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RESTATED
BY-LAWS
OF
KIMBALL INTERNATIONAL, INC.
(Reflecting all amendments through August 8, 2000)
ARTICLE I: LOCATION OF OFFICES
Section 1 - Principal Office: The principal office of the corporation shall
be at 1600 Royal Street, Jasper, Indiana.
Section 2 - Other Offices: The corporation may have and maintain such other
offices as the Board of Directors may deem expedient.
ARTICLE II: CORPORATE SEAL
Section 1 - The corporation shall have a corporate seal which shall be as
follows: A circular disc, on the outer margin of which shall appear the
corporate name and State of Incorporation, with the words "Corporate Seal"
through the center, so mounted that it may be used to impress these words in
raised letters upon paper.
ARTICLE III: FISCAL YEAR
Section 1 - The fiscal year of the corporation shall begin with the first
day of July and terminate on the thirtieth day of June of each year.
ARTICLE IV: STOCKHOLDERS' MEETINGS
Section 1 - Place of Meetings: All meetings of the stockholders shall be
held at the principal office of the corporation except such meetings as the
Board of Directors by resolution determine shall be held elsewhere, in which
case meetings may be held upon notice as hereinafter provided at such place or
places within or without the State of Indiana as said Board of Directors may
determine.
Section 2 - Annual Meetings: The annual meeting of the stockholders shall
be held on the third Tuesday of October in each year or on such other date as
may be fixed by the Board of Directors, provided such annual meeting shall be
held in any event within five (5) months after the close of each fiscal year of
the corporation. If the day fixed for the annual meeting shall be a legal
holiday, such meeting shall be held on the next succeeding business day. At
each annual meeting, the stockholders shall elect the directors and shall
conduct only such other business as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be (i)
specified in the notice of the meeting (or any supplement thereto) given by or
at the direction of the Board of Directors, (ii) otherwise properly brought
before the meeting by or at the direction of the Board of Directors or (iii)
otherwise properly brought before the meeting by a stockholder of the
corporation who (A) was a stockholder of record at the time of giving the notice
provided for in this Section, (B) is entitled to vote at the meeting and (C)
complied with the notice procedures set forth in this Section. For business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
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corporation at the principal executive office of the corporation. To be timely,
a stockholder's notice shall be delivered not less than 90 days nor more than
110 days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder, to be timely, must be so delivered
not earlier than the 110th day prior to such annual meeting and not later than
the close of business on the later of the 90th day prior to such annual meeting
or the 10th day following the day on which public announcement (as defined
herein) of the date of such meeting is first made.
Such stockholder's notice shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (i) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; (ii) as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the proposal is made (A) the name and address of such
stockholder, as they appear on the corporation's books, and the name and address
of such beneficial owner, (B) the class and number of shares of the corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner as of the date such notice is given, and (C) a representation
that such stockholder intends to appear in person or by proxy at the meeting to
propose such business; (iii) in the event that such business includes a proposal
to amend either the Articles of Incorporation or the By-laws of the corporation,
the language of the proposed amendment; and (iv) if the stockholder intends to
solicit proxies in support of such stockholder's proposal, a representation to
that effect. The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the corporation of his or her
intention to present a proposal at an annual meeting and such stockholder's
proposal has been included in a proxy statement that has been prepared by
management of the corporation to solicit proxies for such annual meeting;
provided, however, that if such stockholder does not appear or send a qualified
representative to present such proposal at such annual meeting, the corporation
need not present such proposal for a vote at such meeting, notwithstanding that
proxies in respect of such vote may have been received by the corporation.
Notwithstanding anything in these By-laws to the contrary, no business shall be
conducted at any annual meeting except in accordance with this paragraph, and
the Chairman of the Board or other person presiding at an annual meeting of
stockholders may refuse to permit any business to be brought before an annual
meeting without compliance with the foregoing procedures or if the stockholder
solicits proxies in support of such stockholder's proposal without such
stockholder having made the representation required by clause (iv) of the second
preceding sentence.
For the purposes of this paragraph "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). In addition to the provisions of this paragraph, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth herein.
Nothing in these By-laws shall be deemed to affect any rights of the
stockholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
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Section 3 - Special Meetings: Special meetings of the stockholders may be
called only by the Board of Directors.
Section 4 - Notices: A written or printed notice stating the place, day and
hour of either annual or special meetings and, in the 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 holder of the capital stock of the corporation at the time entitled to vote
at such address as appears upon the records of the corporation at least ten, but
not more than sixty, days before the date of the meeting. Notice of any
stockholders' meeting may be waived in writing by any stockholder if the waiver
sets forth in reasonable detail the purpose or purposes for which the meeting is
called and the time and place thereof. Except as required by the Indiana
Business Corporation Law, no notice of the holding of an adjourned meeting shall
be necessary. Each stockholder who has in the manner above provided waived
notice of a stockholders' meeting or who is present in person or represented
thereat by a proxy complying with the requirements set forth in Article IV,
Section 8, shall be conclusively presumed to have been given due notice of such
meeting, except as required by the Indiana Business Corporation Law.
Section 5 - Quorum: At any meeting of stockholders, a majority of the
shares of the capital stock outstanding and entitled by the Articles of
Incorporation to vote, represented in person or by proxy, shall constitute a
quorum for the transaction of business, but less than a majority may convene and
adjourn.
Section 6 - Voting: Stockholders entitled to vote by the Articles of
Incorporation shall be entitled to vote at all meetings in person or by proxy.
