RESTATED
ARTICLES OF INCORPORATION
OF
INDIANA GAS COMPANY, INC.
As Fully Restated On May 1, 1997
ARTICLE 1
IDENTIFICATION
The name of the Corporation is INDIANA GAS COMPANY,
INC.
ARTICLE 2
PURPOSE AND POWERS
SECTION 2.01. Purpose. The purpose for which the
Corporation is formed is the transaction of any or all
lawful business for which corporations may be incorporated
under the Indiana Business Corporation Law, as the same may,
from time to time, be amended (the "Act").
SECTION 2.02. Powers. The Corporation, subject to any
limitations or restrictions imposed by the Act, other law or
these Amended and Restated Articles of Incorporation, as the
same may, from time to time, be amended (these "Articles"),
shall have the following general rights, privileges and
powers:
Clause (a). Personal Property. To acquire (by
purchase, exchange, lease, hire or otherwise), hold,
own, use, lease, mortgage, pledge, give as security,
sell, convey, exchange or otherwise deal in and dispose
of, either alone or in conjunction with others,
personal property, tangible or intangible, and
commodities of every kind, character and description
whatsoever and any interests therein.
Clause (b). Real Estate. To acquire (by purchase,
grant, exchange, lease, hire or otherwise), hold, own,
use, lease, mortgage, sell, convey, exchange or
otherwise deal in and dispose of, either alone or in
conjunction with others, real estate of every kind,
character and description whatsoever and any interests
therein, and any improvements thereon or appurtenances
thereto.
Clause (c). Operating Rights. To acquire (by
application, grant, purchase, exchange, lease or
otherwise) permits, concessions, grants, franchises,
indeterminate permits, licenses, rights and privileges
of every kind and nature; to hold, own, use, develop,
operate under, lease, mortgage, pledge, sell, convey,
exchange or otherwise deal with and dispose of the same
to the extent permitted by law.
Clause (d). Patents and Similar Rights. To acquire
(by application, purchase, exchange, lease, hire or
otherwise), hold, own, use, lease, mortgage, pledge,
sell, convey, exchange, and grant licenses or
sublicenses in respect of, or otherwise deal with and
dispose of, letters patent of the United States of
America or any foreign country, patent rights,
licenses, privileges, inventions, discoveries,
improvements, processes, formulae, copyrights,
trademarks, trade names and intellectual property of
any kind or character.
Clause (e). Acquisition of Assets, Properties,
Business, and Goodwill. To acquire (by purchase,
exchange, lease, hire or otherwise) all or any part of
the assets, properties, business or goodwill of any
corporation, unincorporated association, business
trust, estate, partnership, trust, joint venture,
individual or other legal entity (collectively, "Legal
Entities," and individually, a "Legal Entity"); to pay
for the same in cash, shares or obligations of the
Corporation or otherwise; to assume in connection
therewith any liabilities of any such transferor; and
to hold, own, use, develop, operate and in any manner
dispose of the whole, or any part, of the assets,
properties, business or goodwill so acquired.
Clause (f). Securities. To purchase, take,
receive, subscribe for or otherwise acquire, guarantee,
own, hold, vote, use, employ, sell, mortgage, lend,
pledge or otherwise deal in and dispose of shares or
other interests in, or obligations of, any one or more
Legal Entities, including direct or indirect
obligations or other securities of the United States of
America or of any other government, State, territory,
governmental district or municipality or of any agency
or instrumentality thereof.
Clause (g). Arrangements with Others. To enter
into any lawful arrangement for sharing profits, union
of interest, joint venture, reciprocal association, or
cooperative association or partnership with any one or
more Legal Entities.
Clause (h). Agency. To act as agent of or
representative for any one or more Legal Entities.
Clause (i). To Raise Funds. To borrow or raise
monies from time to time, without limit as to amount;
to issue, execute, accept, endorse and deliver, as
evidence of such borrowing, all kinds of securities,
including without limitation promissory notes, drafts,
bills of exchange, bonds, debentures and other
negotiable or non-negotiable instruments and evidences
of indebtedness; and to secure the payment and
performance of the obligations thereunder, by mortgage
on, pledge of, or other security interest in the whole
or any part of the assets, properties, business or
goodwill of the Corporation, whether owned at the time
or thereafter acquired.
Clause (j). To Loan Funds. To lend money to any
one or more Legal Entities, including employees of the
Corporation or its subsidiaries; to take and hold any
property as security for the payment of funds so
loaned; but to make no loan of money or property to,
and no guarantee of any obligation of, any of the
Directors of the Corporation (collectively, the
"Directors," and individually, a "Director"), except in
the manner and upon the terms provided by the Act.
Clause (k). Contracts. To enter into, perform,
modify, terminate and rescind contracts and other
agreements.
Clause (l). Guarantees. To make any guarantee
respecting the shares, dividends, securities,
indebtedness, interest, contracts or other obligations
created by any one or more Legal Entities.
Clause (m). Dealing in Its Own Shares. To
purchase, take, receive or otherwise acquire, hold,
own, use, pledge, cancel, sell, transfer or otherwise
dispose of shares of the Corporation (collectively,
"Shares," and individually, a "Share") to the extent
permitted by the Act and these Articles.
Clause (n). Contributions. To make payments or
donations for the public welfare or for charitable,
scientific or educational purposes.
