Exhibit 3(a)
ARTICLES OF INCORPORATION
OF
LINCOLN NATIONAL CORPORATION
(Filed and Approved in Indiana January 5, 1968; Last Amended May 12, 1994)
ARTICLE I
Name
The name of the Corporation is Lincoln National Corporation.
ARTICLE II
Purpose
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Indiana Business
Corporation Law. (Amended May 28, 1987)
ARTICLE III
Term of Existence
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
Registered Office and Registered Agent
The address of the Corporation's registered office in Indiana is Circle
Tower, Indianapolis, Indiana 46204, and the name of the Corporation's registered
agent at that office is The Prentice-Hall Corporation System, Inc. (Last amended
May 28, 1987)
ARTICLE V
Number, Terms and Voting Rights of Shares
Section 1. Number and Classes of Shares. The total number of shares
which the Corporation shall have authority to issue is eight hundred ten million
(810,000,000) shares, consisting of eight hundred million (800,000,000) shares
of a single class of shares to be known as Common Stock, and ten million
(10,000,000) shares of a single class of shares to be known as Preferred Stock.
(Last amended May 12, 1994)
Section 2. Terms of Common Stock. Only when all dividends accrued on
all preferred or special classes of shares entitled to preferential dividends
shall have been paid or declared and set apart for payment, but not otherwise,
the holders of Common Stock shall be entitled to receive dividends, when and as
declared by the Board of Directors. In event of any dissolution, liquidation or
winding up of the Corporation, the holders of the Common Stock shall be
entitled, after due payment or provision for payment of the debts and other
liabilities of the Corporation, and the amounts to which the holders of
preferred or special classes of shares may be entitled, to share ratably in the
remaining net assets of the Corporation. (Last amended May 10, 1988)
Section 3. Voting Rights of Common Stock. Except as otherwise provided
by law, every holder of Common Stock of the Corporation shall have the right at
every shareholders' meeting to one vote for each share of Common Stock standing
in his name on the books of the Corporation on the date established by the Board
of Directors as the record date for determination of shareholders entitled to
vote at such meeting. (Amended May 28, 1969)
Section 4. Terms of Preferred Stock. The Board of Directors shall have
authority to determine and state in the manner provided by law the rights,
preferences, qualifications, limitations and restrictions (other than voting
rights) of the Preferred Stock. The Preferred Stock may be issued in one or more
series for such an amount of consideration as may be fixed from time to time by
the Board of Directors, and the Board of Directors shall have authority to
determine and state in the manner provided by law the designations and the
relative rights, preferences, qualifications, limitations and restrictions
(other than voting rights) of each series. (Last amended May 10, 1988)
Section 5. Voting Rights of Preferred Stock. Except as otherwise
provided by law, every holder of Preferred Stock of the Corporation shall have
the right at every shareholders' meeting to one vote for each share of Preferred
Stock standing in his name on the books of the Corporation on the date
established by the Board of Directors as the record date for determination of
shareholders entitled to vote at such meeting.
At any time when six or more quarterly dividends, whether or not
consecutive, on the Preferred Stock, or on any one or more series thereof, shall
be in default, the holders of all Preferred Stock at the time or times
outstanding as to which such default shall exist shall be entitled, at the next
annual meeting of shareholders, voting as a class, to vote for and elect two
Directors of the Corporation.
In the case of any vacancy in the office of a Director occurring among
the Directors elected by the holders of the shares of the Preferred Stock voting
as a class pursuant to this Section, the remaining Director or Directors elected
by the holders of the shares of the Preferred Stock pursuant to this Section may
elect a successor or successors to hold office until the next annual or special
meeting of the shareholders.
At all meetings of shareholders held for the purpose of electing
Directors during such time as the holders of the shares of the Preferred Stock
shall have the right, voting as a class, to elect Directors pursuant to this
Section, the presence in person or by proxy of the holders of a majority of the
outstanding shares of the Preferred Stock then entitled, as a class, to elect
Directors pursuant to this Section shall be required to constitute a quorum of
such class for the election of Directors; provided, that the absence of a quorum
of the holders of Preferred Stock shall not prevent the election at any such
meeting or adjournment thereof of Directors by any other class or classes of
stock if the necessary quorum of the holders of such stock is present in person
or by proxy at such meeting.
The right of the holders of Preferred Stock, voting as a class, to
participate in the election of Directors pursuant to this Section shall continue
in effect, in the case of all Preferred Stock entitled to receive cumulative
dividends, until all accumulated and unpaid dividends have been paid or declared
and set apart for payment on all cumulative Preferred Stock, the holders of
which shall have been entitled to vote at the previous annual meeting of
shareholders, or in the case of all non-cumulative Preferred Stock until
non-cumulative dividends have been paid or declared and set apart for payment
for four consecutive quarterly dividend periods on all non-cumulative Preferred
Stock, the holders of which shall have been entitled to vote at the previous
annual meeting of shareholders, and thereafter the right of the holders of
Preferred Stock, voting as a class, to participate in the election of Directors
pursuant to this Section shall terminate.
Upon termination of the right of the holders of Preferred Stock, voting
as a class, to participate in the election of Directors pursuant to this
Section, the term of office of each Director then in office elected by the
holders of the Preferred Stock shall terminate, and any vacancy so created may
be filled as provided by the bylaws of the Corporation.
Any Director or Directors elected by the holders of Preferred Stock,
voting as a class pursuant to this Section, may be removed, with or without
cause, only by a vote of the holders of three-fourths of the
outstanding shares of Preferred Stock taken at a meeting as provided by Section
4 of Article VII of these Articles of Incorporation.
The Corporation shall not, without the approval of the holders of at
least two-thirds of the Preferred Stock at the time outstanding, voting as a
class:
(a) Amend these Articles of Incorporation to create or
authorize any kind of stock ranking prior to or on a parity with the
Preferred Stock with respect to payment of dividends or distribution on
dissolution, liquidation or winding up, or create or authorize any
security convertible into shares of stock of any such kind; or
(b) Amend, alter, change or repeal any of the express terms of
the Preferred Stock, or of any series thereof, then outstanding in a
manner prejudicial to the holders thereof; provided, that if any such
amendment, alteration, change or repeal would be prejudicial to the
holders of one or more, but not all, of the series of the Preferred
Stock at the time outstanding, only such consent of the holders of
two-thirds of the total number of outstanding shares of all series so
affected shall be required, unless a different or greater vote shall be
required by law; or
(c) Authorize the voluntary dissolution of the Corporation or
any revocation of dissolution proceedings theretofore approved,
authorize the sale, lease, exchange, or other disposition of all or
substantially all of the property of the Corporation, or approve any
limitation of the term of existence of the Corporation; or
(d) Merge or consolidate with another corporation in such
manner that the Corporation does not survive as a continuing entity, if
thereby the rights, preferences, or powers of the Preferred Stock would
be adversely affected, or if there would thereupon be authorized or
outstanding securities which the Corporation, if it owned all of the
properties then owned by the resulting corporation, could not create
without the approval of the holders of the Preferred Stock.
(Last amended May 10, 1988)
Section 6. Class Voting. The holders of the outstanding shares of a class, or
of any series thereof, shall not be entitled to vote as a class except as shall
be expressly provided by this Article or by law. (Amended May 28, 1969)
ARTICLE VI
Initial Stated Capital
The Corporation will not commence business until consideration of the
value of at least One Thousand Dollars ($1,000) has been received for the
issuance of shares.
ARTICLE VII
Directors
Section 1. Number. The Initial Board of Directors shall be composed of
thirteen members. The number of Directors may from time to time be fixed by the
bylaws of the Corporation at any number not less than three. In the absence of a
bylaw fixing the number of Directors, the number shall be thirteen.
Section 2. Qualifications. Directors need not be shareholders of the
Corporation, but shall have other qualifications as the bylaws of the
Corporation prescribe.
Section 3. Classification. When the Board of Directors consists of nine
or more members, the bylaws of the Corporation may provide that the Directors
shall be divided into two or more classes whose terms of office shall expire at
different times, but no term shall continue longer than three years.
Section 4. Removal. Any or all of the members of the Board of
Directors may be removed, with or without cause, at a meeting of shareholders
called expressly for that purpose by a vote of the holders of three-fourths
of the shares of the Corporation outstanding and then entitled to vote at an
election of Directors.
Section 5. Amendment, Repeal, etc. Notwithstanding anything contained
in these Articles of Incorporation to the contrary, the affirmative vote of the
holders of at least three-fourths of the shares of the Corporation outstanding
and then entitled to vote at an election of Directors, voting together and not
by class, shall be required to alter, amend, repeal, or adopt provisions
inconsistent with, this Article VII of these Articles of Incorporation. (Added
May 30, 1985)
ARTICLE VIII
Initial Board of Directors
The names and post-office addresses of the first Board of Directors of
the Corporation are as follows:
Name Number and Street City State Zip Code
Edward D. Auer .......... The Lincoln National Life Insurance Fort Wayne Indiana 46801
Company
1301 South Harrison Street
Wallis B. Dunckel ....... Bankers Trust Company New York New York 10015
P.O. Box 318
Robert A. Efroymson... Real Silk Hosiery Mills, Inc. Indianapolis Indiana 46204
611 North Park Avenue
William B. F. Hall ........ 2000 Lincoln Bank Tower Fort Wayne Indiana 46801
A. J. Hettinger, Jr. ....... Lazard Freres & Co. New York New York 10005
44 Wall Street
James F. Keenan ....... Keenan Hotel Co., Inc. Fort Wayne Indiana 46801
1006 South Harrison Street
William T. McKay ........ 1423 East California Road Fort Wayne Indiana 46805
Walter O. Menge ......... The Lincoln National Life Insurance Fort Wayne Indiana 46801
Company
1301 South Harrison Street
Henry W. Persons ....... The Lincoln National Life Insurance Fort Wayne Indiana 46801
Company
1301 South Harrison Street
Henry F. Rood ............. The Lincoln National Life Insurance Fort Wayne Indiana 46801
Company
1301 South Harrison Street
Ronald G. Stagg .......... The Lincoln National Life Insurance Fort Wayne Indiana 46801
Company
1301 South Harrison Street
Harold A. MacKinnon .. 1391 Ruffner Road Schenectady New York 12309
Thomas A. Watson ..... The Lincoln National Life Insurance Fort Wayne Indiana 46801
Company
1301 South Harrison Street
ARTICLE IX
Incorporators
Section 1. Names and Post-Office Addresses. The names and post-office
addresses of the incorporators of the Corporation are as follows:
Name Number and Street City State Zip Code
---- ----------------- ---- ----- --------
Henry F. Rood ............ 1301 South Harrison Street Fort Wayne Indiana 46801
Gordon C. Reeves ...... 1301 South Harrison Street Fort Wayne Indiana 46801
Jack D. Hunter ............ 1301 South Harrison Street Fort Wayne Indiana 46801
Section 2. Age. All of such incorporators are of lawful age.
ARTICLE X
Provisions for Regulation of Business and
Conduct of Affairs of Corporation
No shares of the Common Stock of The Lincoln National Life Insurance
Company owned by the Corporation shall be sold, leased, exchanged, mortgaged,
pledged, or otherwise disposed of except by the vote of the holders of
three-fourths of the shares of the Corporation outstanding and entitled to vote
thereon at an annual or special meeting of the shareholders held upon notice
which includes notice of the proposed sale, lease, exchange, mortgage, pledge,
or other disposition. (Last amended May 28, 1987)
ARTICLE XI
Provisions for Certain Business Combinations
Section 1. Vote Required.
Clause(a). Higer Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or these Articles of Incorporation, and except
as otherwise expressly provided in Section 2 of this Article XI:
1. any merger or consolidation 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) which 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 of $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 $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)
which 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 which 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 three-fourths of the
shares of the Corporation outstanding and then entitled to vote at an election
of directors (the "Voting Stock"), voting together and not by class (it being
understood that for purposes of this Article XI, each share of the Voting Stock
shall have the number of votes granted to it pursuant to Article V of these
Articles of Incorporation). 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 XI shall mean any transaction which is
referred to in any one or more of paragraphs 1 through 5 of Clause (a) of this
Section 1.
Section 2. When Higher Vote is Not Required. The provisions of Section
1 of this Article XI 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 of
Incorporation, if all of the conditions specified in either of the following
Clauses (a) and (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
hereinafter defined), 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 higher of the following:
A. the Highest Per Share Price paid by the Interested Shareholder for
any shares of Common Stock acquired by it (i) within the two-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; and
B. the Fair Market Value per share of Common Stock on the Announcement
Date or on the date on which the Interested Shareholder became an Interested
Shareholder (such latter date is referred to in this Article XI as the
"Determination Date"), whichever is higher.
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 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 paid by the Interested Shareholder for
any shares of such class of Voting Stock acquired by it (i) within the two-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; and
C. the Fair Market Value per share of such class of Voting Stock on the
Announcement Date or on the Determination Date, whichever is higher.
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
periodic dividends (whether or not cumulative) on the outstanding Preferred
Stock, No Par Value; (B) there shall have been (i) no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the 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 which has the effect
of reducing the number of outstanding shares of the 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 not have become
the beneficial owner of any additional shares of Voting Stock except as part of
the transaction which 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 (or any
Subsidiary of 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 (or any subsequent provisions
replacing such Act, rules or regulations) shall have been mailed to shareholders
of the Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement was required to
be mailed pursuant to such Act or subsequent provisions).
Section 3. Certain Definitions. For the purposes of this Article XI:
Clause (a). A "person" shall include any individual, firm, corporation or other
entity. When two or more persons act as a partnership, limited partnership,
syndicate, or other group for the purpose of acquiring Voting Stock of the
Corporation, 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 which:
1. is the beneficial owner, directly or indirectly, of more than 10%
of the voting power of the outstanding Voting Stock; or
2. is an Affiliate (as hereinafter defined) of the Corporation and at
any time within the two-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of 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 which were at any time within the two-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 Voting Stock:
1. which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
2. which 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. which is 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 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of Clause (c) of this Section 3 but shall not include any other
shares of Voting Stock which 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 Securities Exchange Act of 1934, as in effect on January 13, 1985.
Clause (f). "Subsidary" means any corporation of which a majority of any class
of equity securities 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 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
securities is owned, directly or indirectly, by the Corporation.
