SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) November 10, 1994
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ARVIN INDUSTRIES, INC.
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(Exact name of registrant as specified in charter)
Indiana 1-302 35-0550190
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(State of other (Commission file number) (IRS employer
jurisdiction of identification no.)
incorporation)
One Noblitt Plaza, Box 3000, Columbus, Indiana--------47202-3000
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (812)379-3000
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(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
The Board of Directors of the registrant adopted
amendments to Sections 2.9 & 3.7 of its Amended and Restated By-
Laws at a regular meeting thereof, held on November 10, 1994. The
effect of the amendment to Section 2.9, as amended, is to provide
that the Chairman shall fix and announce the time of the opening
and closing of the polls for each matter upon which the
shareholders are to vote. The effect of the amendment to Section
3.7, as amended, is to provide that special meetings of the Board
of Directors shall be called by the Chairman or, in his or her
absence, by the Secretary, upon the written request of a majority
of the Board.
Item 7. Financial Statements and Exhibits
(c) Exhibits -
(3)(ii) Amended and Restated By-Laws.
SIGNATURE
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.
Dated: December 21, 1994 ARVIN INDUSTRIES, INC.
By: /s/Ronald R. Snyder
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Ronald R. Snyder
Vice President, General
Counsel & Secretary
<PAGE>
AMENDED AND RESTATED
BYLAWS
OF
ARVIN INDUSTRIES, INC.
ARTICLE I
SECTION 1.1. Registered Office. The registered office of
the Corporation in the State of Indiana shall be in the City of
Columbus, County of Bartholomew.
SECTION 1.2. Principal Business Office. The principal
office of the Corporation shall be in the City of Columbus, County
of Bartholomew, in the State of Indiana.
ARTICLE 2
MEETING OF SHAREHOLDERS
SECTION 2.1. Place of Meetings. Each meeting of
shareholders of the Corporation shall be held at such place, in or
outside of the State of Indiana, as the Board of Directors may
designate in the notice of such meeting, but if no such
designation is made, then at the principal business office of the
Corporation.
SECTION 2.2. Annual Meetings. An annual meeting of
shareholders for the purpose of electing directors and transacting
such other business as may properly be brought before the meeting
shall be held on (i) the second Thursday in April of each year at
10:30 a.m. Columbus, Indiana time, unless such day is a legal
holiday in which case the meeting shall be held on the next
succeeding business day that is not a legal holiday or (ii) such
other date and at such other time as the Board of Directors may
determine.
If for any reason any annual meeting shall not be held at the
time herein provided, the same may be held at any time thereafter,
upon notice as hereinafter provided, or the business thereof may
be transacted at any special meeting of shareholders called for
that purpose.
The Board of Directors may, upon public notice given prior to
the scheduled meeting date, postpone, for as long as and to the
extent permitted by the Indiana Business Corporation Law, any
previously scheduled annual or special meeting of shareholders.
SECTION 2.3. Special Meetings. Special meetings of
shareholders, unless otherwise required by statute and subject to
the rights of holders of any class of Preferred Shares of the
Corporation, may be called only by (i) the Chairman of the Board
of Directors (the "Chairman") or the Secretary at the request in
writing of the Chairman or (ii) the Board of Directors pursuant to
a resolution adopted by two-thirds of the total number of
directors which the Corporation would have if there were no
vacancies (the "Whole Board"). Business transacted at any special
meeting shall be confined to the purpose or purposes stated in the
notice of such special meeting. Meetings may be held without
notice if all shareholders entitled to vote are present or if
notice is waived by those not present.
SECTION 2.4. Notice of Shareholders' Meetings. Notice of
each meeting of shareholders, stating the date, time and place,
and, in the case of special meetings, the purpose or purposes for
which such meeting is called, shall be given to each shareholder
entitled to vote thereat not less than 10 nor more than 60 days
before the date of the meeting unless otherwise prescribed by
statute.
SECTION 2.5. Record Dates. (a) In order that the
Corporation may determine the shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment
thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
shares or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a future date as the record date,
which shall not be more than 70 nor less than 10 days before the
date of such meeting or any other action requiring a determination
by shareholders.
(b) If a record date has not been fixed as provided in
preceding subsection (a), then:
(i) The record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders of
the Corporation shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day
on which the meeting is held; and
(ii) The record date for determining shareholders for
any other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating
thereto.
(c) Only those who shall be shareholders of record on the
record date so fixed as aforesaid shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or
to receive payment of such dividend or other distribution, or to
receive such allotment of rights, or to exercise such rights, as
the case may be, notwithstanding the transfer of any shares on the
books of the Corporation after the applicable record date,
provided, however, the Corporation shall fix a new record date if
a meeting is adjourned to a date more than 120 days after the date
originally fixed for the meeting.
