BY-LAWS
OF
CUMMINS INC.
(As
amended and restated effective as of February 12, 2008July 14, 2009)
Article I
MEETINGS OF SHAREHOLDERS
Section
1.2.
Special Meetings. Special meetings of the shareholders of the Corporation
may be called at any time only by the Board of Directors or the Chairman of the
Board.
(a)
Section 1.4. Notices. A written notice, (as the term “written” is defined in Section 7.8
of these By-Laws)
stating (i) the date, time and place of any
meeting of the shareholders, and(ii) the means of remote communications, if any, by
which shareholders and proxy holders may be deemed to be present in person and
vote at such meeting and (iii) in the case of a special meeting, the purpose or purposes for which such meeting is called,
shall be delivered or mailed by the Secretary of the Corporation, to each
shareholder of record of the Corporation entitled to notice of or to vote at
such meeting no fewer than ten (10) nor more than sixty (60) days before the
date of the meeting. Notice of shareholders’ meetings, if mailed, shall be mailed,
postage prepaid, to each shareholder at the shareholder’s address shown in the
Corporation’s current record of shareholders.; provided that this requirement shall be satisfied
with respect to shareholders of record who share an address, and notice shall
be deemed to have been given to all such shareholders, if notice is given in
accordance with the “householding” rules set forth in Rule 14a-3(e) under the
Exchange Act and the provisions of Section 23-1-20-29 of the Indiana Business
Corporation Law. If mailed, notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at his, her
or its address as it appears in the books of the Corporation, with postage
thereon prepaid. If sent by electronic transmission, notice shall be deemed to
be delivered when sent.
(b)
Except as provided by the Indiana
Business Corporation Law or the Corporation’s Restated Articles of Incorporation,
notice of a meeting of shareholders is required to be given only to shareholders
entitled to vote at the meeting; provided, however, notice of a meeting of
shareholders shall be given to shareholders not entitled to vote if a purpose
for the meeting is to vote on any amendment to the Corporation’s Restated
Articles of Incorporation, a merger or share exchange to which the Corporation
would be a party, a sale of the Corporation’s assets, or dissolution of the
Corporation.
(c)
A shareholder or the shareholder’s
proxy may at any time waive notice of a meeting if the waiver is in writing and
is delivered to the Corporation for inclusion in the minutes or filing with the
Corporation’s records. A shareholder’s attendance at a meeting, whether in
person or by proxy, (ai) waives
objection to lack of notice or defective notice of the meeting, unless the
shareholder or the shareholder’s proxy at the beginning of the meeting objects
to holding the meeting or transacting business at the meeting, and (bii) waives objection to consideration
of a particular matter at the meeting that is not within the purpose or
purposes described in the meeting notice, unless the shareholder or the
shareholder’s proxy objects to considering the matter when it is presented. Each
shareholder who has in the matter above provided waived notice or objection to
notice of a shareholders’ meeting shall be conclusively presumed to have been
given due notice of such meeting, including the purpose or purposes thereof.
(d)
If an annual or special shareholders’
meeting is adjourned to a different date, time or place, notice need not be
given of the new date, time or place if the new date, time or place is announced
at the meeting before adjournment, unless a new record date is or must be
established for the adjourned meeting.
Section
1.5.
Voting. Except as otherwise provided by the Indiana Business
Corporation Law or the Corporation’s Restated Articles of Incorporation, each
share of the capital stock of any class of the Corporation that is outstanding
at the record date established for any annual or special meeting of
shareholders and is outstanding at the time of and represented in person or by proxy
at the annual or special meeting, shall entitle the record holder thereof, or
the record holder’s proxy, to one (1) vote on each matter voted on at the
meeting.
Section
1.6.
Quorum. Unless the Corporation’s Restated Articles of
Incorporation or the Indiana Business Corporation Law provides otherwise, at
all meetings of shareholders a majority of the votes entitled to be cast on a
matter, represented in person or by proxy, constitutes a quorum for action on
the matter. Action may be taken at a shareholders’ meeting only on matters
with respect to which a quorum exists; provided, however, that any meeting of
shareholders, including annual and special meetings and any adjournments
thereof, may be adjourned to a later date although less than a quorum is
present. Once a share is represented for any purpose at a meeting, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
Section
1.7.
