Exhibit 3(i)
FRANKLIN ELECTRIC CO., INC.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
ARTICLE I
Name
The name of the Corporation is Franklin Electric Co., Inc.
ARTICLE II
Purposes and Powers
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
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
Registered Office and Registered Agent
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 Dean W. Pfister.
ARTICLE V
Amount of Capital Stock
The total number of shares into which the authorized capital stock of the
Corporation is divided is 25,513,200 shares, 513,200 shares without par value
and 25,000,000 shares with par value of $.10 per share.
ARTICLE VI
Terms of Capital Stock
The shares of authorized capital stock are divided into classes as follows:
150,000 shares of Class A Cumulative Preferred Stock without par value
(hereinafter sometimes referred to as "Class A Preferred Stock");
205,000 shares of Class B Cumulative Preferred Stock, without par value
(hereinafter sometimes referred to as "Class B Preferred Stock");
58,200 shares of Class C Cumulative Preferred Stock, without par value
(hereinafter sometimes referred to as "Class C Preferred Stock");
100,000 shares of Preference Stock, without par value (hereinafter sometimes
referred to as "Preference Stock"); and
25,000,000 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. Class A Preferred Stock
(1) Dividend Rights. The holders of Class A Preferred Stock shall be
entitled to receive, as and when declared by the Board of Directors, out of
any assets of the Corporation at the time legally available for the payment of
dividends, cumulative preferential dividends at the rate of $9.50 per share
per annum until and including February 15, 1993 and at the rate of $8.00 per
share per annum thereafter, and no more, payable quarterly on the fifteenth
day of each February, May, August and November in each year, and such
dividends shall accrue on each share, whether or not earned or declared, from
and after the date of issuance thereof.
So long as any Class A Preferred Stock remains outstanding, no dividends
(either in cash, stock or property) shall be paid or declared, or declared and
set apart for payment, on Common Stock or on any shares of any class of stock
(or series thereof) of the Corporation ranking, as to dividend rights, junior
to Class A Preferred Stock, nor shall any shares of any class of stock (or
series thereof) of the Corporation ranking, as to dividend rights, junior to
or on a parity with Class A Preferred Stock be purchased, redeemed or
otherwise acquired for value by the Corporation, except for conversions of
shares of Class B Preferred Stock into shares of Class A Preferred Stock,
unless there shall have been declared and paid, or declared and set apart for
payment, a sum sufficient for the payment of full dividends on all shares of
Class A Preferred Stock at the time outstanding for all past dividend periods
and for the then current dividend period. No dividends (either in cash, stock
or property) shall be paid or declared, or declared and set apart for payment,
on any shares of Class A Preferred Stock or on any shares of any class of
stock (or series thereof) of the Corporation ranking, as to dividend rights,
on a parity with Class A Preferred Stock for any dividend period unless at the
same time a like proportion of dividends for the same or similar dividend
period, ratably in proportion to the respective annual dividend rate fixed
therefor, shall be paid or declared, or declared and set apart for payment, on
all shares of Class A Preferred Stock and for all other shares of each class
of stock (or series thereof) of the Corporation then outstanding ranking, as
to dividend rights, on a parity with Class A Preferred Stock then outstanding
and at the time entitled to receive such dividends. Accumulations of
dividends shall not bear interest.
The dividend rights of Class A Preferred Stock shall be on a parity with the
dividend rights of Class B Preferred Stock, Class C Preferred Stock and with
each other class of stock (or series thereof) of the Corporation that may
hereafter be created and which, by the terms thereof, is declared to be on a
parity, as to dividend rights, with Class A Preferred Stock, Class B Preferred
Stock or Class C Preferred Stock. The dividend rights of Class A Preferred
Stock shall be senior to the dividend rights of Common Stock.
(2) Redemption at the Option of the Holders. The holder of each share
of Class A Preferred Stock may, at his option, require that the Corporation
redeem any or all shares of the holder's Class A Preferred Stock (i) at any
time and from time to time after the death of Edward J. Schaefer and (ii) at
any time and from time to time if such holder is an exempt organization for
purposes of Section 501 (c)(3) of the Internal Revenue Code of 1986, at a cash
price of $100 per share plus in each case all accrued and unpaid dividends
thereon, whether or not declared, to the redemption date. Each holder of
shares of Class A Preferred Stock calling for redemption shall surrender the
certificate or certificates representing the shares of Class A Preferred Stock
to be redeemed, duly endorsed, together with a written request for redemption
specifying the number of shares to be redeemed and a redemption date not less
than 60 nor more than 120 days after the request, to the Corporation, at the
office of any transfer agent for the Class A Preferred Stock (or other place
as may be designated by the Corporation) and shall thereupon be entitled to
receive payment of the redemption price including all accrued and unpaid
dividends thereon, whether or not declared, to the redemption date. If the
Corporation redeems less than all of the shares represented by a surrendered
certificate, the Corporation shall issue a new certificate representing the
unredeemed shares.
