EXHIBIT 4.1
RESTATED ARTICLES OF INCORPORATION
OF
CTB INTERNATIONAL CORP.
(FORMERLY KNOWN AS CTB INDIANA CORP.)
CTB Indiana Corp., an Indiana corporation (the "Corporation"),
and the survivor of a merger with CTB International Corp., a
Delaware corporation, effected pursuant to a Plan and Agreement of
Merger dated September 21, 1999, desiring to amend and restate its
Articles of Incorporation pursuant to the Indiana Business
Corporation Law (the "Corporation Law") and to change its name,
submits the following Restated Articles of Incorporation:
ARTICLE I
NAME
The name of the Corporation is CTB International Corp.
ARTICLE II
PURPOSE AND POWERS
SECTION 2.1. PURPOSE OF THE CORPORATION. The purpose for
which the Corporation is formed is to engage in the transaction of
any or all lawful business for which corporations may now or
hereafter be incorporated under the Corporation Law.
SECTION 2.2. POWERS OF THE CORPORATION. The Corporation shall
have (a) all powers now or hereafter authorized by or vested in
corporations pursuant to the provisions of the Corporation Law, (b)
all powers now or hereafter vested in corporations by common law or
any other statute or act and (c) all powers authorized by or vested
in the Corporation by the provisions of these Restated Articles of
Incorporation or by the provisions of its By-Laws as from time to
time in effect.
ARTICLE III
TERM OF EXISTENCE
The period during which the Corporation shall continue is
perpetual.
ARTICLE IV
REGISTERED OFFICE AND AGENT
The street address of the Corporation's registered office at
the time of adoption of these Restated Articles of Incorporation is
State Road 15 North, Milford, Indiana 46542-2000, and the name of
its Resident Agent at such office at the time of adoption of these
Restated Articles of Incorporation is Michael J. Kissane.
ARTICLE V
AUTHORIZED SHARES
SECTION 5.1. AUTHORIZED CLASSES AND NUMBER OF SHARES. The
total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 44,000,000 shares, of
which 40,000,000 shares shall be common stock, par value $0.01 per
share ("Common Stock"), and 4,000,000 shares shall be preferred
stock, par value $0.01 per share ("Preferred Stock").
SECTION 5.2. GENERAL TERMS OF ALL SHARES. The Corporation
shall have the power to acquire (by purchase, redemption or
otherwise), hold, own, pledge, sell, transfer, assign, reissue,
cancel or otherwise dispose of the shares of the Corporation in the
manner and to the extent now or hereafter permitted by the laws of
the State of Indiana (but such power shall not imply an obligation
on the part of the owner or holder of any share to sell or otherwise
transfer such share to the Corporation), including the power to
purchase, redeem or otherwise acquire the Corporation's own shares,
directly or indirectly, and without pro rata treatment of the owners
or holders of any class or series of shares, unless, after giving
effect thereto, the Corporation would not be able to pay its debts
as they become due in the usual course of business or the
Corporation's total assets would be less than its total liabilities
(calculated without regard to any amounts that would be needed, if
the Corporation were to be dissolved at the time of the purchase,
redemption or other acquisition, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are
superior to those of the holders of the shares of the Corporation
being purchased, redeemed or otherwise acquired, unless otherwise
expressly provided with respect to a series of Preferred Stock in
the provisions of these Restated Articles of Incorporation
describing the terms of such series). Shares of the Corporation
purchased, redeemed or otherwise acquired by it shall constitute
authorized but unissued shares, unless prior to any such purchase,
redemption or other acquisition, or within thirty (30) days
thereafter, the Board of Directors adopts a resolution providing
that such shares constitute authorized and issued but not
outstanding shares.
The Board of Directors of the Corporation may dispose of, issue
and sell shares in accordance with, and in such amounts as may be
permitted by, the laws of the State of Indiana and the provisions of
these Restated Articles of Incorporation and for such consideration,
at such price or prices, at such time or times and upon such terms
and conditions (including the privilege of selectively repurchasing
the same) as the Board of Directors of the Corporation shall
determine, without the authorization or approval by any shareholders
of the Corporation. Shares may be disposed of, issued and sold to
such persons, firms or entities as the Board of Directors may
determine, without any preemptive or other right on the part of the
owners or holders of other shares of the Corporation of any class or
kind to acquire such shares by reason of their ownership of such
other shares.
When the Corporation receives the consideration specified in a
subscription agreement entered into before incorporation, or for
which the Board of Directors authorized the issuance of shares, as
the case may be, the shares issued therefor shall be fully paid and
nonassessable.
The Corporation shall have the power to declare and pay
dividends or other distributions upon the issued and outstanding
shares of the Corporation, subject to the limitation that a dividend
or other distribution may not be made if, after giving it effect,
the Corporation would not be able to pay its debts as they become
due in the usual course of business or the Corporation's total
assets would be less than its total liabilities (calculated without
regard to any amounts that would be needed, if the Corporation were
to be dissolved at the time of the dividend or other distribution,
to satisfy the preferential rights upon dissolution of shareholders
whose preferential rights are superior to those of the holders of
shares receiving the dividend or other distribution, unless
otherwise expressly provided with respect to a series of Preferred
Stock in the provisions of these Restated Articles of Incorporation
describing the terms of such series). The Corporation shall have
the power to issue shares of one class or series as a share dividend
or other distribution in respect of that class or series or one or
more other classes or series.
SECTION 5.3. VOTING RIGHTS OF SHARES.
(a) COMMON STOCK. Except as otherwise provided by the
Corporation Law and subject to such shareholder disclosure and
recognition procedures (which may include voting prohibition
sanctions) as the Corporation may by action of its Board of
Directors establish, the Common Stock has unlimited voting rights
and, when validly issued by the Corporation, each outstanding share
of Common Stock shall entitle the record holder thereof to one vote
at all shareholders' meetings on all matters submitted to a vote of
the shareholders of the Corporation.