At all meetings, each share of stock entitled to vote by the Articles of
Incorporation shall be entitled to one vote on all questions, and a majority of
the votes of such stock cast at any such meeting shall be sufficient for the
adoption or rejection of any question presented (other than the election of the
Board of Directors) unless otherwise provided by law or by the Articles of
Incorporation of the corporation. The Board of Directors shall be elected by a
plurality of the votes properly cast.
For the purpose of determining stockholders entitled to vote at any meeting
of the stockholders or any adjournment thereof, or stockholders entitled to
receive payment of any dividend, or in order to make a determination of
stockholders for any other purpose, only those stockholders who are stockholders
of record on the record date fixed by the Board of Directors or as provided in
Article XI, Section 2 hereof, shall be entitled to vote.
Shares standing in the name of a corporation may be voted by such officers,
agent or proxy as the Board of Directors of such corporation may appoint.
Shares held by fiduciaries may be voted by the fiduciaries in such manner as the
instrument or order appointing such fiduciaries may direct. In the absence of
any such direction or the inability of the fiduciaries to act in accordance
therewith, shares held jointly by three (3) or more fiduciaries shall be voted
in accordance with the will of the majority and, where the fiduciaries or a
majority of them cannot agree or where they are equally divided upon the
questions of voting such shares, any Court of general equity jurisdiction may,
upon petition filed by any of such fiduciaries or by any party in interest,
direct the voting of such shares as it may deem for the best interest of the
beneficiaries, and such shares shall be voted in accordance with such direction.
Shares that are pledged may, unless otherwise provided in the agreement of
pledge, be voted by the stockholder pledging the same until the shares have been
transferred to the pledgee on the books of the corporation, and, thereafter,
they may be voted by the pledgee.
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Section 7 - Voting Lists: The officer or agent having charge of the stock
transfer book shall make, at least five (5) business days before each meeting of
stockholders, a complete list of the stockholders arranged in alphabetical order
with the address and number of shares held by each, which list shall be on file
at the principal office of the corporation and subject to inspection by any
stockholder. Such list shall be produced and kept open at the time and place of
meeting and subject to the inspection of any stockholder during the holding of
such meeting. The original stock register or transfer book, or a duplicate
thereof kept in the State of Indiana, shall be the only evidence as to who are
the stockholders entitled to examine such list or the stock ledger or transfer
book or to vote at any meeting of the stockholders.
Section 8 - Proxies: A shareholder may vote his or her shares either in
person or by proxy. A shareholder may appoint a proxy to vote or otherwise act
for the shareholder (including authorizing the proxy to receive, or to waive,
notice of any shareholders' meetings within the effective period of such proxy)
in any manner authorized by the Indiana business Corporation Law. An
appointment of a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes and is effective for eleven (11)
months unless a shorter or longer period is expressly provided in the
appointment form. The proxy's authority may be limited to a particular meeting
or may be general and authorize the proxy to represent the shareholder at any
meeting of shareholders held within the time provided in the appointment form.
Subject to the Indiana Business Corporation Law and to any express limitation on
the proxy's authority appearing on the face of the appointment form, the
corporation is entitled to accept the proxy's vote or other action as that of
the shareholder making the appointment.
Section 9 - Written Consent: Any action required or permitted to be taken
at a shareholders' meeting may be taken without a meeting if the action is taken
by all the shareholders entitled to vote on the action. The action must be
evidenced by one (1) or more written consents describing the action taken,
signed by all the shareholders entitled to vote on the action (facsimile
signatures may be accepted), and delivered to the corporation for inclusion in
the minutes or filing with the corporate records. Action taken under this
Section 9 is effective when the last shareholder signs the consent, unless the
consent specifies a different prior or subsequent effective date, in which case
the action is effective on or as of the specified date. Such consent shall have
the same effect as a unanimous vote of all shareholders and may be described as
such in any document.
Section 10 - Participation by Conference Telephone: Any or all
shareholders may participate in any shareholders' meeting by, or through the use
of, any means of communication, such as conference telephone, by which all
shareholders participating may simultaneously hear each other during the
meeting. Any shareholder participating in a meeting by such means is deemed to
be present in person for all purposes at the meeting.
ARTICLE V: DIRECTORS
Section 1 - Number: The Board of Directors of this corporation shall
consist of thirteen (13) members, twelve (12) of whom shall be elected by
holders of Class A Common Stock, voting as a class, and one (1) of whom shall be
elected by holders of Class B Common Stock, voting as a class.
Section 2 - Election: Directors shall be elected annually at the annual
meeting of stockholders; provided that, in the event of failure to hold such
meeting or to hold such election thereat, they may be elected at any special
meeting of stockholders called for that purpose. At such election, the Chairman
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of the Board or the Secretary may appoint inspectors or judges who shall report
to the meeting upon the validity of all proxies received and count the votes
cast and make a report thereof to the stockholders' meeting, and, in the absence
of any such appointments, the Secretary of the corporation shall report to the
meeting upon the validity of all proxies received, count the votes cast and make
a report thereof at the stockholders' meeting.
Section 3 - Term of Office: The directors shall hold office from the date
of their election until the next succeeding annual meeting or until their
successors are elected and shall qualify.
Section 4 - Vacancies: Any vacancy, or vacancies, in the Board of
Directors, arising from any cause, shall be filled by a majority vote of the
remaining members of the Board until the next annual meeting of the
stockholders.
