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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(X) ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________ to ____________
Commission File Number 0-23222
FINISHMASTER, INC.
(Exact Name of Registrant as Specified in its Charter)
Indiana 38-2252096
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
54 Monument Circle, Suite 700, Indianapolis, IN 46204
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, including area code: (317) 237-3678
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Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
NONE NONE
Securities registered pursuant to Section 12(g) of the Act
Common stock
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all annual,
quarterly and other reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding twelve months and (2) has
been subject to the filing requirements for at least the past 90 days.
Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K (ss. 229.405 of this chapter) is not contained herein, and
will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
Registrant as of February 28, 1998 $49,384,000.
At February 28, 1998, there were outstanding 5,993,640 shares of Registrant's
common stock.
Documents Incorporated By Reference
Portions of the annual proxy statement for the year ended December 31, 1997 are
incorporated by reference into Part III.
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PART IV
ITEM 14 - EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)List the following documents filed as part of this report:
Financial Statements -- Included elsewhere in this report.
Report of Independent Auditors
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Cash Flows
Consolidated Statements of Shareholders' Equity
Notes to Consolidated Financial Statements
Financial Statement Schedules
(b) Reports on Form 8-K:
- A Form 8-K was filed on October 15, 1997 to accompany the press
release issued in connection with the execution of the Agreement and
Plan of Merger, dated as of October 14, 1997, by and among
FinishMaster, Inc., FMST Acquisition Corporation and Thompson PBE, Inc.
("Thompson"), pursuant to which the Company would acquire the
outstanding shares of Thompson for a price of $8.00 per share.
- A Form 8-K was filed on December on December 3, 1997 to report the
completion of the acquisition by the Company of Thompson, and was
amended by a Form 8-K/A filed on February 2, 1998 to incorporate
certain pro forma consolidated financial statements of the Company,
after giving effect to the acquisition of Thompson.
(c) The Exhibits filed herewith or incorporated herein by reference are set
forth in the Exhibit Index on page E-1.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this amended
report to be signed on its behalf by the undersigned, thereto duly authorized.
FINISHMASTER, INC.
April 13, 1998 By: /s/ Roger A. Sorokin
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Roger A. Sorokin
Vice President-Finance and
Chief Financial Officer
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FINISHMASTER, INC. AND SUBSIDIARY
ANNUAL REPORT ON FORM 10-K
EXHIBITS
EXHIBIT LIST
Exhibit No. Description of Document
2.1* Agreement and Plan of Merger, dated as of
October 14, 1997, by and among FinishMaster,
Inc., FMST Acquisition Corporation and Thompson
PBE, Inc. (incorporated by reference to Exhibit
(c)(2) of Schedule 14D-1 previously filed by
FMST Acquisition Corporation on October 21,
1997).
2.2* Agreement and Plan of Merger, dated February
16, 1998, by and among FinishMaster, Inc., LDI
AutoPaints, Inc. and Lacy Distribution, Inc.
(previously filed with Form 10-K dated March 31,
1998).
3.1* Articles of Incorporation of FinishMaster,
Inc., an Indiana corporation (previously filed
with Form 10-K dated March 31, 1997)
3.2 Amended and Restated Code of Bylaws of
FinishMaster, Inc., an Indiana corporation.
10.1* FinishMaster, Inc. Stock Option Plan (Amended
and Restated as of April 30, 1997) (previously
filed with Form 10-K dated March 31, 1998).
10.2* Agreement dated as of March 1, 1998 between
FinishMaster, Inc. and LDI AutoPaints, Inc.
respecting certain management and
administrative functions (previously filed with
Form 10-K dated March 31, 1998).
21* Subsidiaries of the Registrant (previously filed
with Form 10-K dated March 31, 1998).
23* Consent of Independent Auditors (previously
filed with Form 10-K dated March 31, 1998).
27.1* Financial Data Schedule (previously filed with
Form 10-K dated March 31, 1998).
99(a)* Credit Agreement, dated as of November 19,
1997, among FinishMaster, Inc., the
Institutions from Time to Time Parties Thereto
as Lenders and NBD Bank, N.A., as Agent
(previously filed with Form 8-K dated December
3, 1997)
99(b)* Subordinated Note Agreement, dated as of
November 19, 1997, by and between FinishMaster,
Inc. and LDI, Ltd. (previously filed with Form
8-K dated December 3, 1997)
99(c)* First Amendment to Credit Agreement dated
December 10, 1997 (previously filed with Form
10-K dated March 31, 1998).
99(d)* Second Amendment to Credit Agreement dated
March 27, 1998 (previously filed with Form 10-K
dated March 31, 1998).
