SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
Quarterly report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 for the quarterly period ended January 31, 2000 or
Transition report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from _________ to
_________.
Commission File No. 0-9143
HURCO COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Indiana 35-1150732
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
One Technology Way
Indianapolis, Indiana 46268
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (317) 293-5309
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months, and (2) has been subject to the filing
requirements for the past 90 days:
Yes X No
The number of shares of the Registrant's common stock outstanding as of March 6,
2000 was 5,951,859.
<PAGE>
HURCO COMPANIES, INC.
January 1999 Form 10-Q Quarterly Report
Table of Contents
Part I - Financial Information
<TABLE>
Page
<S> <C>
Item 1. Condensed Financial Statements
Condensed Consolidated Statement of Operations -
Three months ended January 31, 2000 and 1999.......................... 3
Condensed Consolidated Balance Sheet -
As of January 31, 2000 and October 31, 1999........................... 4
Condensed Consolidated Statement of Cash Flows -
Three months ended January 31, 2000 and 1999.......................... 5
Consolidated Statements of Changes in Shareholders' Equity
Three months ended January 31, 2000 and 1999.......................... 6
Notes to Condensed Consolidated Financial Statements...................... 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations....................................... 9
Item 3. Quantitative and Qualitative Disclosures About Market Risk................ 11
Part II - Other Information
Item 1. Legal Proceedings......................................................... 12
Item 5. Other Matters............................................................. 12
Item 6. Exhibits and Reports on Form 8-K.......................................... 12
Signatures.............................................................................. 13
</TABLE>
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. CONDENSED FINANCIAL STATEMENTS
HURCO COMPANIES, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(In thousands, except per share data)
<TABLE>
Three Months Ended January 31,
2000 1999
- --------------------------------------------------------------------------------------------------------------------
(Unaudited)
<S> <C> <C>
Sales and service fees..................................................... $24,524 $21,147
Cost of sales and service.................................................. 17,803 15,143
Gross profit.......................................................... 6,721 6,004
Selling, general and administrative expenses............................... 5,820 5,335
Operating income...................................................... 901 669
Interest expense........................................................... 292 300
Other income (expense), net................................................ 17 45
Income before income taxes............................................ 626 414
Provision for income taxes................................................. 167 239
Net income................................................................. $ 459 $175
Earnings per common share
Basic................................................................. $.08 $.03
Diluted............................................................... $.08 $.03
Weighted average common shares outstanding
Basic................................................................. 5,952 6,074
Diluted............................................................... 6,008 6,172
The accompanying notes are an integral part of the condensed consolidated financial statements.
</TABLE>
<PAGE>
HURCO COMPANIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEET
(Dollars in thousands)
<TABLE>
January 31, October 31,
2000 1999
ASSETS (Unaudited) (Audited)
<S> <C> <C>
Current assets:
Cash and cash equivalents........................................... $ 4,172 $ 3,495
Accounts receivable................................................. 15,251 17,154
Inventories......................................................... 27,377 30,767
Other............................................................... 1,567 1,440
Total current assets............................................ 48,367 52,856
Property and equipment:
Land ............................................................ 761 761
Building............................................................ 7,168 7,168
Machinery and equipment............................................. 11,247 11,182
Leasehold improvements.............................................. 1,002 1,005
Less accumulated depreciation and amortization.................. (11,346) (11,165)
8,832 8,951
Software development costs, less amortization............................ 3,778 3,951
Other assets ............................................................ 3,946 3,874
$ 64,923 $ 69,632
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable.................................................... $ 9,897 $ 10,891
Accrued expenses.................................................... 7,237 6,903
Current portion of long-term debt.................................. 1,786 1,786
Total current liabilities....................................... 18,920 19,580
Non-current liabilities:
Long-term debt...................................................... 8,500 12,386
Deferred credits and other obligations.............................. 1,406 1,518
Total non-current liabilities................................ 9,906 13,904
Shareholders' equity:
Preferred stock: no par value per share; 1,000,000
shares authorized; no shares issued............................... -- --
Common stock: no par value; $.10 stated value per
share; 12,500,000 shares authorized; 5,951,859
and 5,951,859 shares issued and outstanding, respectively ...... 595 595
Additional paid-in capital.......................................... 46,340 46,340
Accumulated deficit................................................. (4,889) (5,348)
Foreign currency translation adjustment............................. (5,949) (5,439)
Total shareholders' equity...................................... 36,097 36,148
$ 64,923 $ 69,632
The accompanying notes are an integral part of the condensed consolidated financial statements.
</TABLE>
<PAGE>
HURCO COMPANIES, INC.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Dollars in thousands)
<TABLE>
Three Months Ended January 31,
2000 1999
(Unaudited)
Cash flows from operating activities:
<S> <C> <C>
Net income.................................................................. $ 459 $ 175
Adjustments to reconcile net income to net
cash provided by (used for) operating activities:
Depreciation and amortization............................................. 534 534
Change in assets and liabilities:
(Increase) decrease in accounts receivable.............................. 1,668 2,969
(Increase) decrease in inventories...................................... 2,873 (2,007)
Increase (decrease) in accounts payable................................. (980) (4,071)
Increase (decrease) in accrued expenses................................. 375 (1,046)
Other................................................................... 93 436
Net cash provided by (used for) operating activities.................... 5,022 (3,010)
Cash flows from investing activities:
Proceeds from sale of equipment............................................. 28 17
Purchases of property and equipment......................................... (208) (250)
Software development costs.................................................. (176) (226)
Other....................................................................... -- (162)
Net cash provided by (used for) investing activities.................... (356) (621)
Cash flows from financing activities:
Advances on bank credit facilities.......................................... 6,450 15,451
Repayment on bank credit facilities......................................... (8,550) (8,300)
Repayments of term debt..................................................... (1,786) (1,786)
Purchase of common stock.................................................... -- (2,379)
Proceeds from exercise of common stock options.............................. -- 2
Net cash provided by (used for) financing activities.................... (3,886) 2,988
Effect of exchange rate changes on cash.......................................... (105) (19)
Net increase (decrease) in cash......................................... 675 (662)
Cash and cash equivalents at beginning of period................................. 3,497 3,276
Cash and cash equivalents at end of period....................................... $ 4,172 $ 2,614
The accompanying notes are an integral part of the condensed consolidated financial statements.
</TABLE>
<PAGE>
HURCO COMPANIES, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
For the Three Months Ended January 31, 2000 and 1999
<TABLE>
Accumulated
Other
Comprehensive
Common Stock Income:
------------------------- Foreign
Shares Additional Currency
Issued & Paid-In Accumulated Translation
Outstanding Amount Capital Deficit Adjustment Total
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Balances, October 31, 1998 6,340,111 $634 $48,662 $(7,150) $(4,406) $37,740
Net income....................... -- -- -- 175 -- 175
Translation of foreign currency
financial statements........... -- -- -- -- -- (390)
Comprehensive income (loss)...... (215)
Exercise of Common Stock Options. 1,000 -- 2 -- -- 2
Purchase of Common Stock......... (395,752) (39) (2,340) -- -- (2,379)
Balances, January 31, 1999 5,945,359 $595 $46,324 $ (6,975) $(4,796) $35,148
Balances, October 31, 1999 5,951,859 $595 $46,340 $ (5,348) $(5,439) $36,148
Net income....................... -- -- -- 459 -- 459
Translation of foreign currency
Comprehensive income (loss)...... (51)
Exercise of Common Stock Options. -- -- -- -- -- --
Balances, January 31, 2000 5,951,859 $595 $46,340 $(4,889) $(5,949) $36,097
The accompanying notes are an integral part of the condensed consolidated financial statements.
</TABLE>
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. GENERAL
The unaudited Condensed Consolidated Financial Statements include the accounts
of Hurco Companies, Inc. and its consolidated subsidiaries. We are an industrial
automation company that designs and produces interactive computer controls,
software and computerized machine systems for the worldwide metal cutting and
metal forming industries.
The condensed financial information as of January 31, 2000 and 1999 is unaudited
but includes all adjustments which we consider necessary for a fair presentation
of our financial position at those dates and our results of operations and cash
flows for the three months then ended. We suggest you read these condensed
financial statements in conjunction with the financial statements and the notes
thereto included in our Annual Report on Form 10-K for the year ended October
31, 1999.
2. HEDGING
We hedge our exposure to fluctuations in foreign currency exchange rates by
using foreign currency forward exchange contracts. The U.S. dollar equivalent
notional amount of outstanding foreign currency forward exchange contracts was
approximately $3.7 million as of January 31, 2000 ($2.2 million related to firm
intercompany sales commitments) and $4.5 million as of October 31, 1999 ($2.1
million related to firm intercompany sales commitments). Deferred losses related
to hedges of future sales transactions were approximately $100,000 and $48,000
as of January 31, 2000 and October 31, 1999, respectively. Contracts outstanding
at January 31, 2000 mature at various times through February 2000.