(b) PREFERRED STOCK. Except as required by the Corporation
Law or by the provisions of these Restated Articles of Incorporation
describing the terms of the Preferred Stock or a series thereof, the
holders of Preferred Stock shall have no voting rights or powers.
When validly issued by the Corporation, shares of Preferred Stock
shall entitle the record holder thereof to vote as and on such
matters, but only as and on such matters, as the holders thereof are
entitled to vote under the Corporation Law or under the provisions
of these Restated Articles of Incorporation describing the terms of
the Preferred Stock or a series thereof (which provisions may
provide for special, conditional, limited or unlimited voting
rights, including multiple or fractional votes per share, or for no
right to vote, except to the extent required by the Corporation Law)
and subject to such shareholder disclosure and recognition
procedures (which may include voting prohibition sanctions) as the
Corporation may by action of the Board of Directors establish.
SECTION 5.4. OTHER TERMS OF COMMON STOCK. The shares of
Common Stock shall be equal in every respect insofar as their
relationship to the Corporation is concerned, but such equality of
rights shall not imply equality of treatment as to redemption or
other acquisition of shares by the Corporation. Subject to the
rights of the holders of any outstanding Preferred Stock, the
holders of Common Stock shall be entitled to share ratably in such
dividends or other distributions (other than purchases, redemptions
or other acquisitions of shares by the Corporation), if any, as are
declared and paid from time to time on the Common Stock at the
discretion of the Board of Directors. In the event of any
liquidation, dissolution or winding up of the Corporation, either
voluntary or involuntary, after payment shall have been made to the
holders of the Preferred Stock of the full amount to which they
shall be entitled under this Article V, the holders of Common Stock
shall be entitled, to the exclusion of the holders of the Preferred
Stock of any and all series, to share, ratably according to the
number of shares of Common Stock held by them, in all remaining
assets of the Corporation available for distribution to its
shareholders.
SECTION 5.5. OTHER TERMS OF PREFERRED STOCK.
(a) Preferred Stock may be issued from time to time in one or
more series, each such series to have such distinctive designation
and such preferences, limitations and relative voting and other
rights as shall be set forth in these Restated Articles of
Incorporation. Subject to the requirements of the Corporation Law
and subject to all other provisions of these Restated Articles of
Incorporation, the Board of Directors of the Corporation may create
one or more series of Preferred Stock and may determine the
preferences, limitations and relative voting and other rights of one
or more series of Preferred Stock before the issuance of any shares
of that series by the adoption of an amendment to these Restated
Articles of Incorporation that specifies the terms of the series of
Preferred Stock. All shares of a series of Preferred Stock must
have preferences, limitations and relative voting and other rights
identical with those of other shares of the same series and, if the
description of the series set forth in these Restated Articles of
Incorporation so provides, no series of Preferred Stock need have
preferences, limitations or relative voting or other rights
identical with those of any other series of Preferred Stock.
Before issuing any shares of a series of Preferred Stock (in
addition to the series authorized at the time of adoption of these
Restated Articles of Incorporation), the Board of Directors shall
adopt an amendment to these Restated Articles of Incorporation,
which shall be effective without any shareholder approval or other
action, that sets forth the preferences, limitations and relative
voting and other rights of the series, and authority is hereby
expressly vested in the Board of Directors by such amendment:
(1) To fix the distinctive designation of such series and
the number of shares which shall constitute such series,
which number may be increased or decreased (but not below
the number of shares thereof then outstanding) from time
to time by action of the Board of Directors;
(2) To fix the voting rights of such series, which may
consist of special, conditional, limited or unlimited
voting rights, including multiple or fractional votes per
share, or no right to vote (except to the extent required
by the Corporation Law);
(3) To fix the dividend or distribution rights of such
series and the manner of calculating the amount and time
for payment of dividends or distributions, including, but
not limited to:
(A) the dividend rate, if any, of such series;
(B) any limitations, restrictions or conditions
on the payment of dividends or other
distributions, including whether dividends or
other distributions shall be noncumulative or
cumulative or partially cumulative and, if so,
from which date or dates;
(C) the relative rights of priority, if any, of
payment of dividends or other distributions on
shares of that series in relation to Common
Stock and shares of any other series of
Preferred Stock; and
(D) the form of dividends or other
distributions, which may be payable at the
option of the Corporation, the shareholder or
another person (and in such case to prescribe
the terms and conditions of exercising such
option), or upon the occurrence of a designated
event in cash, indebtedness, stock or other
securities or other property, or in any
combination thereof,
and to make provisions, in the case of dividends or other
distributions payable in stock or other securities, for
adjustment of the dividend or distribution rate in such
events as the Board of Directors shall determine;
(4) To fix the price or prices at which, and the terms and
conditions on which, the shares of such series may be
redeemed or converted, which may be
(A) at the option of the Corporation, the
shareholder or another person or upon the
occurrence of a designated event;
(B) for cash, indebtedness, securities or other
property or any combination thereof; and
(C) in a designated amount or in an amount
determined in accordance with a designated
formula or by reference to extrinsic data or
events;
(5) To fix the amount or amounts payable upon the shares
of such series in the event of any liquidation,
dissolution or winding up of the Corporation and the
relative rights of priority, if any, of payment upon
shares of such series in relation to shares of Common
Stock and shares of any other series of Preferred Stock;
and to determine whether or not any such preferential
rights upon dissolution need be considered in determining
whether or not the Corporation may make dividends,
repurchases or other distributions;
(6) To determine whether or not the shares of such series
shall be entitled to the benefit of a sinking fund to be
applied to the purchase or redemption of such series and,
if so entitled, the amount of such fund and the manner of
its application;
(7) To determine whether or not the issue of any
additional shares of such series or of any other series in
addition to such series shall be subject to restrictions
in addition to restrictions, if any, on the issue of
additional shares imposed in the provisions of these
Restated Articles of Incorporation fixing the terms of any
outstanding series of Preferred Stock and, if subject to
additional restrictions, the extent of such additional
restrictions; and
(8) Generally to fix the other preferences or rights, and
any qualifications, limitations or restrictions of such
preferences or rights, of such series to the full extent
permitted by the Corporation Law; provided, however, that
no such preferences, rights, qualifications, limitations
or restrictions shall be in conflict with these Restated
Articles of Incorporation or any amendment hereof.
