ARTICLES OF INCORPORATION
OF
LEASE ACQUISITION CORPORATION
The undersigned incorporator, desiring to form a corporation
(hereinafter
referred to as the "Corporation") pursuant to the provisions of the Indiana
Business
Corporation Law, as amended (hereinafter referred to as the "Corporation
Law"), executes
the
following Articles of Incorporation.
ARTICLE I
Name
The name of the Corporation is Lease Acquisition Corporation.
ARTICLE II
Purposes and Powers
Section 2.1. Purposes 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 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 is 300
North Meridian
Street, Suite 2700, Indianapolis, Indiana 46204 and the name of its
registered agent at
such
office is Daniel L. Boeglin.
ARTICLE V
Shares
Section 5.1. Authorized Classes and Number of Shares. The total
number of
shares which the Corporation has authority to issue shall be 20,000 shares,
consisting of
10,000 common shares (the "Common Shares") and 10,000 special shares (the
"Special
Shares"). The Corporation's shares do not have any par or stated value.
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
Special Shares in
the
provisions of these Articles of Incorporation adopted by the Board of
Directors pursuant to
Section 5.5 hereof describing the terms of such series). Shares of the
Corporation
purchased,
redeemed or otherwise acquired by it shall constitute authorized but
unissued shares
unless 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 Articles of Incorporation and for such
consideration, at
such price or prices, at such time or times and upon such terms and
conditions (including
the
privilege of selectively repurchasing the same) as the Board of Directors
of the Corporation
shall determine, without the authorization or approval by any shareholders
of the
Corporation.
Shares may be disposed of, issued and sold to such persons, firms or
corporations as the
Board of Directors may determine, without any preemptive or other right on
the part of the
owners or holders of other shares of the Corporation of any class or kind
to acquire such
shares by reason of their ownership of such other shares.
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 Special Shares in the provisions of these Articles
of Incorporation
adopted by the Board of Directors pursuant to Section 5.5 hereof 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 Shares. 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 Shares
have
unlimited voting rights and each outstanding Common Share shall, when
validly issued by the Corporation, entitle the record holder thereof to
one vote
at all shareholders' meetings on all matters submitted to a vote of the
shareholders of the Corporation.
(b) Special Shares. Except as required by the Corporation Law or
by
the provisions of these Articles of Incorporation adopted by the Board
of
Directors pursuant to Section 5.5 hereof describing the terms of
Special Shares
or a series thereof, the holders of Special Shares shall have no voting
rights or
powers. Special Shares shall, when validly issued by the Corporation,
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 Articles of Incorporation adopted
by the
Board of Directors pursuant to Section 5.5 hereof describing the terms
of
Special Shares 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 Shares. The Common Shares
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 Special
Shares issued under Section 5.5 hereof, the holders of Common Shares 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 Shares 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 Special Shares of the
full amount to
which they shall be entitled under this Article V, the holders of Common
Shares shall be
entitled, to the exclusion of the holders of the Special Shares of any and
all series, to share,
ratably according to the number of shares of Common Shares held by them, in
all
remaining
assets of the Corporation available for distribution to its shareholders.
Section 5.5. Other Terms of Special Shares.
(a) Special Shares 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 Articles of Incorporation. Subject to the requirements of the
Corporation Law and subject to all other provisions of these Articles
of
Incorporation, the Board of Directors of the Corporation may create one
or
more series of Special Shares and may determine the preferences,
limitations
and relative voting and other rights of one or more series of Special
Shares
before the issuance of any shares of that series by the adoption of an
amendment to these Articles of Incorporation that specifies the terms
of the
series of Special Shares. All shares of a series of Special Shares
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 Articles of Incorporation so provides, no series of Special
Shares need
have preferences, limitations or relative voting or other rights
identical with
those of any other series of Special Shares.
Before issuing any shares of a series of Special Shares, the Board
of
Directors shall adopt an amendment to these 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:
(i) 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;
(ii) 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);
(iii) 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:
(1) the dividend rate, if any, of such series;
(2) 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;
(3) the relative rights of priority, if any, of
payment of dividends or other distributions on shares of
that series in relation to Common Shares and shares of
any other series of Special shares; and
(4) 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;
(iv) 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
(1) at the option of the Corporation, the
shareholder or another person or upon the occurrence of a
designated event;
(2) for cash, indebtedness, securities, or other
property or any combination thereof; and
(3) in a designated amount or in an amount
determined in accordance with a designated formula or by
reference to extrinsic data or events;
(v) 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 Common Shares and shares
of
any other series of special shares; 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;
(vi) 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;
(vii) 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
Articles of
Incorporation fixing the terms of any outstanding series of
Special
Shares theretofore issued pursuant to this Section 5.5 and, if
subject to
additional restrictions, the extent of such additional
restrictions; and
(viii) 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
Articles of
Incorporation or any amendment hereof.
(b) Special Shares 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 Special Shares, subject to such
limitations (if
any) as may be fixed by the Board of Directors with respect to such
series of
Special Shares in accordance with subsection (a) of this Section 5.5.
ARTICLE VI
Directors
Section 6.1. Number. The initial Board of Directors shall be
comprised of two
(2) members, which number may be changed by amendment to the By-Laws.
