SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K/A
AMENDMENT TO ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
CTS CORPORATION
AMENDMENT NO. 1
The undersigned registrant hereby amends the following portion
of its Annual Report on Form 10-K for the fiscal year ended
December 31, 1992 as set forth below:
Item 14. Exhibits, Financial Statement Schedules and Reports
on Form 8-K.
This Amendment No. 1 to Form 10-K is being filed solely for the
purpose of submitting true and correct Bylaws of the Company in
effect as of December 31, 1992 which, as previously filed, did not
reflect amendments duly authorized by the Company's Board of
Directors prior to such time.
Exhibit No. Description
(3)(b) Bylaws, as amended and effective on June 25, 1992
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
and Exchange Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned, thereunto duly
authorized.
Dated: April 8, 1997 By /S/ Jeannine M. Davis
Jeannine M. Davis
Vice President, Secretary and
General Counsel
EXHIBIT (3)(b)
CTS CORPORATION
BYLAWS
(As Amended June 25, 1992)
ARTICLE I.
Officers
The officers of this corporation shall be a President, one or
more Vice Presidents, a Secretary, a Treasurer and a Controller.
The Board of Directors may also elect one or more Assistant
Secretaries, Assistant Treasurers and Assistant Controllers, and
such other officers as may be determined, from time to time, by the
Board of Directors.
The President shall be a director of this corporation. Any
offices, other than those of President and Secretary, may be held
by the same person.
The officers of this corporation shall be elected by the Board
of Directors at the annual meeting of the Board of Directors for
the term of one year and until their successors have been elected
and qualified. Any vacancy occurring among the above offices may
be filled for the remainder of the term by the Board of Directors
at any regular or special meeting, and officers so elected shall
hold office until the next annual meeting of the Board of Directors
and until their successors have been elected and qualified.
ARTICLE II.
Board of Directors Organization
Section 1. The Board of Directors shall elect, from the
members of the Board of Directors who are not officers of the
corporation, an Audit Committee consisting of not less than three
members. The members of the Audit Committee shall be elected at
each annual meeting of the Board of Directors to serve, while
qualified, at the pleasure of the Board of Directors, or if longer,
for one year and until their successors have been elected and
qualified.
The Audit Committee shall be responsible directly to the Board
of Directors and, in addition to such authority and duties
specifically delegated by the Board of Directors, shall have the
authority to review the conduct and the report of the independent
financial audit of the corporation and shall report to the Board of
Directors the findings, conclusions and recommendations of the
Audit Committee regarding the conduct and report of the independent
financial audit.
Unless the Board of Directors designates a Chairman, a
majority of the members of the Audit Committee may designate one
member of the Audit Committee as Chairman of the Audit Committee to
preside at all meetings of the Audit Committee.
Section 2. The Board of Directors shall elect from members of
the Board of Directors, who are not officers of the corporation, a
Compensation Committee consisting of not less than three members.
The members of the Compensation Committee shall be elected at each
annual meeting of the Board of Directors to serve, while qualified,
at the pleasure of the Board of Directors, or if longer, for one
year and until their successors have been elected and qualified.
The Compensation Committee shall be responsible directly to
the Board of Directors and, in addition to such authority and
duties specifically delegated by the Board of Directors, shall have
authority to review, and make recommendations to the Board of
Directors regarding, the compensation, including fringe benefits
and stock options, for the officers of this corporation.
Unless the Board of Directors designates a Chairman, a
majority of the members of the Compensation Committee may designate
one member of the Compensation Committee as Chairman of the
Compensation Committee to preside at all meetings of the
Compensation Committee.
Section 3. The Board of Directors shall designate from
members of the Board of Directors, a Chairman of the Board, who
shall preside at meetings of stockholders and of the Board of
Directors unless the Chairman shall designate an officer or other
director of the corporation to do so. The Chairman of the Board
shall have such additional authority as granted by the Board of
Directors and shall perform such other duties as are assigned from
time to time by the Board of Directors.
ARTICLE III.