Clause (o). Capacity to Act. To have the capacity
to act possessed by natural persons, but to have
authority to perform only such acts as are necessary or
convenient to carry out its business and affairs.
Clause (p). Officers, Agents, and Employees. To
elect Officers of the Corporation (collectively,
"Officers," and individually, an "Officer"), to appoint
agents and to hire employees of the Corporation; to
define their duties; to determine their compensation;
and to pay pensions and establish and administer
pension plans, pension trusts, profit sharing plans,
stock bonus plans, stock option plans, welfare plans,
qualified and non-qualified retirement plans, and
benefit or incentive plans for any or all of its
current or former Directors, Officers and employees.
Clause (q). Indemnification. To indemnify persons
to the extent, upon the terms and in the manner
permitted by the Act, and as provided in Section 8.08
hereof.
Clause (r). Statutory Powers. To have and exercise
all the general rights, privileges and powers set forth
in the Act.
Clause (s). Ancillary Powers. To do all acts and
things that are necessary or convenient to carry out
its business and affairs.
SECTION 2.03. Construction of Powers as Purposes. The
powers enumerated in Section 2.02 shall be construed as
purposes as well as powers, and the matters expressed in
each Clause thereof shall be in no wise limited by reference
to, or inference from, the terms of any other Clause, each
of such Clauses being regarded as creating independent
powers and purposes. Enumeration of specific additional
powers in the Clauses of Section 2.02 shall not be construed
as limiting or restricting in any manner, either the meaning
of general terms used in this Article 2 or the scope of
powers of the Corporation created thereby; nor shall the
expression of one thing be deemed to exclude another not
expressed although it be of like nature.
SECTION 2.04. Carrying Out of Purposes and Exercise of
Powers in Any Jurisdiction. The Corporation may carry out
its purposes and exercise its powers in any State,
territory, district or possession of the United States of
America, or in any foreign country (collectively,
"Governmental Jurisdictions," and individually, a
"Governmental Jurisdiction"), to the extent that such
purposes and powers are not forbidden by the respective laws
of such Governmental Jurisdictions; and, in the case of any
Governmental Jurisdiction in which one or more of such
purposes or powers are forbidden by law, limit, in any
application to do business in such Governmental
Jurisdiction, the purpose or purposes that the Corporation
proposes to carry on or the powers it proposes to exercise
in such Governmental Jurisdiction to such purpose or
purposes or powers as are not forbidden by the law thereof.
ARTICLE 3
REGISTERED OFFICE AND REGISTERED AGENT
The street address of the registered office of the
Corporation is:
1630 North Meridian Street
Indianapolis, Indiana 46202-1496
and the name and business office address of its registered
agent in charge of such office are:
Lawrence A. Ferger
1630 North Meridian Street
Indianapolis, Indiana 46202-1496
ARTICLE 4
NUMBER OF SHARES
The Corporation shall have authority to issue a total
of Twenty Million (20,000,000) Shares. Subject to the
provisions of Article 5 of these Articles, (i) Four Million
(4,000,000) of such Shares, known as "Preferred Shares," are
authorized to be issued as Shares of preferred stock of the
Corporation ("Preferred Stock"), and (ii) the remainder of
such Shares, known as "Common Shares," are authorized to be
issued as Shares of common stock of the Corporation ("Common
Stock").
ARTICLE 5
GENERAL PROVISIONS REGARDING
SHARES OF THE CORPORATION
SECTION 5.01. Preferred Stock. All of the Preferred
Shares that the Corporation has authority to issue
constitute a separate and single class of Shares known as
Preferred Stock, which may be issued in one or more series.
Subject to the rights of the holders of any then outstanding
Preferred Shares, the Board is vested with authority to
determine and state the designations and the relative
preferences, limitations, voting rights, if any, and other
rights of each such series of Preferred Stock by the
adoption and filing in accordance with the Act, before the
issuance of any Shares of such series, of an amendment or
amendments to these Articles determining the terms of such
series (a "Section 5.01 Amendment"). All Shares of
Preferred Stock of the same series shall be identical with
each other in all respects.
SECTION 5.02. Common Stock. All of the Common Shares
that the Corporation has authority to issue constitute a
separate and single class of Shares known as Common Stock,
which shall be without par value and shall not be issued in
series. All Common Shares shall be identical with each other
in all respects.
SECTION 5.03. Issuance of Shares. The Board has
authority to authorize and direct the issuance by the
Corporation of Preferred Shares and Common Shares at such
times, in such amounts, to such persons, for such
consideration and upon such terms and conditions as it may,
from time to time, determine upon, subject only to the
restrictions, limitations, conditions and requirements
imposed by the Act, other applicable laws and these
Articles.
SECTION 5.04. Distributions Upon Shares. The Board has
authority to authorize and direct in respect of the issued
and outstanding Preferred Shares and Common Shares (i) the
payment of dividends and the making of other distributions
by the Corporation at such times, in such amounts and forms,
from such sources and upon such terms and conditions as it
may, from time to time, determine upon, subject only to the
restrictions, limitations, conditions and requirements
imposed by the Act, other applicable laws and these
Articles, and (ii) the making by the Corporation of Share
dividends and Share splits, pro rata and without
consideration, in Shares of the same class or series or in
Shares of any other class or series without obtaining the
affirmative vote or the written consent of the holders of
the Shares of the class or series in which the payment or
distribution is to be made, subject only to any
restrictions, limitations, conditions and requirements
imposed by the Act, other applicable laws and these
Articles.
