(As Amended through April 15, 1996)
ELI LILLY AND COMPANY
(an Indiana corporation)
AMENDED ARTICLES OF INCORPORATION
1. The name of the Corporation shall be
ELI LILLY AND COMPANY.
2. The purposes for which the Corporation is formed are to
engage in any lawful act or activity for which a corporation may
be organized under the Indiana Business Corporation Law.
3. The period during which the Corporation is to continue
as a corporation is perpetual.
4. The total number of shares which the Corporation shall
have authority to issue is 1,605,000,000 shares, consisting of
1,600,000,000 shares of Common Stock and 5,000,000 shares of
Preferred Stock. The Corporation's shares do not have any par or
stated value, except that, solely for the purpose of any statute
or regulation imposing any tax or fee based upon the
capitalization of the Corporation, each of the Corporation's
shares shall be deemed to have a par value of $0.01 per share.
5. The following provisions shall apply to the
Corporation's shares:
(a) The Corporation shall have the power to acquire
(by purchase, redemption, or otherwise), hold, own, pledge,
sell, transfer, assign, reissue, cancel, or otherwise
dispose of the shares of the Corporation in the manner and
to the extent now or hereafter permitted by the laws of the
State of Indiana (but such power shall not imply an
obligation on the part of the owner or holder of any share
to sell or otherwise transfer such share to the
Corporation), including the power to purchase, redeem, or
otherwise acquire the Corporation's own shares, directly or
indirectly, and without pro rata treatment of the owners or
holders of any class or series of shares, unless, after
giving effect thereto, the Corporation would not be able to
pay its debts as they become due in the usual course of
business or the Corporation's total assets would be less
than its total liabilities (and without regard to any
amounts that would be needed, if the Corporation were to be
dissolved at the time of the purchase, redemption, or other
acquisition, to satisfy the preferential rights upon
dissolution of shareholders whose preferential rights are
superior to those of the holders of the shares of the
Corporation being purchased, redeemed, or otherwise
acquired, unless otherwise expressly provided with respect
to a series of Preferred Stock). Shares of the Corporation
purchased, redeemed, or otherwise acquired by it shall
constitute authorized but unissued shares, unless prior to
any such purchase, redemption, or other acquisition, or
within thirty (30) days thereafter, the Board of Directors
adopts a resolution providing that such shares constitute
authorized and issued but not outstanding shares.
(b) Preferred Stock of any series that has been
redeemed (whether through the operation of a retirement or
sinking fund or otherwise) or purchased by the Corporation,
or which, if convertible, have been converted into shares of
the Corporation of any other class or series, may be
reissued as a part of such series or of any other series of
Preferred Stock, subject to such limitations (if any) as may
be fixed by the Board of Directors with respect to such
series of Preferred Stock in accordance with the provisions
of Article 7 of these Amended Articles of Incorporation.
(c) The Board of Directors of the Corporation may
dispose of, issue, and sell shares in accordance with, and
in such amounts as may be permitted by, the laws of the
State of Indiana and the provisions of these Amended
Articles of Incorporation and for such consideration, at
such price or prices, at such time or times and upon such
terms and conditions (including the privilege of selectively
repurchasing the same) as the Board of Directors of the
Corporation shall determine, without the authorization or
approval by any shareholders of the Corporation. Shares may
be disposed of, issued, and sold to such persons, firms, or
corporations as the Board of Directors may determine,
without any preemptive or other right on the part of the
owners or holders of other shares of the Corporation of any
class or kind to acquire such shares by reason of their
ownership of such other shares.
6. The following provisions shall apply to the Common
Stock:
(a) Except as otherwise provided by the Indiana
Business Corporation Law and subject to such shareholder
disclosure and recognition procedures (which may include
voting prohibition sanctions) as the Corporation may by
action of its Board of Directors establish, shares of Common
Stock shall have unlimited voting rights and each
outstanding share of Common Stock shall, when validly issued
by the Corporation, entitle the record holder thereof to one
vote at all shareholders' meetings on all matters submitted
to a vote of the shareholders of the Corporation.