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
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 may, in considering the best interests of the Corporation,
consider the effects of
any
action on shareholders, employees, suppliers and customers of the
Corporation, and
communities in which offices or other facilities of the Corporation are
located, and any other
factors the Director considers pertinent.
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. Removal of Directors. Any one or more of the
members of the
Board of Directors may be removed, with or without cause, only at a meeting
of the
shareholders called expressly for that purpose, by the affirmative vote of
the holders of
outstanding shares representing at least a majority of all the votes then
entitled to be cast
at an
election of Directors. No Director may be removed except as provided in
this Section 6.5.
Section 6.6. Election of Directors by Holders of Special Shares.
The holders
of one (1) or more series of Special Shares 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 Articles of Incorporation adopted by the Board of
Directors pursuant to
Section 5.5 hereof describing the terms of the series of Special Shares.
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. Special Meetings of Shareholders. Special meetings
of the
shareholders, for any purpose or purposes, unless otherwise prescribed by
the Corporation
Law, may be called at any time by the Board of Directors or the person or
persons
authorized
to do so by the By-Laws and shall be called by the Board of Directors if
the Secretary of the
Corporation receives one (1) or more written, dated and signed demands for
a special
meeting, describing in reasonable detail the purpose or purposes for which
it is to be held,
from the holders of shares representing at least twenty-five percent (25%)
of all the votes
entitled to be cast on any issue proposed to be considered at the proposed
special meeting.
If
the Secretary receives one (1) or more proper written demands for a special
meeting of
shareholders, the Board of Directors may set a record date for determining
shareholders
entitled to make such demand.
Section 7.3. 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 7.4. 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 7.4 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 7.5. 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. Any provisions for the
regulation of the
business
and management of the affairs of the Corporation not stated in these
Articles of
Incorporation
may 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
such time.
Section 7.6. 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 7.6, 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,
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 7.6(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
7.6. 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 7.6(a)(1), if the transaction is otherwise authorized,
approved, or
ratified as provided in such subsection.
(d) For purposes of Section 7.6(a)(2), 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 7.6(b), may be counted in such a vote of
shareholders to
determine whether to authorize, approve or ratify a conflict of
interest
transaction.
Section 7.7. 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 7.8. 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 or her in connection
with or
resulting from any Claim, (i) if such Eligible Person is Wholly
Successful with
respect to the Claim, or (ii) if not Wholly Successful, then if such
Eligible
Person is determined, as provided in either Section 7.8(f) or 7.8(g),
to have
acted in good faith, in what he or she 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 or her conduct was lawful or had
no
reasonable cause to believe that his or her 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 (ii) 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 or she
was acting in conformity with the requirements of such Act or he or she
reasonably believed his or her actions to be in the interests of the
participants
in or beneficiaries of the plan.
(b) The term "Claim" as used in this Section 7.8 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:
(i) by reason of his or her being or having been an Eligible
Person, or
(ii) by reason of any action taken or not taken by him or her
in his
or her capacity as an Eligible Person, whether or not he or she
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 7.8 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 or fiduciary of another foreign or domestic corporation,
partnership, 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 or her
duties to the Corporation also imposed duties on, or otherwise involved
services
by, him or her to the plan or to participants in or beneficiaries of
the plan.
(d) The terms "Liability" and "Expense" as used in this Section
7.8
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 7.8
shall
mean (i) termination of any Claim against the Eligible Person in
question
without any finding of liability or guilt against him, (ii) approval by
a court or
agency, with knowledge of the indemnity herein provided, of a
settlement of
any Claim, or (iii) the expiration of a reasonable period of time after
the
threatened making of any Claim without commencement of an action, suit
or
proceeding and 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 (i) 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
7.8(a)(ii), and
(ii) 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 or she 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 finding that are
within
the possession or control of the Corporation.
(g) If an Eligible Person claiming indemnification pursuant to
Section 7.8(f) is found not to be entitled thereto, or if the Board of
Directors
fails to select a Referee under Section 7.8(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 7.8(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 7.8(a)(ii). 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 7.8
shall
be in addition to any rights to which any Eligible Person may otherwise
be
entitled. Irrespective of the provisions of this Section 7.8, the
Board of
Directors may, at any time and from time to time, (i) 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 (ii) authorize the Corporation to purchase and
maintain
insurance on behalf of any Eligible Person against any Liability
asserted against
him or any Liability or Expense incurred by him or her in any such
capacity,
or arising out of his or her 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 or she is determined not to
be
entitled to indemnification.
(j) The provisions of this Section 7.8 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 7.8
that
occurs subsequent to such person becoming an Eligible Person.
(k) The provisions of this Section 7.8 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
Incorporator
The name and post office address of the incorporator of the
Corporation are as
follows:
Number and Street City, State
Name or Building Zip Code
Daniel L. Boeglin 300 N. Meridian St., Indianapolis, IN
Suite 2700 46204
ARTICLE IX
Miscellaneous Provisions
Section 9.1. Amendment or Repeal. Except as otherwise expressly
provided
for in these 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
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. Headings. The headings of the Articles and Sections
of these
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
IN WITNESS WHEREOF, the undersigned, being the incorporator
designated
in Article IX, executes these Articles of Incorporation this 3rd day of
August, 1993.
by: /s/ Daniel L. Boeglin
This instrument was prepared by Daniel L. Boeglin, Attorney at Law, Baker &
Daniels,
Suite 2700, 300 North Meridian Street, Indianapolis, Indiana 46204-1782.