3. EARNINGS PER SHARE
Basic and diluted earnings per common share are based on the weighted average
number of our shares of common stock outstanding. Diluted earnings per common
share give effect to outstanding stock options using the treasury method. Common
stock equivalents totaled approximately 56,000 shares as of January 31, 2000.
4. ACCOUNTS RECEIVABLE
The allowance for doubtful accounts was $702,000 as of January 31, 2000 and
$687,000 as of October 31, 1999.
5. INVENTORIES
Inventories, reflected at the lower of cost (first-in, first-out method) or
market are summarized below (in thousands):
<TABLE>
January 31, 2000 October 31, 1999
<S> <C> <C>
Purchased parts and sub-assemblies $ 9,352 $ 9,104
Work-in-process 952 1,070
Finished goods 17,073 20,593
$ 27,377 $ 30,767
</TABLE>
<PAGE>
6. TAX CONTINGENCY
A German tax examiner has contested the transfer of net operating losses between
two of our German subsidiaries that merged in fiscal 1996. The contingent tax
liability resulting from this issue is approximately $1.4 million. We have
protested this matter and have not yet received a ruling from the German tax
authorities on the tax examiner's finding and our protest. In the event an
unfavorable ruling is received from the German tax authorities, we will consider
whether to appeal to the German Federal Tax Court. No provision for the
contingency has been recorded.
7. SEGMENT INFORMATION
We operate in a single segment: industrial automation systems. We design and
produce interactive computer control systems and software and computerized
machine systems for sale through our own distribution network to the worldwide
metal working market. We also provide software options, computer control
upgrades, accessories and replacement parts for our products, as well as
customer service and training support.
Substantially all of our machine systems and computer control systems are
manufactured to our specifications by contract manufacturing companies in Taiwan
and Europe. Our executive offices and principal design, engineering and
manufacturing management operations are headquartered in Indianapolis, Indiana.
We sell our products through over 240 independent agents and distributors in 45
countries throughout North America, Europe and Asia. We also have our own direct
sales and service organizations in the United States, England, France, Germany,
Italy and Singapore, which are considered to be among the world's principal
computerized machine system consuming countries.
8. RESTRUCTURING CHARGE
In fiscal 1998, we recorded a reserve for anticipated costs associated with the
restructuring of a subsidiary to convert its operations from manufacturing
computer controls to sales and service of computerized machine systems. At
January 31, 2000, the restructuring reserve balance was $357,326 and consisted
of the following:
<TABLE>
Balance Charges to Balance
Description 10/31/99 Accrual Adjustment 1/31/00
<S> <C> <C> <C> <C>
Excess Building Capacity $285,899 -- -- $285,899
Equipment Leases 77,379 5,952 -- 71,427
$363,278 $ 5,952 $ -- $357,326
</TABLE>
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Condensed
Consolidated Financial Statements and Notes thereto appearing elsewhere herein.
Certain statements made in this report may constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Such forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause our actual results, performance
or achievements or the machine tool industry to be materially different from any
future results, performance or achievements expressed or implied by such
forward-looking statements. Such factors include, among others, (i) changes in
general economic and business conditions that affect demand for Computer Numeric
Control (CNC) systems, machine tools and software products, (ii) changes in
manufacturing markets, (iii) innovations by competitors, (iv) quality and
delivery performance by our contract manufacturers and (v) governmental actions
and initiatives including import and export restrictions and tariffs.
RESULTS OF OPERATIONS
Sales and service fees for the first quarter of fiscal 2000 were $24.5 million,
approximately 16% higher than those recorded in the corresponding 1999 period,
in spite of the unfavorable effects of a stronger U.S. dollar when translating
sales made in foreign currencies. At constant exchange rates, net sales for the
quarter would have been $25.9 million, an increase of approximately $4.8
million, or 23%. The increase was attributable primarily to shipments of
computerized machine systems, which benefited from improved order rates in the
U.S. and Southeast Asia and improved availability of new products for shipment
in Europe. Computerized machine system shipments in the U.S., which included a
higher percentage of larger model machines in the total sales mix, increased
approximately $1.9 million, or 43%. Shipments in Southeast Asia increased
approximately $900,000 or 360%, reflecting improved market conditions. In
Europe, computerized machine system shipments increased approximately $1.7
million, or 16%, when measured at constant exchange rates, due to improved
availability of our new models for shipment and a corresponding reduction in
backlog.
New order bookings for the first quarter of fiscal 2000 were $23.2 million,
compared to $24.8 million for the corresponding 1999 period, a decrease of 6.5%.
When measured at constant exchange rates, however, new orders were only slightly
below the fiscal 1999 level. Orders for computerized machine systems in the U.S.
increased approximately $1.1 million, or 21%. In Southeast Asia, orders for
these products increased $1.4 million, almost seven times the amount booked in
the first quarter of fiscal 1999. Orders for computerized machine systems in
Europe decreased $2.8 million in constant dollars, primarily in Germany and
France where demand had been unusually strong a year ago following our
introduction of new products. Backlog was $6.8 million at January 31, 2000,
compared to $8.5 million at October 31, 1999.
Gross profit as a percentage of sales was 27.4% compared to 28.4% for the first
quarter of fiscal 1999, due primarily to unfavorable foreign currency
translation effects.
Operating expenses in the first quarter of fiscal 2000
increased $485,000, or 9.1%. The latest fiscal quarter included planned
expenditures for the establishment of direct sales operations in Italy and
certain parts of the United States.
<PAGE>
Foreign Currency Risk Management
We seek to manage our foreign currency exposure through the use of foreign
currency forward exchange contracts. We do not speculate in the financial
markets and, therefore, do not enter into these contracts for trading
purposes. We also endeavor to moderate our currency risk related to
significant purchase commitments with certain foreign vendors through price
adjustment agreements that provide for a sharing of, or otherwise limit,
the potential adverse effect of currency fluctuations on the costs of
purchased products. The results of these programs achieved our objectives for
the first quarter of fiscal 2000. See Note 2 to the Condensed Consolidated
Financial Statements.
LIQUIDITY AND CAPITAL RESOURCES
At January 31, 2000, we had cash and cash equivalents of $4.2 million compared
to $3.5 million at October 31, 1999. Cash provided by operations totaled $5.0
million in the first quarter of fiscal 2000, compared to $3.0 million used for
operations in the same period of fiscal 1999. The cash flow provided by
operations resulted in a $3.9 million reduction in long-term debt during the
first quarter of fiscal 2000.
Net working capital was $29.4 million at January 31, 2000, compared to $33.3
million at October 31, 1999. The decline is attributable to a decrease in
inventory of $2.9 million and a decrease in accounts receivable of $1.7 million
offset by a $1.0 million decrease in accounts payable.
The decrease in inventories, which relates primarily to a reduction in finished
products available for shipment, is attributable to a planned decrease in
production by our contract manufacturers, combined with our increased shipments
in the first quarter of fiscal 2000.
The decrease in accounts receivable is attributable to the timing of shipments
in the fourth quarter of fiscal 1999 combined with a reduction in the average
age of our receivables from 55 days at October 31, 1999 to 53 days at January
31, 2000.
Capital investments in the first quarter consisted principally of expenditures
for software development projects and purchases of equipment. Cash used for
investing activities during the quarter was derived from operations.
The Company was in compliance with all loan covenants at January 31, 2000. We
believe that anticipated cash flow from operations and available borrowings
under credit facilities will be sufficient to meet our anticipated cash
requirements in the foreseeable future.
<PAGE>
Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Interest Rate Risk
Interest on our bank borrowings is affected by changes in prevailing U.S. and
European interest rates and/or Libor. The interest rates on the Libor portion of
our bank credit facilities are based upon a ratio of total indebtedness to cash
flow for the preceding twelve month period and are payable at Libor plus an
amount ranging from 1.0% to 2.0% based upon a prescribed formula. At January 31,
2000, outstanding borrowings under our bank credit facilities were $8.5 million
and our total indebtedness was $10.3 million. The interest rate on the Libor
portion of our bank debt was Libor plus 1.5%.
Foreign Currency Exchange Risk
A significant portion of our products is sourced from foreign suppliers or built
to our specifications by contract manufacturers overseas. Our arrangements with
those suppliers typically include foreign currency risk sharing agreements,
which reduce the effects of currency fluctuations on product cost. The
predominant portion of our exchange rate risk associated with product purchases
relates to the New Taiwan Dollar.