(b) Shares of Common Stock shall be equal in every
respect insofar as their relationship to the Corporation is
concerned, but such equality of rights shall not imply
equality of treatment as to redemption or other acquisition
of shares by the Corporation. Subject to the rights of the
holders of any outstanding series of Preferred Stock, the
holders of Common Stock shall be entitled to share ratably
in such dividends or other distributions (other than
purchases, redemptions, or other acquisitions of shares by
the Corporation), if any, as are declared and paid from time
to time on the Common Stock at the discretion of the Board
of Directors.
(c) In the event of any liquidation, dissolution, or
winding up of the Corporation, either voluntary or
involuntary, after payment shall have been made to the
holders of any outstanding series of Preferred Stock of the
full amount to which they shall be entitled, the holders of
Common Stock shall be entitled, to the exclusion of the
holders of the Preferred Stock of any and all series, to
share, ratably according to the number of shares of Common
Stock held by them, in all remaining assets of the
Corporation available for distribution to its shareholders.
7. The Board of Directors is hereby expressly authorized to
provide, out of the unissued shares of Preferred Stock, for one
or more series of Preferred Stock. Before any shares of any such
series are issued, the Board of Directors shall fix, and hereby
is expressly empowered to fix, by the adoption and filing in
accordance with the Indiana Business Corporation Law, of an
amendment or amendments to these Amended Articles of
Incorporation, the terms of such Preferred Stock or series of
Preferred Stock, including the following:
(a) the designation of such series, the number of
shares to constitute such series and the stated value
thereof if different from the par value thereof;
(b) whether the shares of such series shall have
voting rights, in addition to any voting rights provided by
law, and, if so, the terms of such voting rights, which may
be general or limited and may include the right, under
specified circumstances, to elect additional directors;
(c) the dividends, if any, payable on such series,
whether any such dividends shall be cumulative, and, if so,
from what dates, the conditions and dates upon which such
dividends shall be payable, the preference or relation which
such dividends shall bear to the dividends payable on any
shares of stock of any other class or any other series of
Preferred Stock;
(d) whether the shares of such series shall be subject
to redemption by the Corporation and, if so, the times,
prices and other conditions of such redemption;
(e) the amount or amounts payable upon shares of such
series upon, and the rights of the holders of such series
in, the voluntary or involuntary liquidation, dissolution or
winding up, or upon any distribution of the assets, of the
Corporation;
(f) whether the shares of such series shall be subject
to the operation of a retirement or sinking fund and, if so,
the extent to and manner in which any such retirement or
sinking fund shall be applied to the purchase or redemption
of the shares of such series for retirement or other
corporate purposes and the terms and provisions relative to
the operation thereof;
(g) whether the shares of such series shall be
convertible into, or exchangeable for, shares of stock of
any other class or any other series of Preferred Stock or
any other securities (whether or not issued by the
Corporation) and, if so, the price or prices or the rate or
rates of conversion or exchange and the method, if any, of
adjusting the same, and any other terms and conditions of
conversion or exchange;
(h) the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding
upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or other
acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or any other series of
Preferred Stock;
(i) the conditions or restrictions, if any, upon the
creation of indebtedness of the Corporation or upon the
issue of any additional stock, including additional shares
of such series or of any other series of Preferred Stock or
of any other class of stock; and
(j) any other powers, preferences and relative,
participating, optional and other special rights, and any
qualifications, limitations and restrictions thereof.
Except to the extent otherwise expressly provided in these
Amended Articles of Incorporation or required by law (i) no share
of Preferred Stock shall have any voting rights other than those
which shall be fixed by the Board of Directors pursuant to this
Article 7 and (ii) no share of Common Stock shall have any voting
rights with respect to any amendment to the terms of any series
of Preferred Stock; provided however, that in the case of this
clause (ii) the terms of such series of Preferred Stock, as so
amended, could have been established without any vote of any
shares of Common Stock.
8. The Corporation shall have the power to declare and pay
dividends or other distributions upon the issued and outstanding
shares of the Corporation, subject to the limitation that a
dividend or other distribution may not be made if, after giving
it effect, the Corporation would not be able to pay its debts as
they become due in the usual course of business or the
Corporation's total assets would be less than its total
liabilities (and without regard to any amounts that would be
needed, if the Corporation were to be dissolved at the time of
the dividend or other distribution, to satisfy the preferential
rights upon dissolution of shareholders whose preferential rights
are superior to those of the holders of shares receiving the
dividend or other distribution, unless otherwise expressly
provided with respect to any outstanding series of Preferred
Stock). The Corporation shall have the power to issue shares of
one class or series as a share dividend or other distribution in
respect of that class or series or one or more other classes or
series.