SECTION 5.05. Acquisition of Shares. The Board has
authority to authorize and direct the acquisition by the
Corporation of the issued and outstanding Preferred Shares
and Common Shares at such times, in such amounts, from such
persons, for such considerations, from such sources and upon
such terms and conditions as it may, from time to time,
determine upon, subject only to the restrictions,
limitations, conditions and requirements imposed by the Act,
other applicable laws and these Articles.
SECTION 5.06. Record Ownership of Shares or Rights. The
Corporation, to the extent permitted by law, shall be
entitled to treat the person in whose name any Share or
Right of the Corporation (a "Right") is registered on the
books of the Corporation as the owner thereof, for all
purposes, and shall not be bound to recognize any equitable
or other claim to, or interest in, such Share or Right on
the part of any other person, whether or not the Corporation
shall have notice thereof.
SECTION 5.07. Recognition Procedure for Beneficial
Ownership of Shares or Rights. The Board may establish in
the By-Laws a recognition procedure by which the beneficial
owner of any Share or Right that is registered on the books
of the Corporation in the name of a nominee is recognized by
the Corporation, to the extent provided in any such
recognition procedure, as the owner thereof.
SECTION 5.08. Disclosure Procedure for Beneficial
Ownership of Shares or Rights. The Board may establish in
the By-Laws a disclosure procedure by which the name of the
beneficial owner of any Share or Right that is registered on
the books of the Corporation in the name of a nominee shall,
to the extent not prohibited by the Act or other applicable
laws, be disclosed to the Corporation. Any disclosure
procedure established by the Board may include reasonable
sanctions to ensure compliance therewith, including without
limitation (i) prohibiting the voting of, (ii) providing for
mandatory or optional reacquisition by the Corporation of,
and (iii) the withholding or payment into escrow of any
dividend or other distribution in respect of, any Share or
Right as to which the name of the beneficial owner is not
disclosed to the Corporation as required by such disclosure
procedure.
ARTICLE 6
VOTING RIGHTS OF SHARES
OF THE CORPORATION
SECTION 6.01. Preferred Stock. The holders of Shares of
Preferred Stock have the right, voting separately by class
or by series, to cast one vote for each duly authorized,
issued and outstanding Share of Preferred Stock held by them
upon each question or matter in respect of which, under the
Act, such holders are entitled to vote by class or by
series. The holders of Shares of a series of Preferred
Stock shall also have such other voting rights, if any, as
are provided for in such series in a Section 5.01 Amendment.
SECTION 6.02. Common Stock. The holders of Common
Shares have the right, voting separately by class, to cast
one vote for each duly authorized, issued and outstanding
Common Share held by them upon each question or matter in
respect of which, under the Act, such holders are entitled
to vote by class. Such holders also have the right, voting
in common with the holders of Shares of any series of
Preferred Stock to which such voting rights are granted, and
not separately by class, to cast one vote for each duly
authorized, issued and outstanding Common Share held by them
upon each question or matter submitted generally to the
holders of Shares of the Corporation (collectively, the
"Shareholders," and individually, a "Shareholder") in
respect of which, under the Act, voting by class or series
is not required.
ARTICLE 7
DIRECTORS
SECTION 7.01. Number. The number of Directors of the
Corporation shall not be less than five (5), and shall be
specified in the By-Laws. If and whenever the By-Laws do not
contain a provision specifying the number of Directors, the
number shall be five (5). Each Director shall hold office
until the next Annual Meeting of Shareholders or until his
successor is duly qualified and elected. Directors need not
be Shareholders of the Corporation.
SECTION 7.02. Vacancies. Subject to the rights of the
holders of any then outstanding Preferred Shares, and except
as may be expressly provided by law, newly created
directorships resulting from any increase in the authorized
number of Directors or any vacancies in the Board resulting
from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a
majority vote of the Directors then in office, and Directors
so chosen shall hold office for a term expiring at the next
Annual Meeting of Shareholders.
SECTION 7.03. Removal. Subject to the rights of the
holders of any then outstanding Preferred Shares, any
Director, or the entire Board, may be removed from office at
any time, but only for cause and only by the affirmative
vote of the holders of at least eighty percent (80%) of the
voting power of all of the then outstanding Shares entitled
to vote generally in the election of Directors ("Voting
Stock"), voting together as a single class.
SECTION 7.04. Amendment, Repeal. Notwithstanding
anything contained in these Articles to the contrary, the
affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then outstanding
Shares of Voting Stock, voting together as a single class,
shall be required to alter, amend or repeal this Article 7.
ARTICLE 8
PROVISIONS FOR REGULATION OF BUSINESS
AND CONDUCT OF AFFAIRS OF CORPORATION
SECTION 8.01. Action By Shareholders. Meetings of the
Shareholders shall be held at such place, within or without
the State of Indiana, as may be specified in the By-Laws or
in the respective notices, or waivers of notice, thereof.
Any action required or permitted to be taken at any meeting
of the Shareholders may be taken without a meeting if a
consent in writing setting forth the action so taken is
signed by all the Shareholders entitled to vote with respect
thereto, and such written consent is filed with the minutes
of the proceedings of the Shareholders.