Vote Required to Take Action.
(a)
If a quorum exists as to a matter to be
considered at a meeting of shareholders, action on such matter (other than the election
of Directors) is approved if the votes properly cast favoring the action exceed
the votes properly cast opposing the action, except as the Corporation’s
Restated Articles of Incorporation or the Indiana Business Corporation Law require
a greater number of affirmative votes.
(b) (i) Each Director to be elected by shareholders shall be
elected by the vote of the
majoritya
plurality of the
votes cast with respect to that Director’s election at any meeting for the
election of Directors at which a quorum is present,; provided, however, that
Directors shall be elected by the vote of a plurality
of the votes casta nominee who is elected but receives more votes “against”
than “for” election (with “abstentions” and “broker nonvotes” not counted as a
vote cast either “for” or “against” that Director’s election) shall serve as a
Director for a term that ends on the date that is the earlier of (A) ninety
(90) days after the date on which the voting results are determined and (B) the
date on which an individual is selected by the board of directors to fill the
office held by the Director pursuant to this Section 1.7 and Section 2.2 of
these By-Laws. Subject to paragraph (iii) below, a nominee who is elected but
receives more votes against than for election shall not serve as a director
beyond the ninety (90) day period described in clause (A).
(ii) Notwithstanding the foregoing, at any meeting of shareholders
for which the Secretary of the Corporation receives a notice that a shareholder
has nominated a person for election as Director in compliance with Section 2.11
of these By-Laws (an
election occurring at any such meeting, a “Contested Election”). For purposes
of this By-Law, a majority of votes cast shall mean that the number of shares
cast “for” a Director’s election exceeds the number of votes cast “against” the
Director’s election (with “abstentions” and “broker nonvotes” not counted as a
vote cast either “for” or “against” that Director’s election). If Directors
are to be elected by a plurality of votes castor applicable requirements of the Securities and
Exchange Commission,
shareholders shall not be permitted to vote “against” a nominee for Director.
(c) In order for any incumbent Director to
become a nominee of the Board of Directors for further service(iii) The Board
of Directors may select a qualified individual to fill the office held by a
Director who received more votes against than for election, allow a vacancy to
continue on the Board of Directors, such person must submit an
irrevocable resignation, contingent on (i) that person not receiving a majority
of the votes cast in an election that is not a Contested Election, and (ii)
acceptance of that resignation by the Board of Directors in accordance with
policies and procedures adopted by the Board of Directors for such purpose. In
the event an incumbent Director fails to receive a majority of the votes cast
in an election that is not a Contested Election, following the end of such Director’s term or
decrease the size of the Board of Directors to eliminate such vacancy. The
Board of Directors shall take such action in its sole discretion and based upon
the recommendation of
the Governance and Nominating Committee, or such other committee designated by
the Board of Directors pursuant to these By-Laws, shall make a recommendation to the Board of Directors
as to whether to accept or reject the resignation of such incumbent Director,
or whether other action should be taken. The Board of Directors shall act on
the resignation, taking into account the committee’s recommendation, and
publicly disclose (by a press release, a filing with the Securities and
Exchange Commission or other broadly disseminated means of communication) its
decision regarding the resignation and, if such resignation is rejected, the
rationale behind the decision within 90 days following certification of the
election results. Theand the committee in making its recommendation and the Board of
Directors in making its decision each may consider any factors and other
information that it considers appropriate and relevant. If the Board of Directors
elects to fill a vacancy pursuant to this Section 1.7(b)(iii), it may choose
any individual it deems qualified in its sole discretion, including the
Director who received more votes against than for election.
Section
1.8.
Record Date. Only such persons shall be entitled to notice of or to
vote, in person or by proxy, at any shareholders’ meeting as shall appear as
shareholders upon the books of the Corporation as of such record date as the
Board of Directors shall determine, which date may not be earlier than the date
seventy (70) days immediately preceding the meeting. In the absence of such
determination, the record date shall be the fiftieth (50th) day
immediatelynext preceding the date of such meetingon which notice is given, or, if notice is waived,
on the date next preceding the day on which the meeting is held. Unless otherwise provided by
the Board of Directors, shareholders shall be determined as of the close of
business on the record date.