Clause (g). "Continuing Director" means any member of the Board of Directors of
the Corporation (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, the highest closing sale price during the
30-day period immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange-Listed Stock, or if such
stock is not quoted on the Composite Tape, on the New York Stock Exchange, or,
if such stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing sale price, or, if none, the highest closing bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or if no
such quotations are available, the fair market value of a share of such stock as
determined by a majority of the Continuing Directors in good faith, in any case
with respect to any class of stock, appropriately adjusted for any dividend or
distribution in shares of such stock or any stock split, reclassification,
recapitalization or combination of outstanding shares of such stock into a
greater or lesser number of shares of such stock; 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 a majority of
the Continuing Directors in good faith.
Clause (i). References to "Highest Per Share Price" shall in each case with
respect to any class of stock reflect an appropriate adjustment for any dividend
or distribution in shares of such stock or any stock split, reclassification,
recapitalization or combination of outstanding shares of such stock into a
greater or lesser number of shares of such stock.
Clause (j). In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used in
Clauses (b)1 and 2 of Section 2 of this Article XI shall include the shares of
Common Stock and/or the shares of any other class of outstanding Voting Stock
owned by the holders of such shares.
Section 4. Powers of the Board of Directors. A majority of the
Continuing Directors of the Corporation shall have the power and duty to
determine for the purposes of this Article XI, 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 which 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 $1,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested
Shareholders. Nothing contained in this Article XI shall be construed to relieve
any Interested Shareholder from any fiduciary or other obligation imposed by
law.
Section 6. Amendment, Repeal, etc. Notwithstanding any other provisions
of these Articles of Incorporation or the bylaws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, in
these Articles of Incorporation or the bylaws of the Corporation), the
affirmative vote of the holders of three-fourths or more of the voting power of
the shares of the then outstanding Voting Stock, voting together and not by
class, shall be required to alter, amend, repeal, or adopt provisions
inconsistent with, this Article XI of these Articles of Incorporation.
(Article XI added May 30, 1985)
CERTIFICATE OF RESOLUTION BY BOARD OF DIRECTORS
DETERMINING AND STATING THE DESIGNATION AND THE
RELATIVE RIGHTS, PREFERENCES, QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS (OTHER THAN VOTING RIGHTS)
OF A SERIES OF A CLASS OF PREFERRED SHARES
OF
LINCOLN NATIONAL CORPORATION
(Filed and Approved in Indiana August 20, 1969; Amended May 24, 1988)
RESOLVED that, pursuant to the authority expressly granted to and vested
in the Board of Directors of the Corporation by the provisions of the Articles
of Incorporation of the Corporation, this Board of Directors hereby creates and
authorizes the issue of, for the consideration stated, a series of the Preferred
Stock of the Corporation, to consist of 2,233,421 shares of Preferred Stock of
the Corporation, and this Board of Directors hereby fixes the designation and
the relative rights, preferences, qualifications, limitations and restrictions
(other than voting rights) of the shares of such series as follows:
Section 1. Designation.
1.1 The designation of the series of Preferred Stock created by this
resolution shall be "$3.00 Cumulative Convertible Preferred Stock, Series A"
(the "Series A Preferred Stock").
Section 2. Dividends.
2.1 The holders of the Series A Preferred Stock shall be entitled to
receive, but only when and as declared by the Board of Directors, out of any
assets of the Corporation legally available for the purpose, cash dividends at
the rate of $3.00 per share per annum, and no more, payable $0.75 per share
quarterly on the fifth day of March, June, September, and December of each year
to such stockholders of record on the respective dates, not exceeding 50 days
preceding such dividend dates, fixed for the purpose by the Board of Directors.
2.2. Dividends shall be cumulative on shares of the Series A Preferred
Stock from and after dates determined as follows:
(a) if issued on or prior to the record date for the first dividend on
such shares, then from and after the fifth day of March, June, September
or December next preceding such record date;
(b) if issued during the period immediately after a record date for a
dividend on the Series A Preferred Stock and ending on the payment date
for such dividend, then from and after such dividend payment date; and
(c) if otherwise from and after the fifth day of March, June, September,
or December next preceding the date of issue of such shares.
Accumulation of dividends shall not bear interest.
2.3 No dividends (other than dividends payable in Common Stock of the
Corporation) shall be paid or declared on the Common Stock of the Corporation or
on any other series of the Preferred Stock or on any other class or series of
stock of the Corporation ranking as to dividends junior to or on a parity with
the Series A Preferred Stock, unless full dividends on all outstanding shares of
the Series A Preferred Stock for all past dividend periods have been paid and
unless full dividends on all such shares for the then current dividend period
shall have been paid or declared.
Section 3. Preference in Liquidation.
3.1 In the event of the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Series A
Preferred Stock then outstanding shall be entitled to receive, after payment or
provision for payment of all creditors of the Corporation, but before any
distribution or payment shall be made in respect of the Common Stock or any
other stock of the Corporation ranking junior to the Series A Preferred Stock as
to assets on liquidation, dissolution or winding up, an amount equal to $80 per
share, plus an amount equal to all unpaid dividends thereon accrued on a daily
basis to the date when funds for payment are made available to the holders; and
no payment on account of liquidation, dissolution or winding up shall be made to
the holders of any series of Preferred Stock or any other stock of the
Corporation ranking on a parity with the Series A Preferred Stock as to assets,
unless there shall likewise be paid at the same time to the holders of all
shares of Series A Preferred Stock like proportionate distributive amounts
ratably, in proportion to the full distributive amounts to which they are
respectively entitled. The holders of the Series A Preferred Stock shall have no
rights in respect of the remaining assets of the Corporation.
3.2 Neither the consolidation or merger of the Corporation with or into
any other corporation or corporations, nor the sale or transfer by the
Corporation of all or any part of its assets, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this
Section 3.
Section 4. Redemption.
4.1 At any time or from time to time after October 31, 1974, (but not
before such time) and so long as any dividends on the Series A Preferred Stock
are not in arrears, the Corporation at the option of its Board of Directors,
shall have the right to redeem the Series A Preferred Stock, in whole or from
time to time in part, at a price equal to $80 per share plus an amount equal to
all unpaid dividends thereon accrued on a daily basis to the date of redemption.
4.2 Notice of every redemption shall be mailed at least 30 days, but
not more than 60 days, prior
to the date fixed for redemption, addressed to the holders of record of the
shares to be redeemed at their respective addresses as the same shall appear on
the books of the Corporation. In the case of a redemption of a part only of the
Series A Preferred Stock the Corporation shall select by lot the shares so to be
redeemed.
4.3 If notice or redemption shall have been mailed as aforesaid, and
if on or before the redemption date specified in such notice a sum equal to the
redemption price of the shares so called for redemption shall have been set
aside by the Corporation, separate and apart from its other funds for the pro
rata benefit of the holders of the shares so called for redemption, so as to be
and continue to be available therefor, then, whether or not certificates for the
shares so called for redemption shall have been surrendered for cancellation,
such shares, from and after the date of redemption so designated, shall be
deemed to be no longer outstanding, the right to receive dividends thereon shall
cease to accrue and all rights with respect to such shares shall forthwith on
such redemption date cease and terminate except only the right of the holders
thereof to receive the redemption price.
4.4 The Corporation may, however, at any time prior to the redemption
date specified in the notice of redemption but after such notice of redemption
shall have been mailed as aforesaid, deposit in trust, for the account of the
holders of the Series A Preferred Stock to be redeemed, with a bank or trust
company in good standing organized under the laws of the United States of
America or of the State of New York, or of the State of Illinois, doing business
in the Borough of Manhattan, City of New York, or in the City of Chicago,
Illinois, having capital, surplus and undivided profits aggregating at least
$5,000,000, designated in such notice of redemption, a sum equal to the
redemption price of such shares so called for redemption, and thereupon, whether
or not certificates for the shares so called for redemption shall have been
surrendered for cancellation (if such notice shall state that holders of the
shares so called for redemption may receive their redemption price at any time
after such deposit), all shares with respect to which such deposit shall have
been made shall be deemed to be no longer outstanding, the right to receive
dividends thereon for any period after the date so fixed for redemption shall
cease to accrue and all rights with respect to such shares shall forthwith upon
such deposit in trust cease and terminate except only (a) the rights of the
holders thereof to receive from such bank or trust company, at any time after
the time of such deposit, the redemption price of such shares to be redeemed, or
(b) the right to exercise, on or before the close of business on the third
business day prior to the date fixed for redemption, the privileges of
conversion. Any moneys so deposited by the Corporation which shall not be
required for such redemption because of the exercise of any such right of
conversion, shall be repaid to the Corporation forthwith. Any moneys so
deposited by the Corporation and unclaimed at the end of six years from the date
fixed for such redemption shall be repaid to the Corporation upon its request
expressed in a resolution of its Board of Directors, after which repayment the
holders of the shares so called for redemption shall look only to the
Corporation for the payment thereof.
4.5 Shares of Series A Preferred Stock so redeemed shall, after the
Corporation takes appropriate steps required or permitted by the laws of
Indiana, have the status of authorized and unissued shares of Preferred
Stock, and the number of shares of Preferred Stock which the Corporation shall
have authority to issue shall not be decreased by the redemption of shares of
Series A Preferred Stock.
4.6 Nothing in this Section 4 shall limit any legal right of the
Corporation to purchase or otherwise acquire any shares of the Preferred Stock
at not exceeding the price at which the same may be redeemed at the option of
the Corporation.
Section 5. Conversion Rights.
5.1 Subject to adjustment as provided in this Section 5, each share of
Series A Preferred Stock shall be convertible at the option of the respective
holder thereof, at the office of the transfer agent for the Common Stock, and at
such other place or places, if any, as the Board of Directors may determine,
into one fully paid and non-assessable share of Common Stock (the "Common
Stock") of the Corporation. In case of the redemption of any shares of Series A
Preferred Stock, such right of conversion shall terminate, as to the shares
called for redemption, at the close of business on the third business day prior
to the date fixed for redemption, unless default shall be made in the payment of
the redemption price. Upon conversion the Corporation shall make no payment or
adjustment on account of unpaid dividends accrued on the Series A Preferred
Stock surrendered for conversion.
5.2 The Common Stock issuable upon conversion of Series A Preferred
Stock shall be Common Stock as constituted at the date of this resolution,
except as otherwise provided in subdivision (b) of Section 5.5.
5.3 Before any holder of Series A Preferred Stock shall be entitled to
convert the same into Common Stock, he shall surrender the certificate or
certificates for such Series A Preferred Stock at the office of the transfer
agent for the Common Stock, which certificate or certificates, if the
Corporation shall so request, shall be duly endorsed to the Corporation or in
blank or accompanied by proper instruments of transfer to the Corporation or in
blank, and shall give written notice to the Corporation at that office that he
elects so to convert Series A Preferred Stock, and shall state in writing
therein the name of or names in which he wishes the certificate or certificates
for Common Stock to be issued. Every such notice of election to convert shall
constitute a contract between the holder of such Series A Preferred Stock and
the Corporation, whereby the holder of such Series A Preferred Stock shall be
deemed to subscribe for the amount of Common Stock which he shall be entitled to
receive upon such conversion, and, in satisfaction of such subscription, to
deposit the Series A Preferred Stock to be converted and to release the
Corporation from all liability thereunder, and thereby the Corporation shall be
deemed to agree that the surrender of the certificate or certificates for the
Series A Preferred Stock and the extinguishment of liability thereon shall
constitute full payment of such subscription for Common Stock to be issued upon
such conversion.
5.4 As soon as practicable after such deposit of certificates for
Series A Preferred Stock accompanied by the written notice and the statement
above prescribed, the Corporation will issue and deliver at the office of the
transfer agent to the person for whose account such Series A Preferred Stock was
so surrendered, or to his nominee or nominees, certificates for the number of
full shares of Common Stock to which he shall be entitled as aforesaid, together
with a cash adjustment of any fraction of a share as herein stated, if not
evenly convertible. Subject to the following provisions of this paragraph, such
conversion shall be deemed to have been made as of the date of such surrender of
the Series A Preferred Stock to be converted; and the person or persons entitled
to receive the Common Stock issuable upon conversion of such Series A Preferred
Stock shall be treated for all purposes as the record holder or holders of such
Common Stock on such date. The Corporation shall not be required to convert, and
no surrender of Series A Preferred Stock shall be effective for that purpose,
while the stock transfer books of the Corporation are closed for any purpose;
but the surrender of Series A Preferred Stock for conversion during any period
while such books are so closed shall become effective for conversion immediately
upon the re-opening of such books, as if the conversion had been made on the
date such Series A Preferred Stock was surrendered.
5.5 The number of shares of Common Stock into which the shares of
Series A Preferred Stock shall be convertible shall be subject to adjustment
from time to time as follows:
(a) In case the Corporation shall at any time or from time to time
(1) declare a dividend payable in Common Stock,
(2) issue any shares of its Common Stock in subdivision of
outstanding shares of Common Stock, by reclassification or otherwise, or
(3) make any combination of shares of Common Stock, by
reclassification or otherwise,
the conversion rate shall be adjusted so that the holder of each
share of Series A Preferred Stock shall thereafter be entitled to
receive upon the conversion of such share the number of shares of
the Corporation which he would have owned or have been entitled to
receive after the happening of any of the events described above
had such share been converted immediately prior to the happening of
such event. Further such adjustments shall be made whenever any of
the events listed above shall occur.
(b) In case of any capital reorganization or any reclassification
of the capital stock of the Corporation of in case of the
consolidation or merger of the Corporation with or into another
corporation, or in case of any sale or conveyance to another
corporation of the assets of the Corporation as an entirety or
substantially as an entirety, the holder of each share of Series A
Preferred Stock then outstanding shall have the right to convert
such share into the kind and number of shares of stock and other
securities and property receivable upon such reorganization,
reclassification, consolidation, merger, sale or conveyance, as the
case may be, by a holder of that number of shares of Common Stock
into which one share of Series A Preferred Stock is convertible;
and, in any such case, appropriate adjustment (as determined in
good faith by a resolution of the Board of Directors of the
Corporation) shall be made in the application of the provisions
herein set forth with respect to rights and interests thereafter of
the holders of the Series A Preferred Stock, to the end that the
provisions set forth herein (including the specified adjustments)
shall thereafter be applicable, as near as reasonably may be, in
relation to any shares or other property thereafter deliverable
upon the conversion of the Series A Preferred Stock.
