19 EXHIBIT 3.1
Sept, 2005
FRANKLIN ELECTRIC CO., INC.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
ARTICLE I
Name
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The name of the Corporation is Franklin Electric Co., Inc.
ARTICLE II
Purposes and Powers
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2.01. PURPOSES. The purposes for which the Corporation is formed are (a)
to engage in the general business of manufacturing production and selling
products, and (b) without limitation, to engage in any and all lawful business
or activity for which corporations may be incorporated under the Indiana
Business Corporation Law, as may be amended from time to time (the "IBCL").
2.02. POWERS. The Corporation shall have (a) the same powers as an
individual to do all things necessary or convenient to carry out its business
and affairs, and (b) without limitation, all powers, rights and privileges
granted to corporations by the IBCL.
ARTICLE III
Term of Existence
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The period during which the Corporation shall continue is perpetual.
ARTICLE IV
Registered Office and Registered Agent
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The current street address of the Corporation's registered office is 400
East Spring Street, Bluffton, Indiana 46714, and the name of the Corporation's
registered agent at that office is Thomas J. Strupp.
ARTICLE V
Amount of Capital Stock
-----------------------
The total number of shares into which the authorized capital stock of the
Corporation is divided is 50,100,000 shares, consisting of 5,100,000 shares
without par value and 45,000,000 shares with par value of $.10 per share.
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ARTICLE VI
Terms of Capital Stock
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The shares of authorized capital stock are divided into classes as follows:
1. 100,000 shares of Preference Stock, without par value (hereinafter
sometimes referred to as "Preference Stock");
2. 5,000,000 shares of Preferred Stock, without par value (hereinafter
sometimes referred to as "Preferred Stock"); and
3. 45,000,000 shares of Common Stock, par value $.10 per share
(hereinafter sometimes referred to as "Common Stock").
The preferences, limitations and relative rights of each class are as
follows:
A. PREFERENCE STOCK.
Shares of Preference Stock may be issued from time to time in one or more
series, in such amounts and for such consideration as the Board of Directors
may determine and with such preferences, limitations and relative rights as
shall be determined and stated by the Board of Directors. Such preferences,
limitations and relative rights shall be determined and stated for each such
series of Preference Stock by resolution of the Board of Directors prior to
the issuance of each of such series, which resolution shall authorize the
issuance of such series and the authority for which is hereby granted to the
Board of Directors of the Corporation. Without limiting the generality of the
authority granted to the Board of Directors herein, the Board of Directors
shall have the power, right and authority to determine the following
preferences, limitations and relative rights:
(1) Designation. The designation of each series, which designation
shall be by distinguishing letter, number, title or combination thereof.
(2) Number. The number of shares of any series to be issued.
(3) Dividend Source, Rate and Dates. The source, rate and dates of any
dividends payable with respect to shares of any series; provided, however,
that no dividends shall be payable upon the shares of Preference Stock to the
extent that (i) the Corporation would not be able to pay its debts as they
become due in the usual course of business; or (ii) the Corporation's total
assets would be less than the sum of its total liabilities plus (unless
otherwise provided in these Articles of Incorporation) the amount that would
be needed, if the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon dissolution of the
shareholders whose preferential rights are superior to those receiving the
distribution.
(4) Dividend Accumulations. Whether any dividends which may be payable
with respect to shares of any series shall be cumulative; and, if they shall
be cumulative, then the dates from which such dividends shall start to
cumulate.
(5) Dividend Preferences. The preference or preferences, if any, to be
accorded dividends payable with respect to shares of any series.
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(6) Redemption. The redemption rights and prices, if any, with respect
to shares of any series.
(7) Sinking Fund The terms and amount of any sinking fund provided
for the redemption of shares of any series.
(8) Rights of Purchase. The rights, if any, of the Corporation to
purchase for retirement, other than by way of redemption, shares of any
series, and the terms and conditions of any such purchase rights.
(9) Conversion. Whether or not the shares of any series shall be
convertible into Common Stock or into shares of stock of any other series or
number of series or into any other security; and, if so, the conversion price
or prices, any adjustments thereof and/or any other terms and conditions upon
which such conversion may be effected.
(10) Liquidation. The preference or preferences, if any, with respect
to shares of any series entitled to receive the net assets of the Corporation
upon liquidation, dissolution or winding up of the Corporation.
(11) Voting. The voting rights, if any, to which the holders of the
shares of Preference Stock may be entitled.
B. SERIES I JUNIOR PARTICIPATING PREFERENCE STOCK.
This Section B of this Article VI hereby creates a series of Preference
Stock and hereby states the designation and number of shares, and fixes the
relative powers, preferences and rights of such series.