(i) The shareholder is an entity and the
name signed purports to be that of an officer or agent of the entity.
(ii) The name purports to be that of an
administrator, executor, guardian or conservator representing the shareholder
and, if the Corporation requests, evidence of fiduciary status acceptable to
the Corporation is presented with respect to the vote, consent, waiver or proxy
appointment.
(iii) The name purports to be that of a
receiver or trustee in bankruptcy of the shareholder and, if the Corporation
requests, evidence of this status acceptable to the Corporation is presented
with respect to the vote, consent, waiver or proxy appointment.
(iv) The name purports to be that of a
pledgee, beneficial owner, or attorney in fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the signatory’s
authority to sign for the shareholder is presented with respect to the vote,
consent, waiver or proxy appointment.
(v) Two (2) or more persons are the shareholders
as cotenants or fiduciaries and the name purports to be the name of at least
one (1) of the coowners and the person acting appears to be acting on behalf of
all coowners.
The
Corporation may reject a vote, consent, waiver or proxy appointment if the
Secretary of the Corporation or other officer or agent of the Corporation who
is authorized to tabulate votes, acting in good faith, has reasonable basis for
doubt about the validity of the signature on a writing or about the signatory’s
authority to sign for the shareholder, or the validity of an electronic
submission or the submitter’s authority to make the electronic transmission.
Section
1.10.
Organization. At every meeting of the shareholders, the Chairman of
the Board, or, in the Chairman’s absence, a person designated by the Chairman, or, in the absence of such
designation, a person chosen by the Board of Directors, shall act as a chairman. The
Secretary of the Corporation shall act as secretary of such meeting or, in the
Secretary’s absence, the chairman shall appoint a secretary.
Section
1.11.
Voting Lists. At least five business days before each meeting of
shareholders, the officer or agent having charge of the stock transfer books
shall make a complete list of the shareholders entitled to notice of a
shareholders’ meeting, arranged in alphabetical order, with the address and
number of shares so entitled to vote held by each, which list shall be on file
at the principal office of the Corporation and subject to inspection by any
shareholder entitled to vote at the meeting. Such list shall be produced and
kept open at the time and place of the meeting and subject to the inspection of
any shareholder during the holding of such meeting. Unless otherwise required by law, the
Corporation need not include electronic mail addresses or other electronic
contact information on such list. The original stock register or
transfer book, or a duplicate thereof, kept in this state, shall be the only
evidence as to who are the shareholders entitled to examine such list or the
stock ledger or transfer book or to vote at any meeting of the shareholders.
Article II
DIRECTORS
(a)
Section 2.1. Number, Qualification and
Terms. The business and affairs of the Corporation shall be
managed under the direction of a Board of Directors. The number of Directors
shall be fixed by resolution of the Board of Directors from time to time. It shall
be the policy of the Corporation that no person seventy-two years of age or
more shall be elected to the Board of Directors. Any Director who attains the
age of seventy-two years during the Director’s term of office shall be eligible
to remain a Director for the duration of the term for which the Director was
elected but shall not be eligible for re-election. In recognition of his leadership, stewardship and the
contributions he has made and is continuing to make to the success of the
Corporation, this age limitation shall be seventy-three years of age as applied
to Director J. Lawrence Wilson.
(b)
The Corporation hereby elects
not to be governed by Section 23-1-33-6(c) of the Indiana Business Corporation
Law. Each
Director shall be elected for a term of office to expire at the annual meeting
of shareholders next following the Director’s election, except that each
Director elected pursuant to Section 2.2 of this Article II shall hold office
until the next annual meeting of shareholders. Despite the expiration of a Director’s
term, the Director shall continue to serve until the Director’s successor is
elected and qualified, or until the earlier of the Director’s death,
resignation, disqualification or removal, or until there is a decrease in the
number of Directors.
(c)
The Directors and each of them shall
have no authority to bind the Corporation except when acting as a Board.
Section
2.2.