During the first quarter of fiscal 2000, approximately 58.0% of our sales and
service fees, including export sales, were derived from foreign markets. All of
our computerized machine systems and computer numerical control systems, as well
as certain proprietary service parts, are sourced by our U.S.-based engineering
and manufacturing division and re-invoiced to our foreign sales and service
subsidiaries, primarily in their functional currencies. We enter into forward
foreign exchange contracts from time to time to hedge the cash flow risk related
to inter-company sales and inter-company accounts receivable in foreign
currencies. We do not speculate in the financial markets and, therefore, do not
enter into these contracts for trading purposes.
Forward contracts for the sale of foreign currencies as of January 31, 2000 were
as follows:
<TABLE>
Weighted
Notional Amount Avg. Notional
Forward Contracts in Foreign Forward Amount in Market Value
Currency Rate U.S. $ in US$ Maturity Dates
<S> <C> <C> <C> <C> <C>
Sterling 1,760,000 1.6063 2,827,088 2,843,280 February 2000
Euro 876,000 .9885 865,926 850,158 February 2000
</TABLE>
<PAGE>
PART II - OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
There have been no material developments in the IMS infringement litigation
except as described in our Annual Report on Form 10-K for the year ended October
31, 1999.
We are involved in various other claims and lawsuits arising in the ordinary
course of business, none of which, in the opinion of management, is expected to
have a material adverse effect on our consolidated financial position or results
of operations.
Item 5. OTHER MATTERS
On March 14, 2000, the Board of Directors approved Amended and Restated By-laws,
a copy of which is included as Exhibit 3.2 to this report. The only substantive
changes in the By-laws were to delete a provision which had made two provisions
of the Indiana Business Corporation Law inapplicable to the Company and to
increase the number of shares which may call a special meeting of shareholders
from 25% to a majority. The two provisions, Ind. Code Sections 23-1-42 (the
"Control Share" chapter) and 23-1-43 (the "Business Combination" chapter),
provide protections to Indiana corporations against certain unsolicited
takeover offers. As a result of the Board's action, these statutory
takeover protections will now apply to the Company.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
3.2 Amended and Restated By-Laws of the Registrant dated March 14, 2000
11 Statement re: Computation of Per Share Earnings
27 Financial Data Schedule (electronic filing only)
(b) Reports on Form 8-K: None
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HURCO COMPANIES, INC.
By: /s/ Roger J. Wolf
Roger J. Wolf
Senior Vice President and
Chief Financial Officer
By: /s/ Stephen J. Alesia
Stephen J. Alesia
Corporate Controller and
Principal Accounting Officer
March 15, 2000
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS OF THE REGISTRANT
DATED MARCH 14, 2000
<PAGE>
AMENDED AND RESTATED
BY-LAWS
OF
HURCO COMPANIES, INC.
AS AMENDED THROUGH MARCH 14, 2000
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Identification
Section 1. Name
Section 2. Registered Office and Registered Agent
Section 3. Principal Office
Section 4. Other Offices
Section 5. Seal
Section 6. Fiscal Year
ARTICLE II
Shareholders
Section 1. Place of Meeting
Section 2. Annual Meetings
Section 3. Special Meetings
Section 4. Notice of Meeting
Section 5. Waiver of Notice
Section 6. Voting at Meetings
(a) Voting Rights
(b) Record Date
(c) Proxies
(d) Quorum
(e) Adjournments
Section 7. List of Shareholders
Section 8. Notice of Shareholder Business
Section 9. Notice of Shareholder Nominees
ARTICLE III
Directors
Section 1. Duties
Section 2. Number of Directors
Section 3. Election and Term
Section 4. Resignation
Section 5. Vacancies
Section 6. Annual Meetings
Section 7. Regular Meetings
Section 8. Special Meetings
Section 9. Notice
Section 10. Waiver of Notice
Section 11. Business to be Transacted
Section 12. Quorum -- Adjournment if Quorum is Not Present
Section 13. Presumption of Assent
Section 14. Action by Written Consent
Section 15. Committees
Section 16. Meeting by Telephone or Similar Communication Equipment
<PAGE>
ARTICLE IV
Officers
Section 1. Principal Officers
Section 2. Election and Terms
Section 3. Resignation and Removal
Section 4. Vacancies
Section 5. Powers and Duties of Officers
Section 6. Chairman of the Board
Section 7. The President
Section 8. Vice Presidents
Section 9. Secretary
Section 10. Treasurer
Section 11. The Controller
Section 12. Assistant Secretaries
Section 13. Assistant Treasurers
Section 14. Delegation of Authority
Section 15. Securities of Other Corporations
ARTICLE V
Directors' Services, Limitation of Liability
and Reliance on Corporate Records, and
Interest of Directors in Contracts
Section 1. Services
Section 2. General Limitation of Liability
Section 3. Reliance on Corporate Records and Other Information
Section 4. Interest of Directors in Contracts
ARTICLE VI
Indemnification
Section 1. Indemnification Against Underlying Liability
Section 2. Successful Defense
Section 3. Determination of Conduct
Section 4. Definition of Good Faith
Section 5. Payment of Expenses in Advance
Section 6. Indemnity Not Exclusive
Section 7. Vested Right to Indemnification
Section 8. Insurance
Section 9. Additional Definitions
Section 10. Payments a Business Expense
ARTICLE VII
Shares
Section 1. Share Certificates
Section 2. Transfer of Shares
Section 3. Transfer Agent
Section 4. Registered Holders
Section 5. Lost, Destroyed and Mutilated Certificates
Section 6. Consideration for Shares
Section 7. Payment for Shares
Section 8. Distributions to Shareholders
Section 9. Regulations
<PAGE>
ARTICLE VIII
Corporate Books and Reports
Section 1. Place of Keeping Corporate Books and Records
Section 2. Place of Keeping Certain Corporate Books and Records
Section 3. Permanent Records
Section 4. Shareholder Records
Section 5. Shareholder Rights of Inspection
Section 6. Additional Rights of Inspection
ARTICLE IX
Miscellaneous
Section 1. Notice and Waiver of Notice
Section 2. Depositories
Section 3. Signing of Checks, Notes, etc.
Section 4. Gender and Number
Section 5. Laws
Section 6. Headings
ARTICLE X
Amendments
ARTICLE XI
The Indiana Business Corporation Law
<PAGE>
BY-LAWS
OF
HURCO COMPANIES, INC.
ARTICLE I
Identification
Section 1. Name . The name of the Corporation is HURCO
COMPANIES, INC. (hereinafter referred to as the "Corporation").
Section 2. Registered Office and Registered Agent . The street
address of the Registered Office of the Corporation is One Technology Way,
Indianapolis, Indiana 46268; and the name of its Registered Agent located at
such office is Roger J. Wolf.
Section 3. Principal Office . The address of the Principal
Office of the Corporation is One Technology Way, Indianapolis, Indiana 46268.
The Principal Office of the Corporation shall be the principal executive offices
of the Corporation, and such Principal Office may be changed from time to time
by the Board of Directors in the manner provided by law and need not be the same
as the Registered Office of the Corporation.
Section 4. Other Offices . The Corporation may also have
offices at such other places or locations, within or without the State of
Indiana, as the Board of Directors may determine or the business of the
Corporation may require.
Section 5. Seal . The Corporation need not use a seal. If one
is used, it shall be circular in form and mounted upon a metal die suitable for
impressing the same upon paper. About the upper periphery of the seal shall
appear the words "HURCO COMPANIES, INC." and about the lower periphery thereof
the word "Indiana". In the center of the seal shall appear the word "Seal". The
seal may be altered by the Board of Directors at its pleasure and may be used by
causing it or a facsimile thereof to be impressed, affixed, printed or otherwise
reproduced.
Section 6. Fiscal Year . The fiscal year of the Corporation
shall begin at the beginning of the first day of November in each year and end
at the close of the last day of October next succeeding.
ARTICLE II
Shareholders
Section 1. Place of Meeting . All meetings of shareholders of
the Corporation shall be held at such place, within or without the State of
Indiana, as may be determined by the President or Board of Directors and
specified in the notices or waivers of notice thereof or proxies to represent
shareholders at such meetings.
Section 2. Annual Meetings . An annual meeting of shareholders
shall be held each year on such date and at such time as may be determined by
the President or Board of Directors. The failure to hold an annual meeting at
the designated time shall not affect the validity of any corporate action. Any
and all business of any nature or character may be transacted, and action may be
taken thereon, at any annual meeting, except as otherwise provided by law or by
these By-laws.