99(e)* Credit Agreement dated March 27, 1998 between
FinishMaster, Inc. and LDI, Ltd.(previously
filed with Form 10-K dated March 31, 1998).
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* Previously filed
E-1
AMENDED AND RESTATED
CODE OF BY-LAWS
OF
FINISHMASTER, INC.
ARTICLE I
Offices
Section 1. Principal Office. The principal office (the "Principal
Office") of FinishMaster, Inc. (the "Corporation") shall be at 4259 40th Street,
S.E., Kentwood, Michigan, or such other place as shall be determined by
resolution of the Board of Directors of the Corporation (the "Board").
Section 2. Other Offices. The Corporation may have such other offices
at such other places within or without the State of Indiana as the Board may
from time to time designate, or as the business of the Corporation may require.
ARTICLE II
Shareholder Meetings
Section 1. Place of Meeting. Every meeting of the shareholders of the
Corporation (the "Shareholders") shall be held at the Principal Office, unless a
different place is specified in the notice or waiver of notice of such meeting
or by resolution of the Board or the Shareholders, in which event such meeting
may be held at the place so specified, either within or without the State of
Indiana.
Section 2 Annual Meeting. The annual meeting of the Shareholders (the
"Annual Meeting") shall be held each year within 120 days after the end of the
Corporation's fiscal year, for the purpose of electing directors of the
Corporation ("Directors") and for the transaction of such other business as may
legally come before the Annual Meeting. If for any reason the Annual Meeting
shall not be held within the time herein provided, the same may be held at any
time thereafter, or the business to be transacted at such Annual Meeting may be
transacted at any special meeting of the Shareholders (a "Special Meeting")
called for that purpose.
Section 3. Notice of Annual Meeting. Written or printed notice of the
Annual Meeting, stating the date, time and place thereof, shall be delivered or
mailed by the Secretary or an Assistant Secretary to each Shareholder of record
entitled to notice of such Annual Meeting, at such address as appears on the
records of the Corporation, at least ten and not more than sixty days before the
date of such Annual Meeting.
Section 4. Special Meetings. Special Meetings, for any purpose or
purposes (unless otherwise prescribed by law), may be called by only the
Chairman of the Board of Directors (the "Chairman"), or by the Board, pursuant
to a resolution adopted by a majority of the total number of Directors of the
Corporation, to vote on the business proposed to be transacted thereat. All
requests
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for Special Meetings shall state the purpose or purposes thereof, and the
business transacted at such Special Meeting shall be confined to the purposes
stated in the call and matters germane thereto.
Section 5. Notice of Special Meetings. Written or printed notice of all
Special Meetings, stating the date, time, place and purpose or purposes thereof,
shall be delivered or mailed by the Secretary or the Chairman, the President or
any Vice President calling the Special Meeting to each Shareholder of record
entitled to notice of such Special Meeting, at such address as appears on the
records of the Corporation, at least ten and not more than sixty days before the
date of such Special Meeting.
Section 6. Waiver of Notice of Meetings. Notice of any Annual or
Special Meeting (a "Meeting") may be waived in writing by any Shareholder,
before or after the date and time of the Meeting specified in the notice
thereof, by a written waiver delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. A Shareholder's attendance at any
Meeting in person or by proxy shall constitute a waiver of (a) notice of such
Meeting, unless the Shareholder at the beginning of the Meeting objects to the
holding of or the transaction of business at the Meeting, and (b) consideration
at such Meeting of any business that is not within the purpose or purposes
described in the Meeting notice, unless the Shareholder objects to considering
the matter when it is presented.
Section 7. Quorum. At any Meeting, the holders of a majority of the
voting power of all shares of the Corporation (the "Shares") issued and
outstanding and entitled to vote at such Meeting, represented in person or by
proxy, shall constitute a quorum for the election of Directors or for the
transaction of other business, unless otherwise provided by law, the Articles of
Incorporation of the Corporation, as the same may, from time to time, be amended
(the "Articles")) or this Code of ByLaws, as the same may, from time to time, be
amended (these "By-Laws"). If, however, a quorum shall not be present or
represented at any Meeting, the Shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the Meeting from
time to time, without notice other than announcement at the Meeting of the date,
time and place of the adjourned Meeting, unless the date of the adjourned
Meeting requires that the Board fix a new record date (the "Record Date")
therefor, in which case notice of the adjourned Meeting shall be given. At such
adjourned Meeting, if a quorum shall be present or represented, any business may
be transacted that might have been transacted at the Meeting as originally
scheduled.