(c) In case the Corporation shall issue rights or warrants to the
holders of its Common Stock for the purpose of entitling them to
subscribe for or purchase shares of Common Stock at a price per
share less than 95% of the "current market price" per share of
Common Stock (as defined in Section 5.9) on the date at which a
record is taken of the holders of such issuance, the number of
shares of Common Stock into which each share of Series A Preferred
Stock shall thereafter be convertible shall be determined by
multiplying the number of shares of Common Stock into which such
share of Series A Preferred Stock was immediately theretofore
convertible by a fraction, of which the numerator shall be the sum
of the number of shares of Common Stock outstanding at the time of
the taking of such record plus the number of additional shares of
Common Stock so offered for subscription or purchase, and of which
the denominator shall be the sum of the number of shares of Common
Stock outstanding at the time of the taking of such record plus the
number of shares of Common Stock which the aggregate offering price
of the total number of shares so offered would purchase at such
current market price per share for such date.
(d) No adjustment in the number of shares of Common Stock into
which any share of Series A Preferred Stock is convertible shall be
required unless such adjustment would require an increase or
decrease of at least 5% in the number of shares of Common Stock
into which a share of Series A Preferred Stock is then convertible;
provided, however, that any adjustment which by reason of this
subdivision (d) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 5.5 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may
be.
Whenever such an adjustment is to be made, the Corporation shall forthwith
file with the transfer agent for the Series A Preferred Stock and the Common
Stock, a statement signed by the President or one of the Vice Presidents of
the Corporation and by its Treasurer or an Assistant Treasurer, stating the
adjustment to be made. Such statement shall show in detail the facts
requiring such adjustment. Whenever such an adjustment is to be made, the
Corporation will forthwith cause a notice stating the adjustment to be
mailed to the respective holders of record of Series A Preferred Stock.
Where appropriate, such notice may be given in advance and included as a
part of a notice required to be mailed under the provisions of the following
paragraph of this Section 5.5
In case at any time:
(i) the Corporation shall pay any dividend payable in stock
upon its Common Stock or make any distribution (other than cash
dividends) to the holders of its Common Stock; or
(ii) the Corporation shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of any
class or any other rights; or
(iii) the consolidation or merger of the Corporation with or
into another corporation or the sale or conveyance of all or
substantially all the assets of the Corporation shall be proposed by
the Corporation;
then in any one or more of those cases, the Corporation shall cause at least
fifteen days' prior notice to be mailed to the transfer agent for the Series A
Preferred Stock and the Common Stock and to the holders of record of the
outstanding Series A Preferred Stock of the date on which (x) the books of the
Corporation shall close, or a record be taken for such stock dividend,
distribution or subscription rights, or (y) such consolidation or merger or
conveyance shall take place, as the case may be. Such notice shall also specify
the date as of which holders of Common Stock of record shall participate in the
dividend, distribution or subscription rights or shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
consolidation, merger, sale or conveyance, as the case may be, and shall specify
the proposed transactions in reasonable detail.
5.6 Shares of Series A Preferred Stock converted into Common Stock
shall have the status of authorized and unissued shares of Preferred Stock, and
the number of shares of Preferred Stock which the Corporation shall have
authority to issue shall not be decreased by the conversion of shares of Series
A Preferred Stock.
5.7 The Corporation shall at all times reserve and keep available, out
of its authorized and unissued Common Stock, solely for the purpose of effecting
the conversion of the Series A Preferred Stock, such number of shares as shall
from time to time be sufficient to effect the conversion of all shares of Series
A Preferred Stock from time to time outstanding. The Corporation shall from time
to time, in accordance with the laws of Indiana increase the authorized amount
of its Common Stock if at any time the number of shares of Common Stock
remaining unissued shall not be sufficient to permit the conversion of all the
then outstanding Series A Preferred Stock.
5.8 No fractions of shares of Common Stock will be issued upon
conversion. In the event that because of any adjustments required to be made by
Section 5.5 fractions of shares of Common Stock would be required to be issued
upon conversion, the Corporation will, in lieu of issuing such fractions of
shares, pay to the person otherwise entitled to such fractions the cash value of
such fractions based upon the current market price (as defined in Section 5.9)
per share of Common Stock on the day prior to that on which shares of Series A
Preferred Stock are surrendered by such person for conversion.
5.9 The "current market price" per share of Common Stock as to any
specified day shall be deemed to be the last reported sale price of the Common
Stock for such day (or, if there is no sale on such day, the last bid quotation
for the Common Stock) on the New York Stock Exchange (or, if the Common Stock is
not listed on the New York Stock Exchange, on a national securities exchange
designated by the Corporation) or, if the Common Stock is not listed upon any
national securities exchange, the average of the closing bid and asked
quotations for the Common Stock for such day as furnished by the trading
department of any New York Stock Exchange member firm selected from time to time
by the Corporation for the purpose and deemed by it to be reliable. If an
exchange was not open, or if the Common Stock was not traded on an exchange or
elsewhere, on a day as of which the current market price is to be determined,
the determination of price or quotation shall be made as of the last business
day before such day.
5.10 The Corporation will pay any and all issue and other taxes that
may be payable in respect of any issue or delivery of shares of Common Stock on
conversion of Series A Preferred Stock pursuant hereto. The Corporation shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of Common Stock in a name other than
that in which the Series A Preferred Stock so converted was registered, and no
such issue or delivery shall be made unless and until the person requesting such
issue has paid to the Corporation the amount of any such tax, or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
5.11 The Corporation covenants that if any shares of Common Stock,
required to be reserved for purposes of conversion of the Series A Preferred
Stock hereunder, require registration with, or approval of, any governmental
authority under any federal or state law or listing on any national securities
exchange, before such shares may be issued upon conversion, the Corporation will
in good faith and as expeditiously as possible take such action as may be
necessary to secure such registration or approval or listing on the relevant
national securities exchange, as the case may be.
Section 6. Consideration for Issue of Series A Preferred Stock.
6.1 Shares of Series A Preferred Stock shall be issued in exchange for
shares of common stock of Chicago Title and Trust Company pursuant to the terms
of the Memorandum of Understanding between this Corporation and Chicago Title
and Trust Company, which memorandum was approved by the Board of Directors of
the Corporation at its special meeting of April 28, 1969. Pursuant to Section 4
of Article V of the Articles of Incorporation, the Board of Directors hereby
fixes as the amount of consideration to be received by the Corporation for the
issue of each share of Series A Preferred Stock, one share of common stock of
Chicago Title and Trust Company.
ARTICLES OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION
LINCOLN NATIONAL CORPORATION
(Filed and Approved in Indiana July 3, 1990)
The undersigned officer of LINCOLN NATIONAL CORPORATION (hereinafter referred to
as "Corporation") existing pursuant to the provisions of the Indiana Business
Corporation Law, as amended (hereinafter referred to as the "Act"), desiring to
give notice of corporate action effectuating amendment of its Articles of
Incorporation, certifies to the following facts:
ARTICLE I
AMENDMENT
SECTION 1. The date of incorporation of the Corporation is January 5,
1968.
SECTION 2. The name of the Corporation is LINCOLN NATIONAL CORPORATION.
SECTION 3. The text of the amendment, which determines and sets forth
the designation and the relative rights, preferences, qualifications,
limitations and restrictions (other than voting rights) of the shares of a
series of Preferred Stock, is as follows:
Section 1. Designation.
1.1 The designation of the series of Preferred Stock, without par
value, of the Corporation created by this amendment is the "5 1/2% Cumulative
Convertible Exchangeable Preferred Stock, Series E", without par value (the
"Series E Preferred Stock").
Section 2. Authorized Number of Shares
2.1 The number of authorized shares constituting the Series E
Preferred Stock is 2,201,443 shares.
Section 3. Dividends.
3.1 The holders of shares of Series E Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors of the Corporation
(the "Board") out of assets of the Corporation legally available therefor,
cumulative cash dividends at the annual rate of 5 1/2% of the Liquidation
Preference (specified in section 5.1 hereof) per share, and no more, payable
quarterly on the 5th day of March, June, September and December in each year
beginning on the first quarterly dividend payment date following the first date
on which the Corporation shall issue any shares of the Series E Preferred Stock.
Dividends on the Series E Preferred Stock shall be cumulative from the first
date on which the Corporation shall issue any shares of the Series E Preferred
Stock. Dividends on the Series E Preferred Stock shall be payable to holders of
record as they appear on the stock record books of the Corporation on the
dividend payment dates, provided that the Board or any duly authorized committee
may in any case fix a record date, not more than 60 days nor less than 15 days
before the dividend payment date, in which event the dividend shall be payable
to the holders of record on such record date (whether or not such holders shall
have exercised their rights of conversion after such record date). Dividends on
the Series E Preferred Stock will be calculated on the basis of a 360-day year
of twelve 30-day months.
Holders of the Series E Preferred Stock shall not be entitled to any
interest, or sum of money in lieu of interest, in respect of any dividend
payment or payments on shares of Series E Preferred Stock which may be in
arrears.
3.2 No dividend shall be declared or paid or set apart for payment on
shares of any series of the Preferred Stock of the Corporation for any period
unless full cumulative dividends on all outstanding shares of Series E Preferred
Stock shall have been or shall contemporaneously be declared and paid or
declared and a sum sufficient for payment thereof set apart for such payment for
the current and all past dividend periods; provided, however, that there may be
declared and paid or declared and a sum sufficient for payment thereof set apart
for such payment full dividends on all outstanding shares of Series A Preferred
Stock created by resolutions of the Board adopted on May 28, 1969 outstanding on
the first date the Corporation issues any shares of Series E Preferred Stock and
dividends pro rata, as provided in the next proviso, on all outstanding shares
of Series E Preferred Stock and of all series of Preferred Stock ranking on a
parity with the Series E Preferred Stock with respect to dividends; and provided
further that dividends may be declared and paid or declared and a sum sufficient
for payment thereof set apart for such payment pro rata on all outstanding
shares of Series E Preferred Stock and all series of Preferred Stock of the
Corporation ranking on a parity with the Series E Preferred Stock with respect
to dividends so that the amounts of the dividends per share declared on the
respective outstanding series of such Preferred Stock shall bear to each other
the same ratios that the amounts of accumulated and unpaid dividends on such
respective series shall bear to each other.
3.3 No dividend (other than a dividend payable in Common Stock of the
Corporation or in any other shares of the Corporation ranking junior to the
shares of Series E Preferred Stock as to dividends and upon liquidation,
dissolution or winding up) shall be declared or paid or set apart for payment,
and no other distribution shall be declared or made, on shares of Common Stock
of the Corporation or any other shares of the Corporation ranking junior to the
Series E Preferred Stock as to dividends or upon liquidation, dissolution or
winding up, and no shares of Common Stock or Preferred Stock, other than the
Series E Preferred Stock, of the Corporation and no other shares of the
Corporation ranking junior to or on a parity with the Series E Preferred Stock
as to dividends or upon liquidation, dissolution or winding up (except Series F
Preferred Stock contemplated in resolutions adopted by the Board on June 25,
1990) shall be redeemed, purchased or otherwise acquired for any consideration
(and no moneys shall be paid to or made available for a sinking fund for the
redemption of any such shares) by the Corporation (except by conversion into or
exchange for shares of Common Stock or other shares of the Corporation ranking
junior to the Series E Preferred Stock as to dividends and upon liquidation,
dissolution or winding up), unless, in each such case, full cumulative cash
dividends on all outstanding shares of Series E Preferred Stock shall have been
or shall contemporaneously be declared and paid or declared and a sum sufficient
for payment thereof set apart for such payment for the current and all past
dividend periods and unless, in the case of any such action after the twelfth
anniversary of the first date on which shares of Series E Preferred Stock are
issued, no shares of Series E Preferred Stock shall be outstanding.
Section 4. Voting.
The holders of the Series E Preferred Stock shall have the voting
rights provided in Section 5 Article V of the Articles of Incorporation of the
Corporation.
Section 5. Liquidation Rights.
5.1 In the event of the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of shares of Series E
Preferred Stock then outstanding shall be entitled to receive, after payment or
provision for payment of all creditors of the Corporation, but before any
distribution or payment shall be made in respect of the Common Stock or any
other shares of the Corporation ranking junior to the Series E Preferred Stock
upon liquidation, dissolution or winding up, an amount equal to $68.85 per share
(the "Liquidation Preference"), plus an amount equal to all accumulated and
unpaid dividends thereon (whether or not earned or declared) to the distribution
or payment date, but such holders shall not be entitled to any further
participation in any distribution or payment in connection with any such
liquidation, dissolution or winding up. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, the
net assets of the Corporation distributable among the holders of all outstanding
shares of Series E Preferred Stock and any other series of Preferred Stock and
of any other shares of the Corporation ranking on a parity with the Series E
Preferred Stock upon liquidation, dissolution, or winding up shall be
insufficient to permit the payment in full to all such holders of the
preferential amounts to which they are entitled, then, the net assets so
distributable shall be distributed among such holders ratably in proportion to
the full amounts to which they would otherwise be entitled.
5.2 Neither the consolidation or merger of the Corporation with or into
any other corporation or corporations, nor the sale or transfer by the
Corporation of all or any part of its assets, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this
Section 5.
Section 6. Redemption.
6.1 The Corporation may at its option at any time or from time to time
redeem, in whole or in part, any share of Series E Preferred Stock that, at the
time the notice of redemption thereof is given as provided in Section 6.3
hereof, is not beneficially owned by the Dai-ichi Mutual Life Insurance Company
("Dai-ichi") or any direct or indirect successor to all or substantially all of
Dai-ichi's business or by any corporation at least 99% of whose outstanding
voting securities is at the time owned directly or indirectly by such Company or
any such successor and which agrees to be bound to the same obligations as to
which Dai-ichi is bound under that certain Investment Agreement, dated as of
June 25, 1990, at a redemption price per share, in cash, equal to the
Liquidation Preference plus an amount equal to all accumulated and unpaid
dividends thereon (whether or not earned or declared) to the redemption date.