Vacancies. Any vacancy occurring in the Board of Directors, from
whatever cause arising, including an increase in the number of Directors, shall
be filled by selection of a successor by a majority vote of the remaining
members of the Board of Directors (although less than a quorum) until the next annual
meeting of the shareholders.
Section
2.4.
Regular Meetings. The Board of Directors shall meet regularly, without
notice, at such times and places as may be specified from time to time by the
Board of Directors or the Chairman of the Board (but no fewer than one time
annually) for the purpose of transacting such business as properly may come before
the meeting.
Section
2.5.
Special Meetings. Special meetings of the Board of Directors may be called
by the Chairman of the Board or a majority of the Directors upon not less than
twenty-four (24) hours’ notice given to each Director of the date, time and
place of the meeting, which notice need not specify the purpose or purposes of
the special meeting. Such notice may be communicated in person (either in
writing or orally), by telephone, telegraph, teletype or other form of wire or
wireless communication, or by mail, and shall be effective at the earlier of
the time of its receipt or, if mailed, five (5) days after its mailing. Notice
of any meeting of the Board may be waived in writing at any time if the waiver
is signed by the Director entitled to the notice and is filed with the minutes
or corporate records. A Director’s attendance at or participation in a meeting
waives any required notice to the Director of the meeting, unless the Director
at the beginning of the meeting (or promptly upon the Director’s arrival)
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
Section
2.7.
Participation by Conference Telephone. The Board of Directors may permit any or all Directors
to participate in a regular or special meeting by, or through the use of, any
means of communication, such as conference telephone, by which all Directors
participating may simultaneously hear each other during the meeting. A
Director participating in a meeting by such means shall be deemed to be present
in person at the meeting.
Section
2.8.
Organization. At every meeting of the Board of Directors, the Chairman
of the Board, or in the Chairman’s absence, a person designated by the
Chairman, shall act as chairman. The Secretary of the Corporation shall act as
secretary of such meeting or, in the Secretary’s absence, the Chairman shall
appoint a secretary.
Section
2.9.
Resignation. A Director may resign at any time by delivering written
notice to the Chairman of the Board, the Secretary of the Corporation, the
Board of Directors, or such other officer as the Board of Directors may
designate, and such resignation shall become effective upon such delivery
unless the notice specifies a later effective date.
(b)
Section 2.11. Nominations. Nominations for the election of Directors may be
made by the Board of Directors or by any shareholder entitled to vote for the
election of Directors who complies fully with the requirements of these By-Laws.
Any shareholder entitled to vote for the election of Directors at a meeting may
nominate a person or persons for election as Directors only if written notice
of such shareholder’s intent to make such nominations is given, either by
personal delivery or by United States mail, postage prepaid, to the Secretary
of the Corporation not later than 90 days in advance of the Originally Scheduled
Date of such annual meeting (provided, however, that if the Originally
Scheduled Date of such meeting is earlier than the date specified in these
By-Laws as the date of the annual meeting if the Board of Directors does not
determine otherwise, such written notice may be so given and received not later
than the close of business on the 10th day following the date of the first public
disclosure, which may include any public filing by the Corporation with the
Securities and Exchange Commission, of the Originally Scheduled Date of such
meetings). Each such noticeEach notice under Section 2.11(a) of these By-Laws shall be signed manually or by facsimile by the
shareholder of record and shall set
forth (ai) the name and address, as they appear on the Corporation’s books, of the shareholder who intends to
make the nomination and of the person or persons to be nominated; (bany beneficial owner or
owners on whose behalf the nomination is made; (ii) a representation that the shareholder is a holder of
record of shares of
stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a
description of all arrangements or understandings between the shareholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (diii) the Required Disclosures; (iv) the name, age,
business address and residential address of each nominee proposed in such
notice; (v) the principal occupation or employment of each such nominee; (vi)
the number of shares of capital stock of the Corporation that are owned of
record or beneficially by each such nominee; (vii) with respect to each nominee
for election or reelection to the Board of Directors, include a completed and
signed questionnaire, representation and agreement required by Section 2.12 of
these By-Laws; (viii)
such other information regarding each nominee proposed by such shareholder as
would have been required to be included in a proxy statement filed pursuant to
the proxy rules of the Securities and Exchange Commission had each nominee been
nominated, or intended to be nominated, by the Board of Directors; and (e) the(ix) a description of all
direct and indirect compensation and other material monetary agreements, arrangements
and understandings during the past three years, and any other material
relationships, including all arrangements or understandings pursuant to which
the nominations are being made, between or among such shareholder and
beneficial owner, if any, and their respective affiliates and associates, or
others acting in concert therewith, on the one hand, and each proposed nominee,
and his or her respective affiliates and associates, or any other person or
persons (naming such person or persons), on the other hand; and (x) the written consent of each nominee to serve
as a Director of the Corporation if so elected.
