proxy
shall constitute a waiver of notice of such meeting, unless the person or
persons entitled to such notice at the beginning of the meeting objects to
holding the meeting.
ARTICLE XI
----------
INDEMNIFICATION
Section 11.1 - General. The Corporation shall, to the fullest extent to
which it is empowered to do so by the Indiana Business Corporation Law, or any
other applicable laws, as from time-to-time in effect, indemnify any Indemnified
Officer 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, by
reason of the fact that he is or was a Director, officer, employee, or agent of
the Corporation, or who, while serving as such 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 corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
whether for profit or not, against judgments, settlements, penalties and fines
(including excise taxes assessed with respect to employee benefit plans) and
reasonable expenses (including counsel fees) incurred by him in accordance with
such action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed, in the case of conduct in his official capacity, was in the
best interests of the Corporation, and in all other cases, was not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or
13
<PAGE>
proceeding, he either had reasonable cause to believe his conduct was lawful or
no reasonable cause to believe his conduct was unlawful.
Any other person may be so indemnified if it is determined by the Board
of Directors by a majority vote of a quorum none of whom were at the time
parties to such action that such indemnification is in the interest of the
Corporation, subject to the provisions of this Article.
The termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not meet the
prescribed standard of conduct.
Section 11.2 - Authorization of Indemnification. To the extent that an
Indemnified Officer of the Corporation has been successful, on the merits or
otherwise in the defense of any action, suit or proceeding referred to in
Section 11.1 of this Article, or in the defense of any claim, issue or matter
therein, the Corporation shall indemnify such person against reasonable expenses
(including counsel fees) incurred by such person in connection therewith. Any
other indemnification under Section 11.1 of this Article (unless ordered by a
court) shall be made by the Corporation only as indemnification of the person to
be indemnified is permissible in the circumstances because he has met the
applicable standard of conduct, and as authorized as provided below.
Determination as to whether indemnification is permissible shall be
made (a) by the Board of Directors by a majority vote of a quorum none of whom
were at the time parties to such action, suit or proceeding; or (2) if a quorum
cannot be obtained under subdivision (1) by majority vote of a committee duly
designated by the Board of Directors (in which designation Directors who are
parties may participate), consisting solely of two or more Directors not at the
time parties to such action, suit, or proceeding; or (3) by special legal
counsel: (A) selected by the Board of Directors or its committee in the manner
prescribed in subdivision (1) or (2), or (B) if a quorum of the Board of
Directors cannot be obtained under subdivision (1) and a committee cannot be
designated under subdivision (2), selected by majority vote of the full Board of
Directors; or (4) by the shareholders, but shares owned by or voted under the
control of Directors who are at the time parties to such action, suit or
proceeding may not be voted on the determination.
Authorization of indemnification, the extent of indemnification and
evaluation as to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except that if the
determination is made by special legal counsel, authorization of indemnification
and evaluation as to reasonableness of expenses shall be made by those entitled
under sub-section (3) to select counsel.
Section 11.3 - Good Faith Defined. For purposes of any determination
under this Article XI, a person shall be deemed to have acted in good faith and
to have otherwise met the applicable standard of conduct set forth in Section
11.1 if
14
<PAGE>
his action is based on information, opinions, reports, or statements, including
financial statements and other financial data if prepared or presented by (1)
one or more other Directors, officers or employees of the Corporation or another
enterprise whom he reasonably believes to be reliable and competent in the
matters presented; (2) legal counsel, public accountants, appraisers or other
persons as to matters he reasonably believes are within the person's
professional or expert competence; or (3) a committee of the Board of Directors
of the Corporation or another enterprise of which the person is not a member if
he reasonably believes the committee merits confidence. The term "another
enterprise" as used in this Section 11.3 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise of
which such a person is or was serving at the request of the Corporation as a
Director, officer, partner, trustee, employee, or agent. The provisions of this
Section 11.3 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standards of conduct set forth in Section 11.1 of this Article XI.