Shares of Class A Preferred Stock redeemed by the Corporation shall no longer
be outstanding and shall become authorized but unissued shares of Class A
Preferred Stock, and all rights with respect to such shares shall cease at the
close of business on the redemption date, except that the holders shall have
the right to receive the redemption price therefor, including all accrued and
unpaid dividends, whether or not declared, to the redemption date, without
interest, upon surrender of their certificates therefor.
(3) Redemption at the Call of the Corporation. Except as otherwise
provided herein, the Corporation may redeem any or all shares of Class A
Preferred Stock at its option by resolution of the Board of Directors, at any
time and from time to time (i) after any transfer of record of any shares of
Class A Preferred Stock to a holder other than Edward J. Schaefer, a lineal
descendant of Edward J. Schaefer, a trust for the benefit of Edward J.
Schaefer or a lineal descendant of Edward J. Schaefer, or The Schaefer
Foundation, but such right of redemption shall be applicable only as to the
shares of Class A Preferred Stock so transferred, or (ii) commencing eighteen
months after the death of Edward J. Schaefer, one of the initial holders of
Class A Preferred Stock, whichever is earlier, upon payment in cash, in
respect of each share redeemed, of $100 plus in each case all accrued and
unpaid dividends thereon, whether or not declared, to the date fixed for
redemption. In the event that the Corporation redeems less than all of the
shares of Class A Preferred Stock outstanding at any one time, the Corporation
shall select the shares to be redeemed pro rata (rounded to the nearest whole
share). Not less than 20 nor more than 120 days prior to the date fixed for
any entire or partial redemption of Class A Preferred Stock, the Corporation
shall cause to be mailed a notice of redemption to the holders of record of
the shares to be redeemed at their addresses as they appear on the stock
register of the Corporation. The notice of redemption shall state the time
and place of redemption and the redemption price and shall state that
dividends on the shares to be redeemed will cease to accrue on the date fixed
for redemption. Failure to mail a notice of redemption of particular shares
of Class A Preferred Stock or a defect in such a notice or its mailing shall
not affect the validity of the proceedings for the redemption of any other
shares of Class A Preferred Stock.
At any time after the mailing of a notice of redemption, each holder of shares
of Class A Preferred Stock called for redemption shall surrender his
certificate representing such shares to the Corporation or its agent at the
place designated in the notice of redemption. If the Corporation redeems less
than all of the shares represented by a surrendered certificate, the
Corporation shall issue a new certificate representing the unredeemed shares.
If the Corporation has duly given notice of redemption and if funds necessary
for the redemption are available on the date fixed for redemption, then
notwithstanding that any holder has not surrendered his certificate
representing shares called for redemption, such shares shall become authorized
but unissued shares of Class A Preferred Stock, and all rights with respect to
those shares shall cease at the close of business on the date fixed for
redemption, except that holders shall have the right to receive the redemption
price therefor, including all accrued and unpaid dividends, whether or not
declared, to the date fixed for redemption, without interest, upon surrender
of their certificates therefor.
(4) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of
Class A Preferred Stock shall be entitled to receive from the assets of the
Corporation a preferential amount equal to $100 per share plus all accrued and
unpaid dividends thereon, whether or not declared, to the date of payment,
before any distribution or payment shall be made to the holders of the Common
Stock or of any class of stock (or series thereof) of the Corporation ranking
junior, as to liquidation rights, to Class A Preferred Stock.
If upon such voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the assets of the Corporation available for distribution
to its shareholders shall be insufficient to permit the payment in full of the
amounts distributable to the holders of all shares of the Class A Preferred
Stock and of all other shares of each class of stock (or series thereof) of
the Corporation then outstanding with liquidation rights on a parity with, or
senior to, the liquidation rights of Class A Preferred Stock, then the entire
assets of the Corporation available for distribution to its shareholders,
after providing for distribution to the holders of all shares of each class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights senior to Class A Preferred Stock, shall be distributed ratably among
the holders of Class A Preferred Stock and the holders of each other class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights on a parity with the liquidation rights of Class A Preferred Stock.
The liquidation rights of Class A Preferred Stock shall be on a parity with
the liquidation rights of Class B Preferred Stock, Class C Preferred Stock and
each other class of stock (or series thereof) of the Corporation that may be
created and which, by the terms thereof, is declared to be on a parity, as to
liquidation rights with Class A Preferred Stock, Class B Preferred Stock or
Class C Preferred Stock. The liquidation rights of Class A Preferred Stock
shall be senior to the liquidation rights of 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.