SECTION 8.02. Action By Directors. Meetings of the
Board or any committees thereof (collectively, "Committees,"
and individually, a "Committee") shall be held at such
place, within or without the State of Indiana, as may be
specified in the By-Laws or in the respective notices, or
waivers of notice, thereof and shall be conducted in such
manner as may be specified in the By-Laws or permitted by
the Act. Any action required or permitted to be taken at any
meeting of the Board or a Committee may be taken without a
meeting if a consent in writing setting forth the action so
taken is signed by all members of the Board or such
Committee, and such written consent is filed with the
minutes of the proceedings of the Board or such Committee.
SECTION 8.03. Code of By-Laws. The Board shall have
power, without the assent or vote of the Shareholders, to
make, alter, amend or repeal the By-Laws by the affirmative
vote of a number of Directors equal to a majority of the
number who would constitute a full Board at the time of such
action. If the Shareholders are or become entitled by law to
alter, amend or repeal the By-Laws, notwithstanding anything
contained in these Articles or the By-Laws to the contrary,
the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of all of the then
outstanding Shares of Voting Stock, voting together as a
single class, shall be required to alter, amend or repeal
the By-Laws.
SECTION 8.04. Board Committees. Unless the By-Laws
otherwise provide, the Board may, by resolution adopted by a
majority of the actual number of Directors elected and
qualified, from time to time, designate from among its
members one or more Committees, each of which shall, to the
extent provided in the resolution or By-Laws and not
prohibited by the Act and other applicable laws, have and
exercise all of the authority of the Board in the management
of the Corporation.
SECTION 8.05. Places of Keeping of Corporate Records.
The Corporation shall keep at its principal office a copy of
(1) these Articles, and all amendments thereto currently in
effect; (2) the By-Laws, and all amendments thereto
currently in effect; (3) minutes of all meetings of the
Shareholders and records of all actions taken by the
Shareholders without a meeting (collectively, "Shareholders
Minutes") for the prior three (3) years; (4) all written
communications by the Corporation to the Shareholders
including the financial statements furnished by the
Corporation to the Shareholders for the prior three (3)
years; (5) a list of the names and business addresses of the
current Directors and the current Officers; and (6) the most
recent Annual Report of the Corporation as filed with the
Secretary of State of Indiana. The Corporation shall also
keep and maintain at its principal office, or at such other
place or places within or without the State of Indiana as
may be provided, from time to time, in the By-Laws, (1)
minutes of all meetings of the Board and of each Committee,
and records of all actions taken by the Board and by each
Committee without a meeting; (2) appropriate accounting
records of the Corporation; (3) a record of the Shareholders
in a form that permits preparation of a list of the names
and addresses of all the Shareholders, in alphabetical order
by class of Shares, stating the number and class of Shares
held by each Shareholder; and (4) Shareholders Minutes for
periods preceding the prior three (3) years. All of the
records of the Corporation described in this Section
(collectively, the "Corporate Records") shall be maintained
in written form or in another form capable of conversion
into written form within a reasonable time.
SECTION 8.06. Provisions for Working Capital. The Board
shall have the power, from time to time, to fix and
determine and to vary an amount to be reserved as working
capital of the Corporation and, before the payment of any
dividends, it may set aside out of the net profits of the
Corporation such sum or sums as it may from time to time in
its absolute discretion determine to be proper, whether as a
reserve fund to meet contingencies or for the equalizing of
dividends, or for repairing or maintaining any property of
the Corporation, or for any corporate purposes that the
Board shall think conducive to the best interest of the
Corporation, subject only to such limitations as the By-Laws
may from time to time impose.
SECTION 8.07. Interest of Directors in Contracts. Any
contract or other transaction between the Corporation and
(i) any Director, or (ii) any Legal Entity (A) in which any
Director has a material financial interest or is a general
partner, or (B) of which any Director is a director, officer
or trustee (collectively, a "Conflict Transaction"), shall
be valid for all purposes, if the material facts of the
Conflict Transaction and the Director's interest were
disclosed or known to the Board, a Committee with authority
to act thereon, or the Shareholders entitled to vote
thereon, and the Board, such Committee or such Shareholders
authorized, approved or ratified the Conflict Transaction. A
Conflict Transaction is authorized, approved or ratified:
(1) By the Board or such Committee, if it receives
the affirmative vote of a majority of the Directors who
have no interest in the Conflict Transaction,
notwithstanding the fact that such majority may not
constitute a quorum or a majority of the Board or such
Committee or a majority of the Directors present at the
meeting, and notwithstanding the presence or vote of
any Director who does have such an interest; provided,
however, that no Conflict Transaction may be
authorized, approved or ratified by a single Director;
and
(2) By such Shareholders, if it receives the vote
of a majority of the Shares entitled to be counted, in
which vote Shares owned or voted under the control of
any Director who, or of any Legal Entity that, has an
interest in the Conflict Transaction may be counted.
This Section shall not be construed to require
authorization, ratification or approval by the Shareholders
of any Conflict Transaction, or to invalidate any Conflict
Transaction that would otherwise be valid under the common
and statutory law applicable thereto.
Section 8.08. Limitation of Liability and
Indemnification of Directors, Officers and Others.