Corporate Officers
Section 1. The President shall exercise specific authority
and supervision over, and shall be responsible for the direction
of, the business and affairs of the corporation, subject to the
direction of the Board of Directors. In addition, the President
may be designated the Chief Executive Officer and, if so, shall
have the additional authority and duties and responsibilities
specified in these bylaws. The President shall also perform such
other duties as may be assigned from time to time, by the Board of
Directors. The President shall perform all the duties of the
Chairman of the Board in the absence or during any disability of
the Chairman.
Section 2. The Board of Directors shall designate the
Chairman of the Board or the President as the Chief Executive
Officer of the corporation. In addition to other duties as an
officer, the Chief Executive Officer shall exercise general
authority and supervision over, and shall be responsible for,
management of the business and affairs of the corporation, subject
to the direction of the Board of Directors.
The Chief Executive Officer shall determine the organization
of the officers of the corporation, shall designate to whom such
officers shall report and be responsible, and subject to the
direction of the Board of Directors shall determine their
respective duties and responsibilities.
Section 3. Each Vice President shall perform such duties as
may be assigned from time to time by the President and shall report
to and be responsible to such officer as the President shall
designate. Each Vice President shall also have such additional
authority and shall perform such other duties assigned from time to
time, by the Board of Directors.
The Board of Directors may designate a word or words to be
placed before or after the title of Vice President to indicate
organizational or functional authority or duty.
Section 4. The Secretary shall attend all meetings of the
stockholders and Board of Directors and all committees, and shall
keep minutes of each meeting. The Secretary shall give proper
notice of all meetings of stockholders, directors and committees,
required in these bylaws. The Secretary shall maintain proper
records of ownership and transfer of the stock of this corporation.
The Secretary shall have the custody of, and affix, the seal of the
corporation and perform such other duties as may be assigned from
time to time by the Board of Directors.
Section 5. The Vice President Finance/Chief Financial
Officer, shall be responsible for the financial affairs of the
corporation, shall submit to the annual meeting of stockholders a
statement of the financial condition of the corporation, and
whenever required by the Board of Directors, shall give account of
all transactions and of the financial condition of the corporation.
The Treasurer shall report to the Vice President Finance/Chief
Financial Officer. The Treasurer shall establish and maintain
appropriate banking relations and arrangements on behalf of the
corporation. The Treasurer shall receive and have custody of, and
shall disburse, all moneys of the corporation, and in the name of
the corporation, shall deposit all moneys in, and disburse all
moneys from, such bank, or banks, as the Board of Directors shall
designate, from time to time, as the depositories of the
corporation. The Treasurer shall perform such other duties and
render such services for, and on behalf of, the corporation as may
be assigned from time to time by the Vice President Finance, Chief
Financial Officer.
Section 6. The Controller shall be the accounting officer of
the corporation and shall formulate accounting procedures to record
expenses, losses, gains, assets and liabilities of the corporation,
to report and interpret results of operations of the corporation
and to assure protection of the assets of the corporation. The
Controller shall prepare and submit to the Board of Directors and
the Chief Executive Officer such periodic balance sheets, profit
and loss statements and other financial statements as may be
required to keep such persons currently informed of the operations
and the financial condition of this corporation. The Controller
shall perform such other duties assigned from time to time by the
Chief Executive Officer.
Section 7. The Assistant Secretary or Secretaries, Assistant
Treasurer or Treasurer or Treasurers, and the Assistant Controller
or Controllers shall perform the duties of the Secretary, of the
Treasurer, and of the Controller, respectively, in the absence of
those officers and shall have such further authority and perform
such other duties as may be assigned.
ARTICLE IV.
Duties of Officers Delegated
In the absence or disability of any officer of this
corporation, the Board of Directors may delegate the powers and
duties of any such officer to any other officer or director of this
corporation for such period of time as said Board of Directors may
determine.
ARTICLE V.
Bonds
The Board of Directors or the Chief Executive Officer may
require any officer, agent, or employee of the corporation to
furnish the corporation a bond for the faithful performance of
duties and for the accounting of all moneys, securities, records,
or other property of the corporation coming into the hands of such
agent or employee.
ARTICLE VI.
Meetings of Stockholders
Section 1. Meetings of the stockholders of this corporation
shall be held at the place, either within or without the State of
Indiana, stated in the notice of said meeting.
Section 2. The annual meeting of stockholders of the
corporation shall be held on the last Friday in April of each year
or at such other time established for such meeting by 80% of the
directors.