(1) Designation and Amount. The shares of such series shall be
designated as "Series I Junior Participating Preference Stock" (the "Series I
Preference Stock") and the number of shares constituting the Series I
Preference Stock shall be 100,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of Series I Preference Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series I Preference Stock.
(2) Dividend Rights. Subject to the rights of the holders of any
shares of any series of Preference Stock (or any similar shares) ranking prior
and superior to the Series I Preference Stock with respect to dividends, the
holders of Series I Preference Stock, in preference to the holders of Common
Stock and of any other junior stock, shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the fifteenth day of
February, May, August and November in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series I Preference Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (i) $16.00 or (ii)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in Common Stock or a subdivision
of the outstanding Common Stock (by reclassification or otherwise), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date, since the
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first issuance of any Series I Preference Stock or fraction of a Series I
Preference Stock. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in Common Stock, or effect a
subdivision or combination or consolidation of the outstanding Common Stock
(by reclassification or otherwise than by payment of a dividend in Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of Series I Preference Stock were
entitled immediately prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
The Corporation shall declare a dividend or distribution on the Series I
Preference Stock as provided in this paragraph 2 immediately after it declares
a dividend or distribution on the Common Stock (other than a dividend payable
in Common Stock); provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $16.00 per share on the Series I Preference Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
Dividends shall begin to accrue and be cumulative on outstanding Series I
Preference Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of Series
I Preference Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the Series I Preference Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of Series I Preference Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the payment
thereof.
(3) Redemption. The Series I Preference Stock shall not be redeemable.
(4) Conversion. The Series I Preference Stock shall not be convertible
into Common Stock or shares of any other series of any other class of
preferred stock of the Corporation ("Preferred Stock") or Preference Stock
unless the terms of any such series provide otherwise.
(5) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made, (i) to the holders of stock ranking junior (either as to
dividends or upon liquidation) to the holders of Series I Preference Stock
unless, prior thereto, the holders of Series I Preference Stock shall have
received from the assets of the Corporation a preferential amount equal to
$5,000 per share plus all accrued and unpaid dividends thereon, whether or not
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declared, to the date of payment, provided that the holders of Series I
Preference Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock, or (ii) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series I
Preference Stock, except distributions made ratably on the Series I Preference
Stock and all such parity stock in proportion to the total amounts to which
the holders of all such stock are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in Common Stock, or effect a
subdivision or combination or consolidation of the outstanding Common Stock
(by reclassification or otherwise than by payment of a dividend in Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of Series I Preference Stock
were entitled immediately prior to such event under the proviso in clause (i)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(6) Voting. Except as provided herein or as may be required by law,
holders of Series I Preference Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any
corporate action.
In addition to any other voting rights as a separate class or otherwise to
which the holders of Series I Preference Stock may be entitled by law and
subject to the provision for adjustment hereinafter set forth, each share of
Series I Preference Stock shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of the shareholders of the Corporation. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in Common Stock, or effect a subdivision or combination
or consolidation of the outstanding Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the number of
votes per share to which holders of Series I Preference Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
Except as otherwise provided herein, in any other provisions of the
Restated Articles of Incorporation of the Corporation creating a series of
Preferred Stock or Preference Stock or any similar stock, or by law, the
holders of Series I Preference Stock and the holders of Common stock and any
other capital stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders of
the Corporation.
If at the time of any annual meeting of shareholders for the election of
directors a "default in preference dividends," (as that term is hereinafter
defined), on the Series I Preference Stock shall exist, the number of
directors constituting the Board of Directors of the Company shall be
increased by two (2), and the holders of the Series I Preference Stock and any
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other series of Preference Stock (whether or not the holders of such stock
would be entitled to vote for the election of directors if such default in
preference dividends did not exist) shall have the right at such meeting,
voting together as a single class without regard to series, to the exclusion
of the holders of Common Stock, to elect two (2) directors of the Company to
fill such newly created directorships. Such right shall continue until there
are no dividends in arrears upon the Series I Preference Stock. Each director
elected by the holders of Series I Preference Stock and any other series of
Preference Stock (a "Preferred Director") shall continue to serve as such
director for the full term for which he shall have been elected,
notwithstanding that prior to the end of such term a default in preference
dividends shall cease to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders of record of the
outstanding Series I Preference Stock and any other series of Preference Stock
voting together as a single class without regard to series, at a meeting of
the shareholders or of the holders of Series I Preference Stock and any other
series of Preference Stock called for the purpose. So long as a default in any
preference dividends on the Series I Preference Stock shall exist, (i) any
vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (ii)) by an instrument in writing signed by
the remaining Preferred Director and filed with the Company and (ii) in the
case of the removal of any Preferred Director, the vacancy may be filled by
the vote of the holders of the outstanding Series I Preference Stock and any
other series of Preference Stock voting together as a single class without
regard to series, at the same meeting at which such removal shall be voted.
