UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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DATE OF REPORT (Date of earliest event reported): October 12, 2004
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FIRST MERCHANTS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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INDIANA 0-17071 35-1544218
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
200 East Jackson Street
P.O. Box 792
Muncie, IN 47305-2814
(Address of Principal Executive Offices, including Zip Code)
(765) 747-1500
(Registrant's Telephone Number, including Area Code)
Page 1 of 6
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On October 12, 2004, the Board of Directors of First Merchants Corporation
(the "Corporation") amended and restated the Corporation's Bylaws. The amended
Bylaws were effective as of October 12, 2004. The following description is a
brief summary of the amendments to the Bylaws. This summary is not intended to
be complete, and it is qualified in its entirety by reference to the
Corporation's Bylaws, as amended, included as Exhibit 3(ii) to this report.
Previous Provision(s) Provision(s) as Amended
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In some instances, the Bylaws used The masculine references were amended
masculine references such as he, him to be gender-neutral.
and his.
Article I, Section 2
The Bylaws listed the registered The reference to the registered agent
agent and office of the Corporation. and office was deleted. This
information is contained in the
Corporation's Articles of
Incorporation.
Article III, Section 5
The Bylaws did not specifically The Bylaws were amended to
provide for the holding of shares of specifically provide that a
the Corporation in book entry form. shareholder of the Corporation may
hold shares in a book entry stock
account.
Page 2 of 6
Article IV, Section 2
The Bylaws provided that the annual The Bylaws were amended to provide
meeting of shareholders was to be that the Board of Directors will set
held on the third Tuesday in April, the date for the annual meeting of
or such other day as determined by shareholders by resolution.
the Board of Directors.
Article IV, Section 6(b)
No corresponding provision. The Bylaws were amended to allow
shareholder voting at meetings by
electronic means or any other method
allowed by law.
Article IV, Section 7
This Section was rewritten to
correspond more closely with the
Indiana Business Corporation Law.
Article IV, Section 9
The Bylaws provided for nominations The Bylaws were amended to provide
for election to the Board of that the Nominating and Governance
Directors by the Board of Directors Committee of the Board of Directors
or any shareholder. controls nominations for election to
the Board of Directors. Any
shareholder may suggest a candidate
for consideration by the Nominating
and Governance Committee, which
candidate shall be evaluated in the
same manner as other candidates.
Article V, Section 5
The Bylaws provided for delivery of The Bylaws were amended to allow for
notice of meetings to Directors by delivery of notice of meetings to
telephone, telegraph, cable or Directors by personal delivery,
mailing. telephone, facsimile, electronic
means, mailing or express private
delivery service.
Article V, Section 10
The Bylaws limited the record date The Bylaws were amended to remove this
for determining shareholders requirement.
entitled to dividends to not more
than fifty (50) days prior to the
payment date for such dividend.
Page 3 of 6
Article V, Section 12
No corresponding provision. The Bylaws were amended to
specifically provide for a Nominating
and Governance Committee of the Board
of Directors.
The Bylaws provided that directors The Bylaws were amended to delete this
of the Corporation's affiliates provision.
could serve on Committees of the
Board of Directors of the
Corporation as "affiliate
representatives."
The Bylaws provided that the Board The Bylaws were amended to grant the
of Directors determined the calling committees of the Board of Directors
and holding of meetings by its the authority to make these
committees and the procedure for determinations in addition to the
conducting its meetings. Board of Directors.
Article VI, Section 1
No corresponding provision The Bylaws were amended to
specifically grant the Board of
Directors the authority to appoint a
Chief Executive Officer, chief
operating officer and a chief
financial officer.
Article VI, Section 9
The Bylaws provided that the The Bylaws were amended to
President was the chief executive specifically provide for the office of
officer of the Corporation and had Chief Executive Officer and outline
general supervision over the affairs the duties accompanying such office.
of the Corporation. The President The Chief Executive Officer now has
also served as an ex-officio member general supervision over the affairs
of all standing committees of the of the Corporation. The historic
Board of Directors. duties of the President were divided
between the offices of Chief Executive
Officer and President. Neither the
Chief Executive Officer nor the
President serves as an ex-officio
member on any committee of the Board
of Directors.
Page 4 of 6
Article VI, Section 11
The Bylaws outlined an office of The Bylaws were amended to
Vice President. If the President specifically provide for Executive
became absent or disabled, unless Vice Presidents, Senior Vice
the Board of Directors determined Presidents, First Vice Presidents
otherwise, the most senior Vice and/or other Vice Presidents. The
President was to perform the duties Board is required to designate one of
and exercise the powers of the the Vice Presidents (an Executive Vice
President. President, if one has been appointed)
to perform the duties and exercise the
powers of the President in the
President's absence or disability.
Article VI, Section 12
No corresponding provision. The Bylaws were amended to provide all
acts affecting the Treasurer's duties
and responsibilities shall be subject
to the review and approval of the
Corporation's chief financial officer.