<PAGE>
Section 3. Special Meetings . A special meeting of
shareholders shall be held: (a) on call of the Board of Directors or the
President; or (b) if the holders of a majority of all the votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting
sign, date and deliver to the Secretary one (1) or more written demands for the
meeting describing the purpose or purposes for which it is to be held. At any
special meeting of the shareholders, only business within the purpose or
purposes described in the notice of the meeting may be conducted.
Section 4. Notice of Meeting . Written or printed notice
stating the date, time and place of a meeting and, in case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered or
mailed by the Secretary, or by the officers or persons calling the meeting, to
each shareholder of record of the Corporation entitled to vote at the meeting,
at such address as appears upon the records of the Corporation, no fewer than
ten (10) days nor more than sixty (60) days, before the meeting date. If mailed,
such notice shall be effective when mailed if correctly addressed to the
shareholder's address shown in the Corporation's current record of shareholders.
Section 5. Waiver of Notice . A shareholder may waive any
notice required by law, the Articles of Incorporation or these By-laws before or
after the date and time stated in the notice. The waiver by the shareholder
entitled to the notice must be in writing and be delivered to the Corporation
for inclusion in the minutes or filing with the corporate records. A
shareholder's attendance at a meeting, in person or by proxy: (a) waives
objection to lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting; and (b) waives objection to consideration
of a particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder objects to considering
the matter when it is presented.
Section 6. Voting at Meetings
(a) Voting Rights . At each meeting of the shareholders, each
outstanding share, regardless of class, is entitled to one (1) vote on each
matter voted on at such meeting, except to the extent cumulative voting is
allowed by the Articles of Incorporation. Only shares are entitled to vote.
(b) Record Date . The record date for purposes of determining
shareholders entitled to vote at any meeting shall be ten (10) days prior to the
date of such meeting or such different date not more than seventy (70) days
prior to such meeting as may be fixed by the Board of Directors.
(c) Proxies .
(1) A shareholder may vote the shareholder's
shares in person or by proxy.
(2) A shareholder may appoint a proxy to vote or
otherwise act for the shareholder by executing in writing an
appointment form, either personally or by the shareholder's
attorney-in-fact. For purposes of this Section, a proxy
appointed by telegram, telex, telecopy or other document
transmitted electronically for or by a shareholder shall be
deemed "executed in writing" by the shareholder.
<PAGE>
(3) An appointment of a proxy is effective when
received by the Secretary or other officer or agent authorized
to tabulate votes. An appointment is valid for eleven (11)
months, unless a longer period is expressly provided in the
appointment form.
(4) An appointment of a proxy is revocable by the
shareholder, unless the appointment form conspicuously states
that is irrevocable and the appointment is coupled with an
interest.
(d) Quorum . At all meetings of shareholders, a majority of
the votes entitled to be cast on a particular matter constitutes a quorum on
that matter. If a quorum exists, action on a matter (other than the election of
directors) is approved if the votes cast favoring the action exceed the votes
cast opposing the action, unless the Articles of Incorporation or law require a
greater number of affirmative votes.
(e) Adjournments . Any meeting of shareholders, including both
annual and special meetings and any adjournments thereof, may be adjourned to a
different date, time or place. Notice need not be given of the new date, time or
place if the new date, time or place is announced at the meeting before
adjournment, even though less than a quorum is present. At any such adjourned
meeting at which a quorum is present, in person or by proxy, any business may be
transacted which might have been transacted at the meeting as originally
notified or called.
Section 7. List of Shareholders .
(a) After a record date has been fixed for a meeting of
shareholders, the Secretary shall prepare or cause to be prepared an
alphabetical list of the names of the shareholders of the Corporation who are
entitled to vote at such meeting. The list shall show the address of and number
of shares held by each shareholder.
(b) The shareholders' list must be available for inspection by
any shareholder entitled to vote at the meeting, beginning five (5) business
days before the date of the meeting for which the list was prepared and
continuing through the meeting, at the Corporation's principal office or at a
place identified in the meeting notice in the city where the meeting will be
held. Subject to the restrictions of applicable law, a shareholder, or the
shareholder's agent or attorney authorized in writing, is entitled on written
demand to inspect and to copy the list during regular business hours and at the
shareholder's expense, during the period it is available for inspection.
<PAGE>
(c) The Corporation shall make the shareholders' list
available at the meeting, and any shareholder, or the shareholder's agent or
attorney authorized in writing, is entitled to inspect the list at any time
during the meeting or any adjournment.
Section 8. Notice of Shareholder Business . At an annual
meeting of the shareholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an
annual meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
shareholder. For business to be properly brought before an annual meeting by a
shareholder, the shareholder must have the legal right and authority to make the
proposal for consideration at the meeting and the shareholder must have given
timely notice thereof in writing to the Secretary of the Corporation. 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 60 days prior
to the meeting; provided, however, that in the event that less than 70 days'
notice or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made. A shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
record address of the shareholder(s) proposing such business, (c) the class and
shares of number of the Corporation's capital stock which are beneficially owned
by such shareholder(s), and (d) any material interest of such shareholder(s) in
such business. Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 8. The Chairman of an annual 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 provisions of
this Section 8, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted. At any special meeting of the shareholders, only such business
shall be conducted as shall have been brought before the meeting by or at the
direction of the Board of Directors.
Section 9. Notice of Shareholder Nominees . Only persons who
are nominated in accordance with the procedures set forth in this Section 9
shall be eligible for election as Directors. Nominations of persons for election
to the Board of Directors may be made at a meeting of shareholders by or at the
direction of the Board of Directors, by any nominating committee or person
appointed by the Board of Directors or by any shareholder of the Corporation
entitled to vote for the election of Directors at the meeting who complies with
the notice procedures set forth in this Section 9. Such nominations, other than
those made by or at the direction of the Board of Directors, 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 not less than 60 days prior
to the meeting; provided, however, that in the event that less than 70 days'
notice or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholders to be timely must be so received not
later than the close of business on the 10th day following the date on which
such notice of the date of the meeting was mailed or such public disclosure was
<PAGE>
made. Such shareholder's notice shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or re-election as a Director, (i)
the name, age, business address and residence address of such person; (ii) the
principal occupation or employment of such person, (iii) the class and number of
shares of capital stock of the Corporation which are beneficially owned by such
person, and (iv) any other 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 without limitation such person's
written consent to being named in the proxy statement as a nominee and to
serving as a Director if elected); and (b) as to the shareholder giving the
notice (i) the name and record address of such shareholder and (ii) the class
and number of shares of capital stock of the Corporation which are beneficially
owned by such shareholder. No person shall be eligible for election as a
Director of the Corporation unless nominated in accordance with the procedures
set forth in this Section 9. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not so
declared in accordance with the procedures prescribed by these By-Laws, and if
he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
ARTICLE III
Directors
Section 1. Duties . The business, property and affairs of the
Corporation shall be managed and controlled by the Board of Directors and,
subject to such restrictions, if any, as may be imposed by law, the Articles of
Incorporation or by these By-laws, the Board of Directors may, and are fully
authorized to, do all such lawful acts and things as may be done by the
Corporation which are not directed or required to be exercised or done by the
shareholders. Directors need not be residents of the State of Indiana or
shareholders of the Corporation.
Section 2. Number of Directors . The Board of Directors shall
consist of seven (7) members. The number of directors may be increased or
decreased from time to time by amendment to the By-laws of the Corporation,
provided that no decrease shall have the effect of shortening the term of an
incumbent director.
<PAGE>
Section 3. Election and Term . Except as otherwise provided in
Section 5 of this Article, the directors shall be elected each year at the
annual meeting of the shareholders, or at any special meeting of the
shareholders. Each such director shall hold office, unless he is removed in
accordance with the provisions of these By-laws or he resigns or dies or becomes
so incapacitated he can no longer perform any of his duties as a director, for
the term for which he is elected and until his successor shall have been elected
and qualified. Each director shall qualify by accepting his election to office
either expressly or by acting as a director. The shareholders or directors may
remove any director, with or without cause, and elect a successor at a meeting
called expressly for such purpose.
Section 4. Resignation . Any director may resign at any time
by delivering written notice to the Board of Directors, the President, or the
Secretary of the Corporation. A resignation is effective when the notice is
delivered unless the notice specifies a later effective date. The acceptance of
a resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
Section 5. Vacancies . Vacancies occurring in the membership
of the Board of Directors caused by resignation, death or other incapacity, or
increase in the number of directors shall be filled by a majority vote of the
remaining members of the Board, and each director so elected shall serve until
the next meeting of the shareholders, or until a successor shall have been duly
elected and qualified.
