EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DUKE REALTY INVESTMENTS, INC.
ARTICLE I
IDENTIFICATION
SECTION 1.01. NAME. The name of the Corporation is Duke Realty
Investments, Inc.
ARTICLE II
DEFINITIONS
SECTION 2.01. CERTAIN DEFINITIONS. The following terms when used herein
shall have the meanings set forth below:
(a) ACT. The "Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(b) AFFILIATE. "Affiliate" shall mean, as to any Person, (i) any other
Person directly or indirectly controlling, controlled by or under common control
with such Person, (ii) any other Person that owns beneficially, directly or
indirectly, five percent (5%) or more of the outstanding capital stock, shares
or equity interests of such Person, or (iii) any officer, director, employee,
general partner or trustee of such Person or of any Person controlling,
controlled by or under common control with such Person (excluding trustees and
Persons serving in similar capacities who are not otherwise an Affiliate of such
Person), and shall have the meaning ascribed thereto in the Act.
(c) ARTICLES. "Articles" shall mean the Articles of Incorporation of the
Corporation, filed with the Indiana Secretary of State, as amended from time to
time.
(d) BUSINESS COMBINATION. "Business Combination" shall have the meaning
set forth in Section 9.01.
(e) BY-LAWS. "By-Laws" shall mean the By-Laws of the Corporation, as
amended from time to time.
(f) CODE. "Code" shall mean the Internal Revenue Code of 1986, as amended
or supplemented from time to time.
(g) CONTINUING DIRECTOR. The term "Continuing Director" shall mean a
Person who was a member of the Board of Directors of the Corporation immediately
prior to the date as of which the Substantial Shareholder in question became a
Substantial
Shareholder, or, following such date, a Person designated (before his initial
election or appointment as a director) as a Continuing Director by a majority
of the Whole Board, but only if a majority of the Whole Board shall then consist
of Continuing Directors, or, if a majority of the Whole Board shall not then
consist of Continuing Directors, by a majority of the then Continuing Directors.
(h) CORPORATION. The "Corporation" shall mean Duke Realty Investments,
Inc.
(i) DIRECTOR. "Director" shall mean a member of the Corporation's Board
of Directors.
(j) GENDER AND NUMBER. As used herein the masculine and feminine gender
and the singular and plural number shall be interchangeable, as the context
requires.
(k) OWNER. A Person is the "Owner" of Shares he has the right to acquire
either immediately or at some future date pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise. A Person is
also the Owner of any Shares whose ownership is attributed to him by reason of
the ownership provisions of sections 542 and 544 of the Code, and any Shares he
beneficially owns under Rule 13d-3 promulgated under the Act.
(l) PERSON. "Person" shall mean an individual, partnership, trust,
corporation, or any other entity.
(m) REAL PROPERTY. "Real Property" shall mean land, leasehold interests
(including, but not limited to interests of lessor or lessee therein), rights
and interests in land, and any buildings, structures, improvements, furnishings,
fixtures and equipment used on or in connection with land, leasehold interests
or rights in land or interests therein.
(n) REIT. "REIT" or "real estate investment trust" shall mean a real
estate investment trust meeting all the qualifications in the Code.
(o) SECURITIES. "Securities" shall mean any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness or in
general any instruments commonly known as "securities" or any certificates of
interest, shares or participations in, temporary or interim certificates for,
receipts for, guarantees of, or warrants, options or rights to subscribe to,
purchase or acquire any of the foregoing.
(p) SHAREHOLDERS. "Shareholders" shall mean as of any particular time all
holders of record of outstanding Shares at such time.
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(q) SHARES. "Shares" shall mean the capital stock of the Corporation.
(r) SUBSTANTIAL SHAREHOLDER. "Substantial Shareholder" shall mean any
Person, corporation or other entity, together with any other entity with which
it or its Affiliate has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of capital stock of the
Corporation or which is its Affiliate, which immediately prior to any Business
Combination is the Owner of 10% or more of the outstanding Shares of the
Corporation.
(s) UNAFFILIATED DIRECTOR. "Unaffiliated Director" shall mean a Director
who is not an officer or employee of the Corporation or of any Affiliate of the
Corporation.
(t) WHOLE BOARD. "Whole Board" shall mean the total number of Directors
which this Corporation would have if there were no vacancies.