Section 5 - Fees: Each director of the corporation shall receive an annual
retainer in an amount, plus a sum for each of the six (6) regular meetings of
the Board, all as fixed and determined from time to time by the Board of
Directors and in addition thereto, reimbursement for expenses incurred by each
member of the Board in attending each regular, special or adjourned meeting of
the Board which has been called, whether or not a quorum is present.
Section 6 - Nominations: Nominations of persons for election as directors
may be made by the Board of Directors or by any stockholder who is a stockholder
of record at the time of giving the notice of nomination provided for in this
Section 6 and who is entitled to vote in the election of directors. Any
stockholder of record entitled to vote in the election of directors at a meeting
may nominate a person or persons for election as directors only if timely
written notice of such stockholder's intent to make such nomination is given to
the Secretary of the corporation in accordance with the procedures for bringing
business before an annual meeting set forth in Section 2 of Article IV of these
By-laws. To be timely, a stockholder's notice shall be delivered (i) with
respect to an election to be held at an annual meeting of stockholders, not less
than 90 days nor more than 110 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than 30 days or delayed by more
than 60 days from such anniversary date, notice by the stockholder, to be
timely, must be so delivered not earlier than the 110th day prior to such annual
meeting and not later than the close of business on the later of the 90th day
prior to such annual meeting or the 10th day following the day on which public
announcement (as defined in Section 2 of Article IV of these By-laws) is first
made of the date of such meeting, and (ii) with respect to an election to be
held at a special meeting of stockholders, not earlier than the 110th day prior
to such special meeting and not later than the close of business on the later of
the 90th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees to be elected at such meeting.
Such stockholder's notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination, of the person or persons to be
nominated and of the beneficial owner, if any, on whose behalf the nomination is
made; (b) a representation that the stockholder is a holder of record of stock
of the corporation entitled to vote at such meeting in such election and intends
to appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or understandings
between the stockholder, any such beneficial owner, each nominee and any other
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person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated,
or intended to be nominated, by the Board of Directors; (e) the consent of each
nominee to serve as a director if so elected; and (f) if the stockholder intends
to solicit proxies in support of such stockholder's nominee(s), a representation
to that effect. The chairman of any meeting of stockholders to elect directors
and the Board of Directors may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure or if the stockholder
solicits proxies in support of such stockholder's nominee(s) without such
stockholder having made the representation required by clause (f) of the
preceding sentence. In addition to the provisions of this paragraph, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth herein.
ARTICLE VI: DIRECTORS' MEETINGS
Section 1 - Regular Meetings: Regular meetings of the Board of Directors
shall be held in the months of February, April, June, August, October and
December of each year on such day of the month, and at such time of day and
place, within or without the State of Indiana, as the Board of Directors may
designate or as may be determined by the Chairman of the Board or the Vice
Chairman of the Board, provided that each director shall be given at least two
(2) days' advance notice of the date, time and place of any regular meeting set
by any of the foregoing officers.
Section 2 - Special Meetings: Special meetings of the Board of Directors
may be held at any time at the principal office of the corporation or elsewhere
within or without the State of Indiana, as shall be specified in the notice of
such meeting.
The Secretary shall call a special meeting whenever and wherever so
requested by the Chairman of the Board, the Vice Chairman of the Board, the
Chief Executive Officer or the President, or by three (3) directors.
Section 3 - Organization Meeting: Immediately following the meeting of the
stockholders at which the directors are elected, the Board of Directors shall
meet and organize, and they may also transact such other business as may be
presented.
Section 4 - Notice: No notice shall be required for a regular meeting of
the Board of Directors, except as provided in Article VI, Section 1. No notice
shall be required for an "organization meeting", if held on the same day as the
stockholders' meeting at which the directors were elected. No notice of the
holding of an adjourned meeting shall be necessary. Each director shall be
given at least two (2) days' advance notice of the date, time and place of each
special meeting of the Board of Directors. The notice of a special meeting need
not describe the purpose of such meeting. Notice of any meeting may be waived
in writing.
Section 5 - Quorum: At all meetings of the Board of Directors, a majority
of the whole Board shall be necessary to constitute a quorum for the transaction
of any business except the filling of vacancies, but less than a majority may
convene and adjourn.
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Section 6 - Voting: All questions coming before any meeting of the Board
of Directors for action shall be decided by a majority vote of the directors
present at said meeting unless otherwise provided by law, by the Articles of
Incorporation or by these By-laws.
Section 7 - Written Consents: Any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a meeting if the
action is taken by all members of the Board of Directors. The action must be
evidenced by one (1) or more written consents describing the action taken,
signed by each director (facsimile signatures may be accepted), and included in
the minutes or filed with the corporate records reflecting the action taken.
Action taken under this Section 7 is effective when the last director signs the
consent, unless the consent specifies a different prior or subsequent effective
date, in which cases the action is effective on or as of the specified date. A
consent signed under this Section 7 shall have the same effect as a unanimous
vote of all members of the Board of Directors and may be described as such in
any document.
Section 8 - Participation by Conference Telephone: Any or all directors
may participate in a regular or special meeting by, or through the use of, any
means of communication, such as conference telephone, by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by such means shall be deemed to be present in person
at the meeting.
ARTICLE VII: EXECUTIVE COMMITTEE
Section 1 - Number, Qualifications, Appointment: The Board of Directors may
appoint, by a majority vote of all directors in office, not less than two (2)
directors who, together with the Chairman of the Board, the Vice Chairman of the
Board, the Chief Executive Officer (if the Chief Executive Officer is also a
director) and the President (if the President is also a director), shall
constitute the Executive Committee of the corporation. The Chairman of the
Board shall serve as chairman of said committee.