ARTICLES OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION
OF
LEASE ACQUISITION CORPORATION
Lease Acquisition Corporation (the "Corporation"), existing
pursuant to the Indiana Business Corporation Law and desiring to give
notice
of corporate action effectuating an amendment to its Articles of
Incorporation, sets forth the following facts:
Article I
Amendment to the
Articles of Incorporation
Section 1. The name of the Corporation prior to this amendment is
Lease Acquisition Corporation.
Section 2. Article I of the Corporation's Articles of
Incorporation hereby is amended to read in its entirety as follows:
ARTICLE I
Name
The name of the Corporation is Meridian Financial Corporation.
Section 3. The amendment was approved by the Board of Directors
and the shareholders of the Corporation on November 8, 1993. The effective
date of the amendment shall be the date of filing of these Articles of
Amendment with the office of the Secretary of State of the State of
Indiana.
Article II
Manner of Adoption and Vote
Section 1. The Corporation has only one class of capital stock
issued and outstanding. The amendment to the Articles of Incorporation was
adopted by the unanimous joint written consent of all of the Directors and
all
of the shareholders of the Corporation on November 8, 1993.
Section 2. The manner of the adoption of the amendment to the
Articles of Incorporation constitutes full legal compliance with the
provisions of the Indiana Business Corporation Law and the Corporation's
Articles of Incorporation and By-Laws.
IN WITNESS WHEREOF, the undersigned officer of the Corporation has
executed these Articles of Amendment on November 8, 1993.
/s/Michael F. McCoy
President
oard of Directors constitutes full legal compliance with the provisions of
the Indiana
Business Corporation Law and the Corporation's Articles of Incorporation
and By-Laws.
IN WITNESS WHEREOF, the undersigned officer of Meridian
Financial
Corporation has executed these Articles of Amendment this 24th day of
November, 1993.
by:\s\ Michael F. McCoy, President
EXHIBIT A
Section 5.6. Terms of Series A Preferred Stock. The
designation,
preferences, limitations and relative voting and other rights of the shares
of the first series
of the authorized Special Shares of the Corporation (such series being
hereinafter called the
"Series A Preferred Stock"), in addition to those set forth in these
Articles of Incorporation
which are applicable to Special Shares of all series, are hereby fixed as
follows:
(a) Designation and Amount. The shares of such series
shall be
designated "Series A Preferred Stock", and the number of authorized shares
constituting
such series shall be 1,000 shares.
(b) Dividends. The holders of shares of the Series A
Preferred Stock shall
be entitled to receive, out of the assets of the Corporation legally
available therefor and as
and when declared by the Board of Directors in its sole discretion, cash
dividends at the
rate of $40.00 per share per annum, payable quarterly in arrears on the
last day of the
months of March, June, September and December in each year, commencing
December, 1993. Such dividends shall be cumulative from the date of
original issue of the
Series A Preferred Stock and will be payable to the holders of record as
they appear on the
stock books of the Corporation on such record dates, not more than 50 days
nor less than 10
days preceding the payment dates, as shall be fixed by the Board of
Directors of the
Corporation.
Dividends payable for any partial dividend period shall be
computed on the
basis of a 360-day year of twelve 30-day months.
If dividends are not paid in full upon the Series A
Preferred Stock and any
other Special Shares ranking on a parity as to dividends with the Series A
Preferred Stock,
all dividends declared upon shares of Series A Preferred Stock and such
other Special
Shares shall be declared pro rata so that in all cases the amount of
dividends declared per
share on the Series A Preferred Stock and such other Special Shares bear to
each other the
same ratio that accumulated dividends per share on the shares of Series A
Preferred Stock
and such other Special Shares bear to each other.
Unless full cumulative dividends on the Series A Preferred
Stock have been
paid, no Common Shares of the Corporation or any other shares of the
Corporation ranking
junior to the Series A Preferred Stock as to dividends may be redeemed,
purchased or
otherwise acquired for any consideration (or any payment made to or
available for a
sinking fund for the redemption of any such shares) by the Corporation
(except by
conversion into or exchange for, or out of the net cash proceeds from the
concurrent sale of,
shares of the Corporation ranking junior to the Series A Preferred Stock as
to dividends)
and no dividends (other than in Common Shares or any other shares ranking
junior to the
Series A Preferred Stock as to dividends) may be paid or declared and set
aside for payment
or other distribution made upon the Common Shares or on any other shares of
the
Corporation ranking junior to the Series A Preferred Stock as to dividends.