In connection with the foregoing and other defined terms in these Articles,
where applicable except as otherwise provided in the relevant definition,
calculations of amounts should be made in accordance with the accrual basis of
accounting.
ARTICLE III
REGISTERED OFFICE AND AGENT
The street address of the Corporation's initial registered office in the
State of Indiana is 8888 Keystone Crossing, Suite 1150, Indianapolis, Indiana
46240-2438. The name of its initial registered agent at such address is John W.
Wynne.
ARTICLE IV
PURPOSES
The purposes of the Corporation shall be:
(a) To purchase, hold, and otherwise deal in and with income-producing
interests in Real Property, and to make distributions of such income to its
Shareholders so as to qualify as a REIT at all times.
(b) To engage in any lawful act or activity for which corporations may be
organized under the Indiana Business Corporation Law, as amended from time to
time, not inconsistent with paragraph (a) above, and not otherwise specifically
prohibited in these Articles.
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ARTICLE V
AUTHORIZED SHARES
The total number of shares of capital stock which the Corporation shall
have authority to issue is 50,000,000, of which 45,000,000 shall be of
non-assessable common stock having a par value of $.01 per share, and of which
5,000,000 shall be serial preferred stock having a par value of $.01 per share.
ARTICLE VI
TERMS OF AUTHORIZED SHARES
SECTION 6.01. TERMS OF STOCK. Each Share of common stock shall have the
same relative rights as and be identical in all respects with all other Shares
of common stock. The Shares of preferred stock may be issued from time to time
in one or more series. The Board of Directors of the Corporation shall have
authority to fix by resolution or resolutions the designations and the powers,
preferences and relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof, including, without
limitation, the voting rights, the dividend rate, conversion rights, redemption
price and liquidation preference, of any series of Shares of preferred stock, to
fix the number of Shares constituting any such series, and to increase or
decrease the number of Shares of any such series (but not below the number of
Shares thereof then outstanding). In case the number of Shares of any such
series shall be so decreased, the Shares constituting such decrease shall resume
the status they had prior to the adoption of the resolution or resolutions
originally fixing the number of Shares of such series. Shares shall have such
other voting powers, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as are stated below:
(a) DIVIDENDS. Whenever there shall have been paid, or declared and
set aside for payment, to the holders of the outstanding Shares of any
class of stock having preference over the common stock as to the payment of
dividends, the full amount of dividends and of sinking fund or retirement
fund or other retirement payments, if any, to which such holders are
respectively entitled in preference to the common stock, then dividends may
be paid on the common stock and on any class or series of Shares entitled
to participate therewith as to dividends, out of any assets legally
available for the payment of dividends in such form and amount as shall be
determined by the Board of Directors in accordance with the Indiana
Business Corporation Law.
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(b) TERMINATION. In the event of any voluntary or involuntary
liquidation, dissolution, winding up or other termination of the
Corporation, after the payment in full of the claims of creditors and after
there shall have been paid to or set aside for the holders of any class
having preference over the common stock in event of liquidation,
dissolution, winding up or other termination the full preferential amounts
to which they are respectively entitled, the remaining assets of the
Corporation available for payment and distribution to Shareholders shall be
distributed ratably among the holders of the common stock, and any class or
series of Shares entitled to participate therewith, in whole or in part, as
to the distribution of assets.
SECTION 6.02. DILUTION. The Corporation shall not increase the number of
authorized Shares without the approval of a majority of the Unaffiliated
Directors, and the affirmative vote of a majority of the Shareholders.
SECTION 6.03. LIABILITY FOR FURTHER ASSESSMENTS. The Shares, when duly
issued and paid for, will be fully paid and non-assessable by the Corporation.
SECTION 6.04. VOTING RIGHTS. Holders of Shares of common stock are
entitled to one vote per Share of common stock on all matters upon which such
holders are entitled to vote, except as otherwise specified herein. The Shares
shall not have cumulative voting rights.
ARTICLE VII
BOARD OF DIRECTORS
SECTION 7.01. NUMBER, CLASSES, TERM OF OFFICE AND QUALIFICATIONS OF
DIRECTORS. There shall be no fewer than five (5) nor more than twelve (12)
Directors. The initial Board of Directors shall consist of seven (7) members.