(b) Shares of Preferred Stock of any series that have been
redeemed (whether through the operation of a sinking fund or
otherwise) or purchased by the Corporation, or which, if
convertible, have been converted into shares of the Corporation of
any other class or series, may be reissued as a part of such series
or of any other series of Preferred Stock, subject to such
limitations (if any) as may be specified or provided for in the
provisions of these Restated Articles of Incorporation describing
the terms of any series of Preferred Stock.
SECTION 5.6. TERMS OF THE 6% SERIES A PREFERRED STOCK. Thirty
thousand (30,000) shares of Preferred Stock are hereby designated
"6% Series A Preferred Stock." The powers, designations,
preferences and relative participating, optional and other special
rights, and the qualifications, limitations or restrictions of the
6% Series A Preferred Stock, in addition to those set forth in these
Restated Articles of Incorporation that are applicable to shares of
Preferred Stock of all series, are as follows:
(a) RANK. The 6% Series A Preferred Stock shall, with respect
to dividend rights, rights on redemption and rights on liquidation,
winding up and dissolution, rank prior to all classes of Common
Stock of the Corporation. All of such equity securities of the
Corporation to which the 6% Series A Preferred Stock ranks prior are
collectively referred to herein as the "Junior Stock."
(b) DIVIDENDS.
(1) The holders of 6% Series A Preferred Stock shall be
entitled to receive in preference to the holders of any of
the Junior Stock, out of any funds legally available for
the payment of dividends, noncumulative dividends at the
rate of $60.00 in cash for each share of 6% Series A
Preferred Stock held (determined by multiplying 6% by the
Liquidation Preference, as defined in Section 5.6(c)) per
fiscal year of the Corporation. The rights to such
dividends on the 6% Series A Preferred Stock shall not be
cumulative, and no rights shall accrue to holders of 6%
Series A Preferred Stock by reason of the fact that
dividends on said shares are not declared in any previous
dividend period, nor shall any undeclared or unpaid
dividends bear or accrue interest.
(2) All dividends paid with respect to shares of the 6%
Series A Preferred Stock pursuant to Section 5.6(b)(1)
shall be paid pro rata to the holders entitled thereto.
(3) Holders of shares of the 6% Series A Preferred Stock
shall be entitled to receive the dividends provided for in
Section 5.6(b)(1) in preference to and in priority over
any dividends upon any of the Junior Stock.
(4) Each fractional share of 6% Series A Preferred Stock
outstanding shall be entitled to a ratably proportionate
amount of all dividends accruing with respect to each
outstanding share of 6% Series A Preferred Stock pursuant
to Section 5.6(b)(1).
(c) LIQUIDATION PREFERENCE. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of shares of 6% Series A Preferred
Stock then outstanding shall be entitled to be paid out of the
assets of the Corporation available for distribution to its
stockholders an amount equal to $1,000.00 for each share outstanding
(the "Liquidation Preference"), plus an amount equal to all declared
but unpaid dividends thereon to the date fixed for liquidation,
dissolution or winding up before any payment shall be made or any
assets distributed to the holders of any of the Junior Stock.
Except as provided in the preceding sentence, holders of 6% Series A
Preferred Stock shall not be entitled to any distribution in the
event of liquidation, dissolution or winding up of the affairs of
the Corporation. If the assets of the Corporation are not
sufficient to pay in full the liquidation payments payable to the
holders of outstanding shares of 6% Series A Preferred Stock, then
the holders of all such shares shall share ratably in accordance
with the respective amounts to which the holders of outstanding
shares of 6% Series A Preferred Stock would be entitled if all
amounts payable thereon were paid in full.
The liquidation payment with respect to each outstanding
fractional share of 6% Series A Preferred Stock shall be equal to a
ratably proportionate amount of the liquidation payment with respect
to each outstanding share of the 6% Series A Preferred Stock.
(d) REDEMPTION. Upon the occurrence of an Initial Public
Offering (as defined below) or a Change of Control (as defined
below), the 6% Series A Preferred Stock shall be redeemable, at the
option of the Corporation, in whole or in part, from time to time at
a redemption price of $1,000.00 per share of the 6% Series A
Preferred Stock, plus an amount equal to all declared but unpaid
dividends thereon to the date fixed for redemption. "Initial Public
Offering" shall mean the sale of shares of the Corporation's capital
stock to the public pursuant to a registration statement under the
Securities Act of 1933, as amended. "Change of Control" shall mean
any person or group of persons (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934, as amended) other than
American Securities Capital Partners, L.P. ("ASCP"), investment
funds managed by ASCP or its affiliates, J. Christopher Chocola or
Caryl M. Chocola shall have acquired beneficial ownership or control
of over 15% of the voting stock (on a fully diluted basis) of the
Corporation.
(e) PROCEDURE FOR REDEMPTION.
(1) In the event that fewer than all the outstanding
shares of 6% Series A Preferred Stock are to be redeemed,
the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall
be selected pro rata based upon the number of outstanding
shares of 6% Series A Preferred Stock held by each holder
thereof prior to the redemption.