Each director appointed as aforesaid by the remaining Preferred Director shall
be deemed, for all purposes hereof, to be a Preferred Director. Whenever the
term of office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Company shall be reduced by two
(2). For the purposes hereof, a "default in preference dividends" on the
Series I Preference Stock shall be deemed to have occurred whenever the amount
of accrued dividends upon any series of the Series I Preference Stock shall be
equivalent to six (6) full quarterly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all Series I Preference Stock of each and
every series then outstanding shall have been paid to the end of the last
preceding quarterly dividend period.
(7) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series I Preference Stock as provided in paragraph 2 of
this Section B are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on Series I
Preference Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series I Preference Stock;
(ii) declare or pay dividends, or make any other distributions, on
any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series I Preference
Stock, except dividends paid ratably on the Series I Preference Stock
and all such parity stock on which dividends are payable or in
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arrears in proportion to the total amounts to which the holders of
all such stock are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration any
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series I Preference Stock, provided
that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for any shares of
the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series I Preference
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
Series I Preference Stock, or any stock ranking on a parity with the
Series I Preference Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of
Directors) to all holders of such stock upon such terms as the Board
of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any stock of the
Corporation unless the Corporation could, under paragraph 7(a) of this
Section B, purchase or otherwise acquire such stock at such time and in
such manner.
(8) Consolidation, Merger, etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the
Common Stock is exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series I
Preference Stock shall at the same time be similarly exchanged or changed into
an amount per share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in Common Stock, or effect a subdivision or combination or
consolidation of the outstanding Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of
Series I Preference Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(9) Priorities. So long as any Series I Preference Stock remains
outstanding, the Corporation shall not, without the affirmative vote or
written consent of the holders of at least two-thirds of the outstanding
Series I Preference Stock, voting together as a single class, amend, alter or
repeal any of the provisions of these Restated Articles of Incorporation so as
adversely to affect the preferences, limitations and relative rights of Series
I Preference Stock. So long as any Series I Preference Stock remains
outstanding, Series I Preference Stock shall rank, with respect to the payment
of dividends and the distribution of assets, junior to any other series of any
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other class of Preference Stock, unless the terms of any such series shall
provide otherwise.
(10) Status of Reacquired Shares. The Corporation shall retire and
cancel any shares of Series I Preference Stock that it redeems, purchases or
otherwise acquires. All such shares shall upon their cancellation become
authorized but unissued shares of Preference Stock and may be reissued as part
of a new series of Preference Stock subject to the conditions and restrictions
on issuance set forth in the restated Articles of Incorporation creating a
series of Preference Stock or as otherwise required by law.
C. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series as
may from time to time be determined by the Board of Directors. Each series
shall be distinctly designated. All shares of any one series of the Preferred
Stock shall be alike in every particular, except that there may be different
dates from which dividends thereon, if any, shall be cumulative, if made
cumulative. The powers, preferences and relative, participating, optional and
other rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any other series at any
time outstanding. Subject to the provisions of Section D of this ARTICLE VI,
the Board of Directors is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any shares of each
particular series of Preferred Stock, the designation, powers, preferences and
relative, participating, optional and other rights, and the qualifications,
limitations and restrictions thereof, if any, of such series, including, but
without limiting the generality of the foregoing, the following:
(a) the distinctive designation of, and the number of Preferred Stock
which shall constitute the series, which number may be increased (except
as otherwise fixed by the Board of Directors) or decreased (but not
below the number of shares thereof then outstanding) from time to time
by action of the Board of Directors;
(b) the rate and times at which, and the terms and conditions upon
which, dividends, if any, on shares of the series shall be paid, the
extent of preferences or relation, if any, of such dividends to the
dividends payable on any other class or classes of shares of the
Corporation, or on any series of Preferred Stock or of any other class
or classes of shares of the Corporation and whether such dividends shall
be cumulative or non-cumulative;
(c) the right, if any, of the holders of shares of the series to convert
the same into, or exchange the same for, shares of any other class or
classes of shares of the Corporation, or of any series of Preferred
Stock, and the terms and conditions of such conversion or exchange;
(d) whether shares of the series shall be subject to a redemption price
or prices including, without limitation, a redemption price or prices
payable in Common Stock and the time or times at which, and the terms
and conditions upon which shares of the series may be redeemed;
(e) the rights, if any, of the holders of shares of the series upon
voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding up of the
Corporation;
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(f) the terms of the sinking fund or redemption or purchase account, if
any, to be provided for shares of the series; and
(g) the voting powers, if any, of the holders of shares of the series
which may, without limiting the generality of the foregoing, include (i)
the right to more or less than one vote per share on any or all matters
voted upon by the shareholders and (ii) the right to vote, as a series
by itself or together with other series of Preferred Stock or together
with all series of Preferred Stock as a class, upon such matters, under
such circumstances and upon such conditions as the Board of Directors
may fix, including, without limitation, the right, voting as a series by
itself or together with other series of Preferred Stock or together with
all series of Preferred Stock as a class, to elect one or more directors
of this Corporation in the event there shall have been a default in the
payment of dividends on any one or more series of Preferred Stock or
under such other circumstances and upon such conditions as the Board of
Directors may determine.