(5) Voting. Except as provided herein or as may be required by law,
the holders of shares of Class A Preferred Stock shall have no voting rights,
and such holders shall not be entitled to receive notice of any meeting at
which they are not entitled to vote.
In addition to any other voting rights as a separate class or otherwise to
which the holders of Class A Preferred Stock may be entitled by law, the
holders of Class A Preferred Stock shall be entitled, voting together as a
single class with the holders of Common Stock, Class B Preferred Stock, Class
C Preferred Stock and any other class of stock (or series thereof) of the
Corporation entitled to vote thereon, to one vote per share an such of the
following matters that are required by the Indiana Business Corporation Law to
be approved by holders of Common Stock(i) a merger, share exchange, business
combination or control share acquisition of the Corporation, (ii) a sale,
lease, exchange or other disposition of all or substantially all of the assets
of the Corporation, (iii) a liquidation, dissolution or winding up of the
Corporation, or (iv) a reclassification of the securities of the Corporation
or a recapitalization or other similar transaction by the Corporation.
Following the occurrence and during the existence of a default in preference
dividends, as the term "default in preference dividends" is hereinafter
defined, each share of Class A Preferred Stock shall be entitled to one vote
on each matter submitted to a vote of the shareholders of the Corporation.
For the purposes of this section, a "default in preference dividends" shall be
deemed to have occurred whenever the amount of dividends in arrears upon any
shares of Class A Preferred Stock, Class B Preferred Stock or Class C
Preferred Stock shall be equivalent to six (6) full quarterly dividends or
more, and having so occurred, such default in preference dividends shall be
deemed to exist thereafter until, but only until, all dividends in arrears, on
all shares of Class A Preferred Stock, Class B Preferred Stock and Class C
Preferred Stock then outstanding shall have been paid. The term "dividend in
arrears" whenever used in this section with reference to Class A Preferred
Stock, Class B Preferred Stock and Class C Preferred Stock, shall be deemed to
mean that amount which shall be equal to cumulative dividends at the rate
expressed in these Articles of Incorporation for such preferred stock for all
past quarterly dividend periods less the amount of all dividends paid, or
deemed paid, for all such periods upon such preferred stock.
Shares of Class A Preferred Stock are not entitled to vote after notice of
redemption has been mailed to the holders of Class A Preferred Stock and a sum
sufficient to redeem the shares has been deposited with a bank, trust company
or other financial institution under an irrevocable obligation to pay the
holders of Class A Preferred Stock the redemption price on surrender of the
shares.
(6) Priorities. So long as any Class A Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote or
written consent of the holders of a majority of the aggregate number of the
shares of Class A Preferred Stock at the time outstanding, create any other
class or classes of stock (or series thereof) of the Corporation ranking prior
to Class A Preferred Stock either as to dividends or distributions of assets,
or amend, alter or repeal any of the provisions of these Articles of
Incorporation so as adversely to affect the preferences, limitations and
relative rights of Class A Preferred Stock. So long as any Class A Preferred
Stock remains outstanding, Common Stock shall rank junior and be subject and
subordinate to Class A Preferred Stock. Subject to the preferences,
limitations and relative rights provided pursuant to this Article VI, each
share of Class A Preferred Stock shall be of equal rank with each share of
Class B Preferred Stock and each share of Class C Preferred Stock.
(7) Authorized but Unissued Shares. Authorized but unissued shares of
Class A Preferred Stock, including authorized but unissued shares that result
from the redemption of shares by the Corporation pursuant to Sections A(2) and
A(3) of this Article VI, and any shares of Class A preferred Stock which at
any time shall be purchased or otherwise acquired by the Corporation shall not
be reissued except upon conversion of shares of Class B preferred Stock. So
long as any shares of Class B Preferred Stock shall be outstanding and not
called for redemption the number of authorized but unissued shares of Class A
Preferred Stock shall not be reduced below the number that would be required
to be issued upon the conversion of all outstanding shares of Class B
Preferred Stock.
B. Class B Preferred Stock
(1) Dividend Rights. The holders of Class B Preferred Stock shall be
entitled to receive, as and when declared by the Board of Directors, out of
any assets of the Corporation at the time legally available for the payment of
dividends, cumulative preferential dividends at the rate of $11.00 per share
per annum until and including February 15, 1993 and at the rate of $9.50 per
share per annum thereafter, and no more, payable quarterly on the fifteenth
day of each February, May, August and November in each year, and such
dividends shall accrue on each share, whether or not earned or declared, from
and after the date of issuance thereof.