Article VI, Section 13
The Board of Directors was required This provision was deleted.
to fix the salaries of the principal
officers, while the salaries of the
subordinate officers were to be
fixed by the President.
Page 5 of 6
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DATE: October 15, 2004.
FIRST MERCHANTS CORPORATION
By: /s/ Larry R. Helms
Larry R. Helms,
Senior Vice President
Page 6 of 6
EXHIBIT INDEX
3(ii) Bylaws of the Corporation, as amended October 12, 2004
Exhibit 3(ii)
BYLAWS OF
FIRST MERCHANTS CORPORATION
BYLAWS OF
FIRST MERCHANTS CORPORATION
Following are the Bylaws, amended and restated as of October 12, 2004, of
First Merchants Corporation (hereinafter referred to as the "Corporation"), a
corporation existing pursuant to the provisions of the Indiana Business
Corporation Law, as amended (hereinafter referred to as the "Act"):
ARTICLE I
Name, Principal Office and Seal
Section 1. Name and Principal Office. The name of the Corporation is First
Merchants Corporation. The post office address of the principal office of the
Corporation is 200 East Jackson Street, Muncie, Indiana 47305.
Section 2. Seal. The seal of the Corporation shall be circular in form and
mounted upon a metal die, suitable for impressing the same upon paper. About the
upper periphery of the seal shall appear the words "First Merchants Corporation"
and about the lower periphery thereof the word "Muncie, Indiana". In the center
of the seal shall appear the word "Seal".
ARTICLE II
Fiscal Year
The fiscal year of the Corporation shall begin each year on the first day
of January and end on the last day of December of the same year.
ARTICLE III
Capital Stock
Section 1. Number of Shares and Classes of Capital Stock. The total number
of shares of capital stock which the Corporation shall have authority to issue
shall be as stated in the Articles of Incorporation.
Section 2. Consideration for No Par Value Shares. The shares of stock of
the Corporation without par value shall be issued or sold in such manner and for
such amount of consideration as may be fixed from time to time by the Board of
Directors. Upon payment of the consideration fixed by the Board of Directors,
such shares of stock shall be fully paid and nonassessable.
Section 3. Consideration for Treasury Shares. Treasury shares may be
disposed of by the Corporation for such consideration as may be determined from
time to time by the Board of Directors.
Section 4. Payment for Shares. The consideration for the issuance of
shares of capital stock of the Corporation may be paid, in whole or in part, in
money, in other property, tangible or intangible, or in labor actually performed
for, or services actually rendered to the Corporation; provided, however, that
the part of the surplus of the Corporation which is transferred to stated
capital upon the issuance of shares as a share dividend shall be deemed to be
the consideration for the issuance of such shares. When payment of the
consideration for which a share was authorized to be issued shall have been
received by the Corporation, or when surplus shall have been transferred to
stated capital upon the issuance of a share dividend, such share shall be
declared and taken to be fully paid and not liable to any further call or
assessment, and the holder thereof shall not be liable for any further payments
thereon. In the absence of actual fraud in the transaction, the judgment of the
Board of Directors as to the value of such property, labor or services received
as consideration, or the value placed by the Board of Directors upon the
corporate assets in the event of a share dividend, shall be conclusive.
Promissory notes, uncertified checks, or future services shall not be accepted
in payment or part payment of the capital stock of the Corporation, except as
permitted by the Act.
Section 5. Share Certificates. Shares of the Corporation's stock may but
need not be represented by a certificate. The rights and obligations of
shareholders of the same class or series of shares are identical whether or not
their shares are represented by certificates.
A book entry stock account shall be established in the name of each
shareholder who is the beneficial owner of any shares of the Corporation's stock
that are not represented by a certificate, which stock account shall set forth
the number of such shares credited to the shareholder. A shareholder may request
that a stock certificate, representing all or part of the shares credited to his
or her stock account, be issued and delivered to the shareholder at any time.
Any holder of capital stock of the Corporation shall be entitled to a
stock certificate, signed by the President or a Vice President and the Secretary
or any Assistant Secretary of the Corporation, stating the name of the
registered holder, the number of shares represented by such certificate, the par
value of each share of stock or that such shares of stock are without par value,
and that such shares are fully paid and nonassessable. If such shares are not
fully paid, the certificate shall be legibly stamped to indicate the per cent
which has been paid, and as further payments are made, the certificate shall be
stamped accordingly. The certificate may bear the seal of the Corporation or its
facsimile.
2.
If the Corporation is authorized to issue shares of more than one class,
every certificate shall state the kind and class of shares represented thereby,
and the relative rights, interests, preferences and restrictions of such class,
or a summary thereof; provided, that such statement may be omitted from the
certificate if it shall be set forth upon the face or back of the certificate
that such statement, in full, will be furnished by the Corporation to any
shareholder upon written request and without charge.
Section 6. Facsimile Signatures. If a certificate is countersigned by the
written signature of a transfer agent other than the Corporation or its
employee, the signatures of the officers of the Corporation may be facsimiles.