Section 6. Annual Meetings . The Board of Directors shall meet
annually, without notice, immediately following, and at the same place as, the
annual meeting of the shareholders.
Section 7. Regular Meetings . Regular meetings shall be held
at such times and places, either within or without the State of Indiana, as may
be determined by the Chairman of the Board, the President or the Board of
Directors.
Section 8. Special Meetings . Special meetings of the Board of
Directors may be called by the President or by two (2) or more members of the
Board of Directors, at any place within or without the State of Indiana, upon
twenty-four (24) hours' notice, specifying the time, place and general purposes
of the meeting, given to each director personally, by telephone, telegraph,
teletype, or other form of wire or wireless communication; or notice may be
given by mail if mailed at least three (3) days before such meeting.
Section 9. Notice . The Secretary or an Assistant Secretary
shall give notice of each special meeting, and of the date, time and place of
the particular meeting, in person or by mail, or by telephone, telegraph,
teletype, or other form of wire or wireless communication, and in the event of
the absence of the Secretary or an Assistant Secretary or the failure,
inability, refusal or omission on the part of the Secretary or an Assistant
Secretary so to do, any other officer of the Corporation may give said notice.
<PAGE>
Section 10. Waiver of Notice . A director may waive any notice
required by law, the Articles of Incorporation, or these By-laws before or after
the date and time stated in the notice. Except as otherwise provided in this
Section, the waiver by the director must be in writing, signed by the director
entitled to the notice, and included in the minutes or filed with the corporate
records. A director's attendance at or participation in a meeting waives any
required notice to the director of the meeting unless the director at the
beginning of the meeting (or promptly upon the director's arrival) objects to
holding the meeting or transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
Section 11. Business to be Transacted . 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 any waiver of notice of
such meeting. Any and all business of any nature or character whatsoever may be
transacted and action may be taken thereon at any meeting, regular or special,
of the Board of Directors.
Section 12. Quorum -- Adjournment if Quorum is Not Present . A
majority of the number of directors fixed by, or in the manner provided in, the
Articles of Incorporation or these By-laws shall constitute a quorum for the
transaction of any and all business, unless a greater number is required by law
or Articles of Incorporation or these By-laws. At any meeting, regular or
special, of the Board of Directors, if there be less than a quorum present, a
majority of those present, or if only one director be present, then such
director, may adjourn the meeting from time to time without notice until the
transaction of any and all business submitted or proposed to be submitted to
such meeting or any adjournment thereof shall have been completed. In the event
of such adjournment, written, telegraphic or telephonic announcement of the time
and place at which the meeting will reconvene must be provided to all directors.
The act of the majority of the directors present at any meeting of the Board of
Directors at which a quorum is present shall constitute the act of the Board of
Directors, unless the act of a greater number is required by law or the Articles
of Incorporation or these By-laws.
Section 13. 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 presumed to have assented to
the action taken unless his dissent or abstention shall be entered in the
minutes of the meeting or unless he shall file his written dissent or abstention
to such action with the presiding officer of the meeting before the adjournment
thereof or to the Secretary of the Corporation immediately after the adjournment
of the meeting. Such right to dissent or abstain shall not apply to a director
who voted in favor of such action.
Section 14. Action by Written Consent . Any action required or
permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if the action is taken by all the members
of the Board of Directors or committee, as the case may be. The action must be
evidenced by one or more written consents describing the action taken, signed by
each director or committee member, and included in the minutes or filed with the
corporate records reflecting the action taken. Such action is effective when the
last director or committee member signs the consent, unless the consent
specifies a different prior or subsequent effective date. Such consent shall
have the same force and effect as a unanimous vote at a meeting, and may be
described as such in any document or instrument.
<PAGE>
Section 15. Committees . The Board of Directors, by resolution
adopted by a majority of the Board of Directors, may designate from among its
members an executive committee and one or more other committees, each of which,
to the extent provided in such resolution or in the Articles of Incorporation or
in these By-laws of the Corporation, shall have and may exercise such authority
of the Board of Directors as shall be expressly delegated by the Board from time
to time; except that no such committee shall have the authority of the Board of
Directors in reference to (a) amending the Articles of Incorporation; (b)
approving a plan of merger even if the plan does not require shareholder
approval; (c) authorizing dividends or 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; (d) approving or proposing to
shareholders action that requires shareholder approval; (e) amending, altering
or repealing the By-laws of the Corporation or adopting new By-laws for the
Corporation; (f) filling vacancies in the Board of Directors or in any of its
committees; or (g) electing or removing officers or members of any such
committee. A majority of all the members of any such committee may determine its
action and fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide. The Board of Directors shall have power at any time to
change the number and members of any such committee, to fill vacancies and to
discharge any such committee. The designation of such committee and the
delegation thereto of authority shall not alone constitute compliance by the
Board of Directors, or any member thereof, with the standard of conduct imposed
upon it or him by the Indiana Business Corporation Law, as the same may, from
time to time, be amended.
Section 16. Meeting by Telephone or Similar Communication
Equipment . Any or all directors may participate in and hold a regular or
special meeting of the Board of Directors or any committee thereof by, or
through the use of, any means of conference telephone or other similar
communications equipment by which all directors participating in the meeting may
simultaneously hear each other during the meeting. Participation in a meeting
pursuant to this Section shall constitute presence in person at such meeting,
except where a director participates in the meeting for the express purpose of
objecting to holding the meeting or transacting business at the meeting on the
ground that the meeting is not lawfully called or convened.
ARTICLE IV
Officers
Section 1. Principal Officers . The officers of the
Corporation shall be chosen by the Board of Directors and shall consist of a
Chairman of the Board, a President, a Treasurer and a Secretary. There may also
be one or more Vice Presidents, a Controller, and such other officers or
assistant officers as the Board shall from time to time create and so elect. Any
two (2) or more offices may be held by the same person.
Section 2. Election and Terms . Each officer shall be elected
by the Board of Directors at the annual meeting thereof and shall hold office
until the next annual meeting of the Board or until his or her successor shall
have been elected and qualified or until his or her death, resignation or
removal. The election of an officer shall not of itself create contract rights.
<PAGE>
Section 3. Resignation and Removal . An officer may resign at
any time by delivering notice to the Board of Directors, its Chairman, or the
Secretary of the Corporation. A resignation is effective when the notice is
delivered unless the notice specifies a later effective date. If an officer's
resignation is made effective at a later date and the Corporation accepts the
future effective date, the Board of Directors may fill the pending vacancy
before the effective date, if the Board of Directors provides that the successor
does not take office until the effective date. The acceptance of a resignation
shall not be necessary to make it effective, unless expressly provided in the
resignation. An officer's resignation does not affect the Corporation's contract
rights, if any, with the officer. Any officer may be removed at any time, with
or without cause, by vote of a majority of the whole Board. Such removal shall
not affect the contract rights, if any, of the officer so removed.
Section 4. Vacancies . Whenever any vacancy shall occur in any
office by death, resignation, increase in the number of officers of the
Corporation, or otherwise, the same shall be filled by the Board of Directors,
and the officer so elected shall hold office until the next annual meeting of
the Board or until his or her successor shall have been elected and qualified.
Section 5. Powers and Duties of Officers . The officers so
chosen shall perform the duties and exercise the powers expressly conferred or
provided for in these By-laws, as well as the usual duties and powers incident
to such office, respectively, and such other duties and powers as may be
assigned to them by the Board of Directors or by the President.
Section 6. Chairman of the Board . The Chairman of the Board
shall preside at all meetings of the Board of Directors and shareholders and
shall have such general supervision, direction and control of the business of
the Corporation and its employees and shall exercise such general powers of
management as the Board may be from time to time provide.
Section 7. The President . The President shall be the Chief
Executive Officer of the Corporation and shall have charge of and supervision
and authority over all of the affairs, business and operations of the
Corporation in the ordinary course of its business, with all such duties, powers
and authority with respect to such affairs, business and operations as may be
reasonably incident to such responsibilities. He shall have general supervision
of and direct all officers, agents and employees of the Corporation; and shall
see that all orders and resolutions of the Board are carried into effect. He
shall have the authority to sign, with the Secretary or an Assistant Secretary,
any and all certificates for shares of the capital stock of the Corporation, and
shall have the authority to sign singly deeds, bonds, mortgages, contracts, or
other instruments to which the Corporation is a party (except in cases where the
signing and execution thereof shall be expressly delegated by the Board or by
these By-laws, or by law to some other officer or agent of the Corporation); and
shall preside at meetings of the shareholders and of the Board of Directors. He
shall also serve the Corporation in such other capacities and perform such other
duties and have such additional authority and powers as are incident to his
office or as may be defined in these By-laws or delegated to him from time to
time by the Board of Directors.