Section 8. Voting. At each Meeting, every Shareholder entitled to vote
shall have one vote for each Share standing in his name on the books of the
Corporation as of the Record Date fixed by the Board for such Meeting, except as
otherwise provided by law or the Articles, and except that no Share shall be
voted at any Meeting upon which any portion of the consideration required for
the initial issuance thereof remains unpaid. Voting for Directors and, upon the
demand of any Shareholder, voting upon any question properly before a Meeting,
shall be by ballot. A plurality vote shall be necessary to elect any Director,
and on all other matters, the action or a question shall be approved if the
number of votes cast thereon in favor of the action or question exceeds the
number of votes cast opposing the action or question, except as otherwise
provided by law or the Articles.
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Section 9. Shareholder List. The Secretary shall prepare, or cause to
be prepared, before each Meeting a complete list of the Shareholders entitled to
notice of such Meeting, arranged in alphabetical order by class of Shares (and
each series within a class), and showing the address of, and the number of
Shares entitled to vote held by, each Shareholder (the "Shareholder List").
Beginning five business days before the Meeting and continuing throughout the
Meeting, the Shareholder List shall be on file at the Principal Office or at a
place identified in the Meeting notice in the city where the Meeting will be
held, and shall be available for inspection by any Shareholder entitled to vote
at the Meeting. On written demand, made in good faith and for a proper purpose
and describing with reasonable particularity the Shareholder's purpose, and if
the Shareholder List is directly connected with the Shareholder's purpose, a
Shareholder (or such Shareholder's agent or attorney authorized in writing)
shall be entitled to inspect and to copy the Shareholder List, during regular
business hours and at the Shareholder's expense, during the period the
Shareholder List is available for inspection. The original stock register or
transfer book (the "Stock Book"), or a duplicate thereof kept in the State of
Indiana, shall be the only evidence as to who are the Shareholders entitled to
examine the Shareholder List, or to notice of or to vote at any Meeting.
Section 10. Proxies. A Shareholder may vote either in person or by
proxy executed in writing by the Shareholder or a duly authorized
attorney-in-fact. No proxy shall be valid after eleven months from the date of
its execution, unless a shorter or longer time is expressly provided therein.
Section 11. Notice of Shareholder Business. At an Annual Meeting of the
Shareholders, only such business shall be conducted as shall have been properly
brought before the Meeting. To be properly brought before an Annual Meeting,
business must be (a) specified in the notice of Meeting (or any supplement
thereto) given by or at the direction of the Board, (b) otherwise properly
brought before the Meeting by or at the direction of the Board, or (c) otherwise
properly brought before the Meeting by a Shareholder. For business to be
properly brought before an Annual Meeting by a Shareholder, the Shareholder must
have the legal right and authority to make the Proposal for consideration at the
Meeting and the Shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a Shareholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation, not less than 120 days prior to the Meeting; provided, however,
that in the event that less than 130 days' notice or prior public disclosure of
the date of the Meeting is given or made to Shareholders (which notice or public
disclosure shall include the date of the Annual Meeting specified in these
By-Laws, if such By-Laws have been filed with the Securities and Exchange
Commission and if the Annual Meeting is held on such date), notice by the
Shareholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the Annual Meeting was mailed or such public disclosure was made. A
Shareholder's notice to the Secretary shall set forth as to each matter the
Shareholder proposes to bring before the Annual Meeting (a) a brief description
of the business desired to be brought before the Annual Meeting and the reasons
for conducting such business at the Annual Meeting, (b) the name and record
address of the Shareholders proposing such business, (c) the class and number of
shares of the Corporation which are beneficially owned by the Shareholder, and
(d) any material interest of the Shareholder in such business. Notwithstanding
anything in these By-Laws to the contrary, no business shall be conducted at an
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Annual Meeting except in accordance with the procedures set forth in this
Section 11. The Chairman of an Annual Meeting shall, if the facts warrant,
determine and declare to the Meeting that business was not properly brought
before the Meeting and in accordance with the provisions of this Section 11, and
if he should so determine, he shall so declare to the Meeting and any such
business not properly brought before the Meeting shall not be transacted. At any
Special Meeting of the Shareholders, only such business shall be conducted as
shall have been brought before the Meeting by or at the direction of the Board
of Directors.