If a certificate is countersigned by the written signature of a registrar other
than the Corporation or its employee, the signatures of the transfer agent and
the officers of the Corporation may be facsimiles. 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 were such officer, transfer agent, or registrar at
the date of its issue.
Section 7. Transfer of Shares. The shares of capital stock of the
Corporation shall be transferable on the books of the Corporation upon surrender
of the certificate or certificates representing the same, properly endorsed by
the registered holder or by the holder's duly authorized attorney or accompanied
by proper evidence of succession, assignment or authority to transfer. Shares
that are not represented by a certificate shall be transferable on the books of
the Corporation upon receipt of written direction to do so from the registered
holder or the holder's duly authorized attorney or accompanied by proper
evidence of succession, assignment or authority to transfer, in a form
satisfactory to the Corporation, its transfer agent or registrar.
Section 8. Cancellation. Every certificate surrendered to the Corporation
for exchange or transfer shall be canceled, and no new certificate or
certificates shall be issued in exchange for any existing certificate until such
existing certificate shall have been so canceled, except in cases provided for
in Section 10 of this Article III.
Section 9. Transfer Agent and Registrar. The Board of Directors may
appoint a transfer agent and a registrar for each class of capital stock of the
Corporation and may require all certificates representing such shares to bear
the signature of such transfer agent and registrar. Shareholders shall be
responsible for notifying the Corporation or transfer agent and registrar for
the class of stock held by such shareholder in writing of any changes in their
addresses from time to time, and failure so to do shall relieve the Corporation,
its shareholders, Directors, officers, transfer agent and registrar of liability
for failure to direct notices, dividends, or other documents or property to an
address other than the one appearing upon the records of the transfer agent and
registrar of the Corporation.
Section 10. Lost, Stolen or Destroyed Certificates. The Corporation may
cause a new certificate or certificates to be issued in place of any certificate
or certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed.
3.
When authorizing such issue of a new certificate or certificates, the
Corporation may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or the owner's legal representative, to give the Corporation a
bond in such sum and in such form as it may direct to indemnify against any
claim that may be made against the Corporation with respect to the certificates
alleged to have been lost, stolen or destroyed or the issuance of such new
certificate. The Corporation, in its discretion, may authorize the issuance of
such new certificates without any bond when in its judgment it is proper to do
so.
Section 11. Registered Shareholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of such shares to receive dividends, to vote as such owner, to hold liable for
calls and assessments, and to treat as owner in all other respects, and shall
not be bound to recognize any equitable or other claims to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Indiana.
Section 12. Options to Officers and Employees. The issuance, including the
consideration, of rights or options to Directors, officers or employees of the
Corporation, and not to the shareholders generally, to purchase from the
Corporation shares of its capital stock shall be approved by the affirmative
vote of the holders of a majority of the shares entitled to vote thereon or
shall be authorized by and consistent with a plan approved by such a vote of the
shareholders.
ARTICLE IV
Meetings of Shareholders
Section 1. Place of Meeting. Meetings of shareholders of the Corporation
shall be held at such place, within or without the State of Indiana, as may from
time to time be designated by the Board of Directors, or as may be specified in
the notices or waivers of notice of such meetings.
Section 2. Annual Meeting. The annual meeting of shareholders for the
election of Directors, and for the transaction of such other business as may
properly come before the meeting, shall be held at such time as the Board of
Directors may set by resolution, following the close of the fiscal year of the
Corporation. A failure to hold the annual meeting at the designated time shall
not affect the validity of any corporate action.
Section 3. Special Meetings. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the Articles
of Incorporation, may be called by the Board of Directors or the President and
shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of shareholders
holding of record not less than one-fourth (1/4) of all the shares outstanding
and entitled by the Articles of Incorporation to vote on the business for which
the meeting is being called.
4.
Section 4. Notice of Meetings. A written or printed notice, stating the
place, day and hour of the meeting, and in case of a special meeting, or when
required by any other provision of the Act, or of the Articles of Incorporation,
as now or hereafter amended, or these Bylaws, the purpose or purposes for which
the meeting is called, shall be delivered or mailed by the Secretary, or by the
officers or persons calling the meeting, to each shareholder of record entitled
by the Articles of Incorporation, as now or hereafter amended, and by the Act to
vote at such meeting, at such address as appears upon the records of the
Corporation, at least ten (10) days before the date of the meeting. Notice of
any such meeting may be waived in writing by any shareholder, if the waiver sets
forth in reasonable detail the purpose or purposes for which the meeting is
called, and the time and place thereof. Attendance at any meeting in person, or
by proxy, shall constitute a waiver of notice of such meeting. Each shareholder,
who has in the manner above provided waived notice of a shareholders' meeting,
or who personally attends a shareholders' meeting, or is represented thereat by
a proxy authorized to appear by an instrument of proxy, shall be conclusively
presumed to have been given due notice of such meeting. Notice of any adjourned
meeting of shareholders shall not be required to be given if the time and place
thereof are announced at the meeting at which the adjournment is taken except as
may be expressly required by law.