(2) In the event the Corporation shall redeem shares of 6%
Series A Preferred Stock, notice of such redemption shall
be given by first class mail, postage prepaid, mailed not
less than 30 days nor more than 60 days prior to the
redemption date, to all holders of record of the shares to
be redeemed at such holder's address as the same appears
on the stock register of the Corporation. Each such
notice shall state: (i) the redemption date; (ii) the
aggregate number of shares of 6% Series A Preferred Stock
to the redeemed and, if less than all the shares held by
such holder are to be redeemed from such holder, the
number of shares to be redeemed from such holder; (iii)
the redemption price; and (iv) the place or places where
certificates for such shares are to be surrendered for
payment of the redemption price.
(3) Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the
Corporation in providing money for the payment of the
redemption price of the shares called for redemption) said
shares shall no longer be deemed to be outstanding and
shall have the status of authorized but unissued shares of
6% Series A Preferred Stock, and shall not be reissued as
shares of 6% Series A Preferred Stock, and all rights of
the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in
accordance with said notice of the certificates for any
shares so redeemed (properly endorsed or assigned for
transfer, if the Board shall so require and the notice
shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In the
event fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to
the holder thereof.
(f) VOTING RIGHTS. The holders of record of shares of 6%
Series A Preferred Stock shall not be entitled to any voting rights
except as otherwise provided by law.
ARTICLE VI
DIRECTORS
SECTION 6.1. NUMBER. The Board of Directors at the time of
adoption of these Restated Articles of Incorporation is composed of
nine (9) members, which number may be changed from time to time by
amendment to the By-Laws, provided that such number shall not be
less than one (1) or more than fifteen (15).
SECTION 6.2. QUALIFICATIONS. Directors need not be
shareholders of the Corporation or residents of this or any other
state in the United States.
SECTION 6.3. VACANCIES. Vacancies occurring in the Board of
Directors shall be filled in the manner provided in the By-Laws or,
if the By-Laws do not provide for the filling of vacancies, in the
manner provided by the Corporation Law. The By-Laws may also
provide that in certain circumstances specified therein, vacancies
occurring in the Board of Directors may be filled by vote of the
shareholders at a special meeting called for that purpose or at the
next annual meeting of shareholders.
SECTION 6.4. LIABILITY OF DIRECTORS. A Director's
responsibility to the Corporation shall be limited to discharging
his or her duties as a Director, including his or her duties as a
member of any committee of the Board of Directors upon which he or
she may serve, in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar
circumstances, and in a manner the Director reasonably believes to
be in the best interests of the Corporation, all based on the facts
then known to the Director.
In discharging his or her duties, a Director is entitled to
rely on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or
presented by:
(a) One (1) or more officers or employees of the
Corporation whom the Director reasonably believes to be
reliable and competent in the matters presented;
(b) Legal counsel, public accountants or other persons as
to matters the Director reasonably believes are within
such person's professional or expert competence; or
(c) A committee of the Board of which the Director is not
a member if the Director reasonably believes the Committee
merits confidence;
but a Director is not acting in good faith if the Director has
knowledge concerning the matter in question that makes reliance
otherwise permitted by this Section 6.4 unwarranted.
A Director shall not be liable for any action taken as a
Director, or any failure to take any action, unless (a) the Director
has breached or failed to perform the duties of the Director's
office in compliance with this Section 6.4, and (b) the breach or
failure to perform constitutes willful misconduct or recklessness.
SECTION 6.5. FACTORS TO BE CONSIDERED BY BOARD. In
determining whether to take or refrain from taking any action with
respect to any matter, including making or declining to make any
recommendation to shareholders of the Corporation, the Board of
Directors may, in its discretion, consider both the short term and
long term best interests of the Corporation (including the
possibility that these interests may be best served by the continued
independence of the Corporation), taking into account, and weighing
as the Directors deem appropriate, the social and economic effects
thereof on the Corporation's present and future employees, suppliers
and customers of the Corporation and its subsidiaries, the
communities in which offices or other facilities of the Corporation
are located and any other factors the Directors consider pertinent.
SECTION 6.6. REMOVAL OF DIRECTORS. Notwithstanding any other
provisions of the Corporation Law, these Restated Articles of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, these
Restated Articles of Incorporation or the By-Laws of the
Corporation), one or more directors of the Corporation may be
removed at any time, with or without cause, by the affirmative vote
of the holders of a majority or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class)
cast at a meeting of the shareholders called for that purpose, or by
a majority vote of the entire Board of Directors. Notwithstanding
the foregoing, and except as otherwise required by law, whenever the
holders of any one or more series of Preferred Stock shall have the
right, voting separately as a class, to elect one or more directors
of the Corporation, the provisions of this Section 6.6 shall not
apply with respect to the director or directors elected by such
holders of Preferred Stock.
SECTION 6.7. ELECTION OF DIRECTORS BY HOLDERS OF PREFERRED
STOCK. The holders of one (1) or more series of Preferred Stock may
be entitled to elect all or a specified number of Directors, but
only to the extent and subject to limitations as may be set forth in
the provisions of these Restated Articles of Incorporation adopted
by the Board of Directors pursuant to Section 5.5 hereof describing
the terms of the series of Preferred Stock.
ARTICLE VII
Provisions for Regulation of Business
AND CONDUCT OF AFFAIRS OF CORPORATION
SECTION 7.1. MEETINGS OF SHAREHOLDERS. Meetings of the
shareholders of the Corporation shall be held at such time and at
such place, either within or without the State of Indiana, as may be
stated in or fixed in accordance with the By-Laws of the Corporation
and specified in the respective notices or waivers of notice of any
such meetings.