Section 11.4 - Payment of Expenses in Advance. Reasonable expenses
incurred in connection with any civil or criminal action, suit or proceeding may
be paid for or reimbursed by the Corporation in advance of the final disposition
of such action, suit, or proceeding, as authorized in the specific case in the
same manner described in Section 11.2 of this Article, upon receipt of a written
affirmation of the person to be indemnified's good faith belief that he has met
the standard of conduct described in Section 11.1 of this Article and upon
receipt of a written undertaking by or on behalf of the said person to repay
such amount if it shall ultimately be determined that he did not meet the
standard of conduct set forth in this Article XI, and a determination is made
that the facts then known to those making the determination would not preclude
indemnification under this Article XI.
Section 11.5 - Provisions Not Exclusive. The indemnification provided
by this Article shall not be deemed exclusive of any other rights to which a
person seeking indemnification may be entitled under the Articles of
Incorporation of this Corporation, any other by-law, any resolution of the Board
of Directors or shareholders, any other authorization, whenever adopted, after
notice, by a majority vote of all voting shares then outstanding, or any
contract, both as to action in this official capacity and as to action in
another capacity while holding such office.
Section 11.6 - Vested Right to Indemnification. The right of any
individual to indemnification under this Article shall vest at the time of
occurrence or performance of any event, act or omission giving rise to any
action, suit, or proceeding of the nature referred to in Section 11.1 of this
Article and, once vested, shall not later be impaired as a result of any
amendment, repeal, alteration or other modification of any or all of these
by-laws, or by a change in his employment status or other capacity entitling him
to indemnification, and shall inure to the benefit of the heirs, executors and
administrators of such an individual. Notwithstanding the foregoing, the
indemnification afforded under this
15
<PAGE>
Article shall be applicable to all alleged prior acts or omissions of any
individual seeking indemnification hereunder, regardless of the fact that such
alleged acts or omissions may have occurred prior to the adoption of this
Article, and to the extent such prior acts or omissions cannot be deemed to be
covered by this Article XI, the right of any individual to indemnification shall
be governed by the indemnification provisions in effect at the time of such
prior acts or omissions.
Section 11.7 - 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 who is or was serving at the request of the
Corporation as a Director, officer, partner, trustee, employee, or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against or incurred by the
individual in that capacity or arising from the individual's status as a
Director, officer, employee, or agent, whether or not the Corporation would have
power to indemnify the individual against the same liability.
Section 11.8 - Additional Definitions. For purposes of this Article,
references to "the corporation" shall include any domestic or foreign
predecessor entity of the Corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the transaction.
For purposes of this Article, serving an employee benefit plan at the
request of the Corporation shall include any service as a Director, officer,
employee, or agent of the Corporation which imposes duties on, or involves
services by such Director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries. A person who acted in
good faith and in a manner he reasonably believed to be in the best interests of
the participants and beneficiaries of any employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interest of the Corporation"
referred to in this Article.
For purposes of this Article, "party" includes any individual who is or
was a plaintiff, defendant, or respondent in any action suit or proceeding, or
who is threatened to be made a named defendant or respondent in any action, suit
or proceeding.
For purposes of this Article, "official capacity," when used with
respect to a Director, shall mean the office of Director of the Corporation; and
when used with respect to an individual other than a Director shall mean the
office in the Corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the Corporation.
"Official capacity" does not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, employee benefit plan, or
other enterprise, whether for profit or not.
For the purpose of this Article, "Indemnified Officer" means any
Officer or Director of the Corporation, any member of the Management Group (as
hereafter
16
<PAGE>
defined) of a division of the Corporation, and any Officer or Director of any
wholly owned subsidiary of the Corporation.
For the purpose of this Article, "Management Group" means the Division
or General Manager of the division, and those employees who have division-wide
responsibility whose titles are or include President,
(Executive/Senior/Assistant) Vice President, or (Assistant) Controller.
Section 11.9 - Payments a Business Expense. Any payments made to any
indemnified party under these by-laws or under any other right to
indemnification shall be deemed to be an ordinary and necessary business expense
of the Corporation, and payment thereof shall not subject any person responsible
for the payment, or the Board of Directors, to any action for corporate waste or
to any similar action.
ARTICLE XII
-----------
AMENDMENTS
These by-laws may be altered, amended, or repealed and new by-laws may
be adopted by a majority of the Directors present at any meeting of the Board of
Directors of the Corporation at which a quorum is present.