Section 2 - Powers and Duties: The Executive Committee shall advise with
and aid the officers of the corporation in all matters concerning its interests
and the management of its business, and, when the Board of Directors is not in
session, the Executive Committee shall have and may exercise all of the powers
of the Board of Directors with reference to the conduct of the business of the
corporation, except as otherwise provided by the Indiana Business Corporation
Law.
Section 3 - Term of Office: The members of the Executive Committee shall
hold office from the date of their appointment until the next succeeding
organization meeting of the directors, provided that the Board of Directors
shall at all times have the power to remove any member of the Executive
Committee.
Section 4 - Vacancies: Any vacancy, or vacancies, in the Executive
Committee, arising from any cause, shall be filled by a majority vote of the
remaining members of the Board until the next annual or special meeting of the
shareholders.
Section 5 - Fees: Members of the Executive Committee, as such, shall not
receive any stated salary for their services, but expenses, if any, of
attendance and a fee in such an amount as may be determined by the Board of
Directors from time to time shall be paid for attendance at each such Executive
Committee meeting.
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Section 6 - Meetings: The Executive Committee shall meet at such times and
places as the Chairman of the Board, the Vice Chairman of the Board, the Chief
Executive Officer (if the Chief Executive Officer is a member of the Executive
Committee) or the President (if the President is a member of the Executive
Committee) may designate, provided that at least one day's advance notice of
such meeting shall be given to each member of the committee. A majority of the
Executive Committee shall constitute a quorum for the transaction of all
business. All questions coming before any meeting of the Executive Committee
for action shall be decided by a majority vote of the members present at said
meeting.
Section 7 - Written Consents: Any action required or permitted to be taken
at any meeting of the Executive Committee may be taken without a meeting if the
action is taken by all members of the Executive Committee. The action must be
evidenced by one (1) or more written consents describing the action taken,
signed by each member (facsimile signatures may be accepted), and included in
the minutes or filed with the corporate records reflecting the action taken.
Action taken under this Section 7 is effective when the last member signs the
consent, unless the consent specifies a different prior or subsequent effective
date, in which cases the action is effective on or as of the specified date. A
consent signed under this Section 7 shall have the same effect as a unanimous
vote of all members of the Executive Committee and may be described as such in
any document.
Section 8 - Participation by Conference Telephone: Any or all members of
the Executive Committee may participate in any meeting of the Executive
Committee by, or through the use of, any means of communication, such as
conference telephone, by which all members participating may simultaneously hear
each other during the meeting. A member participating in a meeting by such
means shall be deemed to be present in person at the meeting.
ARTICLE VIII: AUDIT COMMITTEE
The Board of Directors shall appoint an Audit Committee consisting of three
or more members of the Board of Directors who are not employees of the Company
and are deemed to be independent under the regulations of the National
Association of Security Dealers, Inc. (NASD) and are 'financially literate' as
defined in the regulations of NASD, one of whom shall have employment experience
in financial or accounting or other comparable background as defined by NASD.
The committee shall have such duties, responsibilities and powers as defined in
the Audit Committee Charter approved by the Board of Directors.
ARTICLE IX: OFFICERS
Section 1 - Titles: The officers of the corporation shall consist of the
Chairman of the Board, the Vice Chairman of the Board, the Chief Executive
Officer, the President, an Assistant to the Chief Executive Officer, a Chief
Financial Officer, a Chief Administrative Officer, an Assistant to the
President, one or more Chief Operations Officer(s), a Secretary, a Treasurer,
and a Chief Accounting Officer. The Board of Directors may elect, at the
request of the Chairman of the Board, the Vice Chairman of the Board, the Chief
Executive Officer or the President, one or more Senior Executive Vice
Presidents, Executive Vice Presidents or Vice Presidents, and one or more
Assistants to the officers of the corporation.
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Section 2 - Qualifications of the Chairman of the Board and Vice Chairman
of the Board: The Chairman of the Board and the Vice Chairman of the Board
shall be chosen from among the members of the Board of Directors.
Section 3 - Election of Officers: The officers elected by the Board of
Directors shall be elected annually at the organization meeting of the Board,
provided that any officers not so elected at such meeting may be elected
subsequently at any regular or special meeting of the Board.
Section 4 - Term of Office: All officers shall serve at the pleasure of the
Board and shall hold office from the date of their election until the next
succeeding annual organization meeting of the Board of Directors or until their
successors are elected and shall qualify.
Section 5 - Vacancies: Any vacancy or vacancies among the officers, arising
from any cause, shall be filled by the Board of Directors.
Section 6 - Combining Offices: Any two or more offices may be held by the
same person except that the duties of President and Secretary shall not be
performed by the same person.
ARTICLE X: POWER AND DUTIES OF DIRECTORS AND OFFICERS
Section 1 - Directors: The business and affairs of the corporation shall be
managed by a Board of Directors except where specifically excepted by law and
these By-laws.
Section 2 - Executive Committee: In the interim between meetings of the
Board of Directors, the Executive Committee shall have and exercise all the
powers and authority of the Board of Directors, except as otherwise provided by
the Indiana Business Corporation Law, provided that no action of the committee
shall conflict with action had or taken by the Board of Directors.