Section 5. Addresses of Shareholders. The address of any shareholder
appearing upon the records of the Corporation shall be deemed to be the latest
address of such shareholder appearing on the records maintained by the
Corporation or its transfer agent for the class of stock held by such
shareholder.
Section 6. Voting at Meetings.
(a) Quorum. The holders of record of a majority of the issued and
outstanding stock of the Corporation entitled to vote at such meeting, present
in person or by proxy, shall constitute a quorum at all meetings of shareholders
for the transaction of business, except where otherwise provided by law, the
Articles of Incorporation or these Bylaws. In the absence of a quorum, any
officer entitled to preside at, or act as secretary of, such meeting shall have
the power to adjourn the meeting from time to time until a quorum shall be
constituted. At any such adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the original
meeting, but only those shareholders entitled to vote at the original meeting
shall be entitled to vote at any adjournment or adjournments thereof unless a
new record date is fixed by the Board of Directors for the adjourned meeting.
(b) Voting Rights. Except as otherwise provided by law or by the
provisions of the Articles of Incorporation, every shareholder shall have the
right at every shareholders' meeting to one vote for each share of stock having
voting power, registered in the shareholder's name on the books of the
Corporation on the date for the determination of shareholders entitled to vote,
on
5.
all matters coming before the meeting including the election of directors. At
any meeting of shareholders, every shareholder having the right to vote shall be
entitled to vote in person, or by proxy executed by the shareholder or a duly
authorized attorney in fact, in writing, transmitted by electronic means, or by
any other method allowed by law, and bearing a date not more than eleven (11)
months prior to its execution, unless a longer time is expressly provided
therein.
(c) Required Vote. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the Act or of the
Articles of Incorporation or by these Bylaws, a greater vote is required, in
which case such express provision shall govern and control the decision of such
question.
Section 7. Voting List. The Corporation or its transfer agent shall make,
at least five (5) business days before each meeting of the shareholders, a
complete list of the shareholders entitled by the Articles of Incorporation, as
now or hereafter amended, to notice of the meeting, arranged in alphabetical
order, with the address of and number of shares held by each, which list shall
be on file at the principal office of the Corporation and subject to inspection
during regular business hours by any shareholder entitled to vote at the
meeting, or by the shareholder's agent or attorney authorized in writing. Such
list shall be available continuing through the meeting, at the Corporation's
principal office or at a place identified in the meeting notice in the city
where the meeting will be held.
Section 8. Fixing of Record Date to Determine Shareholders Entitled to
Vote. The Board of Directors may fix a record date, not exceeding seventy (70)
days prior to the date of any meeting of the shareholders, for the purpose of
determining the shareholders entitled to notice of and to vote at the meeting.
In the absence of action by the Board of Directors fixing a record date as
herein provided, the record date shall be the sixtieth (60th) day prior to the
date of the meeting. A new record date must be fixed if a meeting of the
shareholders is adjourned to a date more than one hundred twenty (120) days
after the date fixed for the original meeting.
Section 9. Nominations for Director. The Nominating and Governance
Committee of the Board of Directors shall have the responsibility for nominating
individuals to serve as members of the Board of Directors, including the slate
of Directors to be elected each year at the annual meeting of shareholders. In
so doing, the Committee shall maintain up-to-date criteria for selecting
Directors and a process for identifying and evaluating prospective nominees.
Shareholders may suggest a candidate for consideration by the Committee as a
Director nominee by submitting the suggestion in writing and delivering or
mailing it to the Secretary of the Corporation at the Corporation's principal
office. Suggestions for nominees from shareholders must include: (a) the name,
address and number of the Corporation's shares owned by the shareholder; (b) the
name, address, age and principal occupation of the suggested nominee; (c) such
other information concerning the suggested nominee as the shareholder may wish
to submit or the Committee may reasonably request. The Committee shall evaluate
suggestions for nominees from shareholders in the same manner as other
candidates.
6.
Any nominations for election as Directors at any annual or special meeting
of shareholders not made in accordance with this Section may be disregarded by
the Chairman of the meeting, in the Chairman's discretion; and, upon the
Chairman's instructions, the vote tellers or inspectors of shareholder votes may
disregard all votes cast for each such nominee.
ARTICLE V
Board of Directors
Section 1. Election, Number and Term of Office. The business and affairs
of the Corporation shall be managed in accordance with the Act under the
direction of a Board consisting of fifteen (15) Directors, to be elected by the
holders of the shares of stock entitled by the Articles of Incorporation to
elect Directors. The number of Directors may be changed by amendment of this
Section by a two-thirds (2/3) vote of the Board of Directors.