No holder of any share of any series of Preferred Stock shall be entitled
to vote for the election of directors or in respect of any other matter except
as may be required by the Indiana Business Corporation Law, as amended, or as
is permitted by the resolution or resolutions adopted by the Board of
Directors authorizing the issue of such series of Preferred Stock.
D. COMMON STOCK.
(1) Dividend Rights. Subject to the rights of all stock of the
Corporation ranking, as to dividends, senior to Common Stock, the holders of
Common Stock shall be entitled to receive such dividends, if any, as may be
declared by the Board of Directors of the Corporation from time to time and
paid on Common Stock out of any assets of the Corporation at the time legally
available for the payment of dividends.
(2) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of the
shares of the Common Stock shall be entitled to share ratably in the assets of
the Corporation remaining after all distributions or payments shall have been
made to the holders of any class of stock (or series thereof) of the
Corporation ranking senior, as to liquidation rights, to Common Stock.
The merger or share exchange of the Corporation with any other corporation,
or a sale, lease or conveyance of all or substantially all of its assets,
shall not be regarded as a liquidation, dissolution or winding up of the
Corporation within the meaning of this section.
(3) Voting. Except as provided herein or as may be required by law,
all voting power shall vest exclusively in the holders of shares of Common
Stock. Each share of Common Stock shall be entitled to one vote on each matter
submitted to a vote of the shareholders of the Corporation.
E. DISTRIBUTIONS TO SHAREHOLDERS.
The Board of Directors may authorize and the Corporation may make
distributions to its shareholders if, after giving the distribution effect,
(a) the Corporation would be able to pay its debts as they become due in the
usual course of business and, (b) the Corporation's total assets would be
greater than its total liabilities, without regard to any amount that would be
needed, if the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon dissolution of
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shareholders whose preferential rights are superior to those receiving the
distribution.
ARTICLE VII
Voting Rights of Common Stock
-----------------------------
7.01. COMMON STOCK. Every holder of shares of common stock shall have the
right, at every shareholders' meeting, to one vote for each share of common
stock standing in his name on the books of the Corporation, except as
otherwise provided in the IBCL.
ARTICLE VIII
Directors
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8.01. NUMBER. The number of Directors shall be not less than three (3)
nor more than eleven (11) and the exact number may from time to time be fixed
by the By-Laws. If the By-Laws do not fix the number of Directors, then the
number of Directors shall be five (5).
8.02. CLASSES OF DIRECTOR. The By-Laws may provide that the Directors
shall be divided into two (2) or three (3) classes, with each class containing
one-half (1/2) or one third (1/3) of the total, with an equal number of
Directors or as near equal as may be, and whose terms of office shall expire
at different times. If Directors are divided into classes, the terms of the
Directors in the first class shall expire at the first annual shareholders'
meeting after their election, the terms of the second class shall expire at
the second annual shareholders' meeting after their election, and the terms of
the third class, if any, shall expire at the third annual shareholders'
meeting after their election. At each annual shareholders' meeting thereafter,
Directors shall be chosen for a term of two (2) years or three (3) years, as
the case may be, to succeed those whose term expire. If the By-Laws provide
for a classified Board, then prior to the completion of their term of office,
a Director may be removed, with or without cause, only at a meeting of the
shareholders called and held for that purpose, by the affirmative vote of the
holders of outstanding shares of not less than two-thirds (2/3) of the shares
entitled to vote, by class, if applicable. Directors need not be shareholders.
A majority of the Directors at any time shall be citizens of the United
States.