Section 3 - Officers: The Chairman of the Board, the Vice Chairman of the
Board, the Chief Executive Officer and the President, in addition to the duties
hereinafter specified, shall perform all duties incident to the office held by
them, as well as such other duties as may be assigned to them from time to time
by the Board of Directors, and, in the case of the Vice Chairman of the Board,
the Chief Executive Officer and the President, such duties as may be assigned to
them from time to time by the Chairman of the Board. Each of the other officers
of the corporation shall perform all duties incident to the office held by them,
as well as such other duties as may be assigned to them from time to time by the
Board of Directors, the Chief Executive Officer or the President.
Section 4 - Chairman of the Board: The Chairman of the Board shall preside
at all meetings of the Board of Directors and shall have general control and
management of the business of the corporation.
Section 5 - Vice Chairman of the Board: In addition to his or her other
duties, in the absence of the Chairman of the Board, the Vice Chairman of the
Board shall preside at meetings of the Board of Directors.
Section 6 - Chief Executive Officer: The Chief Executive Officer shall have
day-to-day control and management of the business and affairs of the corporation
subject to the control of the Board of Directors. He or she shall preside at
all meetings of shareholders and, in the absence of the Chairman of the Board
and the Vice Chairman of the Board, at meetings of the Board of Directors. The
Chief Executive Officer shall have specific charge and supervision of all
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subordinate officers and all employees of the corporation and may delegate or
assign to such officers and employees such of his or her duties and
responsibilities as he or she may elect which are not specifically prescribed by
the By-laws or resolutions of the Board of Directors.
Section 7 - President: In the absence of the Chairman of the Board, the
Vice Chairman of the Board and the Chief Executive Officer, the President shall
have the general control and management of the business and affairs of the
corporation.
Section 8 - Assistant to the Chief Executive Officer: The Assistant to the
Chief Executive Officer shall perform such duties as may be assigned to him or
her from time to time by the Chief Executive Officer.
Section 9 - Chief Financial Officer: The Chief Financial Officer shall be
responsible for all financial matters of the corporation.
Section 10 - Chief Operations Officer(s): The Chief Operations Officer(s)
shall be responsible for all manufacturing and production of the corporation.
Section 11 - Chief Administrative Officer: The Chief Administrative Officer
shall be responsible for all administrative functions of the corporation
affecting the corporation as a whole.
Section 12 - Assistant to the President: The Assistant to the President
shall perform such duties as may be assigned to him or her from time to time by
the President.
Section 13 - Vice Presidents: The Senior Executive Vice Presidents,
Executive Vice Presidents or other Vice Presidents shall perform such duties as
may be respectively assigned to them from time to time by the Board of
Directors, the Chief Executive Officer or the President. The Board of Directors
or Executive Committee may designate one or more of the Vice Presidents as
Senior Executive Vice Presidents or Executive Vice Presidents.
Section 14 - Secretary: Subject to the authority of the Board of Directors,
the Chief Executive Officer and the President, the Secretary shall have the
custody of the corporate seal and records of the corporation and charge of all
the records of the corporation. He or she shall act as Secretary at meetings of
the stockholders, directors and the Executive Committee and enter the minutes of
such meetings in a book provided for that purpose and shall attend to
publishing, giving and serving all official notices of the corporation. He or
she shall perform such other duties as may be assigned to him or her.
Section 15 - Assistant Secretaries: In the absence or disability of the
Secretary, the Assistant Secretaries shall act with all the powers of the
Secretary. They shall perform such other duties as may be assigned to them.
Section 16 - Treasurer: Subject to the authority of the Board of Directors,
the Chief Executive Officer and the President, the Treasurer shall have the
custody of all negotiable instruments and securities of the corporation and
shall have responsibility for all collections and disbursements of corporate
funds. He or she may endorse all commercial documents requiring endorsement for
or on behalf of the corporation. He or she shall perform such other duties as
may be assigned to him or her.
Section 17 - Assistant Treasurers: In the absence or disability of the
Treasurer, the Assistant Treasurers shall act with all the powers of the
Treasurer. They shall perform such other duties as may be assigned to them.
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Section 18 - Chief Accounting Officer: Subject to the authority of the
Board of Directors, the Chief Executive Officer and the President, the Chief
Accounting Officer shall have general supervision of the accounting of the
corporation. He or she shall perform such other duties as may be assigned to
him or her.
ARTICLE XI: STOCK
Section 1 - Stock Certificates: Each stockholder shall be entitled to a
certificate signed by the Chairman of the Board, the President or a Vice
President and by the Secretary or an Assistant Secretary of the corporation and
sealed with the corporate seal of the corporation, certifying to the number of
shares owned by him or her in the corporation. Where such certificate is also
signed by a transfer agent and a registrar, the signatures of any such Chairman
of the Board, President, Vice President, Secretary or Assistant Secretary and
the seal of the corporation may be facsimiles. In case any officer or officers
who shall have signed or whose facsimile signature shall have been used on any
such certificate or certificates shall cease to be such officer or officers of
the corporation before such certificate or certificates shall have been
delivered by the corporation, such certificate or certificates may,
nevertheless, be issued and delivered by the corporation with the same effect as
if such officer or officers had not ceased to be such at the date of its issue.
Section 2 - Transfer of Shares: Stock shall be transferable on the stock
transfer books of the corporation in person or by an attorney duly authorized
and upon surrender and cancellation of the old certificates therefor.