If fewer than all of the outstanding shares of Series E Preferred Stock
that are subject to redemption pursuant to the provisions of this Section 6.1
are to be redeemed, the Board shall have complete discretion as to which of such
shares subject to redemption are to be redeemed.
6.2 On the twelfth anniversary of the first date on which shares of
Series E Preferred Stock are issued, the Corporation shall redeem (but only out
of assets of the Corporation legally available therefor and subject to any
applicable redemption or dividend limitations set forth in Section 2.3 of the
terms of the Series A Preferred Stock and Section 3(d) of the terms of the
Series B, C and D Preferred Stocks, as such terms are in effect at the date of
this amendment to the Articles of Incorporation, Section 9.3 of the Purchase
Agreement, dated as of July 13, 1979, for the purchase of the Company's 9-3/4%
Subordinated Notes due 1994, Section 8.6 of the $300,000,000 Revolving Credit
Agreement, dated as of July 14, 1987, among the Company, Swiss Bank Corporation
International Limited, Swiss Bank Corporation, New York Branch, and several
financial institutions and Section 5.06 of the $200,000,000 Revolving Credit
Agreement, dated as of July 28, 1987, among the Company, certain financial
institutions and Morgan Guaranty Trust Company of New York) all shares of Series
E Preferred Stock then outstanding, at a redemption price per share, in cash,
equal to the Liquidation Preference per share plus an amount equal to all
accumulated and unpaid dividends thereon (whether or not earned or declared) to
the redemption date, provided, however, that this Section 6.2 shall not apply to
any shares in exchange for which the Corporation shall on such date issue other
securities pursuant to and in accordance with the provisions of Section 7
hereof. In the event that on such twelfth anniversary date the Corporation shall
be unable, by reason of an insufficiency of assets legally available therefor or
by reason of the redemption and dividend limitations referred to above, to
redeem all of the outstanding shares of Series E Preferred Stock, the
Corporation shall redeem on such twelfth anniversary date under this Section 6.2
such number of shares as it shall be able to redeem, pro rata as nearly as
practicable (without redemption of fractions of shares) in proportion to the
respective numbers of shares held by each holder, and thereafter, if and to the
extent assets shall at any time or from time to time become legally available
therefore and such redemption and dividend limitations shall permit, the
Corporation shall as promptly as practicable redeem shares of Series E Preferred
Stock, pro rata as provided above, at such redemption price, plus an amount
equal to accumulated and unpaid dividends thereon (whether or not earned or
declared) to the redemption date.
6.3 In the event the Corporation shall elect or be obligated to redeem
shares of Series E Preferred Stock, notice of such redemption shall be given by
airmail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same shall appear on the stock record books of the
Corporation. Each such notice shall state: (1) the redemption date; (2) the
number of shares of Series E Preferred Stock to be redeemed and, if fewer than
all the shares held by the holder are to be redeemed, the number of such
holder's shares to be redeemed; (3) the redemption price; (4) the place or
places in the States of Indiana or New York where certificates for such shares
are to be surrendered for payment of the redemption price; (5) that dividends on
the shares to be redeemed will cease to accumulate on the redemption date
specified in the notice; (6) the provision of this amendment to the Articles of
Incorporation authorizing or requiring such redemptions; and (7) the then
effective Conversion Price (as defined in Section 8.1 hereof), that until the
close of business on the redemption date the holders may exercise their right to
convert shares of Series E Preferred Stock being redeemed and that such right
will terminate at the close of business on the redemption date.
6.4 From and after the redemption date specified in any such notice of
redemption, unless default shall be made by the Corporation in providing monies
at the time and place specified for payment of the redemption price pursuant to
such notice, all dividends on the shares of Series E Preferred Stock thereby
called for redemption shall cease to accumulate and all rights of the holders
thereof as such holders, except the right to receive the redemption price upon
surrender, shall cease and terminate.
6.5 The Corporation may, however, at any time prior to the redemption
date specified in a duly given notice of redemption but after such notice of
redemption shall have been mailed as aforesaid, deposit in trust for the benefit
of the holders of the Series E Preferred Stock to be redeemed, with a bank or
trust company in good standing organized under the laws of the United States of
America or of the State of New York, or of the State of Indiana, doing business
in the Borough of Manhattan, City of New York, or in the State of Indiana,
having capital, surplus and undivided profits aggregating at least $50,000,000,
designated in such notice of redemption, an amount in cash equal to the
redemption price of all such shares so called for redemption under arrangements
providing irrevocably for payment to such holders, and thereupon, whether or not
certificates for the shares so called for redemption shall have been surrendered
for cancellation (if such notice shall state that holders of the shares so
called for redemption may receive their redemption price at any time after such
deposit), all shares with respect to which such deposit shall have been made
shall be deemed to be no longer outstanding, dividends thereon for any period
after the date so fixed for redemption shall cease to accumulate and all rights
with respect to such shares shall forthwith upon such deposit in trust cease and
terminate except only (a) the rights of the holders thereof to receive from such
bank or trust company, at any time after the time of such deposit, the
redemption price of such shares to be redeemed, or (b) the right to exercise, on
or before the close of business on the date fixed for redemption, the privileges
of conversion. Any moneys so deposited by the Corporation which shall not be
required for such redemption because of the exercise of any such right of
conversion, shall be repaid to the Corporation forthwith. Any moneys so
deposited by the Corporation and unclaimed at the end of six years from the date
fixed for such redemption shall be repaid to the Corporation upon its request
expressed in a resolution of its Board of Directors, after which repayment the
holders of the shares so called for redemption shall look only to the
Corporation for the payment thereof.
6.6 Nothing in this Section 6 shall limit any legal right of the
Corporation to purchase or otherwise acquire any shares of the Series E
Preferred Stock at not exceeding the price at which the same may be redeemed at
the option of the Corporation.
Section 7. Exchange.
7.1 On the twelfth anniversary of the first date on which shares of
Series E Preferred Stock are issued, the Corporation may, at its option, with
respect to any shares of Series E Preferred Stock then outstanding, other than
any for which notice of redemption shall have previously been given, issue in
exchange therefor either:
(1) a whole number of shares of a series of nonconvertible Preferred
Stock of the Corporation, or
(2) a whole number of shares of Common Stock of the Corporation,
or any combination of shares described in the foregoing clauses (1) and (2) (and
cash in lieu of fractional interests, if any), provided that the shares so
issued shall (a) have on the date of issue an aggregate fair market value, as
determined by an Independent Financial Firm (as defined hereinafter in this
section 7.1) selected by the Board, equal to the aggregate Liquidation
Preference of the shares of Series E Preferred Stock for which such shares are
to be issued in exchange, plus an amount equal to accumulated and unpaid
dividends on such shares of Series E Preferred Stock (whether or not earned or
declared) to the exchange date; (b) be free of any transfer restriction and, if
and to the extent necessary for public offering and resale, registered or
qualified under the Federal Securities Act of 1933, as amended, or any successor
statute, and under such State securities laws as any holder may reasonably
request (provided, that in connection with qualification under State securities
laws the Corporation shall not be obligated to qualify to do business in any
jurisdiction when it is not so qualified or to take any action that would
subject it to taxation or general service of process in any State where it is
not otherwise subject to taxation or general service of process); and (c) in the
case of Common Stock, listed on each securities exchange, if any, upon which
outstanding Common Stock is listed at the time of the exchange. The term
"Independent Financial Firm," as of any time, shall
mean an internationally recognized investment banking or investment advisory
firm which does not at such time have a direct or indirect material interest in,
or other direct or indirect material relationship with, the Corporation or any
of its subsidiaries or affiliates.
7.2 In the event the Corporation shall elect to issue shares in
exchange pursuant to Section 7.1 hereof, notice of such exchange shall be given
by airmail, postage prepaid, mailed not less that 30 nor more than 60 days prior
to the exchange date, to each holder of record of the shares of Series E
Preferred Stock to be exchanged, at such holder's address as the same shall
appear on the stock record books of the Corporation. Each such notice shall
state: (1) the exchange date; (2) the number and terms of the shares to be
issued in exchange for shares held by such holder; (3) the identity of the
Independent Financial Firm selected by the Board to determine fair market value
as provided in Section 7.1 hereof; (4) the place or places in the State of
Indiana or New York where certificates for the shares of Series E Preferred
Stock to be exchanged are to be surrendered for the shares to be issued in
exchange therefor; (5) that dividends on the shares of Series E Preferred Stock
to be exchanged will cease to accumulate on the exchange date; and (6) the then
effective Conversion Price (as defined in Section 8.1 hereof), that until the
close of business on the exchange date the holders may exercise the right to
convert shares of Series E Preferred Stock being exchanged and that such right
shall terminate at the close of business on the exchange date.
7.3 From and after the exchange date specified on any such notice of
exchange, unless default shall be made by the Corporation in issuing the shares
to be issued in the exchange, all dividends on the shares of Series E Preferred
Stock to be exchanged as specified in the notice shall cease to accumulate and
all rights of the holders thereof as such holders, except the right to receive
the shares to be issued in the exchange, shall cease and terminate and the
person or persons entitled to the shares to be issued in the exchange shall be
treated for all purposes as the registered holder of the shares to be issued.
Section 8. Conversion.
8.1 Subject to and upon compliance with the provisions of this Section
8, the holder of each share of Series E Preferred Stock shall have the right, at
the holder's option, at any time (except that, if such share is called for
redemption or exchange, not after the close of business on the date fixed for
such redemption or exchange, unless default shall be made in the payment of the
redemption price or the issuance of shares in the exchange) to convert such
share into that number of fully paid and nonassessable shares of Common Stock
(calculated as to each conversion to the nearest 1/1,000th of a share) obtained
by dividing the Liquidation Preference of such share being converted by the
Conversion Price (as defined below) and by surrender of such share so to be
converted, such surrender to be made in the manner provided in Section 8.2.
For the purposes of this Section 8, the term "Common Stock" shall
include any stock of any class of the Corporation which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and which
is not subject to redemption by the Corporation. However, shares issuable on
conversion of shares of Series E Preferred Stock shall include only shares of
the class designated as Common Stock of the Corporation as of the date of this
amendment to the Articles of Incorporation creating the Series E Preferred
Stock, or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation and which are not subject to
redemption by the Corporation; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then so issuable
upon conversion shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
The term "Conversion Price" shall mean the Initial Conversion Price, as
adjusted in accordance with the provisions of this Section 8. The term "Initial
Conversion Price" shall mean an amount equal to the Liquidation Preference. On
the fifth anniversary of the first date on which shares of Series E Preferred
Stock are issued, the Conversion Price then in effect shall be increased by
4-1/6% and on the eighth anniversary of such first date, the Conversion Price
then in effect shall be increased by 4%.
8.2 In order to exercise the conversion privilege, the holder of each
share of Series E Preferred Stock to be converted shall surrender the
certificate representing such share at the office of the conversion agent for
the Series E Preferred Stock in the Borough of Manhattan, City of New York,
appointed for such purpose by the Corporation or, if no conversion agent has
been appointed, to the Corporation at its offices at 1300 South Clinton, Fort
Wayne, Indiana 46801 Attention: Treasurer (such conversion agent or Corporation,
as the case may be, referred to herein as the "conversion agent"), with the
Notice of Election to Convert on the back of said certificate completed and
signed. Such notice shall be substantially in the following form:
"NOTICE OF ELECTION TO CONVERT
The undersigned, being a holder of the 5-1/2% Cumulative Convertible
Exchangeable Preferred Stock, Series E (the "Series E Preferred Stock") of
Lincoln National Corporation, irrevocably exercises the right to convert
____________ outstanding shares of Series E Preferred stock on
____________________, into shares of Common Stock of Lincoln National
Corporation in accordance with the terms of the Series E Preferred Stock, and
directs that the shares issuable and deliverable upon the conversion, together
with any check in payment for fractional shares, be issued and delivered in the
denominations indicated below to the registered holder hereof unless a different
name has been indicated below. If shares are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto.
Dated:
Fill in for registration of shares of Common Stock if to be issued otherwise
than to registered holder:
_____________________________________ If fractional interests:
Name
TAX ID #______________________
- -------------------------------------
Address
- ------------------------------------- -------------------------------
(Please print name and address, including (Signature)
postal code number)
Denominations:________________________"
Unless the shares issuable in conversion are to be issued in the same as the
name in which such share of Series E Preferred Stock is registered, each share
surrendered for conversion shall be accompanied by instruments of transfer, in
form satisfactory to the Corporation, duly executed by the holder or his duly
authorized attorney and an amount sufficient to pay any transfer or similar tax.
A payment shall be made on conversion for dividends accumulated on the Series E
Preferred Stock surrendered for conversion but not for dividends on Common Stock
delivered on such conversion. As promptly as practicable after the surrender of
the certificates for shares of Series E Preferred Stock as aforesaid, the
Corporation shall issue and shall deliver at such office to such holder, or on
his written order, a certificate or certificates for the number of full shares
of Common Stock issuable upon the conversion if such shares in accordance with
provision of this Section 8, and any fractional interest in respect of a share
of Common Stock arising upon such conversion shall be settled as provided in
Section 8.3 hereof.
Each conversion shall be deemed to have been effected immediately prior
to the close of business on the date on which the certificates for shares of
Series E Preferred Stock shall have been surrendered and such notice received by
the Corporation as aforesaid, and the person or persons in whose name or names
any certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of the
shares represented thereby at such time on such date and such conversion shall
be at the Conversion Price in effect at such time on such date. All shares of
Common Stock delivered upon conversions of the Series E Preferred Stock shall
upon delivery be duly and validly issued and fully paid and non-assessable, free
of all liens and charges and not subject to any preemptive rights.
8.3 No fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon conversion of shares of Series E Preferred
Stock. Instead of any fractional interest in a share of Common Stock which would
otherwise be deliverable upon the conversion of a share of Series E Preferred
Stock, the Corporation shall pay to the holder of such share an amount in cash
(computed to the nearest one cent) equal to the Average Market Price of the
Common Stock at the close of business on the business day next preceding the day
of conversion. If more than one share shall be surrendered for conversion at one
time by the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate Conversion
Price of the shares of Series E Preferred Stock so surrendered.