9. The following provisions are inserted for the management
of the business and for the conduct of the affairs of the
Corporation, and it is expressly provided that the same are
intended to be in furtherance and not in limitation or exclusion
of the powers conferred by statute:
(a) The number of directors of the Corporation,
exclusive of directors who may be elected by the holders of
any one or more series of Preferred Stock pursuant to
Article 7(b) (the "Preferred Stock Directors"), shall not be
less than nine, the exact number to be fixed from time to
time solely by resolution of the Board of Directors, acting
by not less than a majority of the directors then in office.
(b) The Board of Directors (exclusive of Preferred
Stock Directors) shall be divided into three classes, with
the term of office of one class expiring each year. At the
annual meeting of shareholders in 1985, five directors of
the first class shall be elected to hold office for a term
expiring at the 1986 annual meeting, five directors of the
second class shall be elected to hold office for a term
expiring at the 1987 annual meeting, and six directors of
the third class shall be elected to hold office for a term
expiring at the 1988 annual meeting. Commencing with the
annual meeting of shareholders in 1986, each class of
directors whose term shall then expire shall be elected to
hold office for a three-year term. In the case of any
vacancy on the Board of Directors, including a vacancy
created by an increase in the number of directors, the
vacancy shall be filled by election of the Board of
Directors with the director so elected to serve for the
remainder of the term of the director being replaced or, in
the case of an additional director, for the remainder of the
term of the class to which the director has been assigned.
All directors shall continue in office until the election
and qualification of their respective successors in office.
When the number of directors is changed, any newly created
directorships or any decrease in directorships shall be so
assigned among the classes by a majority of the directors
then in office, though less than a quorum, as to make all
classes as nearly equal in number as possible. No decrease
in the number of directors shall have the effect of
shortening the term of any incumbent director. Election of
directors need not be by written ballot unless the By-laws
so provide.
(c) Any director or directors (exclusive of Preferred
Stock Directors) may be removed from office at any time, but
only for cause and only by the affirmative vote of at least
80% of the votes entitled to be cast by holders of all the
outstanding shares of Voting Stock (as defined in Article 13
hereof), voting together as a single class.
(d) Notwithstanding any other provision of these
Amended Articles of Incorporation or of law which might
otherwise permit a lesser vote or no vote, but in addition
to any affirmative vote of the holders of any particular
class of Voting Stock required by law or these Amended
Articles of Incorporation, the affirmative vote of at least
80% of the votes entitled to be cast by holders of all the
outstanding shares of Voting Stock, voting together as a
single class, shall be required to alter, amend or repeal
this Article 9.
10. The Board of Directors of the Corporation is
exclusively authorized (a) to adopt, repeal, alter or amend the
By-laws of the Corporation by the vote of a majority of the
entire Board of Directors and (b) to adopt any By-laws which the
Board of Directors may deem necessary or desirable for the
efficient conduct of the affairs of the Corporation, including,
without limitation, provisions governing the conduct of, and the
matters which may properly be brought before, meetings of the
shareholders and provisions specifying the manner and extent to
which prior notice shall be given of the submission of proposals
to be submitted at any meeting of shareholders or of nominations
of elections of directors to be held at any such meeting.
11. The Corporation shall, to the fullest extent permitted
by applicable law now or hereafter in effect, indemnify any
person who is or was a director, officer or employee of the
Corporation (an "Eligible Person") and who is or was involved in
any manner (including, without limitation, as a party or a
witness) or is threatened to be made so involved in any
threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action, suit or
proceeding by or in the right of the Corporation to procure a
judgment in its favor) (a "Proceeding") by reason of the fact
that such person is or was a director, officer or employee of the
Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, partner, member,
manager, trustee, fiduciary or agent of another corporation,
partnership, joint venture, limited liability company, trust or
other enterprise (including, without limitation, any employee
benefit plan), against all expenses (including attorneys' fees),
judgments, fines or penalties (including excise taxes assessed
with respect to an employee benefit plan) and amounts paid in
settlement actually and reasonably incurred by such Eligible
Person in connection with such Proceeding; provided, however,
that the foregoing shall not apply to a Proceeding commenced by
an Eligible Person except to the extent provided otherwise in the
Corporation's By-laws or an agreement with an Eligible Person.