(c) Liquidation Rights. In the event of any
liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the
holders of Series A
Preferred Stock shall be entitled to receive, out of the assets of the
Corporation available for
distribution to shareholders, before any distribution or payment is made
upon any Common
Shares or other Special Shares ranking junior in right of payment upon
liquidation to the
Series A Preferred Stock, the sum of $400 per share plus accumulated and
unpaid
dividends. If upon any liquidation, dissolution or winding up of the
Corporation, the
amounts payable with respect to the Series A Preferred Stock and any other
Special Shares
ranking as to any such distribution on a parity with the Series A Preferred
Stock are not
paid in full, the holders of the Series A Preferred Stock and of such other
Special Shares
will share ratably in any such distribution of assets in proportion to the
full respective
preferential amounts to which they are entitled. After payment of the full
amount of the
liquidating distribution to which they are entitled, the holders of shares
of Series A
Preferred Stock will not be entitled to any further participation in any
distribution of assets
by the Corporation.
(d) Voting Rights. Except as required by applicable
law, the holders of
shares of the Series A Preferred Stock have no voting rights.
(e) Optional Redemption. The Series A Preferred Stock may
be redeemed on
at least 10 and not more than 60 days' notice at the option of the
Corporation, as a whole or
in part, at any time or from time to time, at a redemption price of $400
per share plus
accumulated and unpaid dividends. On and after the redemption date, the
dividends cease
to accumulate on shares of the Series A Preferred Stock called for
redemption. In case of
the redemption of less than all the outstanding shares of Series A
Preferred Stock, the
shares to be redeemed shall be determined by the Board of Directors of the
Corporation, in
its sole discretion. Notice of redemption shall be given by mail, postage
prepaid, to the
holders of record of the Series A Preferred Stock to be redeemed, to be
addressed to each
such stockholder at his post office address as shown by the records of the
Corporation. If
such notice of redemption shall have been duly given, and if on or before
the redemption
date specified in such notice the funds necessary for such redemption shall
have been set
aside so as to be and continue to be available therefor, then,
notwithstanding that any
certificate for shares so called for redemption shall not have been
surrendered for
cancellation, from and after such redemption date, the shares so called for
redemption shall
no longer be deemed outstanding, the dividends thereon shall cease to
accrue, and all rights
with respect to shares so called for redemption, including the rights, if
any, to receive
notices and to vote, shall forthwith on such redemption date cease and
terminate, except
only the right of the holders thereof to receive the amount payable upon
redemption
thereof, without interest. Subject to the provisions hereof, the Board of
Directors shall
have authority to prescribe the manner in which the Series A Preferred
Stock shall be
redeemed from time to time.
(f) No Sinking Fund. The Series A Preferred Stock shall
not be entitled to
the benefits of any retirement or sinking fund.
Board of Directors constitutes full legal compliance with the provisions of
the Indiana
Business Corporation Law and the Corporation's Articles of Incorporation
and By-Laws.
IN WITNESS WHEREOF, the undersigned officer of Meridian
Financial
Corporation has executed these Articles of Amendment this 29th day of
September, 1994.
by:\s\ Michael F. McCoy, President
EXHIBIT A
Section 5.7. Terms of Series B Preferred Stock. The
designation,
preferences, limitations and relative voting and other rights of the shares
of the
second series of the authorized Special Shares of the Corporation (such
series being
hereinafter called the "Series B Preferred Stock"), in addition to those
set forth in
these Articles of Incorporation which are applicable to Special Shares of
all series,
are hereby fixed as follows:
(a) Designation and Amount. The shares of such series
shall be
designated "Series B Preferred Stock", and the number of authorized shares
constituting such series shall be 1,500 shares.
(b) Dividends. The holders of shares of the Series B
Preferred
Stock shall be entitled to receive, out of the assets of the Corporation
legally
available therefor and as and when declared by the Board of Directors in
its sole
discretion, cash dividends at the rate of $80.00 per share per annum,
payable
quarterly in arrears on the last day of the months of March, June,
September and
December in each year, commencing December, 1994. Such dividends shall be
cumulative from the date of original issue of the Series B Preferred Stock
and will be
payable to the holders of record as they appear on the stock books of the
Corporation
on such record dates, not more than 50 days nor less than 10 days preceding
the
payment dates, as shall be fixed by the Board of Directors of the
Corporation.
Dividends payable for any partial dividend period shall be
computed
on the basis of a 360-day year of twelve 30-day months.
The Series B Preferred Stock shall rank on a parity as to
dividends
with the Series A Preferred Stock. If dividends are not paid in full upon
the Series B
Preferred Stock and any other Special Shares ranking on a parity as to
dividends
with the Series B Preferred Stock (including the Series A Preferred Stock),
all
dividends declared upon shares of Series B Preferred Stock and such other
Special
Shares shall be declared pro rata so that in all cases the amount of
dividends
declared per share on the Series B Preferred Stock and such other Special
Shares
bear to each other the same ratio that accumulated dividends per share on
the
shares of Series B Preferred Stock and such other Special Shares bear to
each other.
Unless full cumulative dividends on the Series B Preferred
Stock have
been paid, no Common Shares of the Corporation or any other shares of the
Corporation ranking junior to the Series B Preferred Stock as to dividends
may be
redeemed, purchased or otherwise acquired for any consideration (or any
payment
made to or available for a sinking fund for the redemption of any such
shares) by the
Corporation (except by conversion into or exchange for, or out of the net
cash
proceeds from the concurrent sale of, shares of the Corporation ranking
junior to the
Series B Preferred Stock as to dividends) and no dividends (other than in
Common
Shares or any other shares ranking junior to the Series B Preferred Stock
as to
dividends) may be paid or declared and set aside for payment or other
distribution
made upon the Common Shares or on any other shares of the Corporation
ranking
junior to the Series B Preferred Stock as to dividends.