Clause (a). Limitation of Liability. The following
provisions apply with respect to liability on the part
of a Director, a member of any Committee or of another
committee appointed by the Board (an "Appointed
Committee"), Officer, employee or agent of the
Corporation (collectively, "Corporate Persons," and
individually, a "Corporate Person") for any loss or
damage suffered on account of any action taken or
omitted to be taken by a Corporate Person:
(1) General Limitation. No Corporate Person
shall be liable for any loss or damage if, in
taking or omitting to take any action causing such
loss or damage, either (i) such Corporate Person
acted (A) in good faith, (B) with the care an
ordinarily prudent person in a like position would
have exercised under similar circumstances, and
(C) in a manner such Corporate Person reasonably
believed was in the best interests of the
Corporation, or (ii) such Corporate Person's
breach of or failure to act in accordance with the
standards of conduct set forth in Clause (a)(1)(i)
above (the "Standards of Conduct") did not
constitute willful misconduct or recklessness.
(2) Reliance on Corporate Records and Other
Information. Any Corporate Person shall be fully
protected, and shall be deemed to have complied
with the Standards of Conduct, in relying in good
faith, with respect to any information contained
therein, upon (i) the Corporate Records, or (ii)
information, opinions, reports or statements
(including financial statements and other
financial data) prepared or presented by (A) one
or more other Corporate Persons whom such
Corporate Person reasonably believes to be
competent in the matters presented, (B) legal
counsel, public accountants or other persons as to
matters that such Corporate Person reasonably
believes are within such person's professional or
expert competence, (C) a Committee or an Appointed
Committee, of which such Corporate Person is not a
member, if such Corporate Person reasonably
believes such Committee or Appointed Committee
merits confidence, or (D) the Board, if such
Corporate Person is not a Director and reasonably
believes that the Board merits confidence.
Clause (b). Indemnification of Corporate Persons
and Related Matters. The following provisions apply to
the indemnification by the Corporation of Corporate
Persons and matters related thereto:
(1) Indemnification Standards. The
Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to
any threatened, pending or completed action, suit
or proceeding, whether civil or criminal,
administrative or investigative, formal or
informal (an "Action"), by reason of the fact that
he is or was a Corporate Person of the Corporation
or is or was serving at the request of the
Corporation as a Corporate Person, partner,
trustee or member or in another authorized
capacity (collectively, an "Authorized Capacity")
of or for another Legal Entity, whether or not
organized or formed for profit (collectively,
"Another Entity"), against expenses (including
attorneys' fees) ("Expenses") and judgments,
penalties, fines and amounts paid in settlement
actually and reasonably incurred by him in
connection with such Action, if such person (i)
acted in good faith, (ii) acted in a manner he
reasonably believed (A) with respect to actions as
a Corporate Person of the Corporation, to be in
the best interests of the Corporation, or (B) with
respect to actions in an Authorized Capacity of or
for Another Entity, was not opposed to the best
interests of the Corporation, and (iii) with
respect to any criminal Action, either (A) had
reasonable cause to believe his conduct was
lawful, or (B) had no reasonable cause to believe
his conduct was unlawful. The termination of any
Action by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its
equivalent, shall not, of itself, be determinative
that the person did not meet the standards for
indemnification set forth in this Clause (b)(1)
(the "Indemnification Standards").
(2) Indemnification in Successfully Defended
Actions. To the extent that a person who is or was
a Corporate Person of the Corporation, or is or
was serving at the request of the Corporation in
an Authorized Capacity of or for Another Entity,
has been successful on the merits or otherwise in
the defense of any Action referred to in Clause
(b)(1) above, or in the defense of any claim,
issue or matter in any such Action, the
Corporation shall indemnify him against Expenses
actually and reasonably incurred by him in
connection therewith.
(3) Indemnification Procedure. Unless ordered
by a court, any indemnification of any person
under Clause (b)(1) above shall be made by the
Corporation only as authorized in the specific
case upon a determination that indemnification of
such person is proper in the circumstances because
he met the Indemnification Standards. Such
determination shall be made (i) by the Board, by a
majority vote of a quorum consisting of Directors
who are not at the time parties to the Action
involved ("Parties"); or (ii) if a quorum cannot
be obtained under Subparagraph (i), by a majority
vote of a Committee duly designated by the Board
(in which designation Directors who are Parties
may participate), consisting solely of two (2) or
more Directors who are not at the time Parties; or
(iii) by written opinion of independent legal
counsel (A) selected by the Board or such
Committee in the manner prescribed in Subparagraph
(i) or (ii), respectively, or (B) if a quorum
cannot be obtained or a Committee cannot be
designated under Subparagraphs (i) and (ii),
respectively, selected by a majority of the full
Board, in which selection Directors who are
Parties may participate; or (iv) by the
Shareholders who are not at the time Parties,
voting together as a single class.
(4) Advances for Expenses. Expenses
reasonably incurred in defending an Action by any
person who may be entitled to indemnification
under Clause (b)(1) above may be paid by the
Corporation in advance of the final disposition of
such Action if (i) such person furnishes the
Corporation with (A) a written affirmation of his
good faith belief that he has met, and (B) a
written undertaking, executed personally or on his
behalf, to repay the advance (an "Undertaking") if
it is ultimately determined that he did not meet,
the Indemnification Standards; and (ii) a
determination is made, under the procedure set
forth in Clause (b)(3) above, that the facts then
known to those making the determination would not
preclude indemnification under Clause (b)(1)
above. An Undertaking must be an unlimited general
obligation of the person making it, but need not
be secured and may be accepted by the Corporation
without reference to such person's financial
ability to make repayment.