The number of Directors may be increased or decreased from time to time by the
Directors.
There shall be three classes of Directors, each class to be as nearly equal
in number as possible. The Directors of the first class shall hold office for a
term expiring at the annual meeting in 1993; Directors of the second class shall
hold office for a term expiring at the annual meeting in 1994; and Directors of
the third class shall hold office for a term expiring at the annual meeting in
1995. At each annual election beginning at the annual meeting of Shareholders
in 1993, the successors to the class of Directors whose term then expires shall
be elected to hold office for a term of three years. Directors may be
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re-elected any number of times. Election of each Director at an annual meeting
shall be by the affirmative vote of at least a majority of the Shareholders
entitled to vote thereon present in Person or by proxy at such meeting. Subject
to Section 7.03, each Director shall hold office until the election and
qualification of his successor. Directors may, but need not, own Shares or
other securities of the Corporation.
A Director shall be an individual at least twenty-one (21) years of age who
is not under legal disability. A majority of the Directors shall at all times
be Persons who are Unaffiliated Directors; PROVIDED, HOWEVER, that upon a
failure to comply with this requirement because of the resignation, removal or
death of a Director who is an Unaffiliated Director, such requirement shall not
be applicable for a period of sixty (60) days. Nominees to serve as
Unaffiliated Directors shall be nominated by the then current Unaffiliated
Directors, if any, otherwise by the remaining Directors. Unless otherwise
required by law, no Director shall be required to give bond, surety or security
in any jurisdiction for the performance of any duties or obligations hereunder.
The Directors in their capacity as Directors shall not be required to devote
their entire time to the business and affairs of the Corporation.
SECTION 7.02. RESIGNATION, REMOVAL AND DEATH OF DIRECTORS. A Director may
resign at any time by giving written notice to the remaining Directors at the
principal office of the Corporation. Such resignation shall take effect on the
date specified in such notice, without need for prior accounting. A Director
judged incompetent, or for whom a guardian or conservator has been appointed,
shall be deemed to have resigned as of the date of such adjudication or
appointment. A Director may be removed for cause by affirmative vote of at
least a majority of the total votes eligible to be cast by the Shareholders at a
duly constituted meeting of Shareholders called expressly for such purpose.
Except as may otherwise be provided by law, cause for removal shall be construed
to exist only if the Director whose removal is proposed has been judged
incompetent, convicted of a felony by a court of competent jurisdiction and such
conviction is no longer subject to appeal, or has been adjudged by a court of
competent jurisdiction to be liable for gross negligence or misconduct in the
performance of his duty to the Corporation in a matter of substantial importance
to the Corporation, and such adjudication is no longer subject to direct appeal.
At least 20 days prior to such meeting of Shareholders, written notice shall be
sent to the Director or Directors whose removal will be considered at such
meeting.
SECTION 7.03. VACANCIES. Notwithstanding any of the foregoing provisions
of this Article, each Director shall serve until his successor is elected and
qualified or until his death, retirement, resignation or removal. Should a
vacancy occur or be
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created, whether arising through death, resignation or removal of a Director or
through an increase in the number of Directors of any class, such vacancy shall
be filled by a majority vote of the remaining Directors then in office, whether
or not a quorum. A Director so elected to fill a vacancy shall serve for the
remainder of the then present term of office of the class to which he was
elected.
SECTION 7.04. QUORUM. A quorum for all meetings of the Directors shall be
a majority of the total number of Directors; PROVIDED, HOWEVER, that, whenever
the vote of a majority of a particular group of Directors (including, but not
limited to the Unaffiliated Directors) is required at a meeting, a quorum for
such meeting shall be a majority of the total number of Directors which shall
include a majority of such group.
SECTION 7.05. COMMITTEES. The Directors may appoint from among their
number an audit committee and such other standing committees as the Directors
determine. Each standing committee shall consist of three or more members. All
members of the audit committee shall be Unaffiliated Directors. A majority of
the members of each other standing committee shall be Unaffiliated Directors;
PROVIDED, HOWEVER, that upon a failure to comply with this requirement because
of the resignation, removal or death of a Director who is an Unaffiliated
Director, such requirement shall not be applicable for a period of sixty (60)
days. Each committee shall have such powers, duties and obligations as the
Directors may deem necessary or appropriate. The standing committees shall
report their activities periodically to the Directors.