Section 3. A complete list of the stockholders entitled to
vote at any stockholders' meeting, arranged in alphabetical order
and containing the address and number of shares of stock so held by
each stockholder who is entitled to vote at said meeting, shall be
prepared by the Secretary and shall be subject to the inspection by
any stockholder at the time and place of an annual meeting and at
the principal office of the corporation for five (5) days prior
thereto.
Section 4. At all stockholders' meetings a quorum shall
consist of a majority of all of the shares of stock outstanding and
entitled by the Articles of Incorporation to vote on the business
to be transacted at said meeting, but a meeting composed of less
than a quorum may adjourn the meeting from day to day thereafter or
until some future time.
Section 5. At the annual meeting of the stockholders, there
shall be elected, by plurality vote, a Board of Directors,
consisting of five (5) members, who shall hold office until the
next annual meeting of stockholders and until their successors have
been elected and qualified.
Section 6. At all stockholders' meetings, each stockholder
shall be entitled to one (1) vote in person or by proxy for each
share of common stock registered in the stockholder s name on the
books of the corporation as of the record date which shall be as
fixed by the Board of Directors and entitled, by the Articles of
Incorporation, to vote on the business to be transacted at said
meeting.
Section 7. The stockholders may be represented at any meeting
thereof by their duly appointed Attorney-in-Fact provided the proxy
so appointing said Attorney-in-Fact shall be filed with the
Secretary prior to the meeting.
Section 8. Special meetings of the stockholders of this
corporation may be called by the Chairman of the Board, by the
President, by the Board of Directors, or by the stockholders
holding not less than one-fourth of all of the shares of stock
outstanding and entitled, by the Articles of Incorporation, to vote
on the business to be transacted at said special meeting whenever
in the opinion of such person or body such meeting is necessary.
Whenever a special meeting of the stockholders shall be called
by the stockholders, the call shall be delivered to the Secretary
who shall issue the notice of said special meeting which is
required to be given.
Section 9. Written notice of each meeting of the stockholders
shall be given by the Secretary to each stockholder of record at
least ten (10) days prior to the time fixed for the holding of such
meeting; said notice shall state the place, day and hour and the
purpose for which said meeting is called, and said notice shall be
addressed to the last known place of residence of each stockholder
as shown by the stock books of this corporation. The ten (10) days
shall be computed from the date upon which said notice is deposited
in the mails.
Section 10. Notice of any stockholders' meeting may be waived
in writing by any stockholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting is
called and the time and place thereof.
Section 11. No shares of stock shall be voted at any annual
or special meeting of stockholders upon which any installment is
due and unpaid, which are owned by this corporation or which have
been transferred within ten (10) days before the date fixed for
said meeting.
ARTICLE VII.
Directors
Section 1. The property and business affairs of this
corporation shall be managed and controlled by a Board of Directors
consisting of five (5) members, who shall be elected at the annual
or a special meeting of the stockholders and shall hold office for
a term of one year and until their successors are elected and
qualified. In case of the failure to hold the annual meeting on
the date fixed herein for the same to be held, the directors shall
hold over until the next annual meeting, unless prior to said
meeting a special meeting of the stockholders for the purpose of
electing directors has been held.
Section 2. Any vacancy occurring in the Board of Directors
caused by resignation, death or other incapacity, shall be filled
by majority vote of the remaining members of the Board until the
next annual meeting of stockholders; provided, however, that if the
vote of the remaining members of the Board of Directors shall
result in a tie, such vacancy shall be filled by the stockholders
at the next annual meeting of the stockholders or at a special
meeting of the stockholders called for that purpose.
Section 3. Any vacancy occurring in the Board of Directors,
caused by an increase in the number of directors, shall be filled
by a majority vote of the members of the Board until the next
annual meeting of stockholders; provided, however, that if the vote
of the members of the Board of Directors shall result in a tie,
such vacancy shall be filled by the stockholders at the next annual
meeting of the stockholders or at a special meeting of the
stockholders called for that purpose.