(c) Liquidation Rights. In the event of any
liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the
holders of
Series B Preferred Stock shall be entitled to receive, out of the assets of
the
Corporation available for distribution to shareholders, before any
distribution or
payment is made upon any Common Shares or other Special Shares ranking
junior
in right of payment upon liquidation to the Series B Preferred Stock, the
sum of
$1,000 per share plus accumulated and unpaid dividends.
The Series B Preferred Stock shall rank on a parity as to
distributions
on liquidation, dissolution or winding up with the Series A Preferred
Stock. If upon
any liquidation, dissolution or winding up of the Corporation, the amounts
payable
with respect to the Series B Preferred Stock and any other Special Shares
ranking
as to any such distribution on a parity with the Series B Preferred Stock
(including
the Series A Preferred Stock) are not paid in full, the holders of the
Series B
Preferred Stock and of such other Special Shares will share ratably in any
such
distribution of assets in proportion to the full respective preferential
amounts to
which they are entitled. After payment of the full amount of the
liquidating
distribution to which they are entitled, the holders of shares of Series B
Preferred
Stock will not be entitled to any further participation in any distribution
of assets by
the Corporation.
(d) Voting Rights. Except as provided in this Section
5.7(d) or as
required by applicable law, the holders of shares of the Series B Preferred
Stock
have no voting rights.
The holders of Series B Preferred Stock, voting as a class,
shall be
entitled to elect one Director at each meeting of the shareholders of the
Corporation
at which Directors are elected, but (except as provided below) shall not be
entitled to
vote upon the election of the remaining Directors.
Unless otherwise specified in this Section 5.7(d), in any
case in which
the holders of the Series B Preferred Stock have voting rights, each
outstanding
share of Series B Preferred Stock shall, when validly issued by the
Corporation,
entitle the record holder thereof to one vote.
If the Corporation fails to declare and pay two consecutive
quarterly
dividends on the Series B Preferred Stock, then beginning on the day after
the
second of such dividends should have been but was not paid and continuing
until the
day on which all accumulated but unpaid dividends have been paid, the
holders of
the Series B Preferred Stock shall be entitled to vote, together with the
holders of
Common Shares as a single voting group, on all matters on which the holders
of
Common Shares are entitled to vote. The aggregate number of votes to be
cast by
the holders of the Series B Preferred Stock shall be equal to forty percent
(40%) of
the total number of votes entitled to be cast by such single voting group;
and each
share of Series B Preferred Stock shall entitle the record holder thereof
to cast one-
fifteen hundredth (1/1500) of such aggregate number of votes.
(e) No Sinking Fund. The Series B Preferred Stock shall
not be
entitled to the benefits of any retirement or sinking fund.
ARTICLES OF AMENDMENT OF THE
ARTICLES OF INCORPORATION
OF MERIDIAN FINANCIAL CORPORATION
Meridian Financial Corporation (hereinafter referred to as the
"Corporation"),
existing pursuant to the Indiana Business Corporation Law and desiring to
give
notice of
corporate action effectuating an amendment of its Articles of
Incorporation, sets
forth the
following facts:
Article I
Amendment
Section 1. The name of the Corporation following this amendment
continues to
be Meridian Financial Corporation.
Section 2. Upon effectiveness of these Articles of Amendment, the
Corporation's Articles of Incorporation shall be amended by adding a new
Section
5.8 thereto,
the exact text of which is attached as Exhibit A.
Section 3. The foregoing amendment was duly adopted by the
Corporation's
Board of Directors on March 24, 1997. The effective date of such amendment
shall
be the
date of filing of these Articles of Amendment with the office of the
Secretary of State
of the
State of Indiana.
Article II
Manner of Adoption and Vote
Section 1. The amendment was adopted by the Corporation's Board
of
Directors without shareholder action, and shareholder action was not
required.
Section 2. The manner of adoption of the amendment by the
Corporation's
Board of Directors constitutes full legal compliance with the provisions of
the
Indiana
Business Corporation Law and the Corporation's Articles of Incorporation
and By-
Laws.
IN WITNESS WHEREOF, the undersigned officer of Meridian Financial
Corporation has executed these Articles of Amendment this 27th day of
March,
1997.
by:\s\ Gerald W. Gerichs, Vice President, Secretary and Treasurer
EXHIBIT A
Section 5.8. Terms of Series C Convertible Preferred Stock. The
designation,
preferences, limitations and relative voting and other rights of the shares
of the
third series of the
authorized Special Shares of the Corporation (such series being hereinafter
called
the "Series C
Convertible Preferred Stock"), in addition to those set forth in these
Articles of
Incorporation which are
applicable to Special Shares of all series, are hereby fixed as follows:
1. Number of Shares. The series of Special Shares designated and
known as
"Series C
Convertible Preferred Stock" shall consist of 3,000 shares.