The Corporation may establish provisions supplemental to or in
furtherance of the provisions of this Article 11, including, but
not limited to, provisions concerning the determination of any
Eligible Person to indemnification, mandatory or permissive
advancement of expenses to an Eligible Person incurred in
connection with a Proceeding, the effect of any change in control
of the Corporation on indemnification and advancement of expenses
and the funding or other payment of amounts necessary to effect
indemnification and advancement of expenses, in the By-laws of
the Corporation or in agreements with any Eligible Person.
12. Except as otherwise expressly provided for in these
Amended Articles of Incorporation, the Corporation reserves the
right to amend, alter or repeal any provision contained in these
Amended Articles of Incorporation, in the manner now or hereafter
prescribed by law, and all rights conferred upon shareholders
herein are subject to this reservation.
13. In addition to all other requirements imposed by law
and these Amended Articles and except as otherwise expressly
provided in paragraph (c) of this Article 13, none of the actions
or transactions listed below shall be effected by the
Corporation, or approved by the Corporation as a shareholder of
any majority-owned subsidiary of the Corporation if, as of the
record date for the determination of the shareholders entitled to
vote thereon, any Related Person (as hereinafter defined) exists,
unless the applicable requirements of paragraphs (b), (c), (d),
(e), and (f) of this Article 13 are satisfied.
(a) The actions or transactions within the scope of
this Article 13 are as follows:
(i) any merger or consolidation of the
Corporation or any of its subsidiaries into or with
such Related Person;
(ii) any sale, lease, exchange, or other
disposition of all or any substantial part of the
assets of the Corporation or any of its majority-owned
subsidiaries to or with such Related Person;
(iii) the issuance or delivery of any Voting
Stock (as hereinafter defined) or of voting securities
of any of the Corporation's majority-owned subsidiaries
to such Related Person in exchange for cash, other
assets or securities, or a combination thereof;
(iv) any voluntary dissolution or liquidation of
the Corporation;
(v) 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 otherwise involving
a Related Person) that has the effect, directly or
indirectly, of increasing the proportionate share of
any class or series of capital stock of the
Corporation, or any securities convertible into capital
stock of the Corporation or into equity securities of
any subsidiary, that is beneficially owned by any
Related Person; or
(vi) any agreement, contract, or other
arrangement providing for any one or more of the
actions specified in the foregoing clauses (i) through
(v).
(b) The actions and transactions described in
paragraph (a) of this Article 13 shall have been authorized
by the affirmative vote of at least 80% of all of the votes
entitled to be cast by holders of the outstanding shares of
Voting Stock, voting together as a single class.
(c) Notwithstanding paragraph (b) of this Article 13,
the 80% voting requirement shall not be applicable if any
action or transaction specified in paragraph (a) is approved
by the Corporation's Board of Directors and by a majority of
the Continuing Directors (as hereinafter defined).
(d) Unless approved by a majority of the Continuing
Directors, after becoming a Related Person and prior to
consummation of such action or transaction.
(i) the Related Person shall not have acquired
from the Corporation or any of its subsidiaries any
newly issued or treasury shares of capital stock or any
newly issued securities convertible into capital stock
of the Corporation or any of its majority-owned
subsidiaries, directly or indirectly (except upon
conversion of convertible securities acquired by it
prior to becoming a Related Person or as a result of a
pro rata stock dividend or stock split or other
distribution of stock to all shareholders pro rata);
(ii) such Related Person 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 tax credits provided by the Corporation
or any of its majority-owned subsidiaries, or made any
major changes in the Corporation's or any of its
majority-owned subsidiaries' businesses or capital
structures or reduced the current rate of dividends
payable on the Corporation's capital stock below the
rate in effect immediately prior to the time such
Related Person became a Related Person; and
(iii) such Related Person shall have taken all
required actions within its power to ensure that the
Corporation's Board of Directors included
representation by Continuing Directors at least
proportionate to the voting power of the shareholdings
of Voting Stock of the Corporation's Remaining Public
Shareholders (as hereinafter defined), with a
Continuing Director to occupy an additional Board
position if a fractional right to a director results
and, in any event, with at least one Continuing
Director to serve on the Board so long as there are any
Remaining Public Shareholders.