<PAGE>
Section 8. Vice Presidents . The Vice Presidents shall assist
the President and shall perform such duties as may be assigned to them by the
Board of Directors or the President. Unless otherwise provided by the Board, in
the absence or disability of the President, the Vice President (or, if there be
more than one, the Vice President first named as such by the Board of Directors
at its most recent meeting at which Vice Presidents were elected) shall execute
the powers and perform the duties of the President. Any action taken by a Vice
President in the performance of the duties of the President shall be conclusive
evidence of the absence or inability to act of the President at the time such
action was taken.
Section 9. Secretary . The Secretary (a) shall keep the
minutes of all meetings of the Board of Directors and the minutes of all
meetings of the shareholders in books provided for that purpose; (b) shall
attend to the giving and serving of all notices; (c) when required, may sign
with the President or a Vice President in the name of the Corporation, and may
attest the signature of any other officers of the Corporation to all contracts,
conveyances, transfers, assignments, encumbrances, authorizations and all other
instruments, documents and papers, of any and every description whatsoever, of
or executed for or on behalf of the Corporation and affix the seal of the
Corporation thereto; (d) may sign with the President or a Vice President all
certificates for shares of the capital stock of the Corporation and affix the
corporate seal of the Corporation thereto; (e) shall have charge of and maintain
and keep or supervise and control the maintenance and keeping of the stock
certificate books, transfer books and stock ledgers and such other books and
papers as the Board of Directors may authorize, direct or provide for, all of
which shall at all reasonable times be open to the inspection of any director,
upon request, at the office of the Corporation during business hours; (f) shall,
in general, perform all the duties incident to the office of Secretary; and (g)
shall have such other powers and duties as may be conferred upon or assigned to
him by the Board of Directors.
Section 10. Treasurer . The Treasurer shall have custody of
all the funds and securities of the Corporation which come into his hands. When
necessary or proper, he may endorse on behalf of the Corporation, for
collection, checks, notes and other obligations, and shall deposit the same to
the credit of the Corporation in such banks or depositories as shall be selected
or designated by or in the manner prescribed by the Board of Directors. He may
sign all receipts and vouchers for payments made to the Corporation, either
alone or jointly with such officer as may be designated by the Board of
Directors. Whenever required by the Board of Directors, he shall render a
statement of his cash account. He shall enter or cause to be entered, punctually
and regularly, on the books of the Corporation, to be kept by him or under his
supervision or direction for that purpose, full and accurate accounts of all
moneys received and paid out by, for or on account of the Corporation. He shall
at all reasonable times exhibit his books and accounts and other financial
records to any director of the Corporation during business hours. He shall have
such other powers and duties as may be conferred upon or assigned to him by the
Board of Directors. The Treasurer shall perform all acts incident to the
position of Treasurer, subject always to the control of the Board of Directors.
He shall, if required by the Board of Directors, give such bond for the faithful
discharge of his duties in such form and amount as the Board of Directors may
require.
<PAGE>
Section 11. The Controller . The Controller shall be the chief
accounting officer of the Corporation and in such capacity shall keep full and
accurate accounts of all assets, liabilities, commitments, receipts,
disbursements, and other financial transactions of the Corporation and its
subsidiaries in books belonging to the Corporation; shall cause audits of such
books and records to be made at regular intervals as required by law and in
accordance with guidelines established by the Audit Committee of the Board of
Directors; shall see that all expenditures are made in accordance with
procedures duly established, from time to time by the Corporation; shall prepare
financial statements for the Corporation and its subsidiaries at regular
intervals as required by law or at the request of the Board of Directors, the
Chairman, the President or the Vice President, Finance; and, in general shall
perform all the duties ordinarily connected with the office of Controller and
such other duties as, from time to time, may be assigned to him by the Board of
Directors, the Chairman, the President or the Vice President, Finance.
Section 12. Assistant Secretaries . The Assistant Secretaries
shall assist the Secretary in the performance of his or her duties. In the
absence of the Secretary, any Assistant Secretary shall exercise the powers and
perform the duties of the Secretary. The Assistant Secretaries shall exercise
such other powers and perform such other duties as may from time to time be
assigned to them by the Board, the President, or the Secretary.
Section 13. Assistant Treasurers . The Assistant Treasurers
shall assist the Treasurer in the performance of his or her duties. Any
Assistant Treasurer shall, in the absence or disability of the Treasurer,
exercise the powers and perform the duties of the Treasurer. The Assistant
Treasurers shall exercise such other duties as may from time to time be assigned
to them by the Board, the President, or the Treasurer.
Section 14. Delegation of Authority . In case of the absence
of any officer of the Corporation, or for any reason that the Board may deem
sufficient, a majority of the entire Board may transfer or delegate the powers
or duties of any officer to any other officer or officers for such length of
time as the Board may determine.
Section 15. Securities of Other Corporations . The President
or any Vice President or Secretary or Treasurer of the Corporation shall have
power and authority to transfer, endorse for transfer, vote, consent or take any
other action with respect to any securities of another issuer which may be held
or owned by the Corporation and to make, execute and deliver any waiver, proxy
or consent with respect to any such securities.
ARTICLE V
Directors' Services, Limitation of Liabilityand Reliance on
Corporate Records, andInterest of Directors in Contracts
Section 1. Services . No director of this Corporation who is
not an officer or employee of this Corporation shall be required to devote his
time or any particular portion of his time or render services or any particular
services exclusively to this Corporation. Every director of this Corporation
shall be entirely free to engage, participate and invest in any and all such
businesses, enterprises and activities, either similar or dissimilar to the
business, enterprise and activities of this Corporation, without breach of duty
to this Corporation or to its shareholders and without accountability or
liability to this Corporation or to its shareholders.
<PAGE>
Every director of this Corporation shall be entirely free to
act for, serve and represent any other corporation, any entity or any person, in
any capacity, and be or become a director or officer, or both, of any other
corporation or any entity, irrespective of whether or not the business,
purposes, enterprises and activities, or any of them thereof, be similar or
dissimilar to the business, purposes, enterprises and activities, or any of
them, of this Corporation, without breach of duty to this Corporation or to its
shareholders and without accountability or liability of any character or
description to this Corporation or to its shareholders.
Section 2. General Limitation of Liability . A director shall,
based on facts then known to the director, discharge the duties as a director,
including the director's duties as a member of a committee, in good faith, with
the care an ordinarily prudent person in a like position would exercise under
similar circumstances, and in a manner the director reasonably believes to be in
the best interests of the Corporation. A director is not liable to the
Corporation for any action taken as a director, or any failure to take any
action, unless: (a) the director has breached or failed to perform the duties of
the director's office in accordance with the standard of care set forth above;
and (b) the breach or failure to perform constitutes willful misconduct or
recklessness.
Section 3. Reliance on Corporate Records and Other Information
. Any person acting as a director of the Corporation shall be fully protected,
and shall be deemed to have complied with the standard of care set forth in
Section 2 of this Article, in relying in good faith upon any information,
opinions, reports or statements, including financial statements and other
financial data, if prepared or presented by (a) one or more officers or
employees of the Corporation whom such person reasonably believes to be reliable
and competent in the matters presented; (b) legal counsel, public accountants,
or other persons as to matters such person reasonably believes are within the
person's professional or expert competence; or (c) a committee of the Board of
Directors of which such person is not a member, if such person reasonably
believes the committee merits confidence; provided, however, that such person
shall not be considered to be acting in good faith if such person has knowledge
concerning the matter in question that would cause such reliance to be
unwarranted.
Section 4. Interest of Directors in Contracts . Any contract
or other transaction between the Corporation and (a) any director, or (b) any
corporation, unincorporated association, business trust, estate, partnership,
trust, joint venture, individual or other legal entity (1) in which any director
has a material financial interest or is a general partner, or (2) of which any
director is a director, officer, or trustee, shall be valid for all purposes, if
the material facts of the contract or transaction and the director's interest
were disclosed or known to the Board of Directors, a committee of the Board of
Directors with authority to act thereon, or the shareholders entitled to vote
thereon, and the Board of Directors, such committee or such shareholders
authorized, approved or ratified the contract or transaction. Such a contract or
<PAGE>
transaction is authorized, approved or ratified: (i) by the Board of Directors
or such committee, if it receives the affirmative vote of a majority of the
directors who have no interest in the contract or transaction, notwithstanding
the fact that such majority may not constitute a quorum or a majority of the
directors present at the meeting, and notwithstanding the presence or vote of
any director who does have such an interest; provided, however, that no such
contract or transaction may be authorized, approved or ratified by a single
director; and (ii) by such shareholders, if it receives the vote of a majority
of the shares entitled to be counted, in which vote shares owned by or voted
under the control of any director who, or of any corporation, unincorporated
association, business trust, estate, partnership, trust, joint venture,
individual or other legal entity that, has an interest in the contract or
transaction may be counted; provided, however, that a majority of such shares,
whether or not present, shall constitute a quorum for the purpose of
authorizing, approving or ratifying such a contract or transaction. This Section
shall not be construed to require authorization, ratification or approval by the
shareholder of any such contract or transaction, or to invalidate any such
contract or transaction that is fair to the Corporation or would otherwise be
valid under the common and statutory law applicable thereto.