2. Voting.
2.1 General. Except as may be otherwise provided in these terms
of the Series
C
Convertible Preferred Stock or by the Corporation Law, the Series C
Convertible
Preferred Stock shall
vote together with the Common Shares (which are referred to hereinafter as
the
"Common Stock") as a
single class on all actions to be taken by the shareholders of the
Corporation. Each
share of Series C
Convertible Preferred Stock shall entitle the holder thereof to such number
of votes
per share on each such
action as shall equal the number of shares of Common Stock (including
fractions of a
share) into which
each share of Series C Convertible Preferred Stock is then convertible.
2.2 Board Size. The Corporation shall not, without the
affirmative vote of the
holders
of at least two-thirds of the then outstanding shares of Series C
Convertible
Preferred Stock, voting
separately as a series, increase the maximum number of directors
constituting the
Board of Directors to
a number in excess of five.
3. Dividends. The holders of the Series C Convertible Preferred
Stock shall be
entitled to
receive, out of funds legally available therefor, dividends at the same
rate as
dividends (other than
dividends paid in additional shares of Common Stock) are paid with respect
to the
Common Stock
(treating each share of Series C Convertible Preferred Stock as being equal
to the
number of shares of
Common Stock (including fractions of a share) into which each share of
Series C
Convertible Preferred
Stock is then convertible).
4. Liquidation. Upon any liquidation, dissolution or winding up of
the
Corporation, whether
voluntary or involuntary, the holders of the shares of Series C Convertible
Preferred
Stock shall be
entitled, before any distribution or payment is made upon any stock ranking
on
liquidation junior to the
Series C Convertible Preferred Stock, to be paid an amount equal to the
greater of (i)
$1,000 per share
plus, in the case of each share, an amount equal to all dividends declared
but unpaid
thereon, computed
to the date payment thereof is made, or (ii) such amount per share as would
have
been payable had each
such share been converted to Common Stock pursuant to paragraph 6
immediately
prior to such
liquidation, dissolution or winding up, and the holders of Series C
Convertible
Preferred Stock shall not
be entitled to any further payment, such amount payable with respect to one
share
of Series C Convertible
Preferred Stock being sometimes referred to as the "Liquidation Payment"
and with
respect to all shares
of Series C Convertible Preferred Stock being sometimes referred to as the
"Liquidation Payments". If
upon such liquidation, dissolution or winding up of the Corporation,
whether
voluntary or involuntary,
the assets to be distributed among the holders of Series C Convertible
Preferred
Stock shall be insufficient
to permit payment to the holders of Series C Convertible Preferred Stock of
the
amount distributable as
aforesaid, then the entire assets of the Corporation to be so distributed
shall be
distributed ratably among
the holders of Series C Convertible Preferred Stock and any shares of stock
of the
Corporation ranking
on parity with such shares of Series C Convertible Preferred Stock as to
payments
upon any liquidation,
dissolution or winding up of the Corporation. Upon any such liquidation,
dissolution
or winding up of
the Corporation, after the holders of Series C Convertible Preferred Stock
shall have
been paid in full the
amounts to which they shall be entitled, the remaining net assets of the
Corporation
may be distributed
to the holders of stock ranking on liquidation junior to the Series C
Convertible
Preferred Stock. Written
notice of such liquidation, dissolution or winding up, stating a payment
date, the
amount of the
Liquidation Payments and the place where said Liquidation Payments shall be
payable, shall be delivered
in person, mailed by certified or registered mail, return receipt
requested, or sent by
telecopier, not less
than 20 days prior to the payment date stated therein, to the holders of
record of
Series C Convertible
Preferred Stock, such notice to be addressed to each such holder at its
address as
shown by the records
of the Corporation. For purposes hereof, shares of Common Stock shall rank
on
liquidation junior to the
Series C Convertible Preferred Stock, unless the Liquidation Payments are
calculated pursuant to clause
(ii) above, in which case shares of Common Stock shall rank on liquidation
on parity
with the Series C
Convertible Preferred Stock. The Series A Preferred Stock and the Series B
Preferred Stock shall rank
on liquidation junior to the Series C Convertible Preferred Stock.