(e) A proxy statement responsive to the requirements
of the Securities Exchange Act of 1934, as amended, whether
or not the Corporation is then subject to such requirements,
shall be mailed to the shareholders of the Corporation for
the purpose of soliciting shareholder approval of such
action or transaction and shall contain at the front
thereof, in a prominent place, any recommendations as to the
advisability or inadvisability of the action or transaction
which the Continuing Directors may choose to state and, if
deemed advisable by a majority of the Continuing Directors,
the opinion of an investment banking firm selected by a
majority of the Continuing Directors as to the fairness (or
not) of the terms of the action or transaction from a
financial point of view to the Remaining Public
Shareholders, such investment banking firm to be paid a
reasonable fee for its services by the Corporation. The
requirements of this paragraph (e) shall not apply to any
such action or transaction which is approved by a majority
of the Continuing Directors.
(f) For the purpose of this Article 13
(i) the term "Related Person" shall mean any
other corporation, person, or entity which beneficially
owns or controls, directly or indirectly, 5% or more of
the outstanding shares of Voting Stock, and any
Affiliate or Associate (as those terms are defined in
the General Rules and Regulations under the Securities
Exchange Act of 1934) of a Related Person; provided,
however, that the term Related Person shall not include
(a) the Corporation or any of its subsidiaries, (b) any
profit-sharing, employee stock ownership or other
employee benefit plan of the Corporation or any
subsidiary of the Corporation or any trustee of or
fiduciary with respect to any such plan when acting in
such capacity, or (c) Lilly Endowment, Inc.; and
further provided, that no corporation, person, or
entity shall be deemed to be a Related Person solely by
reason of being an Affiliate or Associate of Lilly
Endowment, Inc.;
(ii) a Related Person shall be deemed to own or
control, directly or indirectly, any outstanding shares
of Voting Stock owned by it or any Affiliate or
Associate of record or beneficially, including without
limitation shares
a. which it has the right to acquire
pursuant to any agreement, or upon exercise of
conversion rights, warrants, or options, or
otherwise or
b. which are beneficially owned, directly or
indirectly (including shares deemed owned through
application of clause a. above), by any other
corporation, person, or other entity with which it
or its Affiliate or Associate has any agreement,
arrangement, or understanding for the purpose of
acquiring, holding, voting, or disposing of Voting
Stock, or which is its Affiliate (other than the
Corporation) or Associate (other than the
Corporation);
(iii) the term "Voting Stock" shall mean all
shares of any class of capital stock of the Corporation
which are entitled to vote generally in the election of
directors;
(iv) the term "Continuing Director" shall mean a
director who is not an Affiliate or Associate or
representative of a Related Person and who was a member
of the Board of Directors of the Corporation
immediately prior to the time that any Related Person
involved in the proposed action or transaction became a
Related Person or a director who is not an Affiliate or
Associate or representative of a Related Person and who
was nominated by a majority of the remaining Continuing
Directors; and
(v) the term "Remaining Public Shareholders"
shall mean the holders of the Corporation's capital
stock other than the Related Person.
(g) A majority of the Continuing Directors of the
Corporation shall have the power and duty to determine for
the purposes of this Article 13, on the basis of information
then known to the Continuing Directors, whether (i) any
Related Person exists or is an Affiliate or an Associate of
another and (ii) any proposed sale, lease, exchange, or
other disposition of part of the assets of the Corporation
or any majority-owned subsidiary involves a substantial part
of the assets of the Corporation or any of its subsidiaries.
Any such determination by the Continuing Directors shall be
conclusive and binding for all purposes.
(h) Nothing contained in this Article 13 shall be
construed to relieve any Related Person or any Affiliate or
Associate of any Related Person from any fiduciary
obligation imposed by law.