Section 12. Notice of Shareholder Nominees. Only persons who are
nominated in accordance with the procedures set forth in this Section 12 shall
be eligible for election as Directors. Nominations of persons for election to
the Board may be made at a Meeting of Shareholders by or at the direction of the
Board of Directors, by any nominating committee or person appointed by the Board
of Directors or by any Shareholder of the Corporation entitled to vote for the
election of Directors at the Meeting who complies with the notice procedures set
forth in this Section 12. Such nominations, other than those made by or at the
direction of the Board, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a Shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 120 days prior to the Meeting; provided, however, that
in the event that less than 130 days' notice or prior public disclosure of the
date of the Meeting is given or made to Shareholders (which notice or public
disclosure shall include the date of the Annual Meeting specified in these
By-Laws, if such By-Laws have been filed with the Securities and Exchange
Commission and if the Annual Meeting is held on such date), notice by the
Shareholders to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the Meeting was mailed or such public disclosure was made. Such Shareholder's
notice shall set forth (a) as to each person whom the Shareholder proposes to
nominate for election or re-election as a Director, (i) the name, age, business
address and residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of the
Corporation which are beneficially owned by such person and (iv) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including without limitation such person's written consent to being
named in the proxy statement as a nominee and to serving as a Director if
elected); and (b) as to the Shareholder giving the notice (i) the name and
record address of such Shareholder and (ii) the class and number of shares of
the Corporation which are beneficially owned by such Shareholder. No person
shall be eligible for election as a Director of the Corporation unless nominated
in accordance with the procedures set forth in this Section 12. The Chairman of
the Meeting shall, if the facts warrant, determine and declare to the Meeting
that a nomination was not made in accordance with the procedures prescribed by
these By-Laws, and if he should so determine, he shall so declare to the Meeting
and the defective nomination shall be disregarded.
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ARTICLE IV
Board of Directors
Section 1. Number. The business and affairs of the Corporation shall be
managed by a Board of not less than two (2) nor more than fifteen (15)
Directors, as may be specified from time to time by resolution adopted by a
majority of the total number of the Corporation's Directors (the "Full Board").
If and whenever the Board of Directors has not specified the number of
Directors, the number shall be seven (7).
Section 2. Removal and Vacancies. (a) Any Director may be removed,
either with or without cause, at any meeting of the Shareholders called for that
purpose if the meeting notice states that the purpose or one of the purposes of
the meeting is removal of the Director and if the number of votes cast to remove
the Director exceeds the number of votes cast not to remove the Director. If the
notice so provides, the vacancy caused by the removal may be filled at the
meeting by vote of the holders of a majority of the outstanding shares present
and entitled to vote for the election of Directors.
(b) Any vacancy occurring in the Board, including a vacancy resulting
from an increase in the number of Directors, may be filled by the Board, or if
the Directors remaining in office constitute fewer than a quorum of the Board,
they may fill the vacancy by the affirmative vote of a majority of all the
Directors remaining in office. Each Director so chosen shall hold office until
the expiration of the term of the Director, if any, whom he has been chosen to
succeed, or, if none, until the expiration of the term designated by the Board
for the directorship to which he has been elected, or until his earlier removal,
resignation, death, or other incapacity.
Section 3. Powers and Duties. In addition to the powers and duties
expressly conferred upon it by law, the Articles or these By-Laws, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not inconsistent with the law, the Articles or these By-Laws.
Without limiting the generality of the foregoing, the Board is authorized to fix
the compensation of Directors for attendance at meetings of the Board and
additional compensation for additional services any Director may perform for the
Corporation.
Section 4. Annual Board Meeting. Unless otherwise determined by the
Board, the Board shall meet each year immediately after the Annual Meeting, at
the place where such Meeting has been held, for the purpose of organization,
election of Officers of the Corporation (the "Officers") and consideration of
any other business that may properly be brought before such annual meeting of
the Board (the "Annual Board Meeting"). No notice shall be necessary for the
holding of the Annual Board Meeting. If the Annual Board Meeting is not held as
above provided, the election of Officers may be held at any subsequent duly
constituted meeting of the Board (a "Board Meeting").
Section 5. Regular Board Meetings. Regular meetings of the Board
("Regular Board Meetings") may be held at stated times or from time to time, and
at such place, either within or without the State of Indiana, as the Board may
determine, without call and without notice.
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Section 6. Special Board Meetings. Special meetings of the Board
("Special Board Meetings") may be called at any time or from time to time, and
shall be called on the written request of at least two Directors, by the
Chairman or the President, by causing the Secretary or any Assistant Secretary
to give to each Director, either personally or by mail, telephone, telegraph,
teletype or other form of wire or wireless communication at least two days'
notice of the date, time and place of such Meeting. Special Board Meetings shall
be held at the Principal Office or at such other place, within or without the
State of Indiana, as shall be specified in the respective notices or waivers of
notice thereof.