SECTION 7.2. MEETINGS OF DIRECTORS. Meetings of the Board of
Directors of the Corporation shall be held at such place, either
within or without the State of Indiana, as may be authorized by the
By-Laws and specified in the respective notices or waivers of notice
of any such meetings or otherwise specified by the Board of
Directors. Unless the By-Laws provide otherwise (a) regular
meetings of the Board of Directors may be held without notice of the
date, time, place or purpose of the meeting and (b) the notice for a
special meeting need not describe the purpose or purposes of the
special meeting.
SECTION 7.3. ACTION WITHOUT MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors or
shareholders, or of any committee of such Board, may be taken
without a meeting, if the action is taken by all members of the
Board or all shareholders entitled to vote on the action, or by all
members of such committee, as the case may be. The action must be
evidenced by one (1) or more written consents describing the action
taken, signed by each Director, or all the shareholders entitled to
vote on the action, or by each member of such committee, as the case
may be, and, in the case of action by the Board of Directors or a
committee thereof, included in the minutes or filed with the
corporate records reflecting the action taken or, in the case of
action by the shareholders, delivered to the Corporation for
inclusion in the minutes or filing with the corporate records.
Action taken under this Section 7.3 is effective when the last
Director, shareholder or committee member, as the case may be, signs
the consent, unless the consent specifies a different prior or
subsequent effective date, in which case the action is effective on
or as of the specified date. Such consent shall have the same
effect as a unanimous vote of all members of the Board, or all
shareholders, or all members of the committee, as the case may be,
and may be described as such in any document.
SECTION 7.4. BY-LAWS. The Board of Directors shall have the
exclusive power to make, alter, amend or repeal, or to waive
provisions of, the By-Laws of the Corporation by the affirmative
vote of a majority of the entire number of Directors at the time,
except as expressly provided by the Corporation Law. All provisions
for the regulation of the business and management of the affairs of
the Corporation not stated in these Restated Articles of
Incorporation shall be stated in the By-Laws. The Board of
Directors may adopt Emergency By-Laws of the Corporation and shall
have the exclusive power (except as may otherwise be provided
therein) to make, alter, amend or repeal, or to waive provisions of,
the Emergency By-Laws by the affirmative vote of a majority of the
entire number of Directors at the time.
SECTION 7.5. INTEREST OF DIRECTORS.
(a) A conflict of interest transaction is a transaction with
the Corporation in which a Director of the Corporation has a direct
or indirect interest. A conflict of interest transaction is not
voidable by the Corporation solely because of the Director's
interest in the transaction if any one (1) of the following is true:
(1) The material facts of the transaction and the
Director's interest were disclosed or known to the Board
of Directors or a committee of the Board of Directors and
the Board of Directors or committee authorized, approved
or ratified the transaction.
(2) The material facts of the transaction and the
Director's interest were disclosed or known to the
shareholders entitled to vote and they authorized,
approved or ratified the transaction.
(3) The transaction was fair to the Corporation.
(b) For purposes of this Section 7.5, a Director of the
Corporation has an indirect interest in a transaction if:
(1) Another entity in which the Director has a material
financial interest or in which the Director is a general
partner is a party to the transaction; or
(2) Another entity of which the Director is a director,
officer, manager or trustee is a party to the transaction
and the transaction is, or is required to be, considered
by the Board of Directors of the Corporation.
(c) For purposes of Section 7.5(a)(1), a conflict of interest
transaction is authorized, approved or ratified if it receives the
affirmative vote of a majority of the Directors on the Board of
Directors (or on the committee) who have no direct or indirect
interest in the transaction, but a transaction may not be
authorized, approved or ratified under this section by a single
Director. If a majority of the Directors who have no direct or
indirect interest in the transaction vote to authorize, approve or
ratify the transaction, a quorum shall be deemed present for the
purpose of taking action under this Section 7.5. The presence of,
or a vote cast by, a Director with a direct or indirect interest in
the transaction does not affect the validity of any action taken
under Section 7.5(a)(1), if the transaction is otherwise authorized,
approved or ratified as provided in such subsection.
(d) For purposes of Section 7.5(a)(2), a conflict of interest
transaction is authorized, approved or ratified if it receives the
affirmative vote of the holders of shares representing a majority of
the votes entitled to be cast. Shares owned by or voted under the
control of a Director who has a direct or indirect interest in the
transaction, and shares owned by or voted under the control of an
entity described in Section 7.5(b), may be counted in such a vote of
shareholders.
SECTION 7.6. NONLIABILITY OF SHAREHOLDERS. Shareholders of
the Corporation are not personally liable for the acts or debts of
the Corporation, nor is private property of shareholders subject to
the payment of corporate debts.
SECTION 7.7. INDEMNIFICATION OF OFFICERS, DIRECTORS, AND OTHER
ELIGIBLE PERSONS.
(a) To the extent not inconsistent with applicable law, every
Eligible Person shall be indemnified by the Corporation against all
Liability and reasonable Expense that may be incurred by him in
connection with or resulting from any Claim, (1) if such Eligible
Person is Wholly Successful with respect to the Claim, or (2) if not
Wholly Successful, then if such Eligible Person is determined, as
provided in either Section 7.7(f) or 7.7(g), to have acted in good
faith, in what he reasonably believed to be the best interests of
the Corporation or at least not opposed to its best interests and,
in addition, with respect to any criminal claim is determined to
have had reasonable cause to believe that his conduct was lawful or
had no reasonable cause to believe that his conduct was unlawful.
The termination of any Claim, by judgment, order, settlement
(whether with or without court approval) or conviction or upon a
plea of guilty or of nolo contendere, or its equivalent, shall not
create a presumption that an Eligible Person did not meet the
standards of conduct set forth in clause (2) of this subsection (a).
The actions of an Eligible Person with respect to an employee
benefit plan subject to the Employee Retirement Income Security Act
of 1974 shall be deemed to have been taken in what the Eligible
Person reasonably believed to be the best interests of the
Corporation or at least not opposed to its best interests if the
Eligible Person reasonably believed he was acting in conformity with
the requirements of such Act or he reasonably believed his actions
to be in the interests of the participants in or beneficiaries of
the plan.