So long as any Class B Preferred Stock remains outstanding, no dividends
(either in cash, stock or property) shall be paid or declared, or declared and
set apart for payment, on Common Stock or on any shares of any class of stock
(or series thereof) of the Corporation ranking, as to dividend rights, junior
to Class B Preferred Stock, nor shall any shares of any class of stock (or
series thereof) of the Corporation ranking, as to dividend rights, junior to
or on a parity with Class B Preferred Stock be purchased, redeemed or
otherwise acquired for value by the Corporation, except for conversions of
shares of Class B Preferred Stock into shares of Class A Preferred Stock and
for redemptions of Class A Preferred Stock pursuant to Section A(2) of this
Article VI unless there shall have been declared and paid, or declared and set
apart for payment, a sum sufficient for the payment of full dividends on all
shares of Class B Preferred Stock at the time outstanding for all past
dividend periods and for the then current dividend period. No dividends
(either in cash, stock or property) shall be paid or declared, or declared and
set apart for payment, on any shares of Class B Preferred Stock or on any
shares of any class of stock (or series thereof) of the Corporation ranking,
as to dividend rights, on a parity with Class B Preferred Stock for any
dividend period unless at the same time a like proportion of dividends for the
same or similar dividend period, ratably in proportion to the respective
annual dividend rate fixed therefor, shall be paid or declared, or declared
and set apart for payment, on all shares of Class B Preferred Stock and for
all other shares of each class of stock (or series thereof) of the Corporation
then outstanding ranking, as to dividend rights, on a parity with Class B
Preferred Stock then outstanding and at the time entitled to receive such
dividends. Accumulations of dividends shall not bear interest.
The dividend rights of Class B Preferred Stock shall be on a parity with the
dividend rights of Class A Preferred Stock, Class C Preferred Stock and with
each other class of stock (or series thereof) of the Corporation that may
hereafter be created and which, by the terms thereof is declared to be on a
parity, as to dividend rights, with Class A Preferred Stock, Class B Preferred
Stock or Class C Preferred Stock. The dividend rights of Class B Preferred
Stock shall be senior to the dividend rights of Common Stock.
(2) Redemption. Except as otherwise provided herein, the Corporation
may redeem any or all shares of Class B Preferred Stock at its option by
resolution of the Board of Directors, at any time and from time to time (i)
after any transfer of record of any shares of Class B Preferred Stock to a
holder other than Edward J. Schaefer, a lineal descendant of Edward J.
Schaefer, a trust for the benefit of Edward J. Schaefer or a lineal descendant
of Edward J. Schaefer, or The Schaefer Foundation, but such right of
redemption shall be applicable only as to the shares of Class B Preferred
Stock so transferred, or (ii) commencing three years after the death of Edward
J. Schaefer, one of the initial holders of Class B Preferred Stock, whichever
is earlier, upon payment in cash, in respect of each share redeemed, of $100
plus in each case all accrued and unpaid dividends thereon, whether or not
declared, to the date fixed for redemption. In the event that the Corporation
redeems less than all of the shares of Class B Preferred Stock outstanding at
any one time, the Corporation shall select the shares to be redeemed pro rata
(rounded to the nearest whole share). Not less than 20 nor more than 120 days
prior to the date fixed for any entire or partial redemption of Class B
Preferred Stock, the Corporation shall cause to be mailed a notice of
redemption to the holders of record of the shares to be redeemed at their
addresses as they appear on the stock register of the Corporation. The notice
of redemption shall state the time and place of redemption and the redemption
price and shall state that dividends on the shares to be redeemed will cease
to accrue on the date fixed for redemption and that the right to convert the
shares of Class B Preferred Stock to be redeemed will terminate on the date of
the notice of redemption. Failure to mail a notice of redemption of
particular shares of Class B Preferred Stock or a defect in such a notice or
its mailing shall not affect the validity of the proceedings for the
redemption of any other shares of Class B Preferred Stock.
At any time after the mailing of a notice of redemption, each holder of shares
of Class B Preferred Stock called for redemption shall surrender his
certificate representing such shares to the Corporation or its agent at the
place designated in the notice of redemption. If the Corporation redeems less
than all of the shares represented by a surrendered certificate, the
Corporation shall issue a new certificate representing the unredeemed shares.
If the Corporation has duly given notice of redemption and if funds necessary
for the redemption are available on the date fixed for redemption, then
notwithstanding that any holder has not surrendered his certificate
representing shares called for redemption, such shares shall become authorized
but unissued shares of Class B Preferred Stock, and all rights with respect to
those shares shall cease at the close of business on the date fixed for
redemption, except that holders shall have the right to receive the redemption
price therefor, including all accrued and unpaid dividends, whether or not
declared, to the date fixed for redemption, without interest, upon surrender
of their certificates therefor.