The Directors shall be divided into three (3) classes as nearly equal in
number as possible, all Directors to serve three (3) year terms except as
provided in the third paragraph of this Section. One class shall be elected at
each annual meeting of the shareholders, by the holders of the shares of stock
entitled by the Articles of Incorporation to elect Directors. Unless the number
of Directors is changed by amendment of this Section, Classes I, II and III
shall each have five (5) Directors. No decrease in the number of Directors shall
have the effect of shortening the term of any incumbent Director.
No person shall serve as a Director subsequent to the annual meeting of
shareholders following the end of the calendar year in which such person attains
the age of seventy (70) years. The term of a Director shall expire as of the
annual meeting following which the Director is no longer eligible to serve under
the provisions of this paragraph, even if fewer than three (3) years have
elapsed since the commencement of the Director's term.
Except in the case of earlier resignation, removal or death, all Directors
shall hold office until their respective successors are chosen and qualified.
The provisions of this Section of the Bylaws may not be changed or amended
except by a two-thirds (2/3) vote of the Board of Directors.
Section 2. Vacancies. Any vacancy occurring in the Board of Directors
caused by resignation, death or other incapacity, or an increase in the number
of Directors, shall be filled by a majority vote of the remaining members of the
Board of Directors, until the next annual meeting of the shareholders, or at the
discretion of the Board of Directors, such vacancy may be filled by a vote of
the shareholders at a special meeting called for that purpose.
Section 3. Annual Meeting of Directors. The Board of Directors shall meet
each year immediately after the annual meeting of the shareholders, at the place
where such meeting of the shareholders has been held either within or without
the State of Indiana, for the purpose of organization, election of officers, and
consideration of any other business that may properly
7.
come before the meeting. No notice of any kind to either old or new members of
the Board of Directors for such annual meeting shall be necessary.
Section 4. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places, either within or without the State of
Indiana, as may be fixed by the Directors. Such regular meetings of the Board of
Directors may be held without notice or upon such notice as may be fixed by the
Directors.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President, or by not less than a
majority of the members of the Board of Directors. Notice of the time and place,
either within or without the State of Indiana, of a special meeting shall be
delivered personally, telephoned, faxed or sent by other electronic means to
each Director at least twenty-four (24) hours, or mailed or delivered by express
private delivery service, to each Director at the Director's usual place of
business or residence at least forty-eight (48) hours, prior to the time of the
meeting. Directors, in lieu of such notice, may sign a written waiver of notice
either before the time of the meeting, at the meeting or after the meeting.
Attendance by a Director in person at any special meeting shall constitute a
waiver of notice.
Section 6. Quorum. A majority of the actual number of Directors elected
and qualified, from time to time, shall be necessary to constitute a quorum for
the transaction of any business except the filling of vacancies, and the act of
a majority of the Directors present at the meeting, at which a quorum is
present, shall be the act of the Board of Directors, unless the act of a greater
number is required by the Act, by the Articles of Incorporation, or by these
Bylaws. A Director, who is present at a meeting of the Board of Directors, at
which action on any corporate matter is taken, shall be conclusively presumed to
have assented to the action taken, unless (a) the Director shall have
affirmatively stated the Director's dissent at and before the adjournment of
such meeting (in which event the fact of such dissent shall be entered by the
secretary of the meeting in the minutes of the meeting), or (b) the Director
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. The right of
dissent provided for by either clause (a) or clause (b) of the immediately
preceding sentence shall not be available, in respect of any matter acted upon
at any meeting, to a Director who voted at the meeting in favor of such matter
and did not change this vote prior to the time that the result of the vote on
such matter was announced by the chairman of such meeting.
A member of the Board of Directors may participate in a meeting of the
Board by means of a conference telephone or similar communications equipment by
which all Directors participating in the meeting can communicate with each
other, and participation by these means constitutes presence in person at the
meeting.
Section 7. Consent Action by Directors. 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 prior to such action a written consent to
such action is signed by all members of the
8.
Board of Directors or such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board of Directors or
committee.
Section 8. Removal. Any or all members of the Board of Directors may be
removed, with or without cause, at a meeting of the shareholders called
expressly for that purpose by the affirmative vote of the holders of not less
than two-thirds (2/3) of the outstanding shares of capital stock then entitled
to vote on the election of Directors, except that if the Board of Directors, by
an affirmative vote of at least two-thirds (2/3) of the entire Board of
Directors, recommends removal of a Director to the shareholders, such removal
may be effected by the affirmative vote of the holders of not less than a
majority of the outstanding shares of capital stock then entitled to vote on the
election of Directors at a meeting of shareholders called expressly for that
purpose.
The provisions in this Section of the Bylaws may not be changed or amended
except by a two-thirds (2/3) vote of the Board of Directors.
Section 9. Dividends. The Board of Directors shall have power, subject to
any restrictions contained in the Act or in the Articles of Incorporation and
out of funds legally available therefor, to declare and pay dividends upon the
outstanding capital stock of the Corporation as and when they deem expedient.
Before declaring any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time in their absolute discretion deem proper for working capital,
or as a reserve or reserves to meet contingencies or for such other purposes as
the Board of Directors may determine, and the Board of Directors may in their
absolute discretion modify or abolish any such reserve in the manner in which it
was created.