Section 4. A person shall not be nominated, stand for
election or be elected as a director of this corporation who (i)
at the time of his election shall be seventy (70) years of age or
older, (ii) has retired from employment by this corporation and is
sixty-five (65) years of age or older or (iii) has retired from
active business and professional vocations; provided, however, that
Edward J. Mooney shall not be required to qualify under this
provision to be eligible to be nominated, stand for election or be
elected as a director of this corporation at any subsequent
election.
ARTICLE VIII.
Meetings of Directors
Section 1. Following the annual meeting of stockholders, the
annual meeting of the Board of Directors shall be held without
notice, each and every year hereafter, at the time and place
determined by the directors.
Section 2. Regular meetings of the Board of Directors shall
be held without notice at 9:00 A.M. on the last Friday of February,
June, August, October and December at the offices of the
corporation, unless another time and place is designated.
Section 3. Special meetings of the Board of Directors may be
called by the Chairman of the Board, by the President, or by three
(3) members of the Board of Directors on three (3) days' notice by
mail, or on twenty-four (24) hours' notice by telegraph to each
director, which notice shall be addressed to the last known place
of residence of each director, and said meetings may be held either
at the office of the corporation or at such other place as may be
designated in the notice of said meeting.
Whenever a special meeting of the Board of Directors shall be
called, in accordance with the provisions of this section, by
members of the Board of Directors, the call shall be in writing,
signed by said directors and delivered to the Secretary who shall
thereupon issue the notice calling said meeting.
Section 4. Not less than one-half of the whole Board of
Directors, shall constitute a quorum for the transaction of any
business except the filling of vacancies, but a smaller number may
adjourn, from time to time, until a future date or until a quorum
is secured.
For the purpose only of filling a vacancy or vacancies in the
Board of Directors, a quorum shall consist of a majority of the
whole Board of Directors, less the vacancy or vacancies therein.
The act of a majority of the directors present at a meeting,
duly called, at which a quorum is present shall be the act of the
Board of Directors.
ARTICLE IX.
Powers of Directors
Section 1. The Board of Directors shall have, in addition to
such powers as are hereinafter expressly conferred upon it, all
such powers as may be exercised by the corporation, subject to the
provisions of the statutes of the State of Indiana, the Articles of
Incorporation and these bylaws and subject to such further
regulations as may, from time to time, be made by the stockholders.
Section 2. The Board of Directors shall have express power:
(a) To purchase or otherwise acquire property, rights,
or privileges for the corporation, which the
corporation has power to take, on such terms as the
Board may deem proper.
(b) To pay for the property, rights, or privileges
acquired by this corporation, in whole or in part,
with money, stock, bonds, debentures or other
securities of this corporation or with other
property owned by it.
(c) To create, make and issue mortgages, bonds,
debentures, deeds of trust, trust agreements
and negotiable transferable instruments and
securities, secured by mortgages or otherwise,
and to do every other act and thing necessary
to effectuate the same.
(d) To appoint agents, clerks, assistants,
factors, servants and trustees and to dismiss
them at its discretion; to fix their duties
and emoluments and to change them from time to
time; and to require security as it may deem
proper; but in the absence of action by the
Board of Directors, the employment and
discharge of employees and the fixing of their
compensation shall be done by the officer of
this corporation under whom said employees
work.
(e) To confer on any officer of the corporation
the power of selecting, discharging or
suspending any of such employees.
(f) To determine by whom and in what manner the
corporation's bills, notes and receipts,
acceptances, endorsements, checks, releases,
contracts or other documents shall be signed
when said matter is not covered by these
Bylaws or any amendments thereto.
(g) To fix the compensation of officers, directors
and members of committees who are not salaried
employees of this corporation.
(h) To fix and determine the price at which and
the consideration for which the shares of
stock of this corporation may, from time to
time, be issued.
(I) To remove or suspend, with or without cause,
any officer of the corporation at any time.
ARTICLE X.
Compensation of Directors and
Members of Committees
The members of the Board of Directors and members of
committees of this corporation, who are not salaried employees of
this corporation, shall receive such compensation for their
services to be rendered as members of the Board of Directors, or of
committees as may, from time to time, be fixed by the Board of
Directors and the compensation so fixed shall continue to be
payable until the Board of Directors shall have thereafter fixed a
different compensation, which it may do at any annual, regular or
special meeting.
ARTICLE XI.