ARTICLE VIII
SHAREHOLDERS' MEETINGS
SECTION 8.01. All meetings of Shareholders to elect Directors and to
transact such other business as may properly be presented to the meeting shall
be held at such place, either within or without the State of Indiana, as may be
authorized in the By-Laws and specified in the respective notices of any such
meetings.
SECTION 8.02. Special meetings of the Shareholders may be called at any
time by the Chairman of the Board of Directors, a majority of the Board of
Directors, a majority of the Unaffiliated Directors, the President of the
Corporation, or at the request, in writing, of Shareholders owning ten percent
(10%) of the aggregate number of Shares of the Corporation issued and
outstanding and entitled to vote. Such meetings shall be held at such time and
place, within or without the State of Indiana, as shall be specified in the
notice thereof. Business transacted at
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any special meeting of Shareholders shall be limited to the purpose or purposes
stated in the notice.
SECTION 8.03. All actions permitted or required to be taken by the
Shareholders shall be taken at an annual or special meeting of the Shareholders.
The Shareholders may not act by written consent in lieu of meeting.
ARTICLE IX
BUSINESS COMBINATIONS
SECTION 9.01. Except as provided in Section 9.02 hereof, the affirmative
vote of at least 80% of the Shareholders shall be required to approve any
Business Combination involving a Substantial Shareholder. Such affirmative vote
shall be required for any Business Combination 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. As used in
this Article IX, the term Business Combination shall mean:
(a) any merger or consolidation of the Corporation or any subsidiary
of the Corporation with (i) any Substantial Shareholder or (ii) any other
Person (whether or not itself a Substantial Shareholder) which is, or after
such merger or consolidation would be, a Substantial Shareholder or an
Affiliate of a Substantial Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Substantial Shareholder, or any Affiliate of any Substantial Shareholder,
of any assets of the Corporation or any subsidiary having an aggregate fair
market value of $1,000,000 or more; or
(c) 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 of any Substantial Shareholder or any
Affiliate of any Substantial 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
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of a Substantial
Shareholder or any Affiliate of any Substantial Shareholder; or
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(e) any reclassification of Securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any subsidiary or any other
transaction (whether or not with or into or otherwise involving a
Substantial Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding Shares or Securities
of the Corporation or any subsidiary which is directly or indirectly owned
by any Substantial Shareholder or any Affiliate of any Substantial
Shareholder.
SECTION 9.02. Section 9.01 of this Article shall not apply to a Business
Combination if (A) the Business Combination is approved by a vote of
three-fourths of the Continuing Directors, (B) the Business Combination consists
of the issuance or transfer by the Corporation of Shares of its common stock in
exchange for a partnership interest in Duke Realty Limited Partnership, an
Indiana limited partnership, or Duke Realty Services Limited Partnership, an
Indiana limited partnership, or any successor in interest to either such limited
partnership or (C) the Substantial Shareholder shall have complied with the
provisions of this Section 9.02 of this Article and all Shareholders of the
Corporation shall have been given a reasonable opportunity immediately before
the consummation of the Business Combination to receive in the Business
Combination, or the right to receive as a result of or in the Business
Combination cash, cash and other consideration or other consideration, the per
Share fair market value of which will not, at the time the Business Combination
is effected, together with any cash, be less than the greatest of: (i) the
highest price per Share (including brokerage commissions, soliciting dealers'
fees and all other expenses) paid by the Substantial Shareholder in acquiring
any of its Shares of the Corporation of the same class; (ii) the per Share book
value of the same class of the Corporation's Shares at the time the Business
Combination is effected, determined by such independent appraisal firm or their
experts as the Board of Directors deem appropriate; (iii) the highest sale or
bid price per Share for the Shares of the same class during the 24 months
immediately preceding the time the Business Combination is effected; and (iv) an
amount which bears the same or a greater percentage relationship to the market
price of the same class of the Corporation's Shares immediately prior to the
announcement of the Business Combination as the highest per Share price paid in
(i) above bore to the market price of the same class of the Corporation's Shares
immediately prior to the commencement of acquisition of the Corporation's
Shares by such Substantial Shareholder. The consideration to be received by
holders of outstanding Shares under this Section 9.02 shall be in cash or in the
same form as the Substantial Shareholder has previously paid for such Shares.