(b) The term "Claim" as used in this Section 7.7 shall include
every pending, threatened or completed claim, action, suit or
proceeding and all appeals thereof (whether brought by or in the
right of this Corporation or any other corporation or otherwise),
civil, criminal, administrative or investigative, formal or
informal, in which an Eligible Person may become involved, as a
party or otherwise:
(1) by reason of his being or having been an Eligible
Person, or
(2) by reason of any action taken or not taken by him in
his capacity as an Eligible Person, whether or not he
continued in such capacity at the time such Liability or
Expense shall have been incurred.
(c) The term "Eligible Person" as used in this Section 7.7
shall mean every person (and the estate, heirs and personal
representatives of such person) who is or was a Director, officer,
employee, or agent of the Corporation or is or was serving at the
request of the Corporation as a Director, officer, employee, agent,
manager or fiduciary of another foreign or domestic corporation,
partnership, limited liability company, joint venture, trust,
employee benefit plan or other organization or entity, whether for
profit or not. An Eligible Person shall also be considered to have
been serving an employee benefit plan at the request of the
Corporation if his duties to the Corporation also imposed duties on,
or otherwise involved services by, him to the plan or to
participants in or beneficiaries of the plan.
(d) The terms "Liability" and "Expense" as used in this
Section 7.7 shall include, but shall not be limited to, counsel fees
and disbursements and amounts of judgments, fines or penalties
against (including excise taxes assessed with respect to an employee
benefit plan), and amounts paid in settlement by or on behalf of, an
Eligible Person.
(e) The term "Wholly Successful" as used in this Section 7.7
shall mean (1) termination of any claim against the Eligible Person
in question without any finding of liability or guilt against him,
(2) approval by a court, with knowledge of the indemnity herein
provided, of a settlement of any Claim, or (3) the expiration of a
reasonable period of time after the making or threatened making of
any Claim without commencement of an action, suit or proceeding,
without any payment or promise made to induce a settlement.
(f) Every Eligible Person claiming indemnification hereunder
(other than one who has been Wholly Successful with respect to any
Claim) shall be entitled to indemnification (1) if special
independent legal counsel, which may be regular counsel of the
Corporation or other disinterested person or persons, in either case
selected by the Board of Directors, whether or not a disinterested
quorum exists (such counsel or person or persons being hereinafter
called the "Referee"), shall deliver to the Corporation a written
finding that such Eligible Person has met the standards of conduct
set forth in Section 7.7(a)(2), and (2) if the Board of Directors,
acting upon such written finding, so determines. The Board of
Directors shall, if an Eligible Person is found to be entitled to
indemnification pursuant to the preceding sentence, also determine
the reasonableness of the Eligible Person's Expenses. The Eligible
Person claiming indemnification shall, if requested, appear before
the Referee, answer questions that the Referee deems relevant and
shall be given ample opportunity to present to the Referee evidence
upon which he relies for indemnification. The Corporation shall, at
the request of the Referee, make available facts, opinions or other
evidence in any way relevant to the Referee's findings that are
within the possession or control of the Corporation.
(g) If an Eligible Person claiming indemnification pursuant to
Section 7.7(f) is found not to be entitled thereto, or if the Board
of Directors fails to select a Referee under Section 7.7(f) within a
reasonable amount of time following a written request of an Eligible
Person for the selection of a Referee, or if the Referee or the
Board of Directors fails to make a determination under Section
7.7(f) within a reasonable amount of time following the selection of
a Referee, the Eligible Person may apply for indemnification with
respect to a Claim to a court of competent jurisdiction, including a
court in which the Claim is pending against the Eligible Person. On
receipt of an application, the court, after giving notice to the
Corporation and giving the Corporation ample opportunity to present
to the court any information or evidence relating to the claim for
indemnification that the Corporation deems appropriate, may order
indemnification if it determines that the Eligible Person is
entitled to indemnification with respect to the Claim because such
Eligible Person met the standards of conduct set forth in Section
7.7(a)(2). If the court determines that the Eligible Person is
entitled to indemnification, the court shall also determine the
reasonableness of the Eligible Person's Expenses.
(h) The rights of indemnification provided in this Section 7.7
shall be in addition to any rights to which any Eligible Person may
otherwise be entitled. Irrespective of the provisions of this
Section 7.7, the Board of Directors may, at any time and from time
to time, (1) approve indemnification of any Eligible Person to the
full extent permitted by the provisions of applicable law at the
time in effect, whether on account of past or future transactions,
and (2) authorize the Corporation to purchase and maintain insurance
on behalf of any Eligible Person against any Liability asserted
against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the
power to indemnify him against such Liability or Expense.
(i) Expenses incurred by an Eligible Person with respect to
any Claim may be advanced by the Corporation (by action of the Board
of Directors, whether or not a disinterested quorum exists) prior to
the final disposition thereof upon receipt of an undertaking by or
on behalf of the Eligible Person to repay such amount if he is
determined not to be entitled to indemnification.
(j) The provisions of this Section 7.7 shall be deemed to be a
contract between the Corporation and each Eligible Person, and an
Eligible Person's rights hereunder shall not be diminished or
otherwise adversely affected by any repeal, amendment or
modification of this Section 7.7 that occurs subsequent to such
person becoming an Eligible Person.
(k) The provisions of this Section 7.7 shall be applicable to
Claims made or commenced after the adoption hereof, whether arising
from acts or omissions to act occurring before or after the adoption
hereof.
ARTICLE VIII
APPROVAL OF BUSINESS COMBINATIONS
SECTION 8.1. SUPERMAJORITY VOTE.