SECTION 2.6. List of Shareholders. The Secretary of the
Corporation shall make, before each meeting of shareholders, an
alphabetical list of shareholders entitled to vote thereat,
arranged by voting group, showing the address of and number of
shares registered in the name of each shareholder. Such list
shall be open to the examination of any such shareholder or such
shareholder's agent or attorney authorized in writing
("shareholder agent"), for any purpose germane to the meeting,
during ordinary business hours, for a period of a least 5 days
prior to the meeting for which the list was prepared and
continuing through the meeting, either at a place in the city
where the meeting is being held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place
where said meeting is to be held. Such list shall be produced and
kept at the time and place of meeting during the whole time
thereof for inspection by any such shareholder or shareholder
agent who is present.
SECTION 2.7. Quorum and Adjournments. The holders of a
majority of the voting power of the shares of the Corporation
entitled to vote, present in person or by proxy, shall constitute
a quorum of shareholders for all purposes unless the
representation of a larger proportion is required by statute or by
the Corporation's Restated Articles of Incorporation, as amended
(the "Articles of Incorporation"), and, in such cases, the
representation of the proportion so required shall constitute a
quorum. Whether or not there is such a quorum, the Chairman of
the meeting or the shareholders present or represented by proxy
representing a majority of the shares present or represented may
adjourn the meeting from time to time without notice other than an
announcement at the meeting. Any such adjourned meeting at which
a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original
meeting.
SECTION 2.8. Voting by Shareholders; Proxies. Election of
directors at all meetings of the shareholders at which directors
are to be elected shall be by ballot, and, except as otherwise set
forth in the Articles of Incorporation with respect to the right
of the holders of any class or series of Preferred Shares to elect
additional directors under specified circumstances, a plurality of
the votes cast thereat shall elect. If a quorum exists, action on
a matter (other than the election of directors) submitted to
shareholders entitled to vote thereon at any meeting shall be
approved if the votes cast favoring the action exceed the votes
cast opposing the action, unless a greater number of affirmative
votes is required by law or the Articles of Incorporation.
(Amended 2/14/91)
SECTION 2.9. Conduct of Business.
(a) Presiding Officer. The Chairman of the Board of
Directors shall preside as Chairman of shareholder meetings and
shall determine the order and conduct of business and all matters
of procedure at such meetings. The Chairman shall fix and
announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the shareholders
will vote at the meeting. In the absence of the Chairman, the
Vice Chairman of the Board of Directors (the "Vice Chairman"), or
if the Vice Chairman is also absent, the President, shall assume
the duties of the Chairman specified in this paragraph (a) of
Section 2.9. If each of the Chairman, the Vice Chairman and the
President is absent, a vice president chosen by the Board of
Directors shall assume the duties of the Chairman specified in
this paragraph (a) of Section 2.9. (Amended 11/10/94)
(b) Annual Meetings of Shareholders. (i) Nominations of
persons for election to the Board of Directors of the Corporation
and the proposal of business to be considered by the shareholders
may be made at an annual meeting of shareholders (A) pursuant to
the Corporation's notice of meeting, (B) by or at the direction of
the Board of Directors or (C) by any shareholder of the
Corporation who was a shareholder of record at the time of giving
of notice provided for in this Section 2.9, who is entitled to
vote at the meeting and who complies with the notice procedures
set forth in this Section 2.9.
(ii) For nominations or other business to be properly brought
before any annual meeting by a shareholder pursuant to clause (C)
of paragraph (b)(i) of this Section 2.9, the shareholder must have
given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of
the Corporation not less than 60 days nor more than 90 days prior
to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than
60 days from such anniversary date, notice by the shareholder to
be timely must be so delivered not earlier than the 90th day prior
to such annual meeting and not later than the close of business on
the later of the 60th day prior to such annual meeting or the 10th
day following the day on which public announcement of the date of
such meeting is first made. Such shareholder's notice shall set
forth (A) as to each person whom the shareholder proposes to
nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (including such person's written consent to being named in
the proxy statement as a nominee and to serving a director if
elected); (B) as to any other business that the shareholder
proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest
in such business of such shareholder and the beneficial owner, if
any, on whose behalf the proposal is made; (C) as to the
shareholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (x) the name and
address of such shareholder, as they appear on the Corporation's
books, and of such beneficial owner and (y) the class and number
of shares of the Corporation which are owned beneficially and of
record by such shareholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of
paragraph (b)(ii) of this Section 2.9 to the contrary, in the
event that any person nominated by the Board of Directors for
election as a director (other than a person nominated to fill a
vacancy created by the death of a director) was not a director or
nominee named (A) in the Corporation's proxy statement for the
preceding annual meeting or (B) in a public announcement made by
the Corporation at least 60 days prior to the first anniversary of
the preceding year's annual meeting (a "New Nominee"), a
shareholder's notice required by this Section 2.9 shall also be
considered timely if it is delivered to the Secretary at the
principal executive offices of the Corporation not later than the
close of business on the 10th day following the day on which
public announcement is first made by the Corporation of the
election or nomination of such New Nominee to the Board of
Directors.