Nothing in this section shall give any holder of Class B Preferred Stock the
right to require the Corporation to redeem any or all shares of the stock.
(3) Conversion. Subject to the limitations set forth below, at any time
and from time to time, shares of Class B Preferred Stock may be converted, at
the option of the holders thereof, in the manner hereinafter provided, into a
like number of fully paid and nonassessable shares of Class A Preferred Stock;
provided, however, that such right of conversion shall terminate as to shares
of Class B Preferred Stock called for redemption by the Corporation on the
date of the notice of redemption pursuant to Section B(2) of this Article VI
unless default shall be made in the payment of the redemption price.
The right of the holders of Class B Preferred Stock to convert such stock into
Class A Preferred Stock shall be subject to each of the following limitations:
(i) shares of Class B Preferred Stock may be converted into shares of Class A
Preferred Stock only to the extent that at the time the shares of Class B
Preferred Stock are surrendered for conversion, authorized but unissued shares
of Class A Preferred Stock are available for issuance and such conversion
would, if effected, result in no more than 150,000 shares of Class A Preferred
Stock being issued and outstanding; (ii) from and after the date that an
aggregate of 75,000 shares of Class B Preferred Stock shall have been
converted into shares of Class A Preferred Stock, no further shares of Class B
Preferred Stock shall be converted into shares of Class A Preferred Stock
until the next calendar year, and no more than 10,000 shares of Class B
Preferred Stock shall be converted into shares of Class A Preferred Stock in
such next calendar year or in any one of the three succeeding calendar years,
and no more than 25,000 shares of Class B Preferred Stock shall be converted
into shares of Class A Preferred Stock in any one succeeding calendar year
after such three succeeding calendar years; and (iii) shares of Class B
Preferred Stock may be converted into shares of Class A Preferred Stock only
to the extent that at the time shares of Class B Preferred Stock are
surrendered for conversion the total assets of the Corporation equal or exceed
by at least $5,000,000 the sum of its total liabilities (excluding for such
purpose amounts payable with respect to Class A Preferred Stock and the shares
of Class B Preferred Stock being surrendered for conversion) plus the amount
that would be needed to redeem all of the then issued and outstanding shares
of Class A Preferred Stock and the shares of Class A Preferred Stock issuable
upon conversion of the shares of Class B Preferred Stock then surrendered for
conversion.
In the event that the number of shares of Class B Preferred Stock surrendered
for conversion shall exceed the number of such shares that may then be
converted in accordance with any of the foregoing limitations, such number of
shares as may be converted, selected from the holders thereof in the order in
which surrendered, shall be converted into shares of Class A Preferred Stock,
and the remainder shall be returned to the holders thereof. The inability or
declination of the Corporation to convert shares of Class B Preferred Stock at
any time by reason of any of the foregoing limitations shall not affect the
convertibility of such shares at any other time.
Any conversion of Class B Preferred Stock into Class A Preferred Stock shall
be made by the surrender to the Corporation, at the office of any transfer
agent for the Class B Preferred Stock (or other place as may be designated by
the Corporation), of the certificate or certificates representing the shares
of Class B Preferred Stock to be converted, duly endorsed or assigned (unless
such endorsement or assignment be waived by the Corporation) together with a
written request for conversion.
All shares of Class B Preferred Stock which shall have been surrendered for
conversion as herein provided shall no longer be outstanding, and all rights
with respect to such shares, including the rights, if any, to receive notices
and to vote, shall forthwith cease, except only the right of the holders
thereof to receive Class A Preferred Stock in exchange therefor.
(4) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of
Class B Preferred Stock shall be entitled to receive from the assets of the
Corporation a preferential amount equal to $100 per share plus all accrued and
unpaid dividends thereon, whether or not declared, to the date of payment,
before any distribution or payment shall be made to the holders of the Common
Stock or of any class of stock (or series thereof) of the Corporation ranking
junior, as to liquidation rights, to Class B Preferred Stock.
If upon such voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the assets of the Corporation available for distribution
to its shareholders shall be insufficient to permit the payment in full of the
amounts distributable to the holders of all shares of Class B Preferred Stock
and of all other shares of each class of stock (or series thereof) of the
Corporation then outstanding with liquidation rights on a parity with, or
senior to, the liquidation rights of Class B Preferred Stock, then the entire
assets of the Corporation available for distribution to its shareholders,
after providing for distribution to the holders of all shares of each class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights senior to Class B Preferred Stock, shall be distributed ratably among
the holders of Class B Preferred Stock and the holders of each other class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights on a parity with the liquidation rights of Class B Preferred Stock.