ARTICLE VIIndemnification
Section 1. Indemnification Against Underlying Liability . The
Corporation shall, to the fullest extent to which it is empowered to do so by
the Corporation Law, or any other applicable law, 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 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 or other enterprise
(collectively, "Agent") against expenses (including attorneys' fees), judgments,
fines, penalties, court costs and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement (whether with or without court approval), conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Agent did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. If several claims,
issues or matters are involved, an Agent may be entitled to indemnification as
to some matters even though he is not entitled as to other matters.
Section 2. Successful Defense . To the extent that an Agent of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 of this Article VI, or in
defense of any claim, issue or matter therein, the Corporation shall indemnify
such person against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
<PAGE>
Section 3. Determination of Conduct . Subject to any rights
under any contract between the Corporation and any Agent, any indemnification
against underlying liability provided for in Section 1 of this Article VI
(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 Agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in said Section. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors not at
the time parties to such action, suit or proceeding; (2) if such an independent
quorum cannot be obtained, by majority vote of a committee duly designated by
the full Board of Directors (in which designation directors who are parties may
participate), consisting solely of one or more directors not at the time parties
to the action, suit or proceeding; (3) by special legal counsel (A) selected by
the independent quorum of the Board of Directors (or the independent committee
thereof if no such quorum can be obtained), or (B) if no such independent quorum
or committee thereof can be obtained, 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. Notwithstanding the foregoing,
an Agent shall be able to contest any determination that the Agent has not met
the applicable standard of conduct by petitioning a court of appropriate
jurisdiction.
Section 4. Definition of Good Faith . For purposes of any
determination under Section 1 of this Article VI, 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 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 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 provisions
of this Section 4 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 VI.
<PAGE>
Section 5. Payment of Expenses in Advance . Expenses incurred
in connection with any civil, criminal, administrative or investigative action,
suit or proceeding by an Agent who may be entitled to indemnification pursuant
to Section 1 of this Article VI shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of a
written affirmation by the Agent of his good faith belief that he has met the
applicable standard of conduct set forth in Section 1 of this Article VI and
upon receipt of a written undertaking by or on behalf of the Agent to repay such
amount if it is ultimately determined that he is not entitled to be indemnified
by the Corporation as authorized in this Article VI. Notwithstanding the
foregoing, such expenses shall not be advanced if the Corporation conducts the
determination of conduct procedure referred to in Section 3 of this Article VI
and it is determined from the facts then known that the Agent will be precluded
from indemnification against underlying liability because he has failed to meet
the applicable standard of conduct set forth in Section 1 of this Article VI.
The full Board of Directors (including directors who are parties) may authorize
the Corporation to implement the determination of conduct procedure, but such
procedure is not required for the advancement of expenses. The full Board of
Directors (including directors who are parties) may authorize the Corporation to
assume the Agent's defense where appropriate, rather than to advance expenses
for such defense.
Section 6. Indemnity Not Exclusive . The indemnification
against underlying liability, and advancement of expenses provided by, or
granted pursuant to, this Article VI shall not be deemed exclusive of, and shall
be subject to, any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Corporation's Articles of
Incorporation, these Bylaws, 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 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 an
Agent, and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Section 7. 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 VI 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
provisions. 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. To the extent such prior acts or omissions cannot be deemed to be
covered by this Article VI, 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 8. Insurance . The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was an Agent
of the Corporation against any liability asserted against him or incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article VI.
<PAGE>
Section 9. Additional Definitions . For purposes of this
Article VI references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, 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 interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article VI.
Section 10. Payments a Business Expense . Any payments made to
any indemnified party under this Article 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 VII
Shares
Section 1. Share Certificates . The certificate for shares of
the Corporation shall be in such form as shall be approved by the Board of
Directors. Each share certificate shall state on its face the name and state of
organization of the Corporation, the name of the person to whom the certificate
is issued, and the number and class of shares the certificate represents. Share
certificates shall be consecutively numbered and shall be entered in the books
of the Corporation as they are issued. Every certificate for shares of the
Corporation shall be signed (either manually or in facsimile) by, or in the name
of, the Corporation by the President or a Vice President and either the
Secretary or an Assistant Secretary of the Corporation, with the seal of the
Corporation, if any, or a facsimile thereof impressed or printed thereon. If the
person who signed (either manually or in facsimile) a share certificate no
longer holds office when the certificate is issued, the certificate is
nevertheless valid.
Section 2. Transfer of Shares . Except as otherwise provided
by law, transfers of shares of the capital stock of the Corporation, whether
part paid or fully paid, shall be made only on the books of the Corporation by
the owner thereof in person or by duly authorized attorney, on payment of all
taxes thereon and surrender for cancellation of the certificate or certificates
for such shares (except as hereinafter provided in the case of loss, destruction
or mutilation of certificate) properly endorsed by the holder thereof or
accompanied by the proper evidence of succession, assignment or authority to
transfer, and delivered to the Secretary or an Assistant Secretary. All such
transfers shall be made in accordance with the relevant provisions of Indiana
Code ss.ss.26-1-8-101 et seq.
Section 3. Transfer Agent . The Board of Directors shall have
power to appoint one or more transfer agents and registrars for the transfer and
registration of certificates of stock of the Corporation, and may require that
such certificates shall be countersigned and registered by one or more of such
transfer agents and registrars.
<PAGE>
Section 4. Registered Holders . The Corporation shall be
entitled to treat the person in whose name any share of stock or any warrant,
right or option is registered as the owner thereof for all purposes and shall
not be bound to recognize any equitable or other claim to, or interest in, such
share, warrant, right or option on the part of any other person, whether or not
the Corporation shall have notice thereof, save as may be expressly provided
otherwise by the laws of the State of Indiana, the Articles of Incorporation of
the Corporation or these By-laws. In no event shall any transferee of shares of
the Corporation become a shareholder of the Corporation until express notice of
the transfer shall have been received by the Corporation.
Section 5. Lost, Destroyed and Mutilated Certificates . The
holder of any share certificate of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of the certificate, and the
Board may, in its discretion, cause to be issued to such holder of shares a new
certificate or certificates of shares of capital stock, upon the surrender of
the mutilated certificate, or, in case of loss or destruction, upon the
furnishing of an affidavit or satisfactory proof of such loss or destruction.
The Board may, in its discretion, require the owner of the lost or destroyed
certificate or such owner's legal representative to give the Corporation a bond
in such sum and in such form, and with such surety or sureties as it may direct,
to indemnify the Corporation, its transfer agents and registrars, if any,
against any claim that may be made against them or any of them with respect to
the certificate or certificates alleged to have been lost or destroyed, but the
Board may, in its discretion, refuse to issue a new certificate or new
certificates, save upon the order of a court having jurisdiction in such
matters.
Section 6. Consideration for Shares . The Corporation may
issue shares for such consideration received or to be received as the Board of
Directors determines to be adequate. That determination by the Board of
Directors is conclusive insofar as the adequacy of consideration for the
issuance of shares relates to whether the shares are validly issued, fully paid
and nonassessable. When the Corporation receives the consideration for which the
Board of Directors authorized the issuance of shares, the shares issued therefor
are fully paid and nonassessable.
Section 7. Payment for Shares . The Board of Directors may
authorize shares to 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. If shares are authorized to be issued for
promissory notes or for promises to render services in the future, the
Corporation must report in writing to the shareholders the number of shares
authorized to be so issued before or with the notice of the next shareholders'
meeting.
Section 8. Distributions to Shareholders . The Board of
Directors may authorize and the Corporation may make distributions to the
shareholders subject to any restrictions set forth in the Articles of
Incorporation of the Corporation and any limitations in the Indiana Business
Corporation Law, as amended.
<PAGE>
Section 9. Regulations . The Board of Directors shall have
power and authority to make all such rules and regulations as they may deem
expedient concerning the issue, transfer and registration or the replacement of
certificates for shares of the Corporation.