Section 10. Fixing of Record Date to Determine Shareholders Entitled to
Receive Corporate Benefits. The Board of Directors may fix a record date with
respect to any dividend, including a share dividend, or other distribution to
the shareholders of the Corporation, or for a determination of shareholders for
any other purpose, as a time for the determination of the shareholders entitled
to receive any such dividend, distribution or rights; and in such case only
shareholders of record at the time so fixed shall be entitled to receive such
dividend, rights or distribution. If no record date is fixed for the
determination of shareholders entitled to receive payment of a dividend, the end
of the day on which the resolution of the Board of Directors declaring such
dividend is adopted shall be the record date for such determination.
Section 11. Interest of Directors in Contracts. Any contract or other
transaction between the Corporation and any corporation in which this
Corporation owns a majority of the capital stock shall be valid and binding,
notwithstanding that the Directors or officers of this Corporation and the other
corporation are identical or that some or all of the Directors or officers, or
both, are also directors or officers of such other corporation.
Any contract or other transaction between the Corporation and one or more
of its Directors or members or employees, or between the Corporation and any
firm of which one or more of its Directors are members or employees or in which
they are interested, or between the
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Corporation and any corporation or association of which one or more of its
Directors are stockholders, members, directors, officers, or employees or in
which they are interested, shall be valid for all purposes, notwithstanding the
presence of such Director or Directors at the meeting of the Board of Directors
of the Corporation which acts upon, or in reference to, such contract or
transaction and notwithstanding his or their participation in such action, if
the fact of such interest shall be disclosed or known to the Board of Directors
and the Board of Directors shall authorize, approve and ratify such contract or
transaction by a vote of a majority of the Directors present, such interested
Director or Directors to be counted in determining whether a quorum is present,
but not to be counted in calculating the majority of such quorum necessary to
carry such vote. This Section shall not be construed to invalidate any contract
or other transaction which would otherwise be valid under the common and
statutory law applicable thereto.
Section 12. Committees. The Board of Directors may, by resolution adopted
by a majority of the actual number of Directors elected and qualified, from time
to time, designate from among its members an Executive Committee and one or more
other committees.
During the intervals between meetings of the Board of Directors, any
Executive Committee so appointed, unless expressly provided otherwise by law or
these Bylaws, shall have and may exercise all the authority of the Board of
Directors, including, but not limited to, the authority to issue and sell or
approve any contract to issue or sell, securities or shares of the Corporation
or designate the terms of a series or class of securities or shares of the
Corporation. The terms which may be affixed by the Executive Committee include,
but are not limited to, the price, dividend rate, and provisions of redemption,
a sinking fund, conversion, voting, or preferential rights or other features of
securities or class or series of a class of shares. Such Committee may have full
power to adopt a final resolution which sets forth these terms and to authorize
a statement of such terms to be filed with the Secretary of State. However, such
Executive Committee shall not have the authority to declare dividends or
distributions, amend the Articles of Incorporation or the Bylaws, approve a plan
of merger or consolidation, even if such plan does not require shareholder
approval, reduce earned or capital surplus, authorize or approve the
reacquisition of shares unless pursuant to a general formula or method specified
by the Board of Directors, or recommend to the shareholders a voluntary
dissolution of the Corporation or a revocation thereof.
The Board of Directors may, in its discretion, constitute and appoint
other committees, in addition to an Executive Committee, to assist in the
management and control of the affairs of the Corporation, with responsibilities
and powers appropriate to the nature of the several committees and as provided
by the Board of Directors in the resolution of appointment or in subsequent
resolutions and directives. Such committees may include, but are not limited to,
a Nominating and Governance Committee, an Audit Committee, and a Compensation
and Human Resources Committee.
No member of any committee appointed by the Board of Directors shall
continue to be a member thereof after he ceases to be a Director of the
Corporation. The calling and holding of meetings of any committee and its method
of procedure shall be determined by the Board of Directors or by the committee
itself, except as otherwise provided in these Bylaws. To the extent
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permitted by law, a member of the Board of Directors serving on any such
committee shall not be liable for any action taken by such committee if the
Director has acted in good faith and in a manner the Director reasonably
believed to be in the best interests of the Corporation. A member of a committee
may participate in a meeting of the committee by means of a conference telephone
or similar communications equipment by which all members participating in the
meeting can communicate with each other, and participation by these means
constitutes presence in person at the meeting.
ARTICLE VI
Officers
Section 1. Principal Officers. The principal officers of the Corporation
shall be a Chairman of the Board, a Vice Chairman of the Board, a Chief
Executive Officer, a President, one (1) or more Vice Presidents (which may
include one (1) or more Executive Vice Presidents, Senior Vice Presidents, First
Vice Presidents and/or other Vice Presidents), a Treasurer and a Secretary. The
Corporation may also have, at the discretion of the Board of Directors, such
other subordinate officers as may be appointed in accordance with the provisions
of these Bylaws. The Board of Directors may, from time to time, designate a
chief operating officer and a chief financial officer from among the principal
officers of the Corporation. Any two (2) or more offices may be held by the same
person. No person shall be eligible for the office of Chairman of the Board,
Vice Chairman of the Board, Chief Executive Officer or President who is not a
Director of the Corporation.