The liquidation rights of Class B Preferred Stock shall be on a parity with
the liquidation rights of Class A Preferred Stock, Class C Preferred Stock and
each other class of stock (or series thereof) of the Corporation that may be
created and which, by the terms thereof, is declared to be on a parity, as to
liquidation rights, with Class A Preferred Stock, Class B Preferred Stock or
Class C Preferred Stock. The liquidation rights of Class B Preferred Stock
shall be senior to the liquidation rights of 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.
(5) Voting. Except as provided herein or as may be required by law, the
holders of shares of Class B Preferred Stock shall have no voting rights, and
such holders shall not be entitled to receive notice of any meeting at which
they are not entitled to vote.
In addition to any other voting rights as a separate class or otherwise to
which the holders of Class B Preferred Stock may be entitled by law, the
holders of Class B Preferred Stock shall be entitled, voting together as a
single class with the holders of Common Stock, Class A Preferred Stock, Class
C Preferred Stock and any other class of stock (or series thereof) of the
Corporation entitled to vote thereon, to one vote per share on such of the
following matters that are required by the Indiana Business Corporation Law to
be approved by holders of Common Stock: (i) a merger, share exchange, business
combination or control share acquisition of the Corporation, (ii) a sale,
lease, exchange or other disposition of all or substantially all of the assets
of the Corporation, (iii) a liquidation, dissolution or winding up of the
Corporation, or (iv) a reclassification of the securities of the Corporation
or a recapitalization or other similar transaction by the Corporation.
Following the occurrence and during the existence of a default in preference
dividends, as the term "default in preference dividends" is hereinafter
defined, each share of Class B Preferred Stock shall be entitled to one vote
on each matter submitted to a vote of the shareholders of the Corporation.
For the purposes of this section, a "default in preference dividends" shall be
deemed to have occurred whenever the amount of dividends in arrears upon any
shares of Class A Preferred Stock, Class B Preferred Stock or Class C
Preferred Stock shall be equivalent to six (6) full quarterly dividends or
more, and having so occurred, such default in preference dividends shall be
deemed to exist thereafter until, but only until, all dividends in arrears on
all shares of Class A Preferred Stock, Class B Preferred Stock and Class C
Preferred Stock then outstanding shall have been paid. The term "dividend in
arrears' whenever used in this section with reference to Class A Preferred
Stock, Class B Preferred Stock and Class C Preferred Stock, shall be deemed to
mean that amount which shall be equal to cumulative dividends at the rate
expressed in these Articles of Incorporation for such preferred stock for all
past quarterly dividend periods less the amount of all dividends paid, or
deemed paid, for all such periods upon such preferred stock.
Shares of Class B Preferred Stock are not entitled to vote after notice of
redemption has been mailed to the holders of Class B Preferred Stock and a sum
sufficient to redeem the shares has been deposited with a bank, trust company
or other financial institution under an irrevocable obligation to pay the
holders of Class B Preferred Stock the redemption price on surrender of the
shares.
(6) Priorities. So long as any Class B Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote or
written consent of the holders of a majority of the aggregate number of the
shares of Class B Preferred Stock at the time outstanding, create any other
class or classes of stock (or series thereon of the Corporation ranking prior
to Class B Preferred Stock either as to dividends or distributions of assets,
or amend, alter or repeal any of the provisions of these Articles of
Incorporation so as adversely to affect the preferences, limitations and
relative rights of Class B Preferred Stock. So long as any Class B Preferred
Stock remains outstanding, Common Stock shall rank junior and be subject and
subordinate to Class B Preferred Stock. Subject to the preferences,
limitations and relative rights provided pursuant to this Article VI, each
share of Class B Preferred Stock shall be of equal rank with each share of
Class A Preferred Stock and each share of Class C Preferred Stock.
(7) Status of Reacquired Shares. The Corporation shall retire and
cancel any shares of Class B Preferred Stock that it redeems, purchases or
otherwise acquires, and such shares shall not be reissued.
C. Class C Preferred Stock
(1) Dividend Rights. The holders of Class C Preferred Stock shall be
entitled to receive, as and when declared by the Board of Directors, out of
any assets of the Corporation at the time legally available for the payment of
dividends, cumulative preferential dividends at the rate of $10.50 per share
per annum, and no more, payable quarterly on the fifteenth day of each
February, May, August and November in each year, and such dividends shall
accrue on each share, whether or not earned or declared, from and after the
date of issuance thereof.