(iv) The notice procedures of this Section 2.9 shall not
apply to any annual meeting if (A) with respect to annual meetings
of shareholders subsequent to the 1992 annual meeting of
shareholders the Corporation shall not have set forth in its proxy
statement for the preceding annual meeting of shareholders the
date by which notice of nominations by shareholders of persons for
election as directors or of other business proposed to be brought
by shareholders at the next annual meeting of shareholders must be
received by the Corporation to be considered timely pursuant to
this Section 2.9 or (B) with respect to the 1992 annual meeting of
shareholders the Corporation shall have failed to issue a public
announcement setting forth such information not less than 30 days
prior to the date by which a shareholder's notice must be received
by the Secretary. (Amended 11/14/91)
(c) Special Meetings of Shareholders. Only such business
shall be conducted at a special meeting of shareholders as shall
have been brought before the meeting pursuant to the Corporation's
notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of
shareholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (A) by or at the direction of the
Board of Directors or (B) by any shareholder of the Corporation of
the Corporation who is a shareholder of record at the time of
giving of notice provided for in this Section 2.9, who shall be
entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 2.9. Nominations by
shareholders of persons for election to the Board of Directors may
be made at such a special meeting of shareholders if the
shareholder's notice required by paragraph (b)(ii) of this Section
2.9 shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 90th day prior to
such Special Meeting and not later than the close of business on
the later of the 60th day prior to such special meeting or the
10th day following the date on which public announcement is first
made of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting.
(d) General. (i) Except where the terms of any class or
series of Preferred Shares of the Corporation require the election
of one or more directors by the holders of such Preferred Shares
voting as a single class and except a provided in Section 3.2 of
these By-Laws, only such persons who are nominated in accordance
with the procedures set forth in this Section 2.9 shall be
eligible to serve as directors and only such business shall be
conducted at a meeting of shareholders as shall have been brought
before the meeting in accordance with the procedures set forth in
this Section 2.9. The person presiding at the meeting shall have
the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made in
accordance with the procedures set forth in this Section 2.9 and,
if any proposed nomination or business is not in compliance with
this Section 2.9, to declare that such defective proposal shall be
disregarded. (Amended 2/14/91)
(ii) For purposes of this Section 2.9, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service
or a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or
15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this
Section 2.9, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
2.9. Nothing in this Section 2.9 shall be deemed to affect any
rights of shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
Section 2.10. Inspectors. There shall be appointed by the
Board of Directors, before each meeting of the shareholders, two
inspectors of the vote. Such inspectors shall first take and
subscribe an oath or affirmation faithfully to execute the duties
of inspector at such meeting with strict impartiality and
according to the best of their ability. If two inspectors are not
appointed in advance of any such meeting by the Board of Directors
or one or both appointed inspectors fail or refuse to act, then
one or both inspectors, as the case may be, shall be appointed for
the meeting by the person presiding thereat. Such inspectors
shall be responsible for tallying and certifying the vote taken on
any matter at each meeting which is required to be tallied and
certified by them in the resolution of the Board of Directors
appointing them or the appointment of the person presiding at such
meeting as the case may be. Except as otherwise provided by these
By-Laws or the laws of the State of Indiana, such inspectors shall
also decide all questions touching upon the qualification of
voters, the validity of proxies and ballots, and the acceptance
and rejection of votes. In the case of a tie vote by the
inspectors on any question, the person presiding at the meeting
shall decide such question. The Board of Directors shall have the
authority to make rules establishing presumptions as to the
validity and sufficiency of proxies.
ARTICLE 3
DIRECTORS
SECTION 3.1. Number, Election and Terms of Office. (a)
Subject to the rights of the holders of any class or series of
Preferred Shares to elect additional directors under specified
circumstances, the number of directors shall be fifteen (15)
persons and from time to time may be increased or decreased to the
extent provided for in the Articles of Incorporation exclusively
by the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board. The directors, other than those who
may be elected by the holders of any class or series of Preferred
Shares, shall be divided, with respect to the time for which they
severally hold office, into three classes, each class being (and
shall be) as nearly equal as possible. At each annual meeting of
shareholders, (i) directors elected to succeed those directors
whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual meeting of shareholders
after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified and
(ii), if authorized by a resolution of the Board of Directors,
directors may be elected to fill any vacancy on the Board of
Directors regardless of how such vacancy shall have been created.
All directors so elected shall hold office until their respective
successors are elected and qualified.
SECTION 3.2. Vacancies. Except where the terms of any class
or series of Preferred Shares of the Corporation require the
election of one or more directors by the holders of such Preferred
Shares voting as a single class and except to the extent the Board
of Directors determines otherwise, vacancies occurring on the
Board of Directors and newly-created directorships resulting from
any increase in the number of directors may be filled only by the
affirmative vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and
any director so chosen shall hold office for a term expiring at
the annual meeting of shareholders at which the term of office of
the class of directors to which such director has been elected
expires and until his or her successor is duly elected and
qualified or until the earlier of his or her death, resignation or
removal in a manner permitted by statute or these By-Laws. No
decrease in the number of authorized directors constituting the
Whole Board shall shorten the term of any incumbent director.