Section 2. Election and Term of Office. The principal officers of the
Corporation shall be chosen annually by the Board of Directors at the annual
meeting thereof. Each such officer shall hold office until the officer's
successor shall have been duly chosen and qualified, or until the officer's
death, or until the officer shall resign, or shall have been removed in the
manner hereinafter provided.
Section 3. Removal. Any principal officer may be removed, either with or
without cause, at any time, by resolution adopted at any meeting of the Board of
Directors by a majority of the actual number of Directors elected and qualified
from time to time.
Section 4. Subordinate Officers. In addition to the principal officers
enumerated in Section 1 of this Article VI, the Corporation may have one or more
Assistant Treasurers, one or more Assistant Secretaries and such other officers,
agents and employees as the Board of Directors may deem necessary, each to hold
office for such period, to have such authority, and to perform such duties as
the Chief Executive Officer or the Board of Directors may from time to time
determine. The Board of Directors may delegate to any principal officer the
power to appoint and to remove, either with or without cause, any such
subordinate officers, agents or employees.
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Section 5. Resignations. Any officer may resign at any time by giving
written notice to the Chairman of the Board of Directors, the Chief Executive
Officer, the President, or the Secretary. Any such resignation shall take effect
upon receipt of such notice or at any later time specified therein, and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 6. Vacancies. Any vacancy in any office for any cause may be
filled for the unexpired portion of the term in the manner prescribed in these
Bylaws for election or appointment to such office for such term.
Section 7. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of shareholders and at all meetings of the Board of Directors.
The Chairman of the Board shall perform such other duties and have such other
powers as, from time to time, may be assigned by the Board of Directors.
Section 8. Vice Chairman of the Board. The Vice Chairman of the Board
shall act in the absence of the Chairman of the Board. The Vice Chairman of the
Board shall perform such other duties and have such other powers as, from time
to time, may be assigned by the Board of Directors.
Section 9. Chief Executive Officer. The Chief Executive Officer, subject
to the control of the Board of Directors, shall have overall responsibility for
the affairs of the Corporation, including responsibility for developing and
attaining major corporate goals and implementing policies approved by the Board.
In general, the Chief Executive Officer shall perform the duties and exercise
the powers incident to the office of Chief Executive Officer and all such other
duties and powers as, from time to time, may be assigned by the Board of
Directors. In the absence or disability of the Chairman of the Board and Vice
Chairman of the Board, the Chief Executive Officer shall preside at all meetings
of the shareholders and the Board of Directors at which the Chief Executive
Officer is in attendance.
Section 10. President. The President shall perform the duties and exercise
the powers incident to the office of President and all such other duties and
powers as, from time to time, may be assigned by the Board of Directors or the
Chief Executive Officer. Subject to the control and direction of the Board of
Directors and the Chief Executive Officer, the President may enter into, execute
and deliver any agreement, instrument or document in the name and on behalf of
the Corporation.
Section 11. Vice Presidents. The Corporation shall have such Vice
Presidents as the Board of Directors shall determine, which may include one (1)
or more Executive Vice Presidents, Senior Vice Presidents, First Vice Presidents
and/or other Vice Presidents. The Board of Directors shall designate one of the
Vice Presidents (an Executive Vice President, if one has been appointed) to
perform the duties and exercise the powers of the President in the absence or
disability of the President. The Vice Presidents shall perform such duties and
have such powers as the Chief Executive Officer, the President, or the Board of
Directors may from time to time assign.
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Section 12. Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds and securities of the Corporation and shall
deposit all such funds in the name of the Corporation in such banks or other
depositories as shall be selected by the Board of Directors. The Treasurer shall
upon request exhibit at all reasonable times the Treasurer's books of account
and records to any of the Directors of the Corporation during business hours at
the office of the Corporation where such books and records shall be kept; shall
render upon request by the Board of Directors a statement of the condition of
the finances of the Corporation at any meeting of the Board of Directors or at
the annual meeting of the shareholders; shall receive, and give receipt for,
moneys due and payable to the Corporation from any source whatsoever; and in
general, shall perform all duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to the Treasurer by the Chief
Executive Officer, the President, or the Board of Directors. The Treasurer shall
give such bond, if any, for the faithful discharge of the Treasurer's duties as
the Board of Directors may require. All acts affecting the Treasurer's duties
and responsibilities shall be subject to the review and approval of the
Corporation's chief financial officer.