The term "Average Market Price" of any security on any date means the
average of the daily closing prices of such security for a period of five
consecutive trading days within the 10 days immediately preceding the day in
question, which five consecutive trading days are selected by the Corporation
provided, however, that if the "ex" date for any event (other than the event
requiring such computation) that requires an adjustment pursuant to Section 8.4
occurs during the 10-trading day period in question and prior to the "ex" date
for the event requiring computation, the closing price for each trading day
prior to the "ex" date for such other event shall be adjusted by multiplying
such closing price by the same fraction by which the Conversion Price is
required to be adjusted pursuant to Section 8.4 as a result of such other event
(and in the case of Section 8.4(a) the fraction that would result in the
adjustment provided for therein). The closing price for each day shall be the
last reported sales price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange or, if such security
is not listed or admitted to trading on such Exchange, on the principal national
securities exchange on which such security is listed or admitted to trading on
such Exchange, on the principal national securities exchange on which such
security is listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange, on the National Association of
Securities Dealers Automated Quotations National Market System or, if such
security is not listed or admitted to trading on any national securities
exchange or quoted on such National Market System, the average of the closing
bid and asked prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the issuer of such
security for that purpose. For the purposes of this definition, the term
"trading day" means each Monday, Tuesday, Wednesday, Thursday and Friday, other
than any day on which such security is not traded on such exchange or in such
market. For the purposes of this definition, the term "`ex' date", (i) when used
with respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way on the relevant exchange or in the relevant
market from which the closing price was obtained without the right to receive
such issuance or distribution and (ii) when used with respect to any subdivision
or combination of shares of Common Stock, means the first date on which the
Common Stock trades regular was on such exchange or in such market after the
time at which such subdivision or combination becomes effective.
8.4 In addition to the increases in the Conversion Price set forth in
the Section 8.1 hereof, the Conversion Price shall be adjusted from time to time
as follows:
(a) In case the Corporation shall hereafter (i) pay a dividend or
make a distribution on the Common Stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number of
shares, or (iii) combine its outstanding shares of Common Stock into a smaller
number of shares, the Conversion Price in effect immediately prior to such
action shall be adjusted so that the holder of any share of Series E Preferred
Stock thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock which he would have been entitled to receive
immediately following such action had such share been converted immediately
prior thereto. An adjustment made pursuant to this Section 8.4(a) shall become
effective immediately after the record date, in the case of a dividend or
distribution, or immediately after the effective date, in the case of a
subdivision or combination.
(b) In case the Corporation shall hereafter pay or make a dividend or
other distribution in shares of Common Stock on any class of capital stock of
the Corporation other than the Common Stock, the Conversion Price in effect
immediately after the record date mentioned in the next sentence shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the record date mentioned in the
next sentence by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding at the close of business on the record date
mentioned in the next sentence and the denominator shall be the sum of such
number of shares and the total number of shares constituting such dividend or
other distribution. Such reduction shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
dividend or other distribution. For the purposes of this Section 8.4(b), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Corporation but shall include shares issuable
in respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Corporation shall not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Corporation.
(c) In case the Corporation shall hereafter issue rights or warrants to
holders of its outstanding shares of Common Stock generally entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the Average Market Price of the Common Stock (as defined in Section 8.3 hereof)
on the record date mentioned in the next sentence (other than pursuant to an
automatic dividend reinvestment plan of the Corporation or any substantially
similar plan) the Conversion Price shall be reduced so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the record date mentioned in the next sentence by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at the
close of business on the record date mentioned in the next sentence plus the
number of shares which the aggregate offering price of the total number of
shares so offered for subscription or purchase would purchase at such Average
Market Price, and of which the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the record date mentioned
in the next sentence plus the number of shares of Common Stock so offered for
subscription of purchase. Such reduction shall become effective immediately
after the record date for the determination of shareholders entitled to receive
such rights or warrants. For the purposes of this Section 8.4(c), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Corporation but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. Rights
or warrants issued or distributed by the Company to all holders of its Common
Stock entitling the holders thereof to subscribe for or purchase shares of
Common Stock, which rights or warrants (x) are deemed to be transferred with
such shares of Common Stock, (y) are not exercisable and (z) are issued also in
respect of future issuances of Common Stock, in each case in clauses (x) through
(z) until the occurrence of a specified event or events ("Trigger Event"), shall
for purposes of this Section 8.4 not be deemed issued or distributed until the
occurrence of the earliest Trigger Event. Such rights or warrants are referred
to herein as "Rights".
(d) In case the Corporation shall, by dividend or otherwise, hereafter
distribute to holders of its outstanding shares of Common Stock generally
evidences of its indebtedness, any securities of the Corporation, any rights or
warrants to subscribe to securities of the Corporation, cash or assets
(excluding (i) any cash dividend paid from retained earnings of the Corporation
to the extent such dividends in any calendar year do not in the aggregate exceed
150% of the aggregate regular periodic cash dividends actually paid in the prior
calendar year, (ii) dividends or distributions payable in stock for which
adjustment is made pursuant to Section 8.4(a) or 8.4(b) hereof, (iii) rights or
warrants to subscribe to Common Stock for which adjustment is made pursuant to
Section 8.4(c) hereof, and (iv) pursuant to a consolidation, merger, statutory
exchange, sale or conveyance for which adjustment is made pursuant to Section
8.11 hereof), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the record date mentioned in the next
sentence by a fraction (not equal or less than zero) of which the numerator
shall be the Average Market Price of the Common Stock (as defined in Section 8.3
hereof) on the record date mentioned in the next sentence less the fair market
value (as determined by the Board and Dai-ichi (or any direct or indirect
successor to all or substantially all of such Company's business) jointly (if
such Company or successor or any corporation at least 99% of whose outstanding
voting securities at the time outstanding is owned by such Company or successor
shall be a holder of any of the Series E Preferred Stock) or an internationally
recognized investment banking firm selected by them if they are unable to reach
agreement, or the Board in its reasonable discretion whose determination will be
conclusive and evidenced by a board resolution filed with the conversion agent
(if none of the foregoing shall be a holder of Series E Preferred Stock) of the
portion of the evidences of indebtedness, securities, right or warrants, cash or
assets so distributed to the holder of one share of Common Stock, and of which
the denominator shall be such Average Market Price of the Common Stock. Such
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive such distribution. Such
determination of fair market value shall be set forth in a statement filed with
the conversion agent by the Corporation as soon as practicable.
(e) The reclassification (including any reclassification upon a merger
in which the Corporation is the continuing corporation but excluding a
reclassification upon a consolidation, merger, statutory exchange, sale or
conveyance as to which Section 8.11 applies) of Common Stock into securities
including other than Common Stock shall be deemed to involve (i) a distribution
of such securities other than Common Stock to all holders of Common Stock and
the effective date of such reclassification shall be deemed to be "the record
date for the determination of shareholders entitled to receive such
distribution" within the meaning of Section 8.4(d) hereof, and (ii) a
subdivision or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective" or "the day upon which such
combination becomes effective," as the case may be.
(f) In any case in which this Section 8 shall require that an
adjustment be made immediately following a record date or an effective date, the
Corporation may elect to defer (but only until five business days following the
prompt filing by the Corporation with the conversion agent of the certificate of
independent accountants required by Section 8.4(h) hereof) issuing to the holder
of any share of Series E Preferred Stock converted after such record date or
effective date the additional shares of Common Stock or other capital stock
issuable upon such conversion over and above the shares of Common Stock or other
capital stock issuable upon such conversion on the basis of the Conversion Price
prior to adjustment, and paying to such holder any amount of cash in lieu of a
fractional share.
(g) All calculations under this Section 8 shall be made to the nearest
one cent or to the nearest 1/1,000th of a share, as the case may be. Anything in
this Section 8 to the contrary notwithstanding, the Corporation shall be
entitled to make such reduction in the Conversion Price, in addition to those
required by this Section 8, as it considers to be advisable in order that any
stock dividend, subdivision of shares, distribution of rights to purchase stock
or securities, or distribution of securities convertible into or exchangeable
for stock hereafter made by the Corporation to its shareholders shall not be
taxable to the recipients.
(h) Whenever the Conversion Price is adjusted as herein provided, (A)
the Corporation shall promptly obtain and file with the conversion agent a
certificate of a firm of independent public accountants (who may be the regular
accountants employed by the Corporation) setting forth the Conversion Price
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment and the manner of computing the same, and (B) a notice stating
that the Conversion Price has been adjusted and setting forth that the adjusted
Conversion Price shall forthwith be airmailed by the Corporation to the holders
of the Series E Preferred Stock at their addresses as shown on the stock record
books of the Corporation.
(i) In the event that at any time as a result of an adjustment made
pursuant to this Section 8, the holder of any share of Series E Preferred Stock
thereafter surrendered for conversion shall become entitled to receive any
shares of the Corporation other than shares of Common Stock, thereafter the
Conversion Price of such other shares so receivable upon conversion of any share
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Common Stock
contained in this Section 8.
(j) Anything herein to the contrary notwithstanding, in the event the
Corporation shall declare any dividend or distribution requiring an adjustment
in the Conversion Price hereunder and shall, thereafter and before the payment
of such dividend or distribution to shareholders, legally abandon its plan to
pay such dividend or distribution, the Conversion Price then in effect
hereunder, if changed to reflect such dividend or distribution, shall be changed
to the Conversion Price which would have been in effect immediately after the
date of such abandonment had such dividend or distribution never been declared.
Such change shall become effective immediately after the date of such
abandonment.
(k) No adjustment (except pursuant to Section 8.4(a)) in the Conversion
Price need be made unless the adjustment would require an increase or decrease
of at least 2% in the Conversion Price provided, however, that any adjustments
which by reason of this subsection (k) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment, and
provided further, that adjustment shall be required and made in accordance with
the provisions hereof not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of shares of
Series E Preferred Stock.
8.5 In case:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock other than a cash dividend payable in cash out
of its retained earnings for which adjustment under Section 8.4(d) is not
required; or
(ii) the Corporation shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(iii) there shall be any capital stock reorganization or
reclassification of the Common Stock (other than a subdivision or combination of
the outstanding Common Stock and other than a change in the par value of the
Common Stock), or any consolidation or merger to which the Corporation is a
party or any statutory exchange of securities with another corporation, or any
sale or transfer of all or substantially all the assets of the Corporation, in
each case which is to be effected in such a way that holders of the Common Stock
will be entitled to receive stock, securities, cash or other property with
respect to or in exchange for Common Stock; or
(iv) there shall be a voluntary dissolution, liquidation or winding up
of the Corporation;
then the Corporation shall cause to be filed with the conversion agent, and
shall cause to be airmailed to the holders of shares of the Series E Preferred
Stock at their addresses as shown on the stock record books of the Corporation,
at least 15 days (or 10 days in any case specified in clause (i) or (ii) above)
prior to the applicable record or effective date hereinafter specified, a notice
stating (A) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, is a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined, or (B) the
date on which such reorganization, reclassification, consolidation, merger,
statutory exchange, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale, transfer, dissolution, liquidation or winding up.
8.6 The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock or its issued shares of Common
Stock held in its treasury, or both, for the purpose of effecting conversions of
the Series E Preferred Stock, the full number of shares of Common Stock,
deliverable upon the conversion of all outstanding shares of Series E Preferred
Stock not theretofore converted. For purposes of this Section 8.6, the number of
shares of Common Stock which shall be deliverable upon the conversion of all
outstanding shares of Series E Preferred Stock shall be computed as if at the
time of computation all such outstanding shares were held by a single holder.
8.7 Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value (if any) of the shares of Common
Stock deliverable upon conversion of the Series E Preferred Stock, the
Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and non-assessable shares of Common Stock, at such adjusted
Conversion Price.
8.8 The Corporation shall use its best efforts to list the shares of
Common Stock required to be delivered upon conversion of the Series E Preferred
Stock prior to such delivery upon each securities exchange, if any, upon which
the outstanding Common Stock is listed at the time of such delivery.
8.9 Prior to the delivery of any securities which the Corporation shall
be obligated to deliver upon conversion of the Series E Preferred Stock, the
Corporation shall use its best efforts to comply with all Federal and state laws
and regulations thereunder requiring the registration of such securities with,
or any approval of or consent to the delivery thereof by, any governmental
authority.
8.10 The Corporation shall pay any and all documentary, stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on conversions of the Series E Preferred Stock pursuant
hereto; provided, however, that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the holder of
the Series E Preferred Stock to be converted and no such issue or delivery shall
be made unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
8.11 In case of any consolidation or merger in which the Corporation is
a party (other than a merger in which the Corporation is the continuing
corporation), or in case of any sale or conveyance to another corporation of the
property of the Corporation as an entirety or substantially as an entirely, or
in the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Corporation), in each case effected in such a way that
holders of Common Stock shall be entitled to receive stock, securities, cash or
other property with respect to or in exchange for Common Stock, the holder of
each share of Series E Preferred Stock then outstanding shall have the right
thereafter to convert such share into the kind and amount of stock, securities,
cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance by a holder of the number of shares of Common Stock
into which such share of Series E Preferred Stock might have been converted
immediately prior to such consolidation, merger, statutory exchange, sale or
conveyance, assuming such holder of Common Stock failed to exercise his rights
of election, if any, as to the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, statutory exchange, sale,
or conveyance (provided, that if the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, statutory exchange, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("non-electing share"),
then for the purpose of this Section 8.11 the kind and amount of securities,
cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance for each non-electing share shall be deemed to be
the kind and amount so receivable per share by a plurality of the non-electing
shares). Thereafter, the holders of the Series E Preferred Stock shall be
entitled to appropriate adjustments with respect to their conversion rights to
the end that the provisions set forth in this Section 8.11 shall correspondingly
be made applicable, as nearly as may reasonably be, in relation to any shares of
stock or other securities or property thereafter deliverable on the conversion
of the Series E Preferred Stock. Any such adjustment shall be approved by a firm
of independent public accountants (who may be the regular accountants employed
by the Corporation), evidenced by a certificate to that effect delivered to the
conversion agent. The foregoing provisions of this Section 8.11 shall similarly
apply to successive consolidations, mergers, statutory exchanges, sales or
conveyances.