Certificates of Stock
Section 1. Certificates of stock shall be issued to those
legally entitled thereto, as may be shown by the books of this
corporation, and shall be signed by the President and attested by
the Secretary.
Section 2. The corporation may appoint one or more transfer
agents and/or registrars to issue, countersign, register, and
transfer certificates representing its capital stock and signatures
of the corporation's officers and of the transfer agents on stock
certificates may be facsimiles. Upon surrender to the corporation
or the transfer agent of the corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the
transaction on its books.
Section 3. The holder of any stock of the corporation shall
immediately notify the corporation of any loss, theft, destruction
or mutilation of the certificate for any such stock. A new
certificate or certificates shall be issued upon the surrender of
the mutilated certificate or, in case of loss, theft, or
destruction, upon (i) delivery of an affidavit or affirmation, and
(ii) delivery of a bond in such sum and in such form and with such
surety or sureties as the Board of Directors (by general or
specific resolutions) or the President may approve, indemnifying
the corporation against any claim with respect to the certificate
or certificates alleged to have been lost, stolen or destroyed.
However, the Board may, in its discretion, refuse to issue new
certificate or certificates, save upon the order of some Court
having jurisdiction in such matters.
ARTICLE XII.
Transfer of Stock
Section 1. The stock transfer books of the corporation may
from time to time be closed by order of the Board of Directors for
any lawful purpose and for such period consistent with law, but not
exceeding thirty (30) days at any one time, as the Board of
Directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the Board of Directors may, in its
discretion, fix in advance a date not exceeding fifty (50) days or
less than ten (10) days next preceding the date of any meeting of
stockholders or the date for the payment of any dividend or the
date for the allotment of rights or the date when any change or
conversion or exchange of capital stock shall go into effect, as
the record date for the determination of the stockholders entitled
to notice of and to vote at any such meeting or entitled to receive
any such dividend or to any such allotment of rights or to exercise
the rights of any such change, conversion or exchange of capital
stock; and, in such case, only such stockholders as shall be
stockholders of record at the close of business on the date so
fixed shall be entitled to notice of and to vote at such meeting or
to receive such payment of dividend or to receive such allotment of
rights or to exercise such rights as the case may be,
notwithstanding any transfer of stock on the books of the
corporation after such record date fixed as aforesaid. In the
event the Board of Directors fails to fix in advance the record
date for the determination of the stockholders entitled to notice
of and to vote at any meeting, no share of stock transferred on the
books of the corporation within ten (10) days next preceding the
date of a meeting shall be voted at such meeting.
Section 2. The corporation shall be entitled to treat the
holder of record of any share or shares of stock as the legal owner
thereof and accordingly shall not be bound to recognize any
equitable claim to or interest in such share or shares on the part
of any other person whether or not it shall have express or other
notice thereof, save as expressly provided in the laws of the State
of Indiana.
Section 3. The assignment of any certificate of stock shall
constitute an assignment to the assignee of the shares so assigned
and of all dividends on the shares assigned which are declared
payable as of a record date subsequent to the date the assignment
is recorded on the stock record books of the corporation.
ARTICLE XIII.
Fiscal Year
Effective January 1, 1990, the fiscal year of this corporation
shall correspond to the calendar year.
ARTICLE XIV.
Checks for Money
All checks, drafts or other orders for the payment of funds of
this corporation shall be signed by either the Chairman of the
Board, the President, or the Treasurer, or by such other individual
or individuals as may hereafter, from time to time, be designated
by the Board of Directors. No check, draft or other order for the
payment of funds of this corporation shall be signed in blank,
either as to the amount of the check, draft or other order, or as
to the name of the payee.
ARTICLE XV.
Dividends
The Board of Directors may declare and pay dividends out of
the unreserved and unrestricted earned surplus of this corporation.
Dividends may be declared at any annual, regular or special meeting
of the Board of Directors. Dividends may be paid in cash, in
property or in the shares of the capital stock of this corporation,
as provided by the Articles of Incorporation and the laws of the
State of Indiana.
ARTICLE XVI.