(i) The fact that any action or transaction complies
with the provisions of this Article 13 shall not be
construed to waive or satisfy any other requirement of law
or these Amended Articles of Incorporation or to impose any
fiduciary duty, obligation, or responsibility on the Board
of Directors or any member thereof, to approve such action
or transaction or recommend its adoption or approval to the
shareholders of the Corporation, nor shall such compliance
limit, prohibit, or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect
to such action or transaction. The Board of Directors of the
Corporation, when evaluating any actions or transactions
described in paragraph (a) of this Article 13, shall, in
connection with the exercise of its judgment in determining
what is in the best interests of the Corporation and its
shareholders, give due consideration to all relevant
factors, including without limitation the social and
economic effects on the employees, customers, suppliers, and
other constituents of the Corporation and its subsidiaries
and on the communities in which the Corporation and its
subsidiaries operate or are located.
(j) Notwithstanding any other provision of these
Amended Articles of Incorporation or of law which might
otherwise permit a lesser vote or no vote, but in addition
to any affirmative vote of the holders of any particular
class of Voting Stock required by law or these Amended
Articles of Incorporation, the affirmative vote of the
holders of at least 80% of the votes entitled to be cast by
holders of all the outstanding shares of Voting Stock,
voting together as a single class, shall be required to
alter, amend, or repeal this Article 13.
14. A total of 1,400,000 shares of the 5,000,000 shares of
authorized Preferred Stock are designated as "Series A
Participating Preferred Stock" (the "Series A Preferred Stock"),
which shall possess the rights, preferences, qualifications,
limitations, and restrictions set forth below:
(a) The holders of shares of Series A Preferred Stock
shall have the following rights to dividends and
distributions:
(i) The holders of shares of Series A Preferred
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 first day of April, July, October and
January 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 A Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the
greater of (i) $0.05 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 or distribution payable in shares
of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, par value
$.621/2 per share, of the Corporation (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 share or fraction of a share of Series
A Preferred Stock. If on any Quarterly Dividend Payment
Date the Corporation's Articles of Incorporation shall
limit the amount of dividends which may be paid on the
Series A Preferred Stock to an amount less than that
provided above, such dividends will accrue and be paid
in the maximum permissible amount and the shortfall
from the amount provided above shall be a cumulative
dividend requirement and be carried forward to
subsequent Quarterly Dividend Payment Dates.
(ii) In the event the Corporation shall at any
time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to
which holders of shares of Series A Preferred Stock are
entitled immediately prior to such event under the
second 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.
(iii) When, as and if the Corporation shall
declare a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common
Stock), the Corporation shall at the same time declare
a dividend or distribution on the Series A Preferred
Stock as provided in this paragraph (a) and no such
dividend or distribution on the Common Stock shall be
paid or set aside for payment on the Common Stock
unless such dividend or distribution on the Series A
Preferred Stock shall be simultaneously paid or set
aside for payment; 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 $1.00
per share on the Series A Preferred Stock shall
nevertheless be payable, when, as and if declared by
the Board of Directors, on such subsequent Quarterly
Dividend Payment Date.
(iv) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred
Stock from the date of issue of such shares of Series A
Preferred Stock, 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 shares
of Series A Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend
Payment Date, in which event 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 shares
of Series A Preferred 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 shares of
Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which
record date shall be no more than 60 days prior to the
relevant Quarterly Dividend Payment Date.
(b) The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(i) The holders of outstanding Series A Preferred
Stock shall be entitled to vote as a class for the
election of two (2) directors if the Corporation shall
fail for six quarters to pay the dividend payable with
respect to such shares pursuant to paragraph (a)
hereof. Such limited voting rights may be exercised at
the next annual meeting of shareholders following the
failure to pay a dividend for the sixth quarter and at
each succeeding annual meeting of shareholders until
payment of all such preferred dividends which are in
arrears has been made or provided for (the "Dividend
Date"), at which time the right to vote for election of
two directors conferred upon the holders of the
outstanding Series A Preferred Stock shall cease. Each
of such two directors shall be elected to one of the
three classes of directors so that the three classes
shall be as equal in number as may be feasible and
shall be elected to hold office for a term expiring at
the earlier of (i) the expiration of the term of the
class to which he is elected or (ii) the Dividend Date.