8.12 Notwithstanding Section 8.4(c) and (d) hereof, no adjustments to
the Conversion Price by reason of any issuance or distribution or any Rights
shall be made if either (i) the Corporation had made proper provision so that
each holder of shares of Series E Preferred Stock who converts such shares into
shares of Common Stock after the record date for such distribution and prior to
the expiration or redemption of the Rights shall be entitled to receive upon
such conversion, in addition to the shares of Common Stock issuable upon such
conversion, a number of Rights to be determined as follows: (A) if such
conversion occurs on or prior to the date for the distribution to the holders of
Rights of separate certificates evidencing such Rights ("Distribution Date"),
the same number of Rights to which a holder of a number of shares of Common
Stock equal to the number of shares of Common Stock issuable upon such
conversion is entitled at the time of such conversion in accordance with the
terms and provisions of the applicable Rights; and (B) if such conversion occurs
after the Distribution Date, the same number of Rights to which a holder of the
same number of shares of Common Stock into which the shares of Series E
Preferred Stock so converted was convertible immediately prior to the
Distribution Date would have been entitled on the Distribution Date in
accordance with the terms and provisions of and applicable to the Rights or (ii)
each holder of shares of Series E Preferred Stock shall have received rights at
all times substantially equivalent to the Rights, if any, held from time to time
by a holder of the number of shares of Common Stock issuable upon conversion of
the shares of Series E Preferred Stock held by such Series E Preferred Stock
holder.
Section 9. Status Upon Conversion, Redemption or Exchange.
Upon any conversion, redemption or exchange of shares of Series E
Preferred Stock, the shares of Series E Preferred Stock so converted, redeemed
or exchanged shall have the status of authorized and unissued shares of
Preferred Stock undesignated as to series.
Section 10. General.
10.1 Certificates representing shares of the Series E Preferred Stock
shall be exchangeable, at the option of the holder, for a new certificate or
certificates of the same or different denominations representing in the
aggregate the same number of shares.
10.2 The headings of the various subdivisions of this amendment to the
Articles of Incorporation are for convenience of reference only and shall not
affect the interpretation of any of the provisions hereof.
ARTICLE II
MANNER OF ADOPTION AND VOTE
SECTION 1. Action by Directors. The Board of Directors of the
Corporation adopted the foregoing amendment to the Articles of Incorporation by
resolution duly adopted at a meeting held on June 25, 1990, at which a quorum
was present.
SECTION 2. Action by Shareholders. The foregoing amendment to the
Articles of Incorporation was duly adopted by the Board of Directors without
shareholder action. Pursuant to Sections 23-1-25-2(d) and 23-1-38-2(7) of the
Act, no shareholder action is required in connection with such amendment to the
Articles of Incorporation.
SECTION 3. Compliance with Legal Requirements. The manner of adoption
of the Articles of Amendment and the vote by which they were adopted constitute
full legal compliance with the provisions of the Act and the Articles of
Incorporation and the Bylaws of the Corporation.
I hereby state subject to the penalties of perjury, that the statements
contained herein are true this 3rd day of July, 1990.
John L. Steinkamp
Vice President
ARTICLES OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION
LINCOLN NATIONAL CORPORATION
(Filed and Approved in Indiana May 24, 1991)
The undersigned officer of LINCOLN NATIONAL CORPORATION (the "Corporation")
existing pursuant to the provisions of the Indiana Business Corporation Law, as
amended (the "Act"), desiring to give notice of corporate action effectuating
amendment of its Articles of Incorporation, certifies to the following facts:
ARTICLE I
AMENDMENT
SECTION 1. The date of Incorporation of the Corporation is January 5,
1968.
SECTION 2. The name of the Corporation is LINCOLN NATIONAL CORPORATION.
SECTION 3. The text of the amendment, which determines and sets forth
the designation and the relative rights, preferences, qualifications,
limitations and restrictions (other than voting rights) of the shares of a
series of Preferred Stock, is as follows:
Section 1. Designation.
1.1 The designation of the series of Preferred Stock, without par
value, of the Corporation created by this amendment is the "5 1/2% Cumulative
Convertible Exchangeable Preferred Stock, Series F", without par value (the
"Series F Preferred Stock").
Section 2. Authorized Number of Shares.
2.1 The number of authorized shares constituting the Series F
Preferred Stock is 2,216,454 shares.
Section 3. Dividends.
3.1 The holders of shares of Series F Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors of the Corporation
(the "Board") out of assets of the Corporation legally available therefor,
cumulative cash dividends at the annual rate of 5 1/2% of the Liquidation
Preference (specified in Section 5.1 hereof) per share, and no more, payable
quarterly on the 5th day of March, June, September and December in each year
beginning on the first quarterly dividend payment date following the first date
on which the Corporation shall issue any shares of the Series F Preferred Stock.
Dividends on the Series F Preferred Stock shall be cumulative from the first
date on which the Corporation shall issue any shares of the Series F Preferred
Stock. Dividends on the Series F Preferred Stock shall be payable to holders of
record as they appear on the stock record books of the Corporation on the
dividend payment dates, provided that the Board or any duly authorized committee
may in any case fix a record date, not more than 60 days nor less than 15 days
before the dividend payment date, in which event the dividend shall be payable
to the holders of record on such record date (whether or not such holders shall
have exercised their rights of conversation after such record date). Dividends
on the Series F Preferred Stock will be calculated on the basis of a 360-day
year of twelve 30-day months.
Holders of the Series F Preferred Stock shall not be entitled to any
interest, or sum of money in lieu of interest, in respect of any dividend
payment or payments on shares of Series F Preferred Stock which may be in
arrears.
3.2 No dividend shall be declared or paid or set apart for payment on
shares of any series of the Preferred Stock of the Corporation for any period
unless full cumulative dividends on all outstanding shares of Series F Preferred
Stock shall have been or shall contemporaneously be declared and paid or
declared and a sum sufficient for payment thereof set apart for such payment for
the current and all past dividend periods; provided, however, that there may be
declared and paid or declared and a sum sufficient for payment thereof set apart
for such payment full dividends on all outstanding shares of $3.00 Cumulative
Convertible Preferred Stock, Series A, without par value (the "Series A
Preferred Stock"), created by resolutions of the Board adopted on May 28, 1969,
which were outstanding on July 6, 1990, the first date the Corporation issued
any shares of its 5 1/2% Cumulative Convertible Exchangeable Preferred Stock,
Series E (the "Series E Preferred Stock") and dividends pro rata, as provided in
the next proviso, on all outstanding shares of Series F Preferred Stock and of
all series of Preferred Stock ranking on a parity with the Series F Preferred
Stock with respect to dividends; and provided further that dividends may be
decared and paid or declared and a sum sufficient for payment thereof set apart
for such payment pro rata on all outstanding shares of Series F Preferred Stock
and all series of Preferred Stock of the Corporation ranking on a parity with
the Series F Preferred Stock with respect to dividends so that the amount of the
dividends per share declared on the respective outstanding series of such
Preferred Stock shall bear to each other the same ratios that the amounts of
accumulated and unpaid dividends on such respective series shall bear to each
other.
3.3 No dividend (other than a dividend payable in Common Stock of the
Corporation or in any other shares of the Corporation ranking junior to the
shares of Series F Preferred Stock as to dividends and upon liquidation,
dissolution or winding up) shall be declared or paid or set apart for payment,
and no other distribution shall be declared or made, on shares of Common Stock
of the Corporation or any other shares of the Corporation ranking junior to the
Series F Preferred Stock as to dividends or upon liquidation, dissolution or
winding up, and no shares of Common Stock or Preferred Stock, other than the
Series F Preferred Stock, of the Corporation and no other shares of the
Corporation ranking junior to or on a parity with the Series F Preferred Stock
as to dividends or upon liquidation, dissolution or winding up (except the
Series E Preferred Stock) shall be redeemed, purchased or otherwise acquired for
any consideration (and no moneys shall be paid to or made available for a
sinking fund for the redemption of any such shares) by the Corporation (except
by conversion into or exchange for shares of Common Stock or other shares of the
Corporation ranking junior to the Series F Preferred Stock as to dividends and
upon liquidation, dissolution or winding up), unless, in each such case, full
cumulative cash dividends on all outstanding shares of Series F Preferred Stock
shall have been or shall contemporaneously be declared and paid or declared and
a sum sufficient for payment thereof set apart for such payment for the current
and all past dividend periods and unless, in the case of any such action after
July 6, 2002, the twelfth anniversary of the first date on which shares of
Series E Preferred Stock were issued, no shares of Series F Preferred Stock
shall be outstanding.
Section 4. Voting.
The holders of the Series F Preferred Stock shall have the voting
rights provided in Section 5 Article V of the Articles of Incorporation of the
Corporation.
Section 5. Liquidation Rights.
5.1 In the event of the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of shares of Series F
Preferred Stock then outstanding shall be entitled to receive, after payment or
provision for payment of all creditors of the Corporation, but before any
distribution or payment shall be made in respect of the Common Stock or any
other shares of the Corporation ranking junior to the Series F Preferred Stock
upon liquidation, dissolution or winding up, an amount equal to $71.604 per
share (the "Liquidation Preference"), plus an amount equal to all accumulated
and unpaid dividends thereon (whether or not earned or declared) to the
distribution or payment date, but such holders shall not be entitled
to any further participation in any distribution or payment in connection with
any such liquidation, dissolution or winding up. If, upon any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the net assets of the Corporation distributable among the holders
of all outstanding shares of Series F Preferred Stock and any other series of
Preferred Stock and of any other shares of the Corporation ranking on a parity
with the Series F Preferred Stock upon liquidation, dissolution, or winding up
shall be insufficient to permit the payment in full to all such holders of the
preferential amounts to which they are entitled, then, the net assets so
distributable shall be distributed among such holders ratably in proportion to
the full amounts to which they would otherwise be entitled.
5.2 Neither the consolidation or merger of the Corporation with or into
any other corporation or corporations, nor the sale or transfer by the
Corporation of all or any part of its assets, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this
Section 5.
Section 6. Redemption
6.1 The Corporation may at its option at any time or from time to time
redeem, in whole or in part, any share of Series F Preferred Stock that, at the
time the notice of redemption thereof is given as provided in Section 6.3
hereof, is not beneficially owned by The Dai-ichi Mutual Life Insurance Company
("Dai-ichi") or any direct or indirect successor to all or substantially all of
Dai-ichi's business or by any corporation at least 99% of whose outstanding
voting securities is at the time owned directly or indirectly by such Company or
any such successor and which agrees to be bound to the same obligations as to
which Dai-ichi is bound under that certain Investment Agreement, dated as of
June 25, 1990, at a redemption price per share, in cash, equal to the
Liquidation Preference plus an amount equal to all accumulated and unpaid
dividends thereon (whether or not earned or declared) to the redemption date.
If fewer than all of the outstanding shares of Series F Preferred Stock
that are subject to redemption pursuant to the provisions of this Section 6.1
are to be redeemed, the Board shall have complete discretion as to which of such
shares subject to redemption are to be redeemed.
6.2 On July 6, 2002, the twelfth anniversary of the first date on which
shares of Series E Preferred Stock were issued, the Corporation shall redeem
(but only out of assets of the Corporation legally available therefor and
subject to any applicable redemption or dividend limitations set forth in
Section 2.3 of the terms of the Series A Preferred Stock and Section 3(d) of the
terms of the Series B Preferred Stock, the Series C Preferred Stock and the
Series D Preferred Stock as such terms were in effect on July 3, 1990, the date
the amendment to the Articles of Incorporation creating the Series E Preferred
Stock was filed with the Indiana Secretary of State, Section 9.3 of the Purchase
Agreement, dated as of July 13, 1979, for the purchase of the Company's 9-3/4%
Subordinated Notes due 1994, Section 8.6 of the $300,000,000 Revolving Credit
Agreement, dated as of July 14, 1987, among the Company, Swiss Bank Corporation
International Limited, Swiss Bank Corporation, New York Branch, and several
financial institutions and Section 5.06 of the $200,000,000 Revolving Credit
Agreement, dated as of July 28, 1987, among the Company, certain financial
institutions and Morgan Guaranty Trust Company of New York) all shares of Series
F Preferred Stock then outstanding, at a redemption price per share, in cash,
equal to the Liquidation Preference per share plus an amount equal to all
accumulated and unpaid dividends thereon (whether or not earned or declared) to
the redemption date, provided, however, that this Section 6.2 shall not apply to
any shares in exchange for which the Corporation shall on such date issue other
securities pursuant to and in accordance with the provisions of Section 7
hereof. In the event that on July 6, 2002 the Corporation shall be unable, by
reason of an insufficiency of assets legally available therefor or by reason of
the redemption and dividend limitations referred to above, to redeem all of the
outstanding shares of Series F Preferred Stock, the Corporation shall redeem on
July 6, 2002 under this Section 6.2 such number of shares as it shall be able to
redeem, pro rata as nearly as practicable (without redemption of fractions of
shares) in proportion to the respective numbers of shares held by each holder,
and thereafter, if and to the extent assets shall at any time or from time to
time become legally available therefor and such redemption and dividend
limitations shall permit, the Corporation shall as promptly as practicable
redeem shares of Series F Preferred Stock, pro rata as provided above, at such
redemption price, plus an amount equal to accumulated and unpaid dividends
thereon (whether or not earned or declared) to the redemption date.
6.3 In the event the Corporation shall elect or be obligated to redeem
shares of Series F Preferred Stock, notice of such redemption shall be given by
airmail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same shall appear on the stock record books of the
Corporation. Each such notice shall state: (1) the redemption date; (2) the
number of shares of Series F Preferred Stock to be redeemed and, if fewer than
all the shares held by the holder are to be redeemed, the number of such
holder's shares to be redeemed; (3) the redemption price; (4) the place or
places in the States of Indiana or New York where certificates for such shares
are to be surrendered for payment of the redemption price; (5) that dividends on
the shares to be redeemed will cease to accumulate on the redemption date
specified in the notice; (6) the provision of this amendment to Articles of
Incorporation authorizing or requiring such redemptions; and (7) the then
effective Conversion Price (as defined in Section 8.1 hereof), that until the
close of business on the redemption date the holders may exercise their right to
convert shares of Series F Preferred Stock being redeemed and that such right
will terminate at the close of business on the redemption date.