Section 7. Waiver of Notice and Assent. A Director may waive notice of
any Board Meeting before or after the date and time of the Board Meeting stated
in the notice by a written waiver signed by the Director and filed with the
minutes or corporate records. A Director's attendance at or participation in a
Board Meeting shall constitute a waiver of notice of such Meeting and assent to
any corporate action taken at such Meeting, unless (a) the Director at the
beginning of such Meeting (or promptly upon his arrival) objects to holding of
or transacting business at the Meeting and does not thereafter vote for or
assent to action taken at the Meeting; (b) the Director's dissent or abstention
from the action taken is entered in the minutes of such Meeting; or (c) the
Director delivers written notice of his dissent or abstention to the presiding
Director at such Meeting before its adjournment, or to the Secretary immediately
after its adjournment. The right of dissent or abstention is not available to a
Director who votes in favor of the action taken.
Section 8. Quorum. At all Board Meetings, a majority of the Full Board
shall be necessary to constitute a quorum for the transaction of any business,
except (a) that for the purpose of filling of vacancies, a majority of Directors
then in office shall constitute a quorum, and (b) that a lesser number may
adjourn the Meeting from time to time until a quorum is present. The act of a
majority of the Board present at a Meeting at which a quorum is present shall be
the act of the Board, unless the act of a greater number is required by law, the
Articles or these By-Laws.
Section 9. Audit, Compensation, Executive and Other Committees of the
Board. The Corporation shall have the following standing committees: (a) an
Audit Committee comprised of two or more Directors, which shall recommend the
annual employment of the Corporation's auditors with whom the Audit Committee
will review the scope of audit and non-audit assignments, related fees, the
accounting principles used by the Corporation in financial reporting, internal
financial auditing procedures and the adequacies of the Corporation's internal
control procedures; (b) a Compensation Committee comprised of two or more
Directors, which shall determine executive officer salaries and bonuses and
administer the Corporation's stock option plan; and (c) an Executive Committee
comprised of two or more Directors, which shall, in addition to such other
duties as may be prescribed from time to time by the Board, exercise, during
intervals between the meetings of the Board, all powers invested in the Board,
subject to applicable legal requirements. The Board may, by resolution adopted
by such majority, also designate other regular or special committees of the
Board ("Committees"), in each case comprised of one (1) or more Directors and
having such powers and exercising such duties as shall be provided by resolution
of the Board.
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Section 10. Resignations. Any Director may resign at any time by giving
written notice to the Board, the Chairman, the President or the Secretary. Any
such resignation shall take effect when delivered, unless the notice specifies a
later effective date. Unless otherwise specified in the notice, the acceptance
of such resignation shall not be necessary to make it effective.
ARTICLE V
Officers
Section 1. Officers. The Officers shall be the Chairman of the Board,
the President, one or more Vice Presidents, the Secretary and the Treasurer, and
may include one or more Assistant Secretaries, one or more Assistant Treasurers,
a Controller and one or more Assistant Controllers. Any two or more offices may
be held by the same person. The Board may from time to time elect or appoint
such other Officers as it shall deem necessary, who shall exercise such powers
and perform such duties as may be prescribed from time to time by these By-Laws
or, in the absence of a provision in these By-Laws in respect thereto, as may be
prescribed from time to time by the Board.
Section 2. Election of Officers. The Officers shall be elected by the
Board at the Annual Board Meeting and shall hold office for one year or until
their respective successors shall have been duly elected and shall have
qualified; provided, however, that the Board may at any time elect one or more
persons to new or different offices and/or change the title, designation and
duties and responsibilities of any of the Officers consistent with the law, the
Articles and these By-Laws.
Section 3. Vacancies; Removal. Any vacancy among the Officers may be
filled for the unexpired term by the Board. Any Officer may be removed at any
time by the affirmative vote of a majority of the Full Board.
Section 4. Delegation of Duties. In the case of the absence,
disability, death, resignation or removal from office of any Officer, or for any
other reason that the Board shall deem sufficient, the Board may delegate, for
the time being, any or all of the powers or duties of such Officer to any other
Officer or to any Director.
Section 5. Chairman of the Board. The Chairman of the Board shall
preside over meetings of the Board of Directors and of the Shareholders of the
Corporation, discharge all the usual functions of the chief executive officer of
a corporation, and perform such other duties as the Board of Directors may
designate from time to time. The Chairman of the Board shall be, and may be
referred to as, the Corporation's "Chief Executive Officer." The Chairman of the
Board need not be an employee of the Corporation.
Section 6. President. The President shall be a Director and, subject to
the control of the Board, shall be, and may be referred to as, the Corporation's
"Chief Operating Officer," shall have general charge of and supervision and
authority over the business and affairs of the Corporation, and shall have such
other powers and perform such other duties as are incident to the usual
functions of
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a chief operating officer of a corporation and as may be assigned to him by the
Board. In the case of the absence or disability of the Chairman or if no
Chairman shall be elected or appointed by the Board, the President shall preside
at all Shareholder Meetings and Board Meetings.