So long as any Class C Preferred Stock remains outstanding, no dividends
(either in cash, stock or property) shall be paid or declared, or declared and
set apart for payment, on Common Stock or on any shares of any class of stock
(or series thereof) of the Corporation ranking, as to dividend rights, junior
to Class C Preferred Stock, nor shall any shares of any class of stock (or
series thereof) of the Corporation ranking, as to dividend rights, junior to
or on a parity with Class C Preferred Stock be purchased, redeemed or
otherwise acquired for value by the Corporation, except for conversions of
shares of Class B Preferred Stock into shares of Class A Preferred Stock,
unless there shall have been declared and paid, or declared and set apart for
payment, a sum sufficient for the payment of full dividends on all shares of
Class C Preferred Stock at the time outstanding for all past dividend periods
and for the then current dividend period. No dividends (either in cash, stock
or property) shall be paid or declared, or declared and set apart for payment,
on any shares of Class C Preferred Stock or on any shares of any class of
stock (or series thereof) of the Corporation ranking, as to dividend rights,
on a parity with Class C Preferred Stock for any dividend period unless at the
same time a like proportion of dividends for the same or similar dividend
period, ratably in proportion to the respective annual dividend rate fixed
therefor, shall be paid or declared, or declared and set apart for payment, on
all shares of Class C Preferred Stock and for all other shares of each class
of stock (or series thereof) of the Corporation then outstanding ranking, as
to dividend rights, on a parity with Class C Preferred Stock then outstanding
and at the time entitled to receive such dividends. Accumulations of
dividends shall not bear interest.
The dividend rights of Class C Preferred Stock shall be on a parity with the
dividend rights of Class A Preferred Stock, Class B Preferred Stock and with
each other class of stock (or series thereof) of the Corporation that may
hereafter be created and which, by the terms thereof, is declared to be on a
parity, as to dividend rights, with Class A Preferred Stock, Class B Preferred
Stock or Class C Preferred Stock. The dividend rights of Class C Preferred
Stock shall be senior to the dividend rights of Common Stock.
(2) Redemption. The Corporation may redeem any or all shares of Class C
Preferred Stock at its option by resolution of the Board of Directors, at any
time and from time to time from and after February 15, 1994, upon payment in
cash, in respect of each share redeemed, of $100 plus in each case all accrued
and unpaid dividends thereon, whether or not declared, to the date fixed for
redemption. In the event that the Corporation redeems less than all of the
shares of Class C Preferred Stock outstanding at any one time, the Corporation
shall select the shares to be redeemed pro rata (rounded to the nearest whole
share). Not less than 20 nor more than 120 days prior to the date fixed for
any entire or partial redemption of Class C Preferred Stock, the Corporation
shall cause to be mailed a notice of redemption to the holders of record of
the shares to be redeemed at their addresses as they appear on the stock
register of the Corporation. The notice of redemption shall state the time
and place of redemption and the redemption price and shall state that
dividends on the shares to be redeemed will cease to accrue on the date fixed
for redemption. Failure to mail a notice of redemption of particular shares
of Class C Preferred Stock or a defect in such a notice or its mailing shall
not affect the validity of the proceedings for the redemption of any other
shares of Class C Preferred Stock.
At any time after the mailing of a notice of redemption, each holder of shares
of Class C Preferred Stock called for redemption shall surrender his
certificate representing such shares to the Corporation or its agent at the
place designated in the notice of redemption. If the Corporation redeems less
than all of the shares represented by a surrendered certificate, the
Corporation shall issue a new certificate representing the unredeemed shares.
If the Corporation has duly given notice of redemption and if funds necessary
for the redemption are available on the date fixed for redemption, then
notwithstanding that any holder has not surrendered his certificate
representing shares called for redemption, such shares shall become authorized
but unissued shares of Class C Preferred Stock, and all rights with respect to
those shares shall cease at the close of business on the date fixed for
redemption, except that holders shall have the right to receive the redemption
price therefor, including all accrued and unpaid dividends, whether or not
declared, to the date fixed for redemption, without interest, upon surrender
of their certificates therefor.
(3) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of
Class C Preferred Stock shall be entitled to receive from the assets of the
Corporation a preferential amount equal to $100 per share plus all accrued and
unpaid dividends thereon, whether or not declared, to the date of payment,
before any distribution or payment shall be made to the holders of the Common
Stock or of any class of stock (or series thereof) of the Corporation ranking
junior, as to liquidation rights, to Class C Preferred Stock.