The Board of Directors of the corporation may close its stock transfer
books for a period of time up to the maximum period of time permitted by rules
and regulations of the Securities and Exchange Commission and the Indiana
Business Corporation Law preceding the date of any meeting of stockholders or
the date for the payment of any dividend, provided, however, that in lieu of
closing the stock transfer books, the Board of Directors may fix in advance a
date pursuant to any applicable rules and regulations of the Securities and
Exchange Commission (which, as to stockholders' meetings, shall be a date not
more than seventy (70) days prior to the meeting), as the record date for the
determination of the stockholders entitled to notice of and to vote at any such
meeting, or entitled to receive payment of any such dividend, and in such case
such stockholders and only such stockholders as shall be stockholders of record
on the date so fixed shall be entitled to such notice of and to vote at such
meeting, or to receive payment of such dividend, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation after
such record date fixed as aforesaid. If the stock transfer books are not
closed, and no record date is fixed by the Board of Directors, no shares shall
be voted at any meeting which shall have been transferred on the books of the
corporation within ten (10) days next preceding the date of such meeting.
Section 3 - Replacing Certificates: In case of the loss or destruction of
any certificate of stock and the submission of proper proof thereof by the
owner, a new certificate may be issued in lieu thereof under such regulations
and restrictions as the Board of Directors may prescribe.
ARTICLE XII: AUTHORIZED SIGNATURES
Section 1 - Negotiable Instruments: The Chief Executive Officer, the
President or the Treasurer may authorize the use of facsimile signatures for
certain types of accounts maintained by the corporation or with respect to
checks or drafts which are less than a designated amount. The Chief Executive
Officer, the President or the Treasurer also may authorize employees of
particular business units of the corporation to sign or authorize checks,
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drafts, other negotiable instruments and electronic funds transfers up to a
designated dollar amount if the corporation's Audit and Management Group (or any
successor to such Group) certifies that such business unit meets such standards
regarding internal control as may be specified by the Chief Executive Officer,
the President or the Treasurer. Except as so authorized, all checks, drafts,
other negotiable instruments and electronic funds transfers shall be made in the
name of the corporation and signed or authorized by one officer or employee of
the corporation and countersigned or counterauthorized by a different officer or
employee of the corporation. The Chief Executive Officer, the President and the
Treasurer each are authorized and empowered to designate in writing both officer
and non-officer employees of the corporation who shall be empowered to sign or
countersign checks, drafts, and negotiable instruments for and on behalf of the
corporation, and any such written designation shall have the same force and
binding legal effect on the corporation as a resolution of the Board of
Directors so empowering such officer or non-officer employees. Any such written
designation may be revoked at any time by the Chief Executive Officer, the
President or the Treasurer, and, in their absence or unavailability, any member
of the Executive Committee of the Board of Directors may revoke such written
designation.
Section 2 - Contracts and Documents: The Chairman of the Board, the Vice
Chairman of the Board, the Chief Executive Officer or the President may, in the
corporation's name, sign all deeds, leases, contracts or similar documents that
may be authorized by the Board of Directors unless otherwise directed by the
Board of Directors or otherwise provided herein or in the Articles of
Incorporation or as otherwise required by law. The Chairman of the Board, the
Chief Executive Officer or the President is authorized and empowered to
designate in writing both officer and non-officer employees of the corporation
who shall be empowered to sign contracts or other documents for and on behalf of
the corporation, and any such written designation shall have the same force and
binding legal effect on the corporation as a resolution of the Board of
Directors so empowering such officer or non-officer employees. Any such written
designation may be revoked at any time by the Chairman of the Board, the Chief
Executive Officer or the President, and, in their absence or unavailability, any
member of the Executive Committee of the Board of Directors may revoke such
written designation.
ARTICLE XIII: FIDELITY BONDS
Section 1 - The officers and employees of the corporation shall, in the
discretion of the Board of Directors, the Chairman of the Board or the
President, give bonds for the faithful discharge of their respective duties, in
such form and such amounts as may be directed by the Board of Directors, the
Chairman of the Board or the President.
ARTICLE XIV: INDEMNIFICATION
Section 1 - Every person (and the heirs, executors and administrators of
such person) who is or was a director or officer of this corporation or of any
subsidiary of this corporation or who, at the request of the Board of Directors
of this corporation, served in any position or capacity or on any committee for
this corporation or for or in any other corporation, partnership, association,
trust, foundation, not-for-profit corporation, employee benefit plan or other
organization or entity, shall be indemnified by the corporation against any and
all liability and reasonable expense that may be incurred by him in connection
with or resulting from any claim, action, suit or proceeding in which either (i)
such person is wholly successful, thereby entitling such person to Mandatory
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Indemnification, or (ii) such person is not wholly successful but it is
nevertheless determined, pursuant to the procedures set forth below in Section 2
of this Article XIV of these By-laws, that such person acted in good faith and
that such person reasonably believed that (a) in the case of conduct in his
official capacity, his conduct was in the corporation's best interests, or (b)
in all other cases, his conduct was at least not opposed to the best interests
of such corporation, entity or organization, and, in addition with respect to
any criminal action or proceeding, either had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his conduct was
unlawful, thereby entitling such person to Permissive Indemnification. A person
shall be considered to have been serving an employee benefit plan at the request
of the corporation if his duties to the corporation also impose duties on, or
otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan. The terms "claim", "action", "suit" or "proceeding"
shall mean and include any threatened, pending or completed claim, action, suit
or proceeding (whether brought by or in the right of the corporation of any
other corporation or otherwise), and all appeals thereof, whether civil,
criminal, administrative or investigative, formal or informal, in which any
person described in the first sentence of this section may become involved as a
party or otherwise:
(a) by reason of his being or having been a director or officer of the
corporation, or of any subsidiary corporation of the corporation, or
of any other corporation where he served as such at the request of
the corporation, or
(b) by reason of his acting or having acted in any position or capacity or
on any committee for this corporation or any subsidiary corporation
of this corporation, or in any position or capacity in or for a
partnership, association, trust, foundation, not-for-profit
corporation, employee benefit plan or other organization or entity
where he served as such at the request of the corporation, or
(c) by reason of any action taken or not taken by him in any such
capacity, whether or not he continues in such capacity at the time
such liability or expense shall have been incurred.