5. Restrictions. At any time when shares of Series C Convertible
Preferred Stock
are
outstanding, except where the vote of the holders of a greater number of
shares of
the Corporation is
required by law or by the Articles of Incorporation of the Corporation, and
in
addition to any other vote
required by law or the Articles of Incorporation of the Corporation,
without the
approval of the holders
of at least two-thirds of the then outstanding shares of Series C
Convertible
Preferred Stock, voting
separately as a series, the Corporation will not:
(i) create, authorize the creation of or issue any
additional shares of any
class
or series of shares of stock unless the same ranks junior to the
Series C
Convertible
Preferred Stock as to the distribution of assets on the
liquidation, dissolution
or winding
up of the Corporation, or increase the authorized amount of the
Series C
Convertible
Preferred Stock or increase the authorized amount of any class or
series of
shares of stock
unless the same ranks junior to the Series C Convertible Preferred
Stock as to
the
distribution of assets on the liquidation, dissolution or winding
up of the
Corporation, or
create or authorize any obligation or security convertible into
shares of Series
C
Convertible Preferred Stock or into shares of any other class or
series of stock
unless the
same ranks junior to the Series C Convertible Preferred Stock as
to the
distribution of
assets on the liquidation, dissolution or winding up of the
Corporation,
whether any such
creation, authorization, issuance or increase shall be by means of
amendment
to the
Articles of Incorporation of the Corporation or by merger,
consolidation or
otherwise;
(ii) consent to any liquidation, dissolution or winding up of
the Corporation
or consolidate or merge into or with any other entity or entities
or sell, lease,
abandon,
transfer or otherwise dispose of all or substantially all of its
assets;
(iii) amend, alter or repeal its Articles of
Incorporation;
(iv) purchase or set aside any sums for the purchase of, or
pay any
dividends
or make any distribution on, any shares of stock other than the
Series C
Convertible
Preferred Stock, except for (x) dividends or other distributions
payable on the
Common
Stock solely in the form of additional shares of Common Stock, (y)
regular
quarterly
dividends on shares of Series A Preferred Stock outstanding as of
the date
these terms of
Series C Convertible Preferred Stock are filed with the Indiana
Secretary of
State, in
accordance with the terms of such Series A Preferred Stock, and
(z) redemption
of the
Series B Preferred Stock substantially contemporaneously with the
issuance
and sale of
the Series C Convertible Preferred Stock; or
(v) redeem or otherwise acquire any shares of Series C
Convertible
Preferred
Stock except as expressly authorized in paragraph 7 hereof or
pursuant to a
purchase offer
made pro rata to all holders of the shares of Series C Convertible
Preferred
Stock on the
basis of the aggregate number of outstanding shares of Series C
Convertible
Preferred
Stock then held by each such holder.
6. Conversion. The holders of shares of Series C Convertible
Preferred Stock
shall have the
following conversion rights:
6.1 Right to Convert. Subject to the terms and conditions of
this paragraph 6,
the
holder of any share or shares of Series C Convertible Preferred Stock shall
have the
right, at its option
at any time, to convert any such shares of Series C Convertible Preferred
Stock
(except that upon any
liquidation of the Corporation the right of conversion shall terminate at
the close of
business on the
business day fixed for payment of the amount distributable on the Series C
Convertible Preferred Stock)
into such number of fully paid and nonassessable shares of Common Stock as
is
obtained by (i)
multiplying the number of shares of Series C Convertible Preferred Stock so
to be
converted by $1,000
and (ii) dividing the result by the conversion price of $1,000 per share
or, in case an
adjustment of such
price has taken place pursuant to the further provisions of this paragraph
6, then by
the conversion price
as last adjusted and in effect at the date any share or shares of Series C
Convertible
Preferred Stock are
surrendered for conversion (such price, or such price as last adjusted,
being referred
to as the "Conversion
Price"). Such rights of conversion shall be exercised by the holder
thereof by giving
written notice that
the holder elects to convert a stated number of shares of Series C
Convertible
Preferred Stock into shares
of Common Stock and by surrender of a certificate or certificates for the
shares so to
be converted to the
Corporation at its principal office (or such other office or agency of the
Corporation
as the Corporation
may designate by notice in writing to the holders of the Series C
Convertible
Preferred Stock) at any time
during its usual business hours, together with a statement of the name or
names
(with address) in which
the certificate or certificates for shares of Common Stock shall be issued.
6.2 Issuance of Certificates; Time Conversion Effected. Promptly
after the
receipt of
the written notice referred to in subparagraph 6.1 and surrender of the
certificate or
certificates for the
share or shares of Series C Convertible Preferred Stock to be converted,
the
Corporation shall issue and
deliver, or cause to be issued and delivered, to the holder, registered in
such name or
names as such holder
may direct, a certificate or certificates for the number of whole shares of
Common
Stock issuable upon
the conversion of such share or shares of Series C Convertible Preferred
Stock. To
the extent permitted
by law, such conversion shall be deemed to have been effected and the
Conversion
Price shall be
determined as of the close of business on the date on which such written
notice shall
have been received
by the Corporation and the certificate or certificates for such share or
shares shall
have been surrendered
as aforesaid, and at such time the rights of the holder of such share or
shares of
Series C Convertible
Preferred Stock shall cease, and the person or persons in whose name or
names any
certificate or
certificates for shares of Common Stock shall be issuable upon such
conversion shall
be deemed to have
become the holder or holders of record of the shares represented thereby.
6.3 Fractional Shares; Partial Conversion. No fractional shares
shall be
issued upon
conversion of Series C Convertible Preferred Stock into shares of Common
Stock. At
the time of each
conversion, the Corporation shall pay in cash an amount equal to all
dividends,
accrued and unpaid on
the shares of Series C Convertible Preferred Stock surrendered for
conversion to the
date upon which such
conversion is deemed to take place as provided in subparagraph 6.2. In
case the
number of shares of
Series C Convertible Preferred Stock represented by the certificate or
certificates
surrendered pursuant to
subparagraph 6.1 exceeds the number of shares converted, the Corporation
shall,
upon such conversion,
execute and deliver to the holder, at the expense of the Corporation, a new
certificate or certificates for
the number of shares of Series C Convertible Preferred Stock represented by
the
certificate or certificates
surrendered which are not to be converted. If any fractional share of
Common Stock
would, except for
the provisions of the first sentence of this subparagraph 6.3, be delivered
upon such
conversion, the
Corporation, in lieu of delivering such fractional share, shall pay to the
holder
surrendering the Series C
Convertible Preferred Stock for conversion an amount in cash equal to the
current
market price of such
fractional share as determined in good faith by the Board of Directors of
the
Corporation.