(5) Rights Not Exclusive. The indemnification
provided in these Articles (i) shall not be deemed
exclusive of any other rights to which a person
seeking indemnification may be entitled under (A)
any law, (B) the By-Laws, (C) any resolution of
the Board or of the Shareholders, (D) any other
authorization, whenever adopted, after notice, by
a majority vote of all Shares entitled to vote on
General Voting Matters, or (E) the articles of
incorporation, code of by-laws or other governing
documents, or any resolution of or other
authorization by the directors, shareholders,
partners, trustees, members, owners or governing
body, of Another Entity; (ii) shall inure to the
benefit of the heirs, executors and administrators
of such person; and (iii) shall continue as to any
such person who has ceased to be a Corporate
Person of the Corporation or to be serving in an
Authorized Capacity of or for Another Entity.
(6) Insurance. The Corporation shall have
power to purchase and maintain insurance on behalf
of any person who is or was a Corporate Person of
the Corporation, or is or was serving at the
request of the Corporation in an Authorized
Capacity of or for Another Entity, against any
liability asserted against and incurred by him in
any such capacity, or arising out of his status as
such, whether or not the Corporation would have
the power to indemnify him against such liability
under the provisions of this Clause (b).
(7) Definition of Corporation. For the
purposes of this Clause (b), references to "the
Corporation" include any constituent corporation
absorbed in a consolidation or merger (a
"Constituent") as well as the resulting or
surviving corporation (the "Survivor"), such that
any person who is or was a Corporate Person of
such a Constituent, or is or was serving at the
request of such Constituent in an Authorized
Capacity of or for Another Entity, shall stand in
the same position under the provisions of this
Clause (b) with respect to the Survivor as he
would if he had served the Survivor, or at its
request, in the same capacity.
SECTION 8.09. Compensation of Directors. The Board is
hereby specifically authorized, in and by the By-Laws, or by
resolution duly adopted by the Board, to make provision for
reasonable compensation to its members for their services as
Directors, and to fix the basis and conditions upon which
such compensation shall be paid. Any Director may also serve
the Corporation in any other capacity and receive
compensation therefor in any form.
SECTION 8.10. Direction of Purposes and Exercise of
Powers By Directors. The Board, subject to any specific
limitations or restrictions imposed by the Act or these
Articles, shall direct the carrying out of the purposes and
exercise the powers of the Corporation, without previous
authorization or subsequent approval by the Shareholders.
SECTION 8.11. Amendments of Articles of Incorporation.
Except as otherwise expressly provided in Articles 7 and 9
hereof, and subject to the terms of any outstanding series
of Preferred Stock, the Corporation reserves the right to
increase or decrease the number of its authorized Shares, or
any class or series thereof, and to reclassify the same, and
to amend, alter, change or repeal any provision contained in
these Articles, or in any amendment hereto, or to add any
provision to these Articles or to any amendment hereto, in
any manner now or hereafter prescribed or permitted by the
Act or by any other applicable laws; and all rights
conferred upon the Shareholders in these Articles or any
amendment hereto are granted subject to this reservation. No
Shareholder has a vested property right resulting from any
provision in these Articles, or authorized to be in the
By-Laws by the Act or these Articles, including without
limitation provisions relating to management, control,
capital structure, dividend entitlement, or purpose or
duration of the Corporation.
ARTICLE 9
PROVISIONS FOR CERTAIN BUSINESS COMBINATIONS
SECTION 9.01. Vote Required.
Clause (a). Higher Vote for Certain Business
Combinations. In addition to any affirmative vote
required by law or these Articles, and except as
otherwise expressly provided in Section 9.02:
(1) Any merger or consolidation or any
similar transaction of the Corporation or any
Subsidiary (as hereinafter defined) with (A) any
Interested Shareholder (as hereinafter defined),
or (B) any other corporation (whether or not
itself an Interested Shareholder) that is, or
after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an
Interested Shareholder; or
(2) Any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one
transaction or a series of transactions) to or
with any Interested Shareholder or any Affiliate
of any Interested Shareholder of any assets of the
Corporation or any Subsidiary having an aggregate
Fair Market Value (as hereinafter defined) of One
Million Dollars ($1,000,000) or more; or
(3) The issuance or transfer by the
Corporation or any Subsidiary (in one transaction
or a series of transactions) of any securities of
the Corporation or any Subsidiary to any
Interested Shareholder or any Affiliate of any
Interested Shareholder in exchange for cash,
securities or other property (or a combination
thereof) having an aggregate Fair Market Value of
One Million Dollars ($1,000,000) or more; or
(4) The adoption of any plan or proposal for
the liquidation or dissolution of the Corporation
proposed by or on behalf of an Interested
Shareholder or any Affiliate of any Interested
Shareholder; or
(5) Any reclassification of securities
(including any reverse stock split) or
recapitalization of the Corporation, or any merger
or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether
or not with or into or otherwise involving an
Interested Shareholder) that has the effect,
directly or indirectly, of increasing the
proportionate share of the outstanding Shares of
any class of equity or convertible securities of
the Corporation or any Subsidiary that is directly
or indirectly owned by any Interested Shareholder
or any Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at
least eighty percent (80%) of the voting power of all of the
then outstanding Shares of Voting Stock, voting together as
a single class. Such affirmative vote shall be required,
notwithstanding the fact that no vote may be required, or
that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or
otherwise.
Clause (b). Definition of "Business Combination".
The term "Business Combination" as used in this Article
9 shall mean any transaction that is referred to in any
one or more of paragraphs (1) through (5) of Clause (a)
of this Section 9.01.