The terms "liability" and "expenses" shall include, but shall not be limited to,
counsel fees and disbursements and amounts of judgments, fines or penalties
against, and amounts paid in settlement by or on behalf of, a person, and excise
taxes assessed with respect to an employee benefit plan, but shall not in any
event include any liability or expenses on account of profits realized by him in
the purchase or sale of securities of the corporation. The term "wholly
successful" shall mean (a) termination of any action, suit or proceeding against
the person in question without any finding of liability or guilt against him,
(b) the expiration of a reasonable period of time after the making of any claim
or threat of an action, suit or proceeding without the institution of the same,
without any payment or promise made to induce a settlement, or (c) approval by a
court, with knowledge of the indemnity herein provided, of a settlement of any
claim, action, suit or proceeding. The termination of any claim, action, suit
or proceeding by judgment, order, settlement (whether with or without court
approval), or conviction or upon a plea of guilty or of nolo contendere, or its
equivalent, shall not by itself create a presumption that a person did not meet
the standards of conduct for Permissive Indemnification. The actions of a
person with respect to an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974 shall be deemed to have been taken in
what the person reasonably believed to be the best interests of the corporation
if the person reasonably believed he was acting in conformity with the
requirements of such Act or he reasonably believed his actions to be in the
interests of the participants in or beneficiaries of the plan.
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Section 2 - With regard to Permissive Indemnification, the determination
that a person acted in good faith and that such person reasonably believed that
(a) in the case of conduct in his official capacity, his conduct was in the
corporation's best interests, or (b) in all other cases, his conduct was at
least not opposed to the best interests of the corporation, and, in addition,
with respect to any criminal action or proceeding, either had reasonable cause
to believe that his conduct was lawful or had no reasonable cause to believe
that his conduct was unlawful with regard to a specific claim, action, suit or
proceeding in or as to which such person is not wholly successful shall be made
by or for the Board of Directors of the corporation in the manner hereinafter
described. Any requests for such indemnification must first be proposed to the
Board of Directors of the corporation, and a motion for such indemnification may
be made by any director of the corporation, including a director who is seeking
such indemnification for himself. If a quorum of directors eligible to decide
the matter exists within the limitations and requirements of I.C. 23-1-37-12
(b)(1), such directors may either (i) decide the question themselves; (ii) refer
the matter to Special Legal Counsel for decision pursuant to I.C.
23-1-37-12(b)(3)(A); or (iii) decline to take any action to either decide the
question of such indemnification or refer the matter for decision to Special
Legal Counsel.
If there does not exist a quorum of directors eligible to decide the matter
within the limitations and requirements of I.C. 23-1-37-12(b)(1), a majority of
the entire Board of Directors may either (i) refer the matter to a committee of
two or more directors who are eligible to vote thereon pursuant to I.C.
23-1-37-12(b)(2) who may either decide the matter themselves or refer the matter
to Special Legal Counsel for decision pursuant to I.C. 23-1-37-12(b)(3)(A); (ii)
if such a committee cannot be appointed, refer the matter to Special Legal
Counsel pursuant to the procedures described in I.C. 23-1-37-12(b)(3)(B); or
(iii) decline to take any action to refer the matter of such indemnification to
a committee or to Special Legal Counsel. Any decision on the question of
entitlement to such Permissive Indemnification by a majority of a quorum of the
Board of Directors eligible to vote pursuant to I.C. 23-1-37-12(b)(1); by a
special committee of eligible directors pursuant to I.C. 23-1-37-12(b)(2); or by
Special Legal Counsel duly appointed pursuant to the provisions of I.C.
23-1-37-12(b)(3), shall be in the sole and absolute discretion of such person or
persons who are to make such determination. If it is determined and decided
that such Permissive Indemnification should be given in a specific situation,
the authorization for such indemnification and a determination of the amount
thereof shall be made in accordance with the procedures and requirements of I.C.
23-1-37-12(c). For purposes of this Section 2 Permissive Indemnification shall
be deemed to have been denied (i) if a majority of any group of persons who are
to decide the question do not vote in favor of the proposed indemnification;
(ii) if the Board of Directors or any committee thereof declines to take any
permitted action to either decide the question, refer it to a committee, or
refer it to Special Legal Counsel; (iii) if no decision is made by the person or
persons who were to decide such question within a period of six (6) months after
such indemnification was first proposed to the Board of Directors of the
corporation; or (iv) to the extent that the dollar amount of any indemnification
to be made by the corporation is less than the total dollar amount of
indemnification proposed or requested to be made. If proposed Permissive
Indemnification is denied, the question may not be reconsidered at any
subsequent time by the corporation.
Section 3 - Expenses incurred with respect to any claim, action, suit or
proceeding may be advanced by the corporation (by action of the Board of
Directors, whether or not a disinterested quorum exists) prior to the final
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disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount unless he is entitled to indemnification under
this Article of these By-laws.