Section 13. Secretary. The Secretary shall keep or cause to be kept in the
books provided for that purpose the minutes of the meetings of the shareholders
and of the Board of Directors; shall duly give and serve all notices required to
be given in accordance with the provisions of these Bylaws and by the Act; shall
be custodian of the records and of the seal of the Corporation and see that the
seal is affixed to all documents, the execution of which on behalf of the
Corporation under its seal is duly authorized in accordance with the provisions
of these Bylaws; and, in general, shall perform all duties incident to the
office of Secretary and such other duties as may, from time to time, be assigned
to the Secretary by the Chief Executive Officer, the President, or the Board of
Directors.
Section 14. Voting Corporation's Securities. Unless otherwise ordered by
the Board of Directors, the Chairman of the Board, the Chief Executive Officer,
the President and the Secretary, and each of them, are appointed attorneys and
agents of the Corporation, and shall have full power and authority in the name
and on behalf of the Corporation, to attend, to act, and to vote all stock or
other securities entitled to be voted at any meetings of security holders of
corporations, or associations in which the Corporation may hold securities, in
person or by proxy, as a stockholder or otherwise, and at such meetings shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities, and which as the owner thereof the Corporation might have
possessed and exercised, if present, or to consent in writing to any action by
any such other corporation or association. The Board of Directors by resolution
from time to time may confer like powers upon any other person or persons.
ARTICLE VII
Indemnification
Section 1. Indemnification of Directors, Officers, Employees and Agents. Every
person who is or was a Director, officer, employee or agent of this Corporation
or of any other
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corporation for which such person is or was serving in any capacity at the
request of this Corporation shall be indemnified by this Corporation against any
and all liability and expense that such person may incur in connection with or
resulting from or arising out of any claim, action, suit or proceeding, provided
that such person is wholly successful with respect thereto or acted in good
faith in what such person reasonably believed to be in or not opposed to the
best interest of this Corporation or such other corporation, as the case may be,
and, in addition, in any criminal action or proceeding in which such person had
no reasonable cause to believe that his or her conduct was unlawful. As used
herein, "claim, action, suit or proceeding" shall include any claim, action,
suit or proceeding (whether brought by or in the right of this Corporation or
such other corporation or otherwise), civil, criminal, administrative or
investigative, whether actual or threatened or in connection with an appeal
relating thereto, in which a Director, officer, employee or agent of this
Corporation may become involved, as a party or otherwise,
(i) by reason of such person's being or having been a Director, officer,
employee, or agent of this Corporation or such other corporation or
arising out of his or her status as such or
(ii) by reason of any past or future action taken or not taken by such
person in any such capacity, whether or not such person continues to
be such at the time such liability or expense is incurred.
The terms "liability" and "expense" shall include, but shall not be
limited to, attorneys' fees and disbursements, amounts of judgments, fines or
penalties, and amounts paid in settlement by or on behalf of a Director,
officer, employee, or agent, but shall not in any event include any liability or
expenses on account of profits realized by such person in the purchase or sale
of securities of the Corporation in violation of the law. The termination of any
claim, action, suit or proceeding, by judgment, settlement (whether with or
without court approval) or conviction or upon a plea of guilty or of nolo
contendere, or its equivalent, shall not create a presumption that a Director,
officer, employee, or agent did not meet the standards of conduct set forth in
this paragraph.
Any such Director, officer, employee, or agent who has been wholly
successful with respect to any such claim, action, suit or proceeding shall be
entitled to indemnification as a matter of right. Except as provided in the
preceding sentence, any indemnification hereunder shall be made only if
(i) the Board of Directors acting by a quorum consisting of Directors
who are not parties to or who have been wholly successful with
respect to such claim, action, suit or proceeding shall find that
the Director, officer, employee, or agent has met the standards of
conduct set forth in the preceding paragraph; or
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(ii) independent legal counsel shall deliver to the Corporation their
written opinion that such Director, officer, employee, or agent has
met such standards of conduct.
If several claims, issues or matters of action are involved, any such
person may be entitled to indemnification as to some matters even though he is
not entitled as to other matters.
The Corporation may advance expenses to or, where appropriate, may at its
expense undertake the defense of any such Director, officer, employee, or agent
upon receipt of an undertaking by or on behalf of such person to repay such
expenses if it should ultimately be determined that such person is not entitled
to indemnification hereunder.
The provisions of this Section shall be applicable to claims, actions,
suits or proceedings made or commenced after the adoption hereof, whether
arising from acts or omissions to act during, before or after the adoption
hereof.
The rights of indemnification provided hereunder shall be in addition to
any rights to which any person concerned may otherwise be entitled by contract
or as a matter of law and shall inure to the benefit of the heirs, executors and
administrators of any such person.
The Corporation may purchase and maintain insurance on behalf of any
person who is or was a Director, officer, employee or agent of the Corporation
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation against any liability asserted against
such person and incurred by such person in any capacity or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Section or otherwise.
ARTICLE VIII
Amendments
Except as expressly provided herein or in the Articles of Incorporation,
the Board of Directors may make, alter, amend or repeal these Bylaws by an
affirmative vote of a majority of the actual number of Directors elected and
qualified.
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