SECTION 9.02. When Higher Vote is Not Required. The
provisions of Section 9.01 shall not be applicable to any
particular Business Combination, and such Business
Combination shall require only such affirmative vote as is
required by law and any other provision of these Articles,
if all of the conditions specified in either of the
following Clauses (a) & (b) are met:
Clause (a). Approval By Continuing Directors. The
Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter
defined).
Clause (b). Price and Procedure Requirements. All
of the following conditions shall have been met:
(1) The aggregate amount of the cash and the
Fair Market Value as of the date of the
consummation of the Business Combination of
consideration other than cash to be received per
Share by holders of Common Stock in such Business
Combination shall be at least equal to the highest
of the following:
(A) The highest per Share price
(including any brokerage commissions,
transfer taxes and soliciting dealers' fees
[collectively, "Commissions, Taxes and
Fees"]) paid by the Interested Shareholder
for any Shares of Common Stock acquired by it
(i) within the two (2) year period
immediately prior to the first public
announcement of the proposal of the Business
Combination (the "Announcement Date"), or
(ii) in the transaction in which it became an
Interested Shareholder, whichever is higher;
(B) The Fair Market Value per Share of
Common Stock on (i) the Announcement Date, or
(ii) on the date on which the Interested
Shareholder became an Interested Shareholder
(the "Determination Date"), whichever is
higher; and
(C) The price per Share equal to the
Fair Market Value per Share of Common Stock
determined pursuant to Clause (b)(1)(B)
above, multiplied by the ratio of (i) the
highest per Share price (including any
Commissions, Taxes and Fees) paid by the
Interested Shareholder for any Shares of
Common Stock acquired by it within the two
(2) year period immediately prior to the
Announcement Date, to (ii) the Fair Market
Value per Share of Common Stock on the first
day in such two (2) year period upon which
the Interested Shareholder acquired any
Shares of Common Stock.
(2) The aggregate amount of the cash and the
Fair Market Value as of the date of the
consummation of the Business Combination of
consideration other than cash to be received per
Share by holders of Shares of any other class or
series of outstanding Voting Stock shall be at
least equal to the highest of the following (it
being intended that the requirements of this
Clause (b)(2) shall be required to be met with
respect to every class of outstanding Voting Stock
whether or not the Interested Shareholder has
previously acquired any Shares of a particular
class of Voting Stock):
(A) The highest per Share price
(including any Commissions, Taxes and Fees)
paid by the Interested Shareholder for any
Shares of such class of Voting Stock acquired
by it (i) within the two (2) year period
immediately prior to the Announcement Date or
(ii) in the transaction in which it became an
Interested Shareholder, whichever is higher;
(B) The highest preferential amount per
Share to which the holders of Shares of such
class of Voting Stock are entitled in the
event of any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation;
(C) The Fair Market Value per Share of
such class of Voting Stock on the
Announcement Date or the Determination Date,
whichever is higher; and
(D) The price per Share equal to the
Fair Market Value per Share of such class of
Voting Stock determined pursuant to Clause
(b)(2)(C) above, multiplied by the ratio of
(i) the highest per Share price (including
any Commissions, Taxes and Fees) paid by the
Interested Shareholder for any Shares of such
class of Voting Stock acquired by it within
the two (2) year period immediately prior to
the Announcement Date, to (ii) the Fair
Market Value per Share of such class of
Voting Stock on the first day in such two (2)
year period upon which the Interested
Shareholder acquired any Shares of such class
of Voting Stock;
(3) The consideration to be received by
holders of a particular class of outstanding
Voting Stock (including Common Stock) shall be in
cash or in the same form as the Interested
Shareholder has previously paid for Shares of such
class of Voting Stock. If the Interested
Shareholder has paid for Shares of any class of
Voting Stock with varying forms of consideration,
the form of consideration for such class of Voting
Stock shall be either cash or the form used to
acquire the largest number of Shares of such class
of Voting Stock previously acquired by it.
(4) After such Interested Shareholder has
become an Interested Shareholder and prior to the
consummation of such Business Combination:
(A) except as approved by a majority of
the Continuing Directors, there shall have
been no failure to declare and pay at the
regular date therefor any full quarterly
dividends (whether or not cumulative) on any
outstanding Preferred Stock;
(B) there shall have been (i) no
reduction in the annual rate of dividends
paid on Common Stock (except as necessary to
reflect any subdivision of Common Stock),
except as approved by a majority of the
Continuing Directors, and (ii) an increase in
such annual rate of dividends as necessary to
reflect any reclassification (including any
reverse stock split), recapitalization,
reorganization or any similar transaction
that has the effect of reducing the number of
outstanding Shares of Common Stock, unless
the failure so to increase such annual rate
is approved by a majority of the Continuing
Directors; and
(C) such Interested Shareholder shall
have not become the beneficial owner of any
additional Shares of Voting Stock except as
part of the transaction that results in such
Interested Shareholder becoming an Interested
Shareholder.
(5) After such Interested Shareholder has
become an Interested Shareholder, such Interested
Shareholder shall not have received the benefit,
directly or indirectly (except proportionately as
a Shareholder), of any loans, advances,
guarantees, pledges or other financial assistance
or any tax credits or other tax advantages
provided by the Corporation, whether in
anticipation of or in connection with such
Business Combination or otherwise.