Section 4 - The rights of mandatory and Permissive Indemnification provided
in this Article of the By-laws shall be in addition to any rights to which any
such person may otherwise be entitled by contract, as matter of law, or pursuant
to I.C. 23-1-37. Any person claiming the right to indemnification pursuant to
any provisions of these By-laws may at any time apply for indemnification to or
seek review of any decision denying indemnification or determining the amount
thereof by a court pursuant to I.C. 23-1-37-11. Persons who are not directors
or officers of the corporation but who are directors or officers of any
subsidiary may be indemnified to the extent authorized at any time or from time
to time by the Board of Directors.
Section 5 - Irrespective of the provisions of this Article of the By-laws,
the Board of Directors may, at any time or from time to time, approve
indemnification of directors and officers or other persons to the full extent
permitted by the provisions of the Indiana Business Corporation Law at the time
in effect, whether on account of past or future transactions.
Section 6 - To the extent not inconsistent with Indiana law as in effect
from time to time, the Board of Directors may, at any time or from time to time,
approve the purchase and maintenance of insurance on behalf of any person
described in the first sentence of Section 1 of this Article XIV against any
liability asserted against him in his capacity or arising out of his status as
such a person, whether or not the corporation would have the power to indemnify
him under the provisions of this Article of the By-laws. In the event that any
expense or liability otherwise subject to indemnification hereunder is covered
entirely or in part by any insurance, the indemnification provided for by this
Article of these By-laws shall only be available, if at all, as to any uninsured
liability or expense or that portion which is in excess of the amount of all
available insurance coverage. Under no circumstances shall any insurer or other
person making payment under such an insurance policy or contract be subrogated
to the rights of any person entitled to indemnification under this Article of
these By-laws.
Section 7 - Any and all references contained in Article XIV of these
By-laws to any provision, section, subsection or portion of the Indiana Code
(I.C.) shall mean the Indiana Code as the same existed on December 9, 1986, and
no subsequent amendment, repeal, modification, change, or judicial invalidation
of any provision of the Indiana Code subsequent to December 9, 1986, shall
alter, modify, or otherwise affect these By-laws, and these By-laws shall be
construed and interpreted under the statutory law of the State of Indiana as it
existed as of the date of adoption of these By-laws.
Section 8 - The indemnification herein required or permitted by these
amended indemnification By-laws shall be a contractual obligation, undertaking
and commitment of the corporation as to any person who either continued to serve
or commenced to serve, following the date of the adoption of these amended
indemnification By-laws, as a director or officer of this corporation or any
subsidiary of this corporation, or in any other position or capacity, at the
request of this corporation or any subsidiary corporation, on any committee,
partnership, association, trust, foundation, not-for-profit corporation,
employee benefit plan, or other organization or entity, and no subsequent
amendment or repeal of these By-laws and no judicial decision invalidating the
legislation authorizing the indemnification provided for by these By-laws or
invalidating all or any part of these indemnification By-laws shall in any
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manner deny, diminish, limit, restrict, or qualify the indemnification herein
provided for, for any such person who so continued to serve or commenced to
serve with regard to any claim concerning any matter which occurred, which
commenced to occur, or which continued to occur subsequent to the adoption of
these amended indemnification By-laws and prior to any such amendment, repeal,
or judicial invalidation.
ARTICLE XV: REGULATION OF SHAREHOLDERS
Section 1 - Election not to be governed by Chapter 42 (Control Share
Acquisitions) of 1986 Indiana Business Corporation Law. This Corporation,
having filed with the Indiana Secretary of State on August 18, 1986, its
resolution electing to be governed by the Indiana Business Corporation Law, I.C.
23-1-18 through I.C. 23-1-54, effective September 15, 1986, now elects, pursuant
to the provisions of I.C. 23-1-42-5, not to be governed by the provisions of
Chapter 42 of the 1986 Indiana Business of Corporation Law (I.C. 23-1-42), the
same being Section 26 of House Enrolled Act No. 1257 as enacted by the General
Assembly of the State of Indiana at the Second Regular Session of the 104th
General Assembly.
Section 2 - Election not to be governed by Chapter 43 Five-Year Freeze
(Business Combinations) provisions of the 1986 Indiana Business Corporation Law.
This Corporation, having filed with the Indiana Secretary of State on August 18,
1986, its resolution electing to be governed by the Indiana Business Corporation
Law, I.C. 23-1-18 through I.C. 23-1-54, effective September 15, 1986, now,
within 30 days of the effective date of such new law and pursuant to the
provisions of I.C. 23-1-43-22(B), hereby expressly elects not to be governed by
the provisions of Chapter 43 of the 1986 Indiana Business Corporation Law (I.C.
23-1-43), the same being Section 27 of House Enrolled Act No. 1257 as enacted by
the General Assembly of the State of Indiana at the Second Regular Session of
the 104th General Assembly.
ARTICLE XVI: MISCELLANEOUS
Section 1 - Depositories: The funds of the corporation shall be deposited
in the name of the corporation with such depositories as may be designated by
the Board of Directors, the Chief Executive Officer, the President or the
Treasurer.
ARTICLE XVII: AMENDMENTS
Section 1 - These By-laws may be altered, amended or repealed by a majority
vote of the whole Board of Directors at any meeting, the notice of which
includes notice of the proposed alteration, amendment or repeal.
Exhibit 3(b)