SECTION 3.3. Powers. The business of the Corporation shall
be managed by the Board of Directors which may exercise all powers
of the Corporation and do all lawful acts and things not by
statute or by the Articles of Incorporation or these By-Laws
directed or required to be exercised or done by the shareholders.
SECTION 3.4. Place of Meetings. The place of any meeting of
the Board of Directors may be either in or outside the State of
Indiana.
SECTION 3.5. Annual Meetings. Annual meetings of the Board
of Directors shall be held each year on the same day as the
shareholder's annual meeting for such year, at the time and place
determined by the Board of Directors or at such date, time and
place otherwise set by the Chairman.
SECTION 3.6. Regular Meetings. Regular meetings of the Board
of Directors shall be held in the months of February, June,
September and November at the times and places designated by the
Board of Directors in the notice of any such meeting, or at such
dates, times and places otherwise set by the Chairman.
SECTION 3.7. Special Meetings. Special meetings of the
Board of Directors may be called by the Chairman; and shall be
called by the Chairman upon the written request of a majority of
the entire Board of Directors of the Corporation, and in the case
of death, disability or absence from the State of Indiana of the
Chairman, the Secretary shall call the meeting upon such request.
Amended 11/10/94)
SECTION 3.8. Notice of Meetings. Notice of each meeting of
the Board of Directors shall be given to each director. Meetings
of the Board of Directors may be held at any time and for any
purpose, without notice, when all members of the Board of
Directors are present.
SECTION 3.9. Quorum. Except as provided in Section 3.2, a
whole number of directors equal to at least a majority of the
Whole Board shall constitute a quorum for the transaction of
business at all meetings of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the
directors present may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum is present.
SECTION 3.10. Informal Action. Unless otherwise restricted
by statute, the Articles of Incorporation or these By-Laws, any
action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all
directors or by all members of such committee, as the case may be,
and such written consent is filed with the minutes of proceedings
of the Board of Directors or of such committee.
SECTION 3.11. Attendance by Conference Telephone. Members
of the Board of Directors or any committee designated by the Board
of Directors may participate in a meeting of such Board of
Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
such meeting.
SECTION 3.12. Committees. (a) The Board of Directors may
from time to time, in its discretion, by resolution passed by a
majority of the Whole Board, designate, and appoint, from the
directors, committees of one or more persons which shall have and
may exercise such lawfully delegable powers and duties conferred
or authorized by the resolutions of designation and appointment.
The Board of Directors shall have power at any time to change the
members of any such committee, to fill vacancies, and to discharge
any such committee.
(b) Unless the Board of Directors shall provide otherwise,
the presence of one-half of the total membership of any committee
of the Board of Directors shall constitute a quorum for the
transaction of business at any meeting of such committee and the
act of a majority of those present shall be necessary and
sufficient for the taking of any action thereat.
SECTION 3.13. Compensation of Directors. The directors may
be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and at each meeting of a committee of the
Board of Directors of which they are members. Unless otherwise
provided in these By-Laws, the Chairman shall have the authority
to fix compensation of all directors for their services to the
Corporation as directors and for their services to the Corporation
as members of committees of the Board of Directors.
SECTION 3.14. Removal. Subject to the rights of the holders
of any class or series of Preferred Shares, any director or the
entire Board of Directors may be removed from office at any time,
but only for cause and only by the affirmative vote by the holders
of at least two-thirds of the voting power of all of the then
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a
single class.
ARTICLE 4
NOTICES
SECTION 4.1. Notices. Notices to directors and shareholders
shall be in writing and delivered personally or mailed to their
addresses appearing on the records of the Corporation or, if to
directors, by telegram, cable, telephone, telecopy, facsimile or a
nationally recognized overnight delivery service. Notice to
directors by mail shall be given at least two days before the
meeting. Notice to directors by telegram, cable, personal
delivery, telephone or wireless shall be given a reasonable time
before the meeting, but in no event less than one hour before the
meeting. Notice by mail shall be deemed to be given when mailed
to the director at his or her address appearing on the records of
the Corporation. Notice by telegram or cable shall be deemed to
be given when the telegram or cable addressed to the director at
his or her address appearing on the records of the Corporation is
delivered to the telegraph company. Notice by telephone or
wireless shall be deemed to be given when transmitted by telephone
or wireless to the telephone number or wireless call designation
appearing on the records of the Corporation for the director
(regardless of whether the director shall have personally received
such telephone call or wireless message), provided confirmation of
transmission shall be made promptly by telegram or cable in the
manner specified above.
SECTION 4.2. Waiver of Notice. Whenever any notice is
required, a waiver thereof signed by the person entitled to such
notice and filed with the minutes or corporate records, whether
before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of any person at any meeting of
shareholders or directors shall constitute a waiver of notice of
such meeting, except when such person attends only for the express
purpose of objecting, at the beginning of the meeting (or in the
case of a director's meeting, promptly upon such director's
arrival), to the transaction of any business at the meeting and
does not thereafter vote for or assent to action taken at the
meeting.