(6) A proxy or information statement
describing the proposed Business Combination and
complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations
thereunder (collectively, the "Exchange Act"), or
any subsequent provisions replacing the Exchange
Act, shall be mailed to Shareholders of the
Corporation at least thirty (30) days prior to the
consummation of such Business Combination (whether
or not such proxy or information statement is
required to be mailed pursuant to the Exchange Act
or such subsequent provisions).
SECTION 9.03. Certain Definitions. For the purposes of
this Article 9:
Clause (a). A "person" shall include any Legal
Entity. When two (2) or more persons act as a
partnership, limited partnership, syndicate or other
group for the purpose of acquiring voting stock of the
Company, such partnership, syndicate or group shall be
deemed a "person."
Clause (b). "Interested Shareholder" shall mean
any person (other than the Corporation or any
Subsidiary) who or that:
(1) Is the beneficial owner, directly or
indirectly, of more than ten percent (10%) of the
voting power of the outstanding Voting Stock; or
(2) Is an Affiliate of the Corporation that
at any time within the two (2) year period
immediately prior to the date in question was the
beneficial owner, directly or indirectly, of ten
percent (10%) or more of the voting power of the
then outstanding Voting Stock; or
(3) Is an assignee of or has otherwise
succeeded to any Shares of Voting Stock that were
at any time within the two (2) year period
immediately prior to the date in question
beneficially owned by any Interested Shareholder,
if such assignment or succession shall have
occurred in the course of a transaction or series
of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
Clause (c). A person shall be a "beneficial owner"
of any Shares of Voting Stock that:
(1) Such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially
owns, directly or indirectly; or
(2) Such person or any of its Affiliates or
Associates has (A) the right to acquire (whether
such right is exercisable immediately or only
after the passage of time), pursuant to any
agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (B)
the right to vote pursuant to any agreement,
arrangement or understanding; or
(3) Are beneficially owned, directly or
indirectly, by any other person with which such
person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or
disposing of any Shares of Voting Stock.
Clause (d). For the purpose of determining whether
a person is an Interested Shareholder pursuant to
Clause (b) of this Section 9.03, the number of Shares
of Voting Stock deemed to be outstanding shall include
Shares deemed owned through application of Clause (c)
of this Section 9.03, but shall not include any other
Shares of Voting Stock that may be issuable pursuant to
any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or
otherwise.
Clause (e). "Affiliate" or "Associate" shall have
the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the
Exchange Act, as in effect on October 28, 1983.
Clause (f). "Subsidiary" means any corporation of
which a majority of any class of equity security is
owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the
definition of Interested Shareholder set forth in
Clause (b) of this Section 9.03, the term "Subsidiary"
shall mean only a corporation of which a majority of
each class of equity security is owned, directly or
indirectly, by the Corporation.
Clause (g). "Continuing Director" means any member
of the Board who is unaffiliated with the Interested
Shareholder and was a member of the Board prior to the
time that the Interested Shareholder became an
Interested Shareholder, and any successor of a
Continuing Director who is unaffiliated with the
Interested Shareholder and is recommended to succeed a
Continuing Director by a majority of Continuing
Directors then on the Board.
Clause (h). "Fair Market Value" means:
(1) In the case of stock, (i) the highest
closing sale price (or, with respect to
Subparagraph (D), bid quotation) during the thirty
(30) day period immediately preceding the date in
question of a share of such stock on (A) the
Composite Tape for New York Stock Exchange-List
Stock, or (B) if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or
(C) if such stock is not listed on such Exchange,
on the principal United States securities exchange
registered under the Exchange Act on which such
stock is listed or (D) if such stock is not listed
on any such exchange, on the National Association
of Securities Dealers, Inc. Automated Quotations
System or any system then in use; or (ii) if such
stock is not listed on any such exchange and there
is no such quotation of a share of such stock, as
determined by the Board in good faith; and
(2) In the case of property other than cash
or stock, the fair market value of such property
on the date in question as determined by the Board
in good faith.
Clause (i). In the event of any Business
Combination in which the Corporation survives, the
phrase "other consideration to be received" as used in
clauses (b)(1) and (2) of Section 9.02 shall include
the Shares of Common Stock and/or the Shares of any
other class of outstanding Voting Stock by the holders
of such Shares.
SECTION 9.04. Powers of the Board of Directors. A
majority of the Directors shall have the power and duty to
determine for the purposes of this Article 9, on the basis
of information known to them after reasonable inquiry, (a)
whether a person is an Interested Shareholder, (b) the
number of Shares of Voting Stock beneficially owned by any
person, (c) whether a person is an Affiliate or Associate of
another, and (d) whether the assets that are the subject of
any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination
has, an aggregate Fair Market Value of One Million Dollars
($1,000,000) or more.
SECTION 9.05. No Effect on Fiduciary Obligations of
Interested Shareholders. Nothing contained in this Article 9
shall be construed to relieve any Interested Shareholder
from any fiduciary obligation imposed by law.
SECTION 9.06. Amendment, Repeal, etc. Notwithstanding
any other provisions of these Articles or the By-Laws (and
notwithstanding the fact that a lesser percentage may be
specified by law, these Articles or the By-Laws), the
affirmative vote of the holders of eighty percent (80%) or
more of the voting power of the Shares of the then
outstanding Voting Stock, voting together as a single class,
shall be required to amend or repeal, or adopt provisions
inconsistent with, this Article 9.