ARTICLE VIII
Corporate Books and Reports
Section 1. Place of Keeping Corporate Books and Records .
Except as expressly provided otherwise in this Article, the books of account,
records, documents and papers of the Corporation shall be kept at any place or
places, within or without the State of Indiana, as directed by the Board of
Directors. In the absence of a direction, the books of account, records,
documents and papers shall be kept at the principal office of the Corporation.
Section 2. Place of Keeping Certain Corporate Books and
Records . The Corporation shall keep a copy of the following records at its
principal office:
(1) Its Articles or restated Articles of Incorporation
and all amendments to them currently in effect;
(2) Its By-laws or restated By-laws and all amendments
to them currently in effect;
(3) Resolutions adopted by the Board of Directors with respect
to one or more classes or series of shares and fixing their relative rights,
preferences and limitations, if shares issued pursuant to those resolutions are
outstanding;
(4) The minutes of all shareholders' meetings and records
of all action taken by shareholders without a meeting, for the past three (3)
years;
(5) All written communications to shareholders generally
within the past three (3) years, including financial statements furnished to
shareholders;
(6) A list of the names and business addresses of its
current directors and officers; and
(7) The Corporation's most recent annual report.
Section 3. Permanent Records . The Corporation shall keep as
permanent records minutes of all meetings of its shareholders and Board of
Directors, a record of all actions taken by the shareholders or Board of
Directors without a meeting, and a record of all actions taken by a committee of
the Board of Directors in place of the Board of Directors on behalf of the
Corporation. The Corporation shall also maintain appropriate accounting records.
<PAGE>
Section 4. Shareholder Records . The Corporation shall
maintain a record of its shareholders, in a form that permits preparation of a
list of the names and addresses of all shareholders, in alphabetical order by
class of shares showing the number and class of shares held by each.
Section 5. Shareholder Rights of Inspection . The records
designated in Section 2 of this Article may be inspected and copied by
shareholders of record, during regular business hours at the Corporation's
principal office, provided that the shareholder gives the Corporation written
notice of the shareholder's demand at least five (5) business days before the
date on which the shareholder wishes to inspect and copy. A shareholder's agent
or attorney, if authorized in writing, has the same inspection and copying
rights as the shareholder represented. The Corporation may impose a reasonable
charge, covering the costs of labor and material, for copies of any documents
provided to the shareholder.
Section 6. Additional Rights of Inspection . Shareholder
rights enumerated in Section 5 of this Article may also apply to the following
corporate records, provided that the notice requirements of Section 5 are met,
the shareholder's demand is made in good faith and for a proper purpose, the
shareholder describes with reasonable particularity the shareholder's purpose
and the records the shareholder desires to inspect, and the records are directly
connected with the shareholder's purpose: excerpts from minutes of any meeting
of the Board of Directors, records of any action of a committee of the Board of
Directors while acting in place of the Board of Directors on behalf of the
Corporation, minutes of any meeting of the shareholders, and records of action
taken by the shareholders or Board of Directors without a meeting, to the extent
not subject to inspection under Section 5 of this Article, as well as accounting
records of the Corporation and the record of shareholders. Such inspection and
copying is to be done during regular business hours at a reasonable location
specified by the Corporation. The Corporation may impose a reasonable charge,
covering the costs of labor and material, for copies of any documents provided
to the shareholder.
ARTICLE IX
Miscellaneous
Section 1. Notice and Waiver of Notice . Subject to the
specific and express notice requirements set forth in other provisions of these
By-laws, the Articles of Incorporation, and the Indiana Business Corporation
Law, as the same may, from time to time, be amended, notice may be communicated
to any shareholder or director in person, by telephone, telegraph, teletype, or
other form of wire or wireless communication, or by mail. If the foregoing forms
of personal notice are deemed to be impracticable, notice may be communicated in
a newspaper of general circulation in the area where published or by radio,
television, or other form of public broadcast communication. Subject to Section
4 of ARTICLE II of these By-laws, written notice is effective at the earliest of
the following: (a) when received; (b) if correctly addressed to the address
listed in the most current records of the Corporation, five days after its
mailing, as evidenced by the postmark or private carrier receipt; or (c) if sent
by registered or certified United States mail, return receipt requested, on the
date shown on the return receipt which is signed by or on behalf of the
addressee. Oral notice is effective when communicated. A written waiver of
notice, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be equivalent to the giving of such
notice.
<PAGE>
Section 2. Depositories . Funds of the Corporation not
otherwise employed shall be deposited in such banks or other depositories as the
Board of Directors, the President or the Treasurer may select or approve.
Section 3. Signing of Checks, Notes, etc. In addition to and
cumulative of, but in no way limiting or restricting, any other provision of
these By-laws which confers any authority relative thereto, all checks, drafts
and other orders for the payment of money out of funds of the Corporation and
all notes and other evidence of indebtedness of the Corporation may be signed on
behalf of the Corporation, in such manner, and by such officer or person as
shall be determined or designated by the Board of Directors; provided, however,
that if, when, after and as authorized or provided for by the Board of
Directors, the signature of any such officer or person may be a facsimile or
engraved or printed, and shall have the same force and effect and bind the
Corporation as though such officer or person had signed the same personally;
and, in the event of the death, disability, removal or resignation of any such
officer or person, if the Board of Directors shall so determine or provide, as
though and with the same effect as if such death, disability, removal or
resignation had not occurred.
Section 4. Gender and Number . Wherever used or appearing in
these By-laws, pronouns of the masculine gender shall include the female gender
and the neuter gender, and the singular shall include the plural wherever
appropriate.
Section 5. Laws . Wherever used or appearing in these By-laws,
the words "law" or "laws" shall mean and refer to laws of the State of Indiana,
to the extent only that such are expressly applicable, except where otherwise
expressly stated or the context requires that such words not be so limited.
Section 6. Headings . The headings of the Articles and
Sections of these By-laws are inserted for convenience of reference only and
shall not be deemed to be a part thereof or used in the construction or
interpretation thereof.
ARTICLE X
Amendments
These By-laws may, from time to time, be added to, changed,
altered, amended or repealed or new By-laws may be made or adopted by a majority
vote of the whole Board of Directors at any meeting of the Board of Directors,
if the notice or waiver of notice of such meeting shall have stated that the
By-laws are to be amended, altered or repealed at such meeting, or if all
directors at the time are present at such meeting, have waived notice of such
meeting, or have consented to such action in writing.
ARTICLE XI
The Indiana Business Corporation Law
The provisions of the Indiana Business Corporation Law, as the
same may, from time to time, be amended, applicable to any of the matters not
herein specifically covered by these By-laws, are hereby incorporated by
reference in and made a part of these By-laws.
Exhibit 11
STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
<PAGE>
Exhibit 11
Statement Re: Computation of Per Share Earnings
<TABLE>
Three Months Ended
January 31,
-----------------------------------------------------
2000 1999
------------------------ ------------------------
(in thousands, except per share amount)
Basic Diluted Basic Diluted
------------------------ ------------------------
<S> <C> <C> <C> <C>
Net income $459 $459 $175 $175
Weighted average shares
outstanding 5,952 5,952 6,074 6,074
Assumed issuances under
stock options plans - 56 - 98
------------------------ ------------------------
5,952 6,008 6,074 6,172
Earnings per common share $0.08 $0.08 $0.03 $0.03
======================== ========================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
QUARTERLY REPORT 10-Q FOR THE PERIOD ENDED JANUARY 31, 2000 AND IS QUALIFIED
IT ITS ENTRIETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000315374
<NAME> SUSAN CAMERON
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> OCT-31-2000
<PERIOD-START> NOV-1-1999
<PERIOD-END> JAN-31-2000
<EXCHANGE-RATE> 1
<CASH> 4,172
<SECURITIES> 0
<RECEIVABLES> 15,953
<ALLOWANCES> 702
<INVENTORY> 27,377
<CURRENT-ASSETS> 48,367
<PP&E> 20,178
<DEPRECIATION> 11,346
<TOTAL-ASSETS> 64,923
<CURRENT-LIABILITIES> 18,920
<BONDS> 0
0
0
<COMMON> 595
<OTHER-SE> 35,502
<TOTAL-LIABILITY-AND-EQUITY> 64,923
<SALES> 24,524
<TOTAL-REVENUES> 24,524
<CGS> 17,803
<TOTAL-COSTS> 17,803
<OTHER-EXPENSES> 5,803
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 292
<INCOME-PRETAX> 626
<INCOME-TAX> 167
<INCOME-CONTINUING> 459
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 459
<EPS-BASIC> .08
<EPS-DILUTED> .08
</TABLE>