Section 7. Vice Presidents. Each of the Vice Presidents shall have such
powers and perform such duties as may be prescribed for him by the Board or
delegated to him by the Chairman or the President. In the case of the absence,
disability, death, resignation or removal from office of the President, the
powers and duties of the President shall, for the time being, devolve upon and
be exercised by the Executive Vice President, if there be one, and if not, then
by such one of the Vice Presidents as the Board or the President may designate,
or, if there be but one Vice President, then upon such Vice President; and he
shall thereupon, during such period, exercise and perform all of the powers and
duties of the President, except as may be otherwise provided by the Board.
Section 8. Secretary. The Secretary shall have the custody and care of
the records, minutes and the Stock Book of the Corporation; shall attend all
Shareholder Meetings and Board Meetings, and duly record and keep the minutes of
their proceedings in a book or books to be kept for that purpose; shall give or
cause to be given notice of all Shareholder Meetings and Board Meetings when
such notice shall be required; shall file and take charge of all papers and
documents belonging to the Corporation; and shall have such other powers and
perform such other duties as are incident to the office of secretary of a
business corporation, subject at all times to the direction and control of the
Board, the Chairman and the President.
Section 9. Assistant Secretaries. Each of the Assistant Secretaries
shall assist the Secretary in his duties and shall have such other powers and
perform such other duties as may be prescribed for him by the Board or delegated
to him by the Chairman or the President. In case of the absence, disability,
death, resignation or removal from office of the Secretary, his powers and
duties shall, for the time being, devolve upon such one of the Assistant
Secretaries as the Board, the Chairman, the President or the Secretary may
designate, or, if there be but one Assistant Secretary, then upon such Assistant
Secretary; and he shall thereupon, during such period, exercise and perform all
of the powers and duties of the Secretary, except as may be otherwise provided
by the Board.
Section 10. Treasurer. The Treasurer shall have control over all
records of the Corporation pertaining to moneys and securities belonging to the
Corporation; shall have charge of, and be responsible for, the collection,
receipt, custody and disbursements of funds of the Corporation; shall have the
custody of all securities belonging to the Corporation; shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation; and shall disburse the funds of the Corporation as may be ordered
by the Board, taking proper receipts or making proper vouchers for such
disbursements and preserving the same at all times during his term of office.
When necessary or proper, he shall endorse on behalf of the Corporation all
checks, notes or other obligations payable to the Corporation or coming into his
possession for or on behalf of the Corporation, and shall deposit the funds
arising therefrom, together with all other funds and valuable effects of the
Corporation coming into his possession, in the name and the credit of the
Corporation in such depositories as the Board from time to time shall direct, or
in the absence of such action by
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the Board, as may be determined by the Chairman, the President or any Vice
President. If the Board has not elected a Controller or an Assistant Controller,
or in the absence or disability of the Controller and each Assistant Controller
or if, for any reason, a vacancy shall occur in such offices, then during such
period the Treasurer shall have, exercise and perform all of the powers and
duties of the Controller. The Treasurer shall also have such other powers and
perform such other duties as are incident to the office of treasurer of a
business corporation, subject at all times to the direction and control of the
Board, the Chairman and the President.
If required by the Board, the Treasurer shall give the Corporation a
bond, in such an amount and with such surety or sureties as may be ordered by
the Board, for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Assistant Treasurers. Each of the Assistant Treasurers
shall assist the Treasurer in his duties, and shall have such other powers and
perform such other duties as may be prescribed for him by the Board or delegated
to him by the Chairman or the President. In case of the absence, disability,
death, resignation or removal from office of the Treasurer, his powers and
duties shall, for the time being, devolve upon such one of the Assistant
Treasurers as the Board, the Chairman, the President or the Treasurer may
designate, or, if there be but one Assistant Treasurer, then upon such Assistant
Treasurer; and he shall thereupon, during such period, exercise and perform all
the powers and duties of the Treasurer except as may be otherwise provided by
the Board. If required by the Board, each Assistant Treasurer shall likewise
give the Corporation a bond, in such amount and with such surety or sureties as
may be ordered by the Board, for the same purposes as the bond that may be
required to be given by the Treasurer.