ARTICLE 5
OFFICERS
SECTION 5.1. Designation; Number; Election. The Board of
Directors shall elect the officers of the Corporation. Such
officers shall be a chairman of the Board of Directors, a vice
chairman of the Board of Directors, a president, one or more vice
presidents as the Board of Directors shall determine from time to
time, a controller, a treasurer, and a secretary. The Chairman,
Vice Chairman and the President shall be chosen from the
directors.
In addition to any vice president elected by the Board of
Directors, the President, at any time, may appoint one or more
vice presidents as the President may determine from time to time.
In addition to the foregoing officers elected by the Board of
Directors and/or appointed by the President, the Board of
Directors and/or the President, at any time, may elect or appoint
one or more assistant controllers, assistant treasurers, assistant
secretaries and other officers.
In addition to the foregoing officers elected by the Board of
Directors and/or appointed by the President, the Controller, the
Treasurer and the Secretary, at any time, may appoint one or more
assistant controllers, assistant treasurers and assistant
secretaries, respectively, as the Controller, the Treasurer and
the Secretary may determine from time to time.
One person may hold more than one office at the same time
provided the duties of such officers as prescribed by these By-
Laws may be properly and consistently performed by one person.
SECTION 5.2. Term of Office; Removal; Vacancies. The term
of each officer shall be for one year and continue until his or
her successor is chosen and qualified or until the earlier of his
or her death, resignation or removal, except that any such officer
elected by the Board of Directors, excluding the Chairman, the
Vice Chairman and the President, at any time, may be suspended by
the Chairman, the Vice Chairman or the President until the Board
of Directors convenes, and any such officer, including the
Chairman, the Vice Chairman and the President, may be removed at
any time by the affirmative vote of a majority of the members of
the Whole Board.
Vacancies occurring among officers elected by the Board of
Directors may be filled at any time by the Board of Directors.
All agents and representatives of the Corporation shall hold
office only during the pleasure of the Board of Directors or the
officer appointing them.
SECTION 5.3. Compensation of Officers. The compensation
committee of the Board of Directors shall have the authority to
fix compensation of the Chairman, the Vice Chairman and the
President. The President and/or such officer as the President may
designate shall have the authority to fix compensation of all
other officers of the Corporation.
SECTION 5.4. Chairman of the Board of Directors. The
Chairman of the Board of Directors shall, subject to the Board of
Directors, have general management and oversight of the
administration and operation of the Corporation's business and
general supervision of its policies and affairs. He or she shall
see that all orders and resolutions of the Board of Directors and
of any committee thereof are carried into effect.
He or she shall (a) preside at all meetings of the
shareholders and of the Board of Directors, and shall have plenary
power to set the agenda, determine the procedure and rules of
order and make definitive rulings at meetings of shareholders; (b)
be ex-officio a member of all committees except the audit
committee and the stock option committee; (c) have power to
appoint officers for any division who, as such, shall not be
officers of the Corporation; (d) subject to the Board of
Directors, be in general and active charge of the entire business
and all the affairs of the Corporation; and (e) have such other
powers and perform such other duties as may be prescribed by the
Board of Directors or provided in these By-Laws. (Amended
6/17/93)
Section 5.5. Vice Chairman of the Board of Directors. The
Vice Chairman shall have such powers and duties prescribed in
these By-Laws or assigned to him or her by the Board of Directors.
In the absence or disability of the Chairman, the Vice Chairman
shall preside at meetings of the Board of Directors and shall
perform such other duties of the Chairman as may be assigned to
him or her by the Board of Directors.
Section 5.6. President. The President shall have such
powers and duties prescribed in these By-Laws or assigned to him
or her by the Board of Directors. In the absence or disability of
the Chairman and the Vice Chairman, the President shall preside at
meetings of the Board of Directors and shall perform such other
duties of the Chairman as may be assigned to him or her by the
Board of Directors. In the absence or disability of the Chairman,
the Vice Chairman and the President, on assembling for a regular
or special meeting of the Board of Directors, the directors shall
choose one of the Vice Presidents in attendance to preside at such
meeting.
Section 5.7. Vice Presidents. Each Vice President shall
have the powers and duties prescribed in these By-Laws or assigned
to him or her by the Board of Directors, the Chairman or the
President. The Board of Directors and/or the President may
designate one or more of such vice presidents, as executive,
senior or assistant vice presidents.
SECTION 5.8. Controller. Subject to control and supervision
by the President or such officer as the President may designate
and by the Board of Directors, the Controller shall be in charge
of the accounts of the Corporation and its subsidiaries; maintain
adequate records of all assets, liabilities and business
transactions; and have such other powers and duties prescribed by
these By-Laws or by the Board of Directors, the President or such
officer as the President may designate, and the usual powers and
duties pertaining to his or her office.
SECTION 5.9. Assistant Controllers. The Assistant
Controllers shall have the powers and duties prescribed by these
By-Laws or assigned by the Controller. IN the absence or
disability of the Controller, they shall have all his other powers
and duties.