If upon such voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the assets of the Corporation available for distribution
to its shareholders shall be insufficient to permit the payment in full of the
amounts distributable to the holders of all shares of Class C Preferred Stock
and of all other shares of each class of stock (or series thereof) of the
Corporation then outstanding with liquidation rights on a parity with, or
senior to, the liquidation rights of Class C Preferred Stock, then the entire
assets of the Corporation available for distribution to its shareholders,
after providing for distribution to the holders of all shares of each class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights senior to Class C Preferred Stock, shall be distributed ratably among
the holders of Class C Preferred Stock and the holders of each other class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights on a parity with the liquidation rights of Class C Preferred Stock.
The liquidation rights of Class C Preferred Stock shall be on a parity with
the liquidation rights of Class A Preferred Stock, Class B Preferred Stock and
each other class of stock (or series thereof) of the Corporation that may be
created and which, by the terms thereof, is declared to be on a parity, as to
liquidation rights, with Class A Preferred Stock, Class B Preferred Stock or
Class C Preferred Stock. The liquidation rights of Class C Preferred Stock
shall be senior to the liquidation rights of 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.
(4) Voting. Except as provided herein or as may be required by law, the
holders of shares of Class C Preferred Stock shall have no voting rights, and
such holders shall not be entitled to receive notice of any meeting at which
they are not entitled to vote.
In addition to any other voting rights as a separate class or otherwise to
which the holders of Class C Preferred Stock may be entitled by law, the
holders of Class C Preferred Stock shall be entitled, voting together as a
single class with the holders of Common Stock, Class A Preferred Stock, Class
B Preferred Stock and any other class of stock (or series thereof) of the
Corporation entitled to vote thereon, to one vote per share on such of the
following matters that are required by the Indiana Business Corporation Law to
be approved by holders of Common Stock: (i) a merger, share exchange, business
combination or control share acquisition of the Corporation, (ii) a sale,
lease, exchange or other disposition of all or substantially all of the assets
of the Corporation, (iii) a liquidation, dissolution or winding up of the
Corporation, or (iv) a reclassification of the securities of the Corporation
or a recapitalization or other similar transaction by the Corporation.
Following the occurrence and during the existence of a default in preference
dividends, as the term "default in preference dividends" is hereinafter
defined, each share of Class C Preferred Stock shall be entitled to one vote
on each matter submitted to a vote of the shareholders of the Corporation.
For the purposes of this section, a "default in preference dividends" shall be
deemed to have occurred whenever the amount of dividends in arrears upon any
shares of Class A Preferred Stock, Class B Preferred Stock or Class C
Preferred Stock, shall be equivalent to six (6) full quarterly dividends or
more, and having so occurred, such default in preference dividends shall be
deemed to exist thereafter until, but only until, all dividends in arrears, on
all shares of Class A Preferred Stock, Class B Preferred Stock and Class C
Preferred Stock shall have been paid. The term "dividend in arrears" whenever
used in this section with reference to Class A Preferred Stock, Class B
Preferred Stock and Class C Preferred Stock shall be deemed to mean that
amount which shall be equal to cumulative dividends at the rate expressed in
these Restated Articles of Incorporation for such preferred stock for all past
quarterly dividend periods less the amount of all dividends paid, or deemed
paid, for all such periods upon such preferred stock.
Shares of Class C Preferred Stock are not entitled to vote after notice of
redemption has been mailed to the holders of Class C Preferred Stock and a sum
sufficient to redeem the shares has been deposited with a bank, trust company
or other financial institution under an irrevocable obligation to pay the
holders of Class C Preferred Stock the redemption price on surrender of the
shares.
(5) Priorities. So long as any Class C Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote or
written consent of the holders of a majority of the aggregate number of the
shares of Class C Preferred Stock at the time outstanding, create any other
class or class of stock (or series thereof) of the Corporation ranking prior
to Class C Preferred Stock either as to dividends or distributions of assets
or amend, alter or repeal any of the provisions of these Articles of
Incorporation so as adversely to affect the preferences, limitations and
relative rights of Class C Preferred Stock. So long as any Class C Preferred
Stock remains outstanding, Common Stock shall rank junior and be subject and
subordinate to Class C Preferred Stock. Subject to the preferences,
limitations and relative rights provided pursuant to this Article VI, each
share of Class C Preferred Stock shall be of equal rank with each share of
Class A Preferred Stock and each share of Class B Preferred Stock.
(6) Status of Reacquired Shares. The Corporation shall retire and
cancel any shares of Class C Preferred Stock that it redeems, purchases or
otherwise acquires, and such shares shall not be reissued.
D. 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.
(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.
E. Series I Junior Participating Preference Stock.
This Section E 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 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
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
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 E 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 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
E, 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 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.
F. 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
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.
D. 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
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
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.
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 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)(1), 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
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.