If the Substantial Shareholder has paid for Shares with varying forms of
consideration, the form of
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consideration for Shares acquired under this Section 9.02 shall be either cash
or the form used to acquire the largest number of Shares previously acquired by
such Substantial Shareholder.
SECTION 9.03. RESTRICTIONS ON CORPORATE ACTION. Without the approval of
three-fourths of the Continuing Directors, a Substantial Shareholder, after the
time it became such, seeking to comply with Section 9.02 of this Article shall
not have (i) made any material change in the Corporation's business or capital
structure, (ii) received the benefit directly or indirectly (except
proportionately as a Shareholder) of any loans, advances, guarantees, pledges or
other financial assistance provided by the Corporation, or (iii) made, caused or
brought about, directly or indirectly, any change in the Corporation's Articles
or By-Laws or in the membership of the Corporation's Board of Directors of any
committee thereof, or (iv) terminated the Corporation's agreement with the
Advisor.
SECTION 9.04. A majority of the Whole Board shall have the power to
determine, but only if a majority of the Whole Board shall then consist of
Continuing Directors, or, if a majority of the Whole Board shall not then
consist of Continuing Directors, a majority of the Continuing Directors shall
have the power to determine, for the purposes of this Article on the basis of
information known to them, (i) the number of Shares of the Corporation of which
any Person is the Owner, (ii) whether a Person is an Affiliate of another, and
(iii) any other factual matter relating to the applicability or effect of this
Article.
SECTION 9.05. Any determinations made by the Board of Directors, or by the
Continuing Directors, as the case may be, pursuant to this Article in good faith
and on the basis of such information and assistance as was then reasonably
available for such purpose, shall be conclusive and binding upon this
Corporation and its shareholders, including any Substantial Shareholders.
SECTION 9.06. Notwithstanding any provision of this Article IX to the
contrary, no Substantial Shareholder shall consummate any Business Combination
unless such Substantial Shareholder shall have mailed to public Shareholders of
the Corporation, at least 30 days prior to the date of such consummation, a
proxy or information statement describing the proposed Business Combination,
which statement shall comply with the Act and the Rules and Regulations
thereunder or any successor statute or regulation, whether or not such proxy or
information statement is required to be mailed pursuant to such Act, rules or
regulations or subsequent provisions.
SECTION 9.07. Nothing contained in this Article shall be construed to
relieve any Substantial Shareholder from any fiduciary obligation imposed by
law.
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ARTICLE X
REFUSAL TO TRANSFER SHARES, ACQUISITION
RESTRICTION AND OTHER RESTRICTIONS ON RIGHTS OF SHARES
SECTION 10.01. The Shareholders shall upon demand disclose to the
Directors in writing such information with respect to direct and indirect
ownership of the Shares as the Directors deem necessary or appropriate to comply
with the REIT provisions of the Code or to comply with the requirements of any
taxing authority or governmental agency.
SECTION 10.02. Whenever it is deemed by them to be reasonably necessary to
protect the status of the Corporation as a REIT, the Directors may require a
statement or affidavit from each Shareholder or proposed transferee of Shares
setting forth the number of Shares already owned by him and any related Person
specified in the form prescribed by the Directors for that purpose. If, in the
opinion of the Directors, which shall be conclusive upon any proposed transferee
of Shares, any proposed transfer might jeopardize the status of the Corporation
as a REIT, the Directors shall have the right, but not the duty, to refuse to
permit such transfer.
SECTION 10.03. Notwithstanding any other provision of these Articles to
the contrary, any purported acquisition of Shares of the Corporation which would
result in the disqualification of the Corporation as a REIT shall be null and
void.
SECTION 10.04. Nothing contained in these Articles shall limit the
authority of the Directors to take such other action as they deem necessary or
advisable to protect the Corporation and the interests of the Shareholders by
preservation of the Corporation's status as a REIT.
SECTION 10.05. It shall be the policy of the Directors to consult with the
appropriate officials of any stock exchange on which the relevant Shares of the
Corporation are listed as far as reasonably possible in advance of the final
exercise (at any time when the Shares are listed on such exchange) of any powers
granted by Sections 10.02 or 10.03.