(a) The Corporation shall not engage in any business
combination with any interested shareholder for a period of three
(3) years following the time that such shareholder became an
interested shareholder, unless:
(1) Prior to such time the Board of Directors of the
Corporation approved either the business combination or
the transaction which resulted in the shareholder becoming
an interested shareholder;
(2) Upon consummation of the transaction which resulted in
the shareholder becoming an interested shareholder, the
interested shareholder owned voting stock of the
Corporation representing at least 85% of the votes
entitled to be cast by all voting stock of the Corporation
outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding those shares owned (i) by persons who are
directors and also officers of the Corporation and (ii)
employee stock plans of the Corporation or any of its
majority-owned subsidiaries in which employee participants
do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a
tender or exchange offer; or
(3) At or subsequent to such time, the business
combination is approved by the Board of Directors of the
Corporation and authorized at an annual or special meeting
of shareholders, and not by written consent, by the
affirmative vote of at least sixty-six and two-thirds
percent (66 2/3 %) of the votes entitled to be cast by
the outstanding voting stock which is not owned by the
interested shareholder.
(b) The restrictions contained in subsection 8.01(a) shall not
apply if:
(1) A shareholder becomes an interested shareholder
inadvertently and (i) as soon as practicable divests
itself of ownership of sufficient shares so that the
shareholder ceases to be an interested shareholder; and
(ii) would not, at any time within the 3-year period
immediately prior to a business combination between the
Corporation and such shareholder, have been an interested
shareholder but for the inadvertent acquisition of
ownership;
(2) The business combination is proposed prior to the
consummation or abandonment of and subsequent to the
earlier of the public announcement or the notice required
under this paragraph (2) of a proposed transaction which
(i) constitutes one of the transactions described in the
second sentence of this paragraph (2); (ii) is with or by
a person who either was not an interested shareholder
during the previous three (3) years or who became an
interested shareholder with the approval of the
Corporation's Board of Directors; and (iii) is approved or
not opposed by a majority of the members of the Board of
Directors then in office (but not less than one) who were
directors of the Corporation prior to any person becoming
an interested shareholder during the previous three (3)
years or were recommended for election or elected to
succeed such directors by a majority of such directors.
The proposed transactions referred to in the preceding
sentence are limited to (x) a merger or consolidation of
the corporation (except for a merger in respect of which,
pursuant to IC 23-1-40-3(g) of the Corporation Law, no
vote of the shareholders of the Corporation is required);
(y) a sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions), whether as part of a dissolution or
otherwise, of assets of the Corporation or of any direct
or indirect majority-owned subsidiary of the Corporation
(other than to any direct or indirect wholly-owned
subsidiary or to the Corporation) having an aggregate
market value equal to 50% or more of either the aggregate
market value of all of the assets of the Corporation
determined on a consolidated basis or the aggregate market
value of all the outstanding stock of the Corporation; or
(z) a proposed tender or exchange offer for 50% or more of
the outstanding voting stock of the Corporation. The
Corporation shall give not less than 20 days' notice to
all interested shareholders prior to the consummation of
any of the transactions described in clause (x) or (y) of
the second sentence of this paragraph (2).
(c) As used in this Section 8.01 only, the term:
(1) "Affiliate" means a person that directly, or
indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with,
another person.
(2) "Associate," when used to indicate a relationship with
any person, means: (i) any corporation, partnership,
limited liability company or other entity of which such
person is a director, officer or partner or is, directly
or indirectly, the owner of 20% or more of any class of
voting stock; (ii) any trust or other estate in which such
person has at least a 20% beneficial interest or as to
which such person serves as trustee or in a similar
fiduciary capacity; and (iii) any relative or spouse of
such person, or any relative of such spouse, who has the
same residence as such person.
(3) "Business combination," means: (i) any merger or
consolidation of the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation with (A) the
interested shareholder, or (B) with any other corporation,
partnership, limited liability company or other entity if
the merger or consolidation is caused by the interested
shareholder and as a result of such merger or
consolidation subsection (a) of this Section 8.01 is not
applicable to the surviving entity; (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition
(in one transaction or a series of transactions), except
proportionately as a shareholder of the Corporation, to or
with the interested shareholder, whether as part of a
dissolution or otherwise, of assets of the Corporation or
of any direct or indirect majority-owned subsidiary of the
Corporation which assets have an aggregate market value
equal to 10% or more of either the aggregate market value
of all the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all
the outstanding stock of the Corporation; (iii) any
transaction which results in the issuance or transfer by
the Corporation or by any direct or indirect majority-
owned subsidiary of the Corporation of any stock of the
Corporation or of such subsidiary to the interested
shareholder, except: (A) pursuant to the exercise,
exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of the
Corporation or any such subsidiary which securities were
outstanding prior to the time that the interested
shareholder became such; (B) pursuant to a merger under IC
23-1-40-4 of the Corporation Law; (C) pursuant to a
dividend or distribution paid or made, or the exercise,
exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of the
Corporation or any such subsidiary which security is
distributed, pro rata to all holders of a class or series
of stock of the Corporation subsequent to the time the
interested shareholder became such; (D) pursuant to an
exchange offer by the corporation to purchase stock made
on the same terms to all holders of said stock; or (E) any
issuance or transfer of stock by the Corporation; provided
however, that in no case under items (C)-(E) of this
subparagraph shall there be an increase in the interested
shareholder's proportionate share of the stock of any
class or series of the Corporation or of the voting stock
of the Corporation; (iv) any transaction involving the
Corporation or any direct or indirect majority-owned
subsidiary of the Corporation which has the effect,
directly or indirectly, of increasing the proportionate
share of the stock of any class or series, or securities
convertible into the stock of any class or series, of the
Corporation or of any such subsidiary which is owned by
the interested shareholder, except as a result of
immaterial changes due to fractional share adjustments or
as a result of any purchase or redemption of any shares of
stock not caused, directly or indirectly, by the
interested shareholder; or (v) any receipt by the
interested shareholder of the benefit, directly or
indirectly (except proportionately as a shareholder of the
Corporation), of any loans, advances, guarantees, pledges
or other financial benefits (other than those expressly
permitted in subparagraphs (i)-(iv) of this paragraph)
provided by or through the Corporation or any direct or
indirect majority-owned subsidiary.