Notices
Section 1. A notice required to be given under the provisions
of these bylaws to any stockholder, director, officer and member of
any committee shall not be construed to mean personal notice but
may be given in writing by depositing the same in a post office or
letter box in a postpaid sealed wrapper addressed to such
stockholder, director, officer and member of any committee at such
address as appears upon the books of the corporation, and such
notice shall be deemed to be given at the time when the same shall
be thus mailed.
Section 2. Any stockholder, director, officer and member of
any committee may waive, in writing, any notice required to be
given by these bylaws, either before or after the time said notice
should have been issued.
ARTICLE XVII.
Compensation of Officers
The officers of this corporation shall receive such
compensation for their services as may, from time to time, be fixed
by the Board of Directors, and the compensation so fixed shall
continue to be payable until the Board of Directors shall have
fixed a different compensation, which it may do at any annual,
regular, or special meeting.
ARTICLE XVIII.
Corporate Seal
The seal of this corporation shall be a plain circular disk
having engraved thereon, near the outer edge thereof, at least the
words, "CTS Corporation" and in the center thereof the word,
"Seal".
ARTICLE XIX.
Indemnification
Section 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 person who was or is a party, or is
threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, by
reason of the fact that such person 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 expenses (including
counsel fees), judgments, settlements, penalties and fines
(including excise taxes assessed with respect to employee benefit
plans) actually or reasonably incurred by him in accordance with
such action, suit or proceeding, if such person acted in good faith
and in a manner such person reasonably believed, in the case of
conduct in such person s official capacity, was in the best
interest 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 proceeding, such person either had
reasonable cause to believe the conduct was lawful or no reasonable
cause to believe the conduct was unlawful. 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 2. AUTHORIZATION OF INDEMNIFICATION. To the extent
that a director, officer, employee or agent of the corporation has
been successful, on the merits or otherwise, in the defense of any
action, suit or proceeding referred to in Section 1 of this
Article, or in the defense of any claim, issue or matter therein,
the corporation shall indemnify such person against expenses
(including counsel fees) actually and reasonably incurred by such
person in connection therewith. Any other indemnification under
Section 1 of this Article (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case, upon a
determination that indemnification of the director, officer,
employee or agent is permissible in the circumstances because such
director, officer, employee or agent has met the applicable
standard of conduct. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of
directors who were not 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 (in which selection directors who are parties may
participate); 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 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 subsection (3) to select
counsel.
Section 3. GOOD FAITH DEFINED. For purposes of any
determination under Section 1 of this Article XIX, 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 1 if such
person s action is based on information, opinions, reports, or
statements, including financial statements and other financial
data, if prepared or presented by (1) one or more officers or
employees of the corporation or another enterprise whom such person
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 such person reasonably believes
the committee merits confidence. The term "another enterprise" as
used in this Section 3 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other
enterprise of which such 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 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 1 of this Article XIX.
Section 4. PAYMENT OF EXPENSES IN ADVANCE. 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 2 of
this Article, upon receipt of a written affirmation of the
director, officer, employee or agent's good faith belief that such
person has met the standard of conduct described in Section 1 of
this Article and upon receipt of a written undertaking by or on
behalf of the director, officer, employee or agent to repay such
amount if it shall ultimately be determined that such person did
not meet the standard of conduct set forth in this Article XIX, and
a determination is made that the facts then known to those making
the determination would not preclude indemnification under this
Article XIX.
Section 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, any other bylaw, 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 such person s 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. 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 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 bylaws.
Notwithstanding the foregoing, the indemnification afforded under
this 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 XIX, 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 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 under this Article.
Section 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 such person reasonably believed to be in the best
interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "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.
Section 9. PAYMENTS A BUSINESS EXPENSE. Any payments made to
any indemnified party under these bylaws 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 XX.
Amendments
Section 1. These bylaws may be amended, altered, repealed, or
added to at any annual or regular meeting of the directors, or at
any special meeting thereof.
Section 2. No amendment, alteration or addition to these
bylaws shall become effective unless the same is adopted by the
affirmative vote of two-thirds (2/3) of the members of the Board of
Directors of this corporation.
ARTICLE XXI.
Control Share Acquisitions
As provided for in Section 5 thereof, Chapter 42 of the
Indiana Business Corporation Law, shall not apply to control share
acquisitions of shares of the corporation made after March 3, 1987.