SECTION 10.06. In furtherance of the provisions of this Article X, each
certificate evidencing Shares shall contain a legend imprinted thereon to the
following effect, or such other legend as the Directors may from time to time
adopt:
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STATEMENT OF POWERS;
PROVISIONS RELATING TO PROHIBITION OF
TRANSFER OF SHARES AND OTHER RESTRICTIONS
"If necessary to effect compliance by the Corporation with
requirements of the Internal Revenue Code relating to real estate
investment trusts, rights of the holder of the Shares represented by this
certificate may be restricted by the Corporation and/or the transfer
thereof may be prohibited upon the terms and conditions set forth in the
Articles of Incorporation. The Corporation will furnish a copy of such
terms and conditions and a statement of all the powers, designations,
participating, optional or other special rights of each class of stock
issued by the Corporation and the qualifications, limitations or
restrictions of such preferences and/or rights, to the registered holder of
this certificate upon request and without charge."
ARTICLE XI
AMENDMENT OF BY-LAWS
The Shareholders or the Directors may, by a majority vote, amend or repeal
any provision of the By-Laws.
ARTICLE XII
AMENDMENT OR REPEAL
Notwithstanding any other provision of these Articles or the By-Laws of the
Corporation (and not withstanding the fact that a lesser percentage may be
specified by these Articles or the By-Laws of the Corporation) and in addition
to any other procedure specified under Indiana law, the affirmative vote of at
least eighty percent (80%) of the issued and outstanding Shares of the
Corporation shall be required to repeal or adopt any provision inconsistent with
Articles IX, X, XI and XII, or Sections 7.01, 7.02, 7.03, and 8.03, hereof.
With respect to any other proposed amendment to or alteration of these Articles
not approved by the vote of three-quarters of the Directors, such amendment or
alteration shall require the affirmative vote of at least eighty percent (80%)
of the issued and outstanding Shares.
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ARTICLE XIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 13.01. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS. A Director
of the Corporation shall not be personally liable to the Corporation or its
Shareholders for monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
IND. CODE Section 23-1-35-4, or (iv) for any transaction from which the Director
derived an improper personal benefit.
SECTION 13.02. INDEMNIFICATION AND INSURANCE.
(a) RIGHT TO INDEMNIFICATION. Each Person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a Person
of whom he or she is the legal representative, is or was a Director or officer
of the Corporation or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a Director, officer, employee or agent or in any
other capacity while serving as a Director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Indiana Business Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such Person in connection
therewith and such indemnification shall continue as to a Person who has ceased
to be a Director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators: PROVIDED, HOWEVER, that, except
as provided in paragraph (b) hereof, the Corporation shall indemnify any such
Person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such Person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 13.02 shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition: PROVIDED,
HOWEVER, that, if the Indiana Business Corporation Law requires, the payment of
such expenses incurred by a Director or officer in his or her capacity as a
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Director or officer (and not in any other capacity in which service was or is
rendered by such Person while a Director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such Director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such Director or
officer is not entitled to be indemnified under this Section 13.02 or otherwise.
The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of Directors and officers.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph (a) of
this Section 13.02 is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Indiana Business Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
Shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Indiana Business Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
Shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met such applicable standard of conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 13.02 shall not be exclusive of any other
right which any Person may have or hereafter acquire under any statute,
provision of these Articles, by-law, agreement, vote of Shareholders or
disinterested Directors or otherwise.
(d) INSURANCE. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, officer,
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employee or agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such Person
against such expense, liability or loss under the Indiana Business Corporation
Law.
ARTICLE XIV
SEVERABILITY
In the event that any Article or Section (or portion thereof) of these
Articles shall be found to be invalid, prohibited or unenforceable for any
reason, the remaining provisions, or portion thereof, of these Articles shall be
deemed to remain in full force and effect, and shall be construed as if such
invalid, prohibited or unenforceable provision had been stricken herefrom or
otherwise rendered inapplicable, it being the intent of this Corporation and its
Shareholders that each such remaining provision (or portion thereof) of these
Articles remain, to the fullest extent permitted by law, applicable and
enforceable as to all Shareholders, including Substantial Shareholders,
notwithstanding any such findings.
ARTICLE XV
INCORPORATOR
The name and mailing address of the sole incorporator are:
John W. Wynne
8888 Keystone Crossing, Suite 1150
Indianapolis, Indiana 46240-2438
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