The chairman of any meeting of shareholders to elect Directors
and the Board of Directors may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure. This Section 2.11
shall not affect the right of the holders of either Preference or Preferred
Stock to nominate and elect Directors in the event such right arises.
Section
2.12.
Chairman of the Executive
Committee. The Board of Directors
shall elect a Chairman of the Executive Committee from among the members of the
Board of Directors. The Chairman of the Executive Committee shall preside at
meetings of the Executive Committee, and shall perform such other duties and
functions as may be assigned to the Chairman of such Committee from time to time
by the Board of Directors.Submission of Questionnaire; Representation and
Agreement. To be eligible to be a nominee for election or reelection as a Director,
a person must deliver (in accordance with the time periods prescribed for
delivery of notice under Section 2.11 of these By-Laws) to the Secretary of the
Corporation at the principal executive offices of the Corporation a written
questionnaire with respect to the background and qualification of such person
and the background of any other person or entity on whose behalf the nomination
is being made (which questionnaire shall be provided by the Secretary upon
written request) and a written representation and agreement (in the form
provided by the Secretary upon written request) that such person (a) is not and
will not become a party to (i) any agreement, arrangement or understanding
with, and has not given any commitment or assurance to, any person or entity as
to how such person, if elected as a Director of the Corporation, will act or
vote on any issue or question (a “Voting Commitment”) that has not been
disclosed to the Corporation or (ii) any Voting Commitment that could limit or
interfere with such person’s ability to comply, if elected as a Director, with
such person’s fiduciary duties under applicable law, (b) is not and will not
become a party to any agreement, arrangement or understanding with any person
or entity other than the Corporation with respect to any direct or indirect
compensation, reimbursement or indemnification in connection with service or
action as a Director that has not been disclosed therein, and (c) in such
person’s individual capacity and on behalf of any person or entity on whose
behalf the nomination is being made, would be in compliance, if elected as a Director,
and will comply with, applicable law and all applicable publicly disclosed
corporate governance, conflict of interest, corporate opportunities,
confidentiality and stock ownership and trading policies and guidelines of the
Corporation.
Article III
COMMITTEES OF THE BOARD OF DIRECTORS
Section
3.1.
General.
(a)
The Board of Directors may create one
(1) or more committees and appoint members of the Board of Directors to serve on
them, by resolution of the Board of Directors adopted by a majority of all the
Directors in office when the resolution is adopted. Each committee may have
one (1) or more members, and all the members of a committee shall serve at the
pleasure of the Board of Directors.
(b)
To the extent specified by the Board of
Directors in the resolution creating a committee (as such resolution may be amended
by the Board of Directors from time to time), and except as otherwise provided
in the Indiana Business Corporation Law, each committee may exercise all of the
authority of the Board of Directors.
(c)
Except to the extent inconsistent with
the resolutions creating a committee, the provisions of these By-Laws which govern
meetings, action without meetings, notice and waiver of notice, quorum and
voting requirements and telephone participation in meetings of the Board of
Directors, apply to each committee and its members as well.
(d)
A member of a committee of the Board of
Directors who is also an officer of the Corporation shall receive no separate compensation
for serving as a member of such committee. Each member of a committee of the
Board of Directors who is not an officer of the Corporation shall be paid such
compensation for attendance at committee meetings as shall be fixed from time
to time by resolution of the Board of Directors. Committee members shall be
reimbursed by the Corporation for travel expenses incurred in attending
committee meetings.