Section 12. Controller. The Controller shall have direct control over
all accounting records of the Corporation pertaining to moneys, properties,
materials and supplies, including the bookkeeping and accounting departments;
shall have direct supervision over the accounting records in all other
departments pertaining to moneys, properties, materials and supplies; shall
render to the President and the Board, at Regular Board Meetings or whenever the
same shall be required, an account of all his transactions as Controller and of
the financial condition of the Corporation; and shall have such other powers and
perform such other duties as are incident to the office of comptroller of a
business corporation, subject at all times to the direction and control of the
Board and the President.
Section 13. Assistant Controllers. Each of the Assistant Controllers
shall assist the Controller in his duties, and shall have such other powers and
perform such other duties as may be prescribed for him by the Board or delegated
to him by the Chairman or the President. In case of the absence, disability,
death, resignation or removal from office of the Controller, his powers and
duties shall, for the time being, devolve upon such one of the Assistant
Controllers as the Board, the Chairman, the President or the Controller may
designate, or, if there be but one Assistant Controller,
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then upon such Assistant Controller; and he shall thereupon, during such period,
exercise and perform all the powers and duties of the Controller, except as may
be otherwise provided by the Board.
ARTICLE VI
Certificates for Shares
Section 1. Certificates. Certificates for Shares ("Certificates") shall
be in such form, consistent with law and the Articles, as shall be approved by
the Board. Certificates for each class, or series within a class, of Shares,
shall be numbered consecutively as issued. Each Certificate shall state the name
of the Corporation and that it is organized under the laws of the State of
Indiana; the name of the registered holder; the number and class and the
designation of the series, if any, of the Shares represented thereby; and a
summary of the designations, relative rights, preferences and limitations
applicable to such class and, if applicable, the variations in rights,
preferences and limitations determined for each series and the authority of the
Board to determine such variations for future series; provided, however, that
such summary may be omitted if the Certificate states conspicuously on its front
or back that the Corporation will furnish the Shareholder such information upon
written request and without charge. Each Certificate shall be signed (either
manually or in facsimile) by (i) the President or a Vice President and (ii) the
Secretary or an Assistant Secretary, or by any two or more Officers that may be
designated by the Board, and may have affixed thereto the seal of the
Corporation (if any), which may be a facsimile, engraved or printed.
Section 2. Record of Certificates. Shares shall be entered in the Stock
Book as they are issued, and shall be transferable on the Stock Book by the
holder thereof in person, or by his attorney duly authorized thereto in writing,
upon the surrender of the outstanding Certificate therefor properly endorsed.
Section 3. Lost or Destroyed Certificates. Any person claiming a
Certificate to be lost or destroyed shall make affidavit or affirmation of that
fact and, if the Board, the Chairman or the President shall so require, shall
give the Corporation and/or the transfer agents and registrars, if they shall so
require, a bond of indemnity, in form and with one or more sureties satisfactory
to the Board, the Chairman or the President and/or the transfer agents and
registrars, in such amount as the Board, the Chairman or the President may
direct and/or the transfer agents and registrars may require, whereupon a new
Certificate may be issued of the same tenor and for the same number of Shares as
the one alleged to be lost or destroyed.
Section 4. Shareholder Addresses. Every Shareholder shall furnish the
Secretary with an address to which notices of Meetings and all other notices may
be served upon him or mailed to him, and in default thereof notices may be
addressed to him at his last known address or at the Principal Office.
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ARTICLE VII
Corporate Books and Records
Section 1. Places of Keeping. Except as otherwise provided by law, the
Articles or these By-Laws, the books and records of the Corporation may be kept
at such place or places, within or without the State of Indiana, as the Board
may from time to time by resolution determine or, in the absence of such
determination by the Board, as shall be determined by the Chairman or the
President.
Section 2. Stock Book. The Corporation shall keep at the Principal
Office the original Stock Book or a duplicate thereof, or, in case the
Corporation employs a stock registrar or transfer agent within or without the
State of Indiana, another record of the Shareholders in a form that permits
preparation of a list of the names and addresses of all the Shareholders, in
alphabetical order by class of Shares, stating the number and class of Shares
held by each Shareholder (the "Record of Shareholders").