SECTION 5.10. Treasurer. Subject to control and supervision
by the President or such officer as the President may designate
and by the Board of Directors, the Treasurer shall propose
financial policies, negotiate loans and be responsible for the
maintenance of proper insurance coverages; and have such other
powers and duties prescribed by these By-Laws or by the Board of
Directors, the President or such officer as the President may
designate, and the usual powers and duties pertaining to his or
her office.
SECTION 5.11. Assistant Treasurers. The Assistant
Treasurers shall have the powers and duties prescribed by these
By-Laws or assigned by the Treasurer. In the absence of the
Treasurer, they shall have all his other powers and duties.
SECTION 5.12. Secretary. Subject to control and supervision
by the President or such officer as the President may designate
and by the Board of Directors and the Chairman of the Board of
Directors, the secretary shall attend and record proceedings of
meetings of shareholders and directors and have such other powers
and duties prescribed by these By-Laws or by the Board of
Directors, the President or such officer as the President may
designate, and the usual powers and duties pertaining to his or
her office.
SECTION 5.13. Assistant Secretaries. The Assistant
Secretaries shall have the powers and duties prescribed by these
By-Laws or assigned by the Secretary. In the absence or
disability of the Secretary, they shall have all his or her powers
and duties.
ARTICLE 6
CONDUCT OF BUSINESS
SECTION 6.1. Contracts, Deeds and Other Instruments. All
agreements evidencing indebtedness of the Corporation, including
but not limited to contracts, trust deeds, promissory notes, sight
drafts, time drafts and letters of credit (including applications
therefor), may be signed by any one of the Chairman, the Vice
Chairman, the President, any Executive Vice President. the Vice
President-Finance, the Treasurer, the Assistant Treasurer, any
Assistant Secretary, and any person authorized by a resolution of
the Board of Directors. Such documents pertaining to the business
of a division of the Corporation, in excess of the principal
amount determined from time to time for each division by the
Chairman, may be signed by appropriate officers of such division
only upon written authorization signed by any one of the Chairman,
the Vice Chairman, the President, any Executive Vice President,
the Vice President-Finance and the Treasurer or upon authorization
by a resolution of the Board of Directors.
A certified copy of these By-Laws and/or any authorization
given hereunder may be furnished as evidence of the authorities
herein granted, and all persons shall be entitled to rely on such
authorities in the case of a specific contract, conveyance or
other transaction without the need of a resolution of the Board of
Directors specifically authorizing the transaction involved.
(Amended 2/14/91)
Section 6.2. Checks. Checks and other negotiable
instruments for the disbursement of Corporation funds may be
signed by the Chairman, the Vice Chairman, the President, any
Executive Vice President, the Vice President-Finance and the
Treasurer. In addition to the foregoing, other persons may sign
instruments for the disbursement of Corporation funds under
written authorization signed by any two of the foregoing officers
acting jointly. Electronic or wire transfers of funds may be
authorized by any officer of the Corporation who is authorized
pursuant to this Section 6.2 to disburse Corporation funds by
check or other negotiable instrument. (Amended 2/14/91)
Section 6.3. Banking. Any two of the Chairman, the
President, an Executive Vice President, the Vice President -
Finance and the Treasurer, at least one of whom must be either the
Vice President - Finance or the Treasurer, shall be empowered to
establish and maintain, for and on behalf of the Corporation, one
or more accounts with such banks, depositories, trust companies or
other financial institutions as they may designate ("Banks") for
the deposit of checks, drafts and other funds, and for the keeping
of securities, notes and other evidences of indebtedness, and to
enter into such agreements with Banks with respect to the
establishment and maintenance of such accounts, or effecting
foreign exchange or derivative transactions, as they deem
necessary or proper in their sole discretion, and to bind and
obligate the Corporation with respect thereto. In addition to the
authority heretofore set forth, any two of the foregoing
corporate officers, at least one of whom must be either the Vice
President - Finance or the Treasurer, acting jointly, shall also
have the authority to designate in writing to any Bank those other
officers, employees and agents of the Corporation
("Representatives") who shall be authorized to sign checks or
other drafts, and to issue written, telephonic, electronic or oral
instructions with respect to the transfer of funds of the
Corporation on deposit with a Bank (or transferable by or to a
Bank), by wire or otherwise, without any written order for the
payment of money being issued with respect to such transfer, and,
for on behalf of the Corporation, to enter into such agreements
with a Bank with respect to any such transfer, or with respect to
foreign exchange or derivative transactions, as such
Representatives, in their sole discretion, deem advisable.
(Amended 9/8/94)
Section 6.4. Voting of Stock. Unless otherwise ordered by
the Board of Directors, the Chairman, the Vice Chairman, the
President or any Vice President elected by the Board of Directors
or appointed by the President shall have the power to execute and
deliver on behalf of the Corporation proxies on stock owned by the
Corporation appointing a person or persons to represent and vote
such stock at any meeting of stockholders, with full power of
substitution, and shall have power to alter or rescind such
appointment. Unless otherwise ordered by the Board of Directors,
the Chairman, the Vice Chairman, the President, any Vice President
elected by the Board or appointed by the President shall have the
power on behalf of the Corporation to attend and to act and vote
at any meeting of stockholders of any corporation in which the
Corporation holds stock and shall possess and may exercise any and
all rights and powers incident to the ownership of such stock,
which, as the owner thereof, the Corporation might have possessed
and exercised if present. The Board may confer like powers upon
any other person or persons.