6.4 From and after the redemption date specified in any such notice of
redemption, unless default shall be made by the Corporation in providing monies
at the time and place specified for payment of the redemption price pursuant to
such notice, all dividends on the shares of Series F Preferred Stock thereby
called for redemption shall cease to accumulate and all rights of the holders
thereof as such holders, except the right to receive the redemption price upon
surrender, shall cease and terminate.
6.5 The Corporation may, however, at any time prior to the redemption
date specified in a duly given notice of redemption but after such notice of
redemption shall have been mailed as aforesaid, deposit in trust for the benefit
of the holders of the Series F Preferred Stock to be redeemed, with a bank or
trust company in good standing organized under the laws of the United States of
America or of the State of New York, or of the State of Indiana, doing business
in the Borough of Manhattan, City of New York, or in the State of Indiana,
having capital, surplus and undivided profits aggregating at least $50,000,000
designated in such notice of redemption, an amount in cash equal to the
redemption prices of all such shares so called for redemption under arrangements
providing irrevocably for payment to such holders, and thereupon, whether or not
certificates for the shares so called for redemption shall have been surrendered
for cancellation (if such notice shall state that holders of the shares so
called for redemption may receive their redemption price at any time after such
deposit), all shares with respect to which such deposit shall have been made
shall be deemed to be no longer outstanding, dividends thereon for any period
after the date so fixed for redemption shall cease to accumulate and all rights
with respect to such shares shall forthwith upon such deposit in trust cease and
terminate except only (a) the rights of the holders thereof to receive from such
bank or trust company, at any time after the time of such deposit, the
redemption price of such shares to be redeemed, or (b) the right to exercise, on
or before the close of business on the date fixed for redemption, the privileges
of conversion. Any moneys so deposited by the Corporation which shall not be
required for such redemption because of the exercise of any such right of
conversion, shall be repaid to the Corporation forthwith. Any moneys so
deposited by the Corporation and unclaimed at the end of six years from the date
fixed for such redemption shall be repaid to the Corporation upon its request
expressed in a resolution of its Board of Directors, after which repayment the
holders of the shares so called for redemption shall look only to the
Corporation for the payment thereof.
6.6 Nothing in this Section 6 shall limit any legal right of the
Corporation to purchase or otherwise acquire any shares of the Series F
Preferred Stock at not exceeding the price at which the same may be redeemed at
the option of the Corporation.
Section 7. Exchange.
7.1 On July 6, 2002, the twelfth anniversary of the first date on which
shares of Series E Preferred Stock were issued, the Corporation may, at its
option, with respect to any shares of Series F Preferred Stock then outstanding,
other than any for which notice of redemption shall have previously been given,
issue in exchange therefore either:
(1) a whole number of shares of a series of nonconvertible Preferred
Stock of the Corporation, or
(2) a whole number of shares of Common Stock of the Corporation,
or any combination of shares described in the foregoing clauses (1) and (2) (and
cash in lieu of fractional interests, if any), provided that the shares so
issued shall (a) have on the date of issue an aggregate fair market value, as
determined by an Independent Financial Firm (as defined hereinafter in this
Section 7.1) selected by the Board, equal to the aggregate Liquidation
Preference of the shares of Series F Preferred Stock for which such shares are
to be issued in exchange, plus an amount equal to accumulated and unpaid
dividends on such shares of Series F Preferred Stock (whether or not earned or
declared) to the exchange date; (b) be free of any transfer restriction and, if
and to the extent necessary for public offering and sale, registered or
qualified under the Federal Securities Act of 1933, as amended, or any successor
statute, and under such State securities laws as any holder may reasonably
request (provided, that in connection with qualification under State securities
laws the Corporation shall not be obligated to qualify to do business in any
jurisdiction when it is not so qualified or to take any action that would
subject it to taxation or general service of process in any State where it is
not otherwise subject to taxation or general service of process); and (c) in the
case of Common Stock, listed on each securities exchange, if any, upon which
outstanding Common Stock is listed at the time of the exchange. The term
"Independent Financial Firm," as of any time, shall mean an internationally
recognized investment banking or investment advisory firm which does not at such
time have a direct or indirect material interest in, or other direct or indirect
material relationship with, the Corporation or any of its subsidiaries or
affiliates.
7.2 In the event the Corporation shall elect to issue shares in
exchange pursuant to Section 7.1 hereof, notice of such exchange shall be given
by airmail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the exchange date, to each holder of record of the shares of Series F
Preferred Stock to be exchanged, at such holder's address as the same shall
appear on the stock record books of the Corporation. Each such notice shall
state: (1) the exchange date; (2) the number and terms of the shares to be
issued in exchange for shares held by such holder; (3) the identity of the
Independent Financial Firm selected by the Board to determine fair market value
as provided in Section 7.1 hereof; (4) the place or places in the State of
Indiana or New York where certificates for the shares of Series F Preferred
Stock to be exchanged are to be surrendered for the shares to be issued in
exchange therefore; (5) that dividends on the shares of Series F Preferred Stock
to be exchanged will cease to accumulate on the exchange date; (6) the then
effective Conversion Price (as defined in Section 8.1 hereof), that until the
close of business on the exchange date the holders may exercise their right to
convert shares of Series F Preferred Stock being exchanged and that such right
shall terminate at the close of business on the exchange date.
7.3 From and after the exchange date specified on any such notice of
exchange, unless default shall be made by the Corporation in issuing the shares
to be issued in the exchange, all dividends on the shares of Series F Preferred
Stock to be exchanged as specified in the notice shall cease to accumulate and
all rights of the holders thereof as such holders, except the right to receive
the shares to be issued in the exchange, shall cease and terminate and the
person or persons entitled to the shares to be issued in the exchange shall be
treated for all purposes as the registered holder of the shares to be issued.
Section 8. Conversion.
8.1 Subject to and upon compliance with the provisions of this Section
8, the holder of each share of Series F Preferred Stock shall have the right, at
the holder's option, at any time (except that, if such share is called for
redemption or exchange, not after the close of business on the date fixed for
such redemption or exchange, unless default shall be made in the payment of the
redemption price or the issuance of shares in the exchange) to convert such
share into that number of fully paid and nonassessable shares of Common Stock
(calculated as to each conversion to the nearest 1/1,000th of a share) obtained
by dividing the Liquidation Preference of such share being converted by the
Conversion Price (as defined below) and by surrender of such share so to be
converted, such surrender to be made in the manner provided in Section 8.2.
For the purposes of this Section 8, the term "Common Stock" shall
include any stock of any class of the Corporation which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and which
is not subject to redemption by the Corporation. However, shares issuable on
conversion of shares of Series F Preferred Stock shall include only shares of
the class designated as Common Stock of the Corporation as of the date of this
amendment to the Articles of Incorporation creating the Series F Preferred
Stock, or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation and which are not subject to
redemption by the Corporation; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then so issuable
upon conversion shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
The term "Conversion Price" shall mean the Initial Conversion Price, as
adjusted in accordance with the provisions of this Section 8. The term "Initial
Conversion Price" shall mean an amount equal to the Liquidation Preference. On
July 6, 1995, the fifth anniversary of the first date on which shares of Series
E Preferred Stock were issued, the Conversion Price then in effect for the
Series F Preferred Stock shall be increased by 4-1/6% and on July 6, 1998, the
eighth anniversary of such first date, the Conversion Price then in effect for
the Series F Preferred Stock shall be increased by 4%.
8.2 In order to exercise the conversion privilege, the holder of each
share of Series F Preferred Stock to be converted shall surrender the
certificate representing such share at the office of the conversion agent for
the Series F Preferred Stock in the Borough of Manhattan, City of New York,
appointed for such purpose by the Corporation or, if no conversion agent has
been appointed, to the Corporation at its offices at 1300 South Clinton Street,
Fort Wayne, Indiana 46801, Attention: Treasurer (such conversion agent or
Corporation, as the case may be, referred to herein as the "conversion agent"),
with the Notice of Election to Convert on the back of said certificate completed
and signed. Such notice shall be substantially in the following form:
"NOTICE OF ELECTION TO CONVERT
The undersigned, being a holder of the 5 1/2% Cumulative Convertible
Exchangeable Preferred Stock, Series F (the "Series F Preferred Stock") of the
Lincoln National Corporation, irrevocably exercises the right to convert
outstanding shares of Series F Preferred Stock on , into shares of Common Stock
of Lincoln National Corporation in accordance with the terms of the Series F
Preferred Stock, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares, be issued
and delivered in the denominations indicated below to the registered holder
hereof unless a different name has been indicated below. If shares are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto.
Dated:
Fill in for registration of shares of Common Stock if to be issued otherwise
than to the registered holder:
If fractional interests:
Name
TaxID#
Address
Please print name and address, including (Signature)
postal code number)
Denominations:
Unless the shares issuable on conversion are to be issued in the same name as
the name in which such share of Series F Preferred Stock is registered, each
share surrendered for conversion shall be accompa- nied by instruments of
transfer, in form satisfactory to the Corporation, duly executed by the holder
or his duly authorized attorney and an amount sufficient to pay any transfer or
similar tax. A payment shall be made on conversion for dividends accumulated on
the Series F Preferred Stock surrendered for conversion but not for dividends on
Common Stock delivered on such conversion. As promptly as practicable after the
surrender of the certificates for shares of Series F Preferred Stock as
aforesaid, the Corporation shall issue and shall deliver at such office to such
holder, or on his written order, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such shares in
accordance with the provisions of this Section 8, and any fractional interest in
respect of a share of Common Stock arising upon such conversion shall be settled
as provided in Section 8.3 hereof.
Each conversion shall be deemed to have been effected immediately prior
to the close of business on the date on which the certificates for shares of
Series F Preferred Stock shall have been surrendered and such notice received by
the Corporation as aforesaid, and the person or persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby at such time on such date and such
conversion shall be at the Conversion Price in effect at such time on such date.
All shares of Common Stock delivered upon conversion of the Series F Preferred
Stock shall upon delivery be duly and validly issued and fully paid and
non-assessable, free of all liens and charges and not subject to any preemptive
rights.
8.3 No fractional shares or scrip representing fractions of shares of
Common Stock shall be issued
upon conversion of shares of Series F Preferred Stock. Instead of any fractional
interest in a share of Common Stock which would otherwise be deliverable upon
the conversion of a share of Series F Preferred Stock, the Corporation shall pay
to the holder of such share an amount in cash (computed to the nearest one cent)
equal to the Average Market Price of the Common Stock at the close of business
on the business day next preceding the day of conversion. If more than one share
shall be surrendered for conversion at one time by the same holder, the number
of full shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate Conversion Price of the shares of Series
F Preferred Stock so surrendered.
The term "Average Market Price" of any security on any date means the
average of the daily closing prices of such security for a period of five
consecutive trading days within 10 trading days immediately preceding the day in
question, which five consecutive trading days are selected by the Corporation
provided, however, that if the "ex" date for any event (other than the event
requiring such computation) that requires an adjustment pursuant to Section 8.4
occurs during the 10-day trading period in question and prior to the "ex" date
for the event requiring computation, the closing price for each trading day
prior to the "ex" date for such other event shall be adjusted by multiplying
such closing price by the same fraction by which the Conversion Price is
required to be adjusted pursuant to Section 8.4 as a result of such other event
(and in the case of Section 8.4(a) the fraction that would result in the
adjustment provided for therein). The closing price for each day shall be the
last reported sales price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange or, if such security
is not listed or admitted to trading on such Exchange, on the principal national
securities exchange on which such security is listed or admitted to trading or,
if not listed or admitted to trading on any national securities exchange, on the
National Association of Securities Dealers Automated Quotations National Market
System or, if such security is not listed or admitted to trading on any national
securities exchange or quoted on such National Market System, the average of the
closing bid and asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected from time to time by the issuer of
such security for that purpose. For the purposes of this definition, the term
"trading day" means each Monday, Tuesday, Wednesday, Thursday and Friday, other
than any day on which such security is not traded on such exchange or in such
market. For the purposes of this definition, the term " `ex' date," (i) when
used with respect to any issuance or distribution, means the first date on which
the Common Stock trades regular way on the relevant exchange or in the relevant
market from which the closing price was obtained without the right to receive
such issuance or distribution and (ii) when used with respect to any subdivision
or combination of shares of Common Stock, means the first date on which the
Common Stock trades regular way on such exchange or in such market after the
time at which such subdivision or combination becomes effective.
8.4 In addition to the increases in the Conversion Price set forth in
Section 8.1 hereof, the Conversion Price shall be adjusted from time to time as
follows:
(a) In case the Corporation shall hereafter (i) pay a dividend or make
a distribution on the Common Stock in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock into a greater number of shares, or
(iii) combine its outstanding shares of Common Stock into a smaller number of
shares, the Conversion Price in effect immediately prior to such action shall
be adjusted so that the holder of any share of Series F Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the number
of shares of Common Stock which he would have been entitled to receive
immediately following such action had such share been converted immediately
prior thereto. An adjustment made pursuant to this Section 8.4(a) shall become
effective immediately after the record date, in the case of a dividend or
distribution, or immediately after the effective date, in the case of a
subdivision or combination.
(b) In case the Corporation shall hereafter pay or make a dividend or
other distribution in shares of Common Stock on any class of capital stock of
the Corporation other than the Common Stock, the Conversion Price in effect
immediately after the record date mentioned in the next sentence shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the record date mentioned in
the next sentence by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the record date
mentioned in the next sentence and the denominator shall be the sum of such
number of shares and the total number of shares constituting such dividend or
other distribution. Such reduction shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
dividend or other distribution. For the purposes of this Section 8.4(b), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Corporation but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares
of Common Stock. The Corporation shall not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Corporation.