Section 3. Inspection of Corporate Records. Any Shareholder (or the
Shareholder's agent or attorney authorized in writing) shall be entitled to
inspect and copy at his expense, after giving the Corporation at least five
business days' written notice of his demand to do so, the following corporate
records: (1) the Articles; (2) these By-Laws; (3) minutes of all Shareholder
Meetings and records of all actions taken by the Shareholders without a meeting
(collectively, "Shareholders Minutes") for the prior three years; (4) all
written communications by the Corporation to the Shareholders including the
financial statements furnished by the Corporation to the Shareholders for the
prior three years; (5) a list of the names and business addresses of the current
Directors and the current Officers; and (6) the most recent Annual Report of the
Corporation as filed with the Secretary of State of Indiana. Any Shareholder (or
the Shareholder's agent or attorney authorized in writing) shall also be
entitled to inspect and copy at his expense, after giving the Corporation at
least five business days' written notice of his demand to do so, the following
corporate records, if his demand is made in good faith and for a proper purpose
and describes with reasonable particularity his purpose and the records he
desires to inspect, and the records are directly connected with his purpose: (1)
to the extent not subject to inspection under the previous sentence,
Shareholders Minutes, excerpts from minutes of Board Meetings and of Committee
meetings, and records of any actions taken by the Board or any Committee without
a meeting; (2) appropriate accounting records of the Corporation; and (3) the
Record of Shareholders.
Section 4. Record Date. The Board may, in its discretion, fix in
advance a Record Date not more than seventy days before the date (a) of any
Shareholder Meeting, (b) for the payment of any dividend or the making of any
other distribution, (c) for the allotment of rights, or (d) when any change or
conversion or exchange of Shares shall go into effect. If the Board fixes a
Record Date, then only Shareholders who are Shareholders of record on such
Record Date shall be entitled (a) to notice of and/or to vote at any such
Meeting, (b) to receive any such dividend or other distribution, (c) to receive
any such allotment of rights, or (d) to exercise the rights in respect of any
such change,
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conversion or exchange of Shares, as the case may be, notwithstanding any
transfer of Shares on the Stock Book after such Record Date.
Section 5. Transfer Agents; Registrars. The Board may appoint one or
more transfer agents and registrars for its Shares and may require all
Certificates to bear the signature either of a transfer agent or of a registrar,
or both.
ARTICLE VIII
Checks, Drafts, Deeds and Shares of Stock
Section 1. Checks, Drafts, Notes, Etc. All checks, drafts, notes or
orders for the payment of money of the Corporation shall, unless otherwise
directed by the Board or otherwise required by law, be signed by one or more
Officers as authorized in writing by the Chairman or the President. In addition,
the Chairman or the President may authorize any one or more employees of the
Corporation ("Employees") to sign checks, drafts and orders for the payment of
money not to exceed specific maximum amounts as designated in writing by the
Chairman or the President for any one check, draft or order. When so authorized
by the Chairman or the President, the signature of any such Officer or Employee
may be a facsimile signature.
Section 2. Deeds, Notes, Bonds, Mortgages, Contracts, Etc. All deeds,
notes, bonds and mortgages made by the Corporation, and all other written
contracts and agreements, other than those executed in the ordinary course of
corporate business, to which the Corporation shall be a party, shall be executed
in its name by the Chairman, the President, a Vice President or any other
Officer so authorized by the Board and, when necessary or required, the
Secretary or an Assistant Secretary shall attest the execution thereof. All
written contracts and agreements into which the Corporation enters in the
ordinary course of corporate business shall be executed by any Officer or by any
other Employee designated by the Chairman, the President or a Vice President to
execute such contracts and agreements.
Section 3. Sale or Transfer of Stock. Subject always to the further
orders and directions of the Board, any share of stock issued by any corporation
and owned by the Corporation (including reacquired Shares of the Corporation)
may, for sale or transfer, be endorsed in the name of the Corporation by the
President or a Vice President, and said endorsement shall be duly attested by
the Secretary or an Assistant Secretary either with or without affixing thereto
the seal of the Corporation (if any).
Section 4. Voting of Stock of Other Corporations. Subject always to the
further orders and directions of the Board, any share of stock issued by any
other corporation and owned or controlled by the Corporation (an "Investment
Share") may be voted at any shareholders' meeting of such other corporation by
the Chairman, the President or a Vice President. Whenever, in the judgment of
the Chairman or the President, it is desirable for the Corporation to execute a
proxy or give a shareholder's consent in respect of any Investment Share, such
proxy or consent shall be
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executed in the name of the Corporation by the Chairman, the President or a Vice
President, and, when necessary or required, shall be attested by the Secretary
or an Assistant Secretary either with or without affixing thereto the seal of
the Corporation (if any). Any person or persons designated in the manner above
stated as the proxy or proxies of the Corporation shall have full right, power
and authority to vote an Investment Share the same as such Investment Share
might be voted by the Corporation.
ARTICLE IX
Fiscal Year
Section 1. Fiscal Year. The Corporation's fiscal year shall begin on
January 1 of each year and end on December 31 of the same year.
ARTICLE X
Amendments
Section 1. Amendments. These By-Laws may be altered, amended or
repealed, in whole or in part, and new By-Laws may be adopted, at any Board
Meeting by the affirmative vote of a majority of the Full Board.
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