Section 6.5. Transfer of Stock. Such form of transfer or
assignment customary or necessary to effect a transfer of stocks
or other securities standing in the name of the Corporation shall
be signed by the Chairman, the Vice Chairman, the President, any
Executive Vice President, the Vice President-Finance or the
Treasurer, and the Secretary or an Assistant Secretary shall sign
as witness if required on the form. A corporation or person
transferring any such stocks or other securities pursuant to a
form of transfer or assignment so executed shall be fully
protected and shall be under no duty to inquire whether the Board
of Directors has taken action in respect thereof. (Amended
2/14/91)
ARTICLE 7
SHARE CERTIFICATES AND THEIR TRANSFER
SECTION 7.1. Share Certificates. Certificates for shares of
the Corporation shall be signed by the Chairman, the Vice
Chairman, the President, any Executive Vice President or the Vice
President-Finance, and by the Secretary or any Assistant
Secretary, and shall not be valid unless so signed. Such
certificates shall be appropriately numbered and contain the name
of the registered holder, the number of shares and the date of
issue. If such certificates is countersigned (a) by a transfer
agent other than the Corporation or its employee, or (b) by a
registrar other than the Corporation or its employee, any other
signature on the certificate may be a facsimile. (Amended
2/14/91)
In case any officer, transfer agent, or registrar who has
signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent,
or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he, she or it were
such officer, transfer agent, or registrar at the date of issue.
During any period when more than one class of shares of the
Corporation is authorized, there shall be set forth on the face or
back of certificates issued to represent each class or series of
shares, a statement that the Corporation will furnish without
charge to each shareholder who so requests, the designation,
preferences and relative, participating, optional or other special
rights of each class of shares or series thereof and the
qualifications, limitations or restrictions of such preferences
and/or rights.
SECTION 7.2. Transfer of Shares. Upon surrender to the
Corporation or a transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it
shall be the duty of the Corporation and such transfer agent to
issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction. No certificate shall
be issued in exchange for any certificate until the former
certificate for the same number of shares of the same class and
series shall have been surrendered and canceled, except as
provided in Section 7.4.
SECTION 7.3. Regulations. The Board of Directors shall have
authority to make rules and regulations concerning the issue,
transfer and registration of certificates for shares of the
Corporation.
SECTION 7.4. Lost, Stolen and Destroyed Certificates. The
Corporation may issue a new certificate or certificates for shares
in place of any issued certificate alleged to have been lost,
stolen or destroyed upon such terms and conditions as the Board of
Directors may prescribe.
SECTION 7.5. Registered Shareholders. The Corporation shall
be entitled to treat the holder or record (according to the books
of the Corporation) of any share or shares as the holder in fact
thereof and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any
other party whether or not the Corporation shall have express or
other notice thereof, except as expressly provided by the laws of
Indiana.
SECTION 7.6. Transfer Agents and Registrars. The Board of
Directors may from time to time appoint a transfer agent and a
registrar in one or more cities, may require all certificates
evidencing shares of the Corporation to bear the signatures of a
transfer agent and a registrar, may provide that such certificates
shall be transferable in more than one city, and may provide for
the functions of transfer agent and registrar to be combined in
one agency.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1. Litigation Brought By Third Parties. The
Corporation shall 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, formal or informal (other than an
action by or in the right of the Corporation) (an "Action") by
reason of the fact that he or she is or was a director, officer,
employee or agent of the Corporation (a "Corporate Person"), or is
or was serving at the request of the Corporation as a director,
officer, employee, agent, partner, trustee or member or in another
authorized capacity (collectively, an "Authorized Capacity") of or
for another corporation, unincorporated association, business
trust, state, partnership, joint venture, individual or other
legal entity, whether or not organized or formed for profit
(collectively, "Another Entity"), against expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or her in
connection with such Action ("Expenses") if he or she acted in
good faith and in a manner he or she 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 or her conduct was unlawful. The termination
of any Action by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which he or she 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 reasonable cause
to believe his conduct was unlawful.
SECTION 8.2. Litigation by or in the Right of the
Corporation. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any Action
suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he or she is or was a
Corporate Person, or is or was serving at the request of the
Corporation in an Authorized Capacity of or for Another Entity
against Expenses actually and reasonably incurred by him or her in
connection with that defense or settlement of such Action if he or
she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for willful negligence or
misconduct in the performance of his duty to the Corporation
unless and only to the extent that a court of equity or the court
in which such Action was pending shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court of equity
or other court shall deem proper.