Section
3.2.
Executive Committee.
(a)
The Board of Directors shall elect from
its members an Executive Committee consisting of not less than three members to
serve at the pleasure of the Board of Directors. During the intervals between
the meetings of the Board of Directors, the Executive Committee shall possess
and may exercise, except as described in Section 3.1(b) of this Article III,
all the power of the Board of Directors in the management and direction of the business
and affairs of the Corporation. All Directors, including those Directors who
are not designated members of the Executive Committee, may attend meetings of
the Executive Committee. The Chairman of the Executive Committee shall preside
at all meetings of such Committee. The Secretary of the Corporation, or, in
the Secretary’s absence, a person appointed by the Chairman of the Executive
Committee, shall act as secretary of such Committee.
Article IV
OFFICERS
Section
4.1.
Designation and Selection. The Board of Directors shall elect as officers of the
Corporation a Chairman of the Board and a Chief Executive Officer. The Chief
Executive Officer shall appoint a Secretary and such other officers of the Corporation
as the Chief Executive Officer deems appropriate, which appointments shall be
presented to the Board of Directors for ratification.
Section 4.2.
Duties and Functions.
(a)
Chairman of the Board. The Chairman of the Board shall be a member of the Board
of Directors and shall, when present, preside at all meetings of the Board of
Directors and of the shareholders. The Chairman of the Board shall perform
such other duties and functions as may be assigned to the Chairman of the Board
from time to time by the Board of Directors.
(b)
Chief Executive Officer. The Chief Executive Officer shallmay be a member of the Board of Directors and shall perform such
other duties and functions as may be assigned from time to time by the Board of
Directors.
(c)
Secretary. The Secretary shall keep a record of proceedings at all
meetings of the Board of Directors and of the shareholders, shall have custody
of the corporate records and seal of the Corporation, shall be responsible for
authenticating records of the Corporation, and shall perform such other duties and
functions as may be assigned to the Secretary from time to time by the Chairman
of the Board.
(d)
Other Officers. Each other officer appointed by the Chairman of the
Board shall have and perform such powers, duties and functions as may be
assigned to such officer from time to time by the Board of Directors, the
Chairman of the Board or the Chief Executive Officer.
Section
4.3.
Removal. The Board of Directors may remove any officer at any
time with or without cause by resolution adopted by a majority of the whole
Board of Directors. An officer appointed by the Chairman of the Board may also
be removed at any time, with or without cause, by the Chairman of the Board.
Section
4.4.
Resignations. Any corporate officer may resign at any time by
delivering written notice thereof to the Board of Directors, the Chairman of
the Board or the Secretary. Such resignation shall take effect at the time
delivered unless a later time is specified therein. The acceptance of such resignation
shall not be necessary to make it effective.
Section
4.5.
Compensation. The Board of Directors shall fix the salary and other
compensation for officers of the Corporation who are also Directors of the
Corporation and may delegate to the Chairman of the Board authority to fix
salaries and other compensation of all remaining officers of the Corporation.
Section
4.6.
Special Authority. The Chairman of the Board, or other officers designated
by the Chairman, shall have authority to execute guarantees, indentures for
monies borrowed by the Corporation, appointments of powers of attorney and
proxies to act on behalf of the Corporation, instruments for the devise or conveyance
of real estate or creation of mortgages, bank forms required to open, maintain
or close bank accounts, and any other written agreements to which the
Corporation shall be a party which pertain to the routine operation of the
Corporation and are regularly being made in the ordinary course of carrying on
such operations.
Article V
SHARES
Section
5.1.
Certificates for Shares. Shares in the corporationCorporation may be issued in book-entry form or evidenced by
certificates. However, every holder of shares in the Corporation shall be entitled
upon request to have a certificate evidencing the shares owned by the
shareholder, signed in the name of the Corporation by the Chairman of the
Board, the President or a Vice President and the Secretary, certifying the
number of shares owned by the shareholder in the Corporation. The signatures
of the Chairman of the Board, the President, Vice President, and the Secretary,
the signature of the transfer agent and registrar, and the Seal of the
Corporation may be facsimiles. In case any officer or employee who shall have
signed, or whose facsimile signature or signatures shall have been used on, any
certificate shall cease to be an officer or employee of the Corporation before
the certificate shall have been issued and delivered by the Corporation, the
certificate may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed the certificate or whose
facsimile signature or signatures shall have been used thereon had not ceased
to be such officer or employee of the Corporation; and the issuance and delivery
by the Corporation of any such certificate shall constitute an adoption thereof.