In addition to the conditional right to vote for
election of two directors, any proposal to amend the
relative rights and privileges of shares of Series A
Preferred Stock (including those conferred by this
paragraph (b) (i)) upon which the holders of such
Series A Preferred Stock are entitled by the provisions
of the Indiana Business Corporation Law to vote upon as
a class shall require, instead of a vote of the holders
of a majority of such shares, the affirmative vote of
the holders of two-thirds (2/3) of such shares.
(ii) Except as specified in paragraph (b) (i)
above, the holders of Series A Preferred Stock shall
not be entitled to any vote on any matter, including
questions of merger, consolidation, and the sale of all
or substantially all of the assets of the Corporation.
(c) The Corporation shall be subject to the following
restrictions:
(i) Whenever quarterly dividends or other
dividends or distributions payable on the Series A
Preferred Stock as provided in paragraph (a) of this
Article 14 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the
Corporation shall not
a. declare or pay dividends on, make any
other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to
the Series A Preferred Stock;
b. declare or pay dividends on or make any
other distributions on any shares of stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid
ratably on the Series A Preferred 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 shares are then
entitled;
c. except as permitted by subparagraph d of
this paragraph (c)(i), redeem or purchase or
otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, provided that
the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to
the Series A Preferred Stock; or
d. purchase or otherwise acquire for
consideration any shares of Series A Preferred
Stock, or any shares of stock ranking on a parity
with the Series A Preferred 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 shares 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,
provided that the Corporation may at any time
purchase or otherwise acquire shares of any such
parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock.
(ii) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under
subparagraph (i) of this paragraph (c), purchase or
otherwise acquire shares at such time and in such
manner.
(iii) The Corporation shall not issue any shares
of Series A Preferred Stock except upon exercise of
Rights issued pursuant to that certain Rights Agreement
dated as of July 18, 1988 between the Corporation and
Bank One, Indianapolis, NA, a copy of which is on file
with the Secretary of the Corporation at its principal
executive office and shall be made available to
shareholders of record without charge upon written
request therefor addressed to said Secretary.
Notwithstanding the foregoing sentence, nothing
contained herein shall prohibit or restrict the
Corporation from issuing for any purpose any series of
preferred stock with rights and privileges similar to
or different from those of the Series A Preferred
Stock.
(d) Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their
cancellation without designation as to series, become
authorized but unissued shares of preferred stock and may be
reissued as part of a new series of preferred stock to be
created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on
issuance set forth herein.
(e) Upon any voluntary liquidation, dissolution or
winding up of the Corporation, no distribution shall be made
(i) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto,
the holders of shares of Series A Preferred Stock shall have
received, subject to adjustment as hereinafter provided, an
aggregate amount equal to (a) $100 per share, plus an amount
equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such
payment or (b) if greater, 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 plus an
amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date
of such payment, 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 A Preferred
Stock, except distributions made ratably on the Series A
Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution,
or winding up, disregarding for this purpose the amounts
referred to in clause (i) (b) of this paragraph (e). In the
event the Corporation shall at any time declare or pay any
dividend or make any distribution on Common Stock payable in
shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of 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
shares of Series A Preferred Stock were entitled immediately
prior to such event under the provision 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.
(f) In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any
other property, then in any such case proper provision shall
be made so that the shares of Series A Preferred Stock shall
at the same time be similarly exchanged or changed in 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.
The Corporation shall not consummate any such consolidation,
merger, combination or other transaction unless prior
thereto the Corporation and the other party or parties to
such transaction shall have so provided in any agreement
relating thereto. In the event the Corporation shall at any
time declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in share of 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 shares of
Series A Preferred 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.
(g) The shares of Series A Preferred Stock shall not
be redeemable. Notwithstanding the foregoing sentence, the
Corporation may acquire shares of Series A Preferred Stock
in any other manner permitted by law, hereby and the
Articles of Incorporation of the Corporation, as from time
to time amended.
(h) The Articles of Incorporation of the Corporation
shall not be amended in any manner which would increase or
decrease the aggregate number of authorized shares of Series
A Preferred Stock, increase or decrease the par value of the
shares of Series A Preferred Stock, or alter or change the
powers, preferences or special rights of the shares of
Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of two-thirds or
more of the outstanding shares of Series A Preferred Stock,
voting together as a single class.