8.03. VACANCIES. Vacancies occurring in the Board of Directors shall be
filled in the manner provided in the By-Laws, or if the By-Laws do not provide
for the filling of vacancies then in the manner provided by Indiana law. The
By-Laws may also provide that in certain circumstances specified therein,
vacancies occurring in the Board of Directors may be filled by vote of the
shareholders at a special meeting called for that purpose or at the next
annual meeting of shareholders.
8.04. REMOVAL OF DIRECTORS. Prior to the completion of their term of
office, and subject to the provisions of Section 8.02, a Director may only be
removed by the shareholders, and in the manner as provided under the IBCL.
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ARTICLE IX
Provisions for Regulation of Business And
-----------------------------------------
Conduct of Affairs of Corporation
---------------------------------
9.01. SHAREHOLDER MEETINGS AND BOARD MEETINGS. Meetings of the
shareholders may be held either at the principal office of the Corporation in
the State of Indiana or at any other place, within or without the State of
Indiana, as provided by the By-Laws of the Corporation and the notices of such
meetings. Meetings of the Board of Directors may be held at such place, either
within or without the State of Indiana, as may be authorized by the By-Laws.
9.02. POWERS OF BOARD. In addition to the powers and authorities
hereinabove or by statute expressly conferred, the Board of Directors is
hereby authorized to exercise all such powers and do all such acts and things
as may be exercised or done by a corporation organized and existing under the
provisions of the IBCL. The Board of Directors shall have the exclusive power
to make, amend, repeal or waive By-Laws and the provisions thereof.
9.03. NONLIABILITY OF SHAREHOLDERS. Shareholders of the Corporation are
not personally liable for the acts or debts of the Corporation, nor is private
property of shareholders subject to the payment of corporate debt.
9.04. INTERESTS OF DIRECTORS.
(a) A conflict of interest transaction is a transaction with the
Corporation in which a Director of the Corporation has a direct or
indirect interest. A conflict of interest transaction is not voidable by
the Corporation solely because of the Director's interest in the
transaction if any one (1) of the following is true:
(1) The material facts of the transaction and the director's
interest were disclosed or known to the Board of Directors or a
Committee of the Board of Directors and the Board of Directors or
committee authorized, approved, or ratified the transaction.
(2) The material facts of the transaction and the Director's
interest were disclosed or known to the shareholders entitled to vote
and they authorized, approved, or ratified the transaction.
(3) The transaction was fair to the Corporation.
(b) For purposes of this Section 9.04, a Director of the Corporation
has an indirect interest in a transaction if:
(1) another entity in which the Director has a material financial
interest or in which the Director is a general partner is a party to
the transaction, or
(2) another entity of which the Director is a director, officer, or
trustee is a party to the transaction and the transaction is, or is
required to be, considered by the Board of Directors of the
Corporation.
(c) For purposes of Section 9.04(a)(1), a conflict of interest
transaction is authorized, approved, or ratified if it receives the
affirmative vote of a majority of the Directors on the Board of
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Directors (or on the committee) who have no direct or indirect interest
in the transaction, but a transaction may not be authorized, approved,
or ratified under this section by a single Director. If a majority of
the Directors who have no direct or indirect interest in the transaction
vote to authorize, approve, or ratify the transaction, a quorum shall be
deemed present for the purpose of taking action under this Section 9.04.
The presence of, or a vote cast by, a Director with a direct or indirect
interest in the transaction does not affect the validity of any action
taken under Section 9.04(a)(l), if the transaction is otherwise
authorized, approved, or ratified as provided in such subsection.
(d) For purposes of Section 9.04(a)(2), shares owned by or voted under
the control of a Director who has a direct or indirect interest in the
transaction, and shares owned by or voted under the control of an entity
described in Section 9.04(b), may be counted in a vote of shareholders
to determine whether to authorize, approve or ratify a conflict of
interest transaction.
(e) This Section 9.04 shall not be construed to require authorization,
ratification, or approval by the shareholders of any transaction or to
invalidate any transaction that would otherwise be valid under common or
statutory law.
ARTICLE X
Amendment or Repeal
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10.01. AMENDMENT OR REPEAL: CERTAIN PROVISIONS. Any amendment or repeal
of all or any part of this Article X and of Sections 8.01 and 8.02 of Article
VIII, shall require the affirmative vote of the holders of outstanding shares
of not less than two-thirds (2/3) of the shares entitled to vote, by class, if
applicable.
10.02. AMENDMENT OR REPEAL: OTHER PROVISIONS. Except as is otherwise
expressly provided in Section 10.01, all other provisions of the Articles of
Incorporation, as amended, may be amended or repealed in the manner now or
hereafter permitted by law, and all rights conferred upon shareholders by
these Articles of Incorporation, as amended, are conferred subject to this
reservation.
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