Every certificate shall state on its face (or in the case of book-entry shares,
the statements evidencing ownership of such shares shall state) the name of the
Corporation and that it is organized under the laws of the State of Indiana,
the name of the person to whom it is issued, and the number and class of shares
and the designation of the series, if any, the certificate represents, and
shall state conspicuously on its front or back that the Corporation will
furnish the shareholder, upon written request and without charge, a summary of
the designations, relative rights, preferences and limitations applicable to
each class and the variations in rights, preferences and limitations determined
for each series (and the authority of the Board of Directors to determine
variations for future series). Every certificate (or book-entry statement) shall
state whether such shares have been fully paid and are nonassessable. If any
such shares are not fully paid, the certificate (or book-entry statement) shall
be legibly stamped to indicate the percentum which has been paid up, and as
further payments are made thereon, the certificate shall be stamped (or book-entry
statement updated) accordingly. Subject to the foregoing provisions,
certificates representing shares in the Corporation shall be in such form as
shall be approved by the Board of Directors. There shall be entered upon the
stock books of the Corporation at the time of the issuance or transfer of each
share the number of the certificates representing such share (if any), the name
of the person owning the shares represented thereby, the class of such share
and the date of the issuance or transfer thereof.
(a)
Transfer of shares of the Corporation
shall be made on the books of the Corporation by the holder of record thereof,
or by the shareholder’s attorney thereunto duly authorized in writing and filed
with the Secretary of the Corporation or any of its transfer agents, and on surrender
of the certificate or certificates (if any) representing such shares.
(b)
The Corporation and its transfer agents
and registrars, shall be entitled to treat the holder of record of any share or
shares as the holder in fact and absolute owner thereof for all purposes, and accordingly
shall not be bound to recognize any legal, equitable or other claim to or
interest in such share or shares on the part of any other person whether or not
it or they shall have express or other notice thereof, except as otherwise expressly
provided by the statutes of the State of Indiana. Shareholders shall notify
the Corporation in writing of any changes in their addresses from time to time.
Section
5.3.
Regulations. Subject to the provisions of this Article V the Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issuance, transfer and regulation of certificates for shares or
book-entry shares of the Corporation.
Section
5.4.
Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer
agents, one or more registrars, and one or more agents to act in the dual
capacity of transfer agent and registrar with respect to the certificates representing
shares and the book-entry shares of the Corporation.
Section
5.5.
Lost or Destroyed Certificates. The holders of any shares of the Corporation shall
immediately notify the Corporation or one of its transfer agents and registrars
of any loss or destruction of the certificate representing the same. The
Corporation may issue a new certificate in the place of any certificate
theretofore issued by it alleged to have been lost or destroyed upon such terms
and under such regulations as may be adopted by the Board of Directors or the
Secretary, and the Board of Directors or Secretary may require the owner of the
lost or destroyed certificate or the owner’s legal representatives to give the
Corporation a bond in such form and for such amount as the Board of Directors
or Secretary may direct, and with such surety or sureties as may be
satisfactory to the Board of Directors or the Secretary to indemnify the
Corporation and its transfer agents and registrars against any claim that may
be made against it or any such transfer agent or registrar on account of the
alleged loss or destruction of any such certificate or the issuance of such new
certificate. A new certificate may be issued without requiring any bond when,
in the judgment of the Board of Directors or the Secretary, it is proper so to
do.
Article VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
6.1.