(4) "Control," including the terms "controlling,"
"controlled by" and "under common control with," means
the possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of a person, whether through the ownership of
voting stock, by contract or otherwise. A person who is
the owner of 20% or more of the outstanding voting stock
of any corporation, partnership, limited liability company
or other entity shall be presumed to have control of such
entity, in the absence of proof by a preponderance of the
evidence to the contrary. Notwithstanding the foregoing,
a presumption of control shall not apply where such person
holds voting stock, in good faith and not for the purpose
of circumventing this section, as an agent, bank, broker,
nominee, custodian or trustee for one or more owners who
do not individually or as a group have control of such
entity.
(5) "Interested shareholder" means any person (other than
the Corporation and any direct or indirect majority-owned
subsidiary of the Corporation) that (i) is the owner of
15% or more of the outstanding voting stock of the
Corporation, or (ii) is an affiliate or associate of the
Corporation and was the owner of 15% or more of the
outstanding voting stock of the Corporation at any time
within the three-year period immediately prior to the date
on which it is sought to be determined whether such person
is an interested shareholder; and the affiliates and
associates of such person; provided, however, that the
term "interested shareholder" shall not include (x) any
person whose ownership of shares in excess of the 15%
limitation set forth herein is the result of action taken
solely by the Corporation; provided that such person shall
be an interested shareholder if thereafter such person
acquires additional shares of voting stock of the
Corporation, except as a result of further Corporate
action not caused, directly or indirectly, by such person,
(y) American Securities Partners GP (Management) Corp.,
ASP/CTB G.P. Corp. or any of their respective affiliates
or associates or (z) any member of the Caryl M. Chocola
family and their respective affiliates. For the purpose of
determining whether a person is an interested shareholder,
the voting stock of the Corporation deemed to be
outstanding shall include stock deemed to be owned by the
person through application of paragraph (8) of this
subsection but shall not include any other unissued stock
of Corporation which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise
of conversion rights, warrants or options, or otherwise.
(6) "Person" means any individual, corporation,
partnership, limited liability company or other entity.
(7) "Stock" means, with respect to any corporation,
capital stock and, with respect to any other entity, any
equity interest.
(8) "Voting stock" means, with respect to any corporation,
stock of any class or series entitled to vote generally in
the election of directors and, with respect to any entity
that is not a corporation, any equity interest entitled to
vote generally in the election of the governing body of
such entity.
(9) "Owner," including the terms "own" and "owned," when
used with respect to any stock, means a person that
individually or with or through any of its affiliates or
associates: (i) beneficially owns such stock, directly or
indirectly; or (ii) has (A) the right to acquire such
stock (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; provided, however, that a person shall not
be deemed the owner of stock tendered pursuant to a tender
or exchange offer made by such person or any of such
person's affiliates or associates until such tendered
stock is accepted for purchase or exchange; or (B) the
right to vote such stock pursuant to any agreement,
arrangement or understanding; provided, however, that a
person shall not be deemed the owner of any stock because
of such person's right to vote such stock if the
agreement, arrangement or understanding to vote such stock
arises solely from a revocable proxy or consent given in
response to a proxy or consent solicitation made to ten
(10) or more persons; or (iii) has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting (except voting pursuant to a revocable
proxy or consent as described in item (B) of subparagraph
(ii) of this paragraph), or disposing of such stock with
any other person that beneficially owns, or whose
affiliates or associates beneficially own, directly or
indirectly, such stock.
SECTION 8.2. FIDUCIARY OBLIGATIONS UNAFFECTED. Nothing in
this Article VIII shall be construed to relieve any interested
shareholder from any fiduciary duty imposed by law.
SECTION 8.3. ARTICLE VIII NONEXCLUSIVE. The provisions of
this Article VIII are nonexclusive and are in addition to any other
provisions of law or these restated Articles of Incorporation or the
By-Laws of the Corporation relating to business combinations,
interested shareholders or similar matters.
SECTION 8.4. AMENDMENTS. Any amendment to this Article VIII
shall not be effective until twelve (12) months after the adoption
of such amendment and shall not apply to any business combination
with any person who became an interested shareholder on or prior to
such adoption.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. AMENDMENT OR REPEAL. Except as otherwise
expressly provided for in these Restated Articles of Incorporation,
the Corporation shall be deemed, for all purposes, to have reserved
the right to amend, alter, change or repeal any provision contained
in these Restated Articles of Incorporation to the extent and in the
manner now or hereafter permitted or prescribed by statute, and all
rights herein conferred upon shareholders are granted subject to
such reservation.
SECTION 9.2. CAPTIONS. The captions of the Articles and
Sections of these Restated Articles of Incorporation have been
inserted for convenience of reference only and do not in any way
define, limit, construe or describe the scope or intent of any
Article or Section hereof.
SECTION 9.3 ELECTION NOT TO BE GOVERNED BY IC 23-1-42. The
Corporation, pursuant to the provisions of IC 23-1-42-5, hereby
expressly elects not to be governed by the provisions of Chapter 42
of the Corporation Law (IC 23-1-42), regarding control share
acquisitions.
SECTION 9.4. ELECTION NOT TO BE GOVERNED BY IC 23-1-43. The
Corporation, pursuant to the provisions of IC 23-1-43-22(B), hereby
expressly elects not to be governed by the provisions of Chapter 43
of the Corporation Law (IC 23-1-43), regarding business
combinations.