SECTION 8.3. Successful Defense. To the extent that a
person who is or was a Corporate Person or in an Authorized
Capacity of Another Entity serving at the request of the
Corporation and has been successful on the merits or otherwise in
defense of any Action, referred to in Section 8.1 and 8.2 of this
Article, or in defense of any claim, issue or matter therein, he
or she shall be indemnified against Expenses actually and
reasonably incurred by him or her in connection therewith.
SECTION 8.4. Determination of Conduct. Any indemnification
under Section 8.1 or 8.2 of this Article (unless ordered by a
court) shall be made by the Corporation only upon a determination
that indemnification of the person is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in said Sections 8.1 or 8.2. Such determination shall be
made (a) by the Board of Directors by a majority vote or (b) if a
quorum cannot be obtained by a majority vote of a committee duly
designated by the Board of Directors (in which designation
directors who are parties may participate) consisting of two or
more directors not at the time parties to such action suit or
proceeding or (c) by special legal counsel or (d) by the
shareholders, provided, however, shares owned by or voted under
the control of persons who are at the time parties to such action,
suit or proceeding may not be voted on the determination.
SECTION 8.5. Advance Payment. The Corporation shall advance
Expenses reasonably incurred by any Corporate Person in any Action
in advance of the final disposition thereof upon the undertaking
of such party to repay the advance unless it is ultimately
determined that such party is entitled to indemnification
hereunder, if (a) the indemnitee furnishes the Corporation a
written affirmation of his or her good faith belief that he or she
has satisfied the standard of conduct in Section 8.1 or 8.2 and
(b) a determination is made by those making the decision pursuant
to Section 8.4 that the facts then known would not preclude
indemnification under these By-Laws.
SECTION 8.6. By-Law Not Exclusive. The indemnification
provided by this Article 8 shall not be deemed exclusive of any
other rights to which any person may be entitled under any by-law,
agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director,
officer, employee, agent or participant and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
SECTION 8.7. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a
Corporate Person or is or was serving at the request of the
Corporation in an Authorized Capacity of or for Another Entity
against any liability asserted against him or her and incurred by
him or her in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the
power to indemnify him or her against such liability under the
provisions of this Article or the Business Corporation Law of the
State of Indiana.
SECTION 8.8. Effect of Invalidity. The invalidity or
unenforceability of any provision of this Article 8 shall not
affect the validity or enforceability of the remaining provisions
of this Article 8.
SECTION 8.9. Definition of Corporation. For purposes of
this Article 8, references to "the Corporation" shall include, in
addition to the surviving or resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its director, officer, employee or agent of
such constituent corporation, or is or was serving at the request
of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise shall stand in the same position under the
provisions of this Article 8 with respect to the surviving or
resulting corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
SECTION 8.10. Change in Law. Notwithstanding the foregoing
provisions of Article 8, the Corporation shall indemnify any
person who is or was a Corporate Person or is or was serving at
the request of the Corporation in an Authorized Capacity of or for
Another Entity to the full extent permitted by the Indiana
Business Corporation Law or by any other applicable law, as may
from time to time be in effect.
ARTICLE 9
GENERAL
SECTION 9.1. Dividends. Subject to any provisions of any
applicable statute or of the Articles of Incorporation, dividends
may be declared upon the capital stock of the Corporation by the
Board of Directors at any regular or special meeting thereof; and
such dividends may be paid in cash, property or shares of the
Corporation.
SECTION 9.2. Fiscal Year. The fiscal year of the
Corporation shall be the fifty-two or fifty-three week period
beginning the Monday following the Sunday nearest December 31 of
each year.
SECTION 9.3. Severability. If any provision of these By-
Laws, or its application thereof to any person or circumstances,
is held invalid, the remainder of these By-Laws and the
application of such provision to other persons or circumstances
shall not be affected thereby.
SECTION 9.4. Amendments. These By-Laws may be amended,
added to, rescinded or repealed only by an affirmative vote of at
least two-thirds of the directors then in office at any meeting of
the Board of Directors.
SECTION 9.5. Control Shares. The terms "control shares" and
"control share acquisition" used in this Section 9.5 shall have
the meanings set forth in Indiana Business Corporation Law Section
23-1-42-1 et seq. (the "Act"). Control shares of the Corporation
acquired in a control share acquisition shall have only such
voting rights as are conferred by the Act.
Control shares of the Corporation acquired in a control share
acquisition with respect to the acquiring person has not filed
with the Corporation the Statement required by the Act may, at any
time during the period ending sixty days after the last
acquisition of control shares by the acquiring person, be redeemed
by the Corporation at the fair value thereof pursuant to
procedures authorized by a resolution of the Board of Directors.
Such authority may be exercised generally or confined to specific
instances.
Control shares of the Corporation acquired in a control share
acquisition with respect to which the acquiring person was not
granted full voting rights by the shareholders as provided in the
Act may, at any time after the shareholder vote required by the
Act, be redeemed by the Corporation at the fair value thereof
pursuant to procedures authorized by a resolution of the Board of
Directors. Such authority may be exercised generally or confined
to specific instances.