Mandatory. The Corporation shall, to the fullest extent permitted
by Sections 1 through 13 of Indiana Code Ch. 23-1-37 as in effect April 1, 1986,37, (i) indemnify any person who is
or was a Director or officer of the Corporation (and the heirs and legal
representatives thereof) against expenses (including attorneys’ fees),
judgments, fines, and penalties and amounts paid in settlement resulting from
any action, suit or proceeding threatened or brought against such person by
reason of such person’s serving in such position or serving another enterprise
in any capacity at the request of the Corporation, and (ii) pay for or
reimburse the reasonable expenses incurred by such person in advance of the
final disposition of the action, suit or proceeding.
Section
6.2.
Discretionary. Separate and apart from, and in addition to, the
mandatory indemnification required under Section 6.1 of this Article, the
Corporation may, in its sole discretion, provide for indemnification of any
person in accordance with the provisions of Indiana Code Ch. 23-1-37, as from
time to time amended, or superseding statutory provisions.
Section
6.3.
Other Capacity Service. Any Director or officer of the Corporation serving in
any capacity (i) another corporation, of which a majority of the shares
entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation, or (ii) any employee benefit plan of the
Corporation or of another corporation described in Subsection (i) of this Section,
shall be deemed to be doing so at the request of the Corporation.
Section
6.4.
Applicable Law. Any person entitled to be indemnified as a matter of
right pursuant to this Article VI may elect to have the right to
indemnification interpreted on the basis of the applicable law in effect at the
time of the occurrence of the event or events giving rise to the action, suit or
proceeding, to the extent permitted by Indiana law, or on the basis of the
applicable law in effect at the time indemnification is sought.
Section
6.5.
Rights. The right to be indemnified pursuant to this Article VI
(i) shall be a contract right of each individual entitled to be indemnified hereunder,
(ii) is intended to be retroactive and shall be available with respect to
events occurring prior to the adoption hereof, and (iii) shall continue to
exist with respect to events occurring prior to any rescission or restrictive
modification of this Article VI.
Section
6.6.
Claims. If a claim for indemnification pursuant to this Article
VI is not paid in full by the Corporation within ninety days after a written
request therefor has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled also to be paid the expense of prosecuting such claim. Neither the
failure of the Corporation (including its Board of Directors, special legal
counsel or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because the claimant has met the applicable standard of conduct,
nor an actual determination by the Corporation (including its Board of
Directors, special legal counsel or its shareholders) that the claimant had not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant had not met the applicable standard of
conduct.
Article VII
MISCELLANEOUS
Section
7.1.
Indiana Business Corporation Law. The provisions of the Indiana Business Corporation Law,
as amended, applicable to all matters relevant to, but not specifically covered
by, these By-Laws are hereby, by reference, incorporated in and made a part of
these By-Laws.
Section
7.2.
Fiscal Year. The fiscal year of the Corporation shall end on the 31st
of December of each year.
Section
7.3.
Control Share Act. The provisions of Chapter 42 of the Indiana Business
Corporation Law, Ind. Code §23-1-42-1 et seq., shall not apply to
control share acquisitions of shares of the Corporation.
Section
7.4.
Seal. The Corporation shall have a corporate seal, which shall
have inscribed the name of the Corporation and the word “INDIANA” around the
outer edge and the words “CORPORATE SEAL” in the center.
Section
7.5.
Contracts and Other Instruments. Bonds, contracts, deeds, leases and other obligations
and instruments of the Corporation may be signed in the name of and on behalf
of the Corporation by (i) officers or their designees, and (ii) agents of the
Corporation as may be specifically authorized by resolution of the Board of
Directors.
Section
7.6.
Books and Records. Subject to the laws of the State of Indiana, the books
of account, records, documents and papers of the Corporation may be kept at any
place or places within or without the State of Indiana.
Section
7.7.
Amendments. These By-Laws may be rescinded, changed or amended, and
provisions hereof may be waived, at any meeting of the Board of Directors by
the affirmative vote of a majority of the entire number of Directors at the
time, except as otherwise required by the Corporation’s Restated Articles of Incorporation
or by the Indiana Business Corporation Law.
Section
7.10.
Section 7.8. Definition of Articles of Incorporation and Restated
Articles of Incorporation. The term “Articles of Incorporation” and
“Restated Articles of Incorporation” as used in these By-Laws mean the Restated
Articles of Incorporation of the Corporation as from time to time in effect.