(c) In case the Corporation shall hereafter issue rights or warrants
to holders of its outstanding shares of Common Stock generally entitling them
to subscribe for or purchase shares of Common Stock at a price per share less
than the Average Market Price of the Common Stock (as defined in Section 8.3
hereof) on the record date mentioned in the next sentence (other than pursuant
to an automatic dividend reinvestment plan of the Corporation or any
substantially similar plan), the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the record date mentioned in the next sentence by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the record date mentioned in the next
sentence plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would purchase
at such Average Market Price, and of which the denominator shall be the number
of shares of Common Stock outstanding at the close of business on the record
date mentioned in the next sentence plus the number of shares of Common Stock
so offered for subscription or purchase. Such reduction shall become effective
immediately after the record date for the determination of shareholders
entitled to receive such rights or warrants. For the purposes of this Section
8.4(c), the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Corporation but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares
of Common Stock. Rights or warrants issued or distributed by the Company to all
holders of its Common Stock entitling the holders thereof to subscribe for or
purchase shares of Common Stock, which rights or warrants (x) are deemed to be
transferred with such shares of Common Stock, (y) are not exercisable and (z)
are issued also in respect of future issuances of Common Stock, in each case in
clauses (x) through (z) until the occurrence of a specified event or events
("Trigger Event"), shall for purposes of this Section 8.4 not be deemed issued
or distributed until the occurrence of the earliest Trigger Event. Such rights
or warrants are referred to herein as "Rights".
(d) In case the Corporation shall, by dividend or otherwise, hereafter
distribute to holders of its outstanding shares of Common Stock generally
evidences of its indebtedness, any securities of the Corporation, any rights or
warrants to subscribe to securities of the Corporation, cash or assets
(excluding (i) any cash dividend paid from retained earnings of the Corporation
to the extent such dividends in any calendar year do not in the aggregate exceed
150% of the aggregate regular periodic cash dividends actually paid in the prior
calendar year, (ii) dividends or distributions payable in stock for which
adjustment is made pursuant to Section 8.4(a) or 8.4(b) hereof, (iii) rights or
warrants to subscribe to Common Stock for which adjustment is made pursuant to
Section 8.4(c) hereof, and (iv) pursuant to a consolidation, merger, statutory
exchange, sale or conveyance for which adjustment is made pursuant to Section
8.11 hereof), then in each such case of Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the record date mentioned in the next
sentence by a fraction (not equal to or less than zero) or which the numerator
shall be the Average Market Price of the Common Stock (as defined in Section 8.3
hereof) on the record date mentioned in the next sentence less the then fair
market value (as determined by the Board and Dai-ichi (or any direct or indirect
successor to all or substantially all of such Company's business) jointly (if
such Company or successor or any corporation at least 99% of whose outstanding
voting securities at the time outstanding is owned by such Company or successor
shall be a holder of any of the Series F Preferred Stock) or an internationally
recognized investment banking firm selected by them if they are unable to reach
agreement, or the Board in its reasonable discretion whose determination will be
conclusive and evidenced by a board resolution filed with the conversion agent
(if none of the foregoing shall be a holder of Series F Preferred Stock)) of the
portion of the evidences of indebtedness, securities, rights or warrants, cash
or assets so distributed to the holder of one share of Common Stock, and of
which the denominator shall be such Average Market Price of the Common Stock.
Such adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive such distribution. Such
determination of fair market value shall be set forth in a statement filed with
the conversion agent by the Corporation as soon as practicable.
(e) The reclassification (including any reclassification upon a merger
in which the Corporation is the continuing corporation but excluding a
reclassification upon a consolidation, merger, statutory exchange, sale or
conveyance as to which Section 8.11 applies) of Common Stock into securities
including other than Common Stock shall be deemed to involve (i) a distribution
of such securities other than Common Stock to all holders of Common Stock and
the effective date of such reclassification shall be deemed to be "the record
date for the determination of shareholders entitled to receive such
distribution" within the meaning of Section 8.4(d) hereof, and (ii) a
subdivision or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification into the
number of Common Stock outstanding immediately thereafter and the effective date
of such reclassification shall be deemed to be "the day upon which such
subdivision becomes effective "or" the day upon which such combination becomes
effective," as the case may be.
(f) In any case in which this Section 8 shall require that an
adjustment be made immediately following a record date or an effective date, the
Corporation may elect to defer (but only until five business days following the
prompt filing by the Corporation with the conversion agent of the certificate of
independent accountants required by Section 8.4(h) hereof) issuing to the holder
of any share of Series F Preferred Stock converted after such record date or
effective date the additional shares of Common Stock or other capital stock
issuable upon such conversion over and above the shares of Common Stock or other
capital stock issuable upon such conversion on the basis of the Conversion Price
prior to adjustment, and paying to such holder any amount of cash in lieu of a
fractional share.
(g) All calculations under this Section 8 shall be made to the nearest
one cent or to the nearest 1/1,000th of a share, as the case may be. Anything in
this Section 8 to the contrary notwithstanding, the Corporation shall be
entitled to make such reduction in the Conversion Price, in addition to those
required by this Section 8, as it considers to be advisable in order that any
stock dividend, subdivision of shares, distribution of rights to purchase stock
or securities, or distribution of securities convertible into or exchangeable
for stock hereafter made by the Corporation to its shareholders shall not be
taxable to the recipients.
(h) Whenever the Conversion Price is adjusted as herein provided, (A)
the Corporation shall promptly obtain and file with the conversion agent a
certificate of a firm of independent public accountants (who may be the regular
accountants employed by the Corporation) setting forth the Conversion Price
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment and the manner of computing the same, and (B) a notice stating
that the Conversion Price has been adjusted and setting forth that the adjusted
Conversion Price shall forthwith be airmailed by the Corporation to the holders
of the Series F Preferred Stock at their addresses as shown on the stock record
books of the Corporation.
(i) In the event that at any time as a result of an adjustment made
pursuant to this Section 8, the holder of any share of Series F Preferred Stock
thereafter surrendered for conversion shall become entitled to receive any
shares of the Corporation other than shares of Common Stock, thereafter the
Conversion Price of such other shares so receivable upon conversion of any share
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Common Stock
contained in this Section 8.
(j) Anything herein to the contrary notwithstanding, in the event the
Corporation shall declare any dividend or distribution requiring an adjustment
in the Conversion Price hereunder and shall, thereafter and before the payment
of such dividend or distribution to shareholders, legally abandon its plan to
pay such dividend or distribution, the Conversion Price then in effect
hereunder, if changed to reflect such dividend or distribution, shall be changed
to the Conversion Price which would have been in effect immediately after the
date of such abandonment had such dividend or distribution never been declared.
Such changes shall become effective immediately after the date of such
abandonment.
(k) No adjustment (except pursuant to Section 8.4(a)) in the Conversion
Price need be made unless the adjustment would require an increase or decrease
of at least 2% in the Conversion Price provided, how-ever, that any adjustments
which by reason of this subsection (k) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment, and
provided further, that adjustment shall be required and made in accordance with
the provision hereof not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of shares of
Series F Preferred Stock.
8.5 In case:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock other than a cash dividend payable in cash out
of its retained earnings for which adjustment under Section 8.4(d) is not
required; or
(ii) the Corporation shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(iii) there shall be any capital stock reorganization or
reclassification of the Common Stock (other than a subdivision or combination of
the outstanding Common Stock and other than a change in the par value of the
Common Stock), or any consolidation or merger to which the Corporation is a
party or any statutory exchange of securities with another corporation, or any
sale or transfer of all or substantially all the assets of the Corporation, in
each case which is to be effected in such a way that holders of the Common Stock
will be entitled to receive stock, securities, cash or other property with
respect to or in exchange for Common Stock; or
(iv) there shall be a voluntary dissolution, liquidation or winding up
of the Corporation;
then the Corporation shall cause to be filed with the conversion agent, and
shall cause to be air mailed to the holders of shares of the Series F Preferred
Stock at their addresses as shown on the stock record books of the Corporation,
at least 15 days (or 10 days in any case specified in clause (i) or (ii) above)
prior to the applicable record or effective date hereinafter specified, a notice
stating (A) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined, or (B) the
date on which such reorganization, reclassification, consolidation, merger,
statutory exchange, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, statutory exchange,
sales, transfer, dissolution, liquidation or winding up.
8.6 The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock or its issued shares of Common
Stock held in its treasury, or both, for the purpose of effecting conversions of
the Series F Preferred Stock, the full number of shares of Common Stock,
deliverable upon the conversion of all outstanding shares of Series F Preferred
Stock not theretofore converted. For purposes of this Section 8.6, the number of
shares of Common Stock which shall be deliverable upon the conversion of all
outstanding shares of Series F Preferred Stock shall be computed as if at the
time of computation all such outstanding shares were held by a single holder.
8.7 Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value (if any) of the shares of Common
Stock deliverable upon conversion of the Series F Preferred Stock, the
Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and non-assessable shares of Common Stock, at such adjusted
Conversion Price.
8.8 The Corporation shall use its best efforts to list the shares of
Common Stock required to be delivered upon conversion of the Series F Preferred
Stock prior to such delivery upon each securities exchange, if any, upon which
the outstanding Common Stock is listed at the time of such delivery.
8.9 Prior to the delivery of any securities which the Corporation shall
be obligated to deliver upon conversion of the Series F Preferred Stock, the
Corporation shall use its best efforts to comply with all Federal and state laws
and regulations thereunder requiring the registration of such securities with,
or any approval of or consent to the delivery thereof by, any governmental
authority.
8.10 The Corporation shall pay any and all documentary, stamp or
similar issues or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on conversions of the Series F Preferred Stock pursuant
hereto; provided, however, that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the holder of
the Series F Preferred Stock to be converted and no such issue or delivery shall
be made unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
8.11 In case of any consolidation or merger in which the Corporation is
a party (other than a mer- ger in which the Corporation is the continuing
corporation), or in case of any sale or conveyance to another corporation of the
property of the Corporation as an entirety or substantially as an entirety, or
in the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Corporation), in each case effected in such a way that
holders of Common Stock shall be entitled to receive stock, securities, cash or
other property with respect to or in exchange for Common Stock, the holder of
each share of Series F Preferred Stock then outstanding shall have the right
thereafter to convert such share into the kind and amount of stock, securities,
cash or other property receivable upon such consolidation, merger, statutory
exchange, sales or conveyance by a holder of the number of shares of Common
Stock into which such share of Series F Preferred Stock might have been
converted immediately prior to such consolidation, merger, statutory exchange,
sales or conveyance, assuming such holder of Common Stock failed to exercise his
rights of election, if any, as to the kind or amount of securities, cash or
other property receivable upon such consolidation, merger, statutory exchange,
sale or conveyance (provided, that if the kind or amount of securities, cash or
other property receivable upon such consolidation, merger, statutory exchange,
sale or conveyance is not the same for each share of Common Stock in respect of
which such rights of election shall not have been exercised ("non-electing
share"), then for the purpose of this Section 8.11 the kind and amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or conveyance for each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Thereafter, the holders of the Series F Preferred Stock
shall be entitled to appropriate adjustments with respect to their conversion
rights to the end that the provisions set forth in this Section 8.11 shall
correspondingly be made applicable, as nearly as may reasonably be, in relation
to any shares of stock or other securities or property thereafter deliverable on
the conversion of the Series F Preferred Stock. Any such adjustment shall be
approved by a firm of independent public accountants (who may be the regular
accountants employed by the Corporation), evidenced by a certificate to that
effect delivered to the conversion agent. The foregoing provisions of this
Section 8.11 shall similarly apply to successive consolidations, mergers,
statutory exchanges, sales or conveyances.
8.12 Notwithstanding Sections 8.4(c) and (d) hereof, no adjustment to
the Conversion Price by reason of any issuance or distribution of any Rights
shall be made if either (i) the Corporation had made proper provision so that
each holder of shares of Series F Preferred Stock who converts such shares into
shares of Common Stock after the record date for such distribution and prior to
the expiration or redemption of the Rights shall be entitled to receive upon
such conversion, in addition to the shares of Common Stock issuable upon such
conversion, a number of Rights to be determined as follows: (A) if such
conversion occurs on or prior to the date for the distribution to the holders of
Rights of separate certificates evidencing such Rights ("Distribution Date"),
the same number of Rights to which a holder of a number of shares of Common
Stock equal to the number of shares of Common Stock issuable upon such
conversion is entitled at the time of such conversion in accordance with the
terms and provisions of the applicable Rights; and (B) if such conversion occurs
after the Distribution Date, the same number of Rights to which a holder of the
same number of shares of Common Stock into which the shares of Series F
Preferred Stock so converted was convertible immediately prior to the
Distribution Date would have been entitled on the Distribution Date in
accordance with the terms and provisions of and applicable to the Rights or (ii)
each holder of shares of Series F Preferred Stock shall have received rights at
all times substantially equivalent to the Rights, if any, held from time to time
by a holder of the number of shares of Common Stock issuable upon conversion of
the shares of Series F Preferred Stock held by such Series F Preferred Stock
holder.
Section 9. Status Upon Conversion, Redemption or Exchange
Upon any conversion, redemption or exchange of shares of Series F
Preferred Stock, the shares of Series F Preferred Stock so converted, redeemed
or exchanged shall have the status of authorized and unissued shares of
Preferred Stock undesignated as to series.
Section 10. General.
10.1 Certificates representing shares of the Series F Preferred Stock
shall be exchangeable, at the option of the holder, for a new certificate or
certificates of the same or different denominations representing in the
aggregate the same number of shares.
10.2 The headings of the various subdivisions of this amendment to the
Articles of Incorporation are for convenience of reference only shall not affect
the interpretation of any of the provisions hereof.
ARTICLE II
MANNER OF ADOPTION AND VOTE
SECTION 1. Action by Directors. The Board of Directors of the
Corporation adopted the foregoing amendment to the Articles of Incorporation by
resolution duly adopted at a meeting held on June 25, 1990, at which a quorum
was present.
SECTION 2. Action by Shareholders. The foregoing amendment to the
Articles of Incorporation was duly adopted by the Board of Directors without
shareholder action. Pursuant to Sections 23-1-25-2(d) and 23-1-38-2(7) of the
Act, no shareholder action is required in connection with such amendment to the
Articles of Incorporation.
SECTION 3. Compliance with Legal Requirements. The manner of adoption
of the Articles of Amendment and the vote by which they were adopted constitute
full legal compliance with the provisions of the Act and the Articles of
Incorporation and the Bylaws of the Corporation.
I hereby state subject to the penalties of perjury, that the statements
contained herein are true this 20 day of May, 1991.
John L. Steinkamp
Vice President