6.4 Adjustment of the Conversion Price. Except as provided in
subparagraph
6.5, if
and whenever the Corporation shall issue or sell, or is deemed to have
issued or sold,
at any time, whether
in a public or private offering or sale or otherwise, any shares of Common
Stock for a
consideration per
share less than the lesser of (i) the Conversion Price in effect
immediately prior to
such issue or sale and
(ii) the Fair Market Value (as herein defined) of a share of Common Stock
immediately prior to such issue
or sale, then, forthwith upon such issue or sale, the Conversion Price
shall be
reduced by an amount equal
to: (x) the difference between (1) the greater of (A) the Conversion Price
in effect
immediately prior to
such issue or sale or (B) the Fair Market Value of a share of Common Stock
immediately prior to such
issue or sale and (2) the price at which the Corporation issued or sold, or
is deemed
to have issued or
sold, such share of Common Stock; multiplied by (y) the number of shares of
Common Stock issued
(including the maximum number of shares issuable upon the exercise of
Options (as
defined herein) or
conversion of Convertible Securities (as defined herein)) at such price;
and divided
by the number of
shares of Common Stock (determined on a fully-diluted basis) outstanding
immediately prior to such
issuance or sale. Such adjustment shall be made successively each time any
event
described in this
subparagraph 6.4 shall occur. For purposes of applying the foregoing
provisions of
this subparagraph 6.4,
the following subparagraphs shall be applicable:
(i) In case at any time the Corporation shall in any manner
grant (whether
directly or by assumption in a merger or otherwise) any warrants
or other
rights to
subscribe for or to purchase, or any options for the purchase of,
shares of
Common Stock
or any stock or security convertible into or exchangeable for
shares of Common
Stock
(such warrants, rights or options being called "Options" and such
convertible or
exchangeable stock or securities being called "Convertible
Securities"), whether
or not
such Options or the right to convert or exchange any such
Convertible
Securities are
immediately exercisable, and the price per share for which shares
of Common
Stock are
issuable upon the exercise of such Options or upon the conversion
or exchange
of such
Convertible Securities (determined by dividing (A) (x) in the case
of an Option
not
relating to Convertible Securities, the total amount, if any,
received or
receivable by the
Corporation as consideration for the granting of all such Options,
plus the
minimum
aggregate amount of additional consideration payable to the
Corporation upon
the exercise
of all such Options or (y) in the case of an Option relating to
Convertible
Securities, the
total amount, if any, received or receivable by the Corporation as
consideration
for the
granting of such Options, plus the minimum aggregate amount of
additional
consideration
payable to the Corporation upon the exercise of all such Options,
plus the
minimum
aggregate amount of additional consideration, if any, payable to
the
Corporation upon the
issue or sale of all such Convertible Securities and upon
conversion or
exchange of all
such Convertible Securities by (B) the total maximum number of
shares of
Common
Stock issuable upon the exercise of such Options or upon the
conversion or
exchange of
all such Convertible Securities issuable upon the exercise of such
Options)
shall be less
than the lesser of (1) the Conversion Price in effect immediately
prior to the
granting of
such Options and (2) the Fair Market Value of a share of Common
Stock in
effect
immediately prior to the time of the granting of such Options,
then the total
maximum
number of shares of Common Stock issuable upon the exercise of
such Options
or upon
conversion or exchange of the total maximum amount of such
Convertible
Securities
issuable upon the exercise of such Options shall be deemed to have
been issued
for such
price per share as of the date of granting of such Options and
thereafter shall
be deemed
to be outstanding. Except as otherwise provided in subparagraph
(iii) below,
no further
adjustment of the Conversion Price shall be made upon the actual
issue of such
Common
Stock or of such Convertible Securities upon exercise of such
Options or upon
the actual
issue of such shares of Common Stock upon conversion or exchange
of such
Convertible
Securities.
(ii) In case at any time the Corporation shall in any manner
issue (whether
directly or by assumption in a merger or otherwise) or sell any
Convertible
Securities,
whether or not the rights to exchange or convert any such
Convertible
Securities are
immediately exercisable, and the price per share for which shares
of Common
Stock are
issuable upon such conversion or exchange (determined by dividing
(A) the
total amount
received or receivable by the Corporation as consideration for the
issue or sale
of all such
Convertible Securities, plus the minimum aggregate amount of
additional
consideration,
if any, payable to the Corporation upon the conversion or exchange
thereof by
(B) the
total maximum number of shares of Common Stock issuable upon the
conversion or
exchange of all such Convertible Securities) shall be less than
the lesser of (1)
the
Conversion Price in effect immediately prior to such issue or sale
and (2) the
Fair Market
Value of a share of Common Stock in effect immediately prior to
the time of
such issue
or sale, then the total maximum number of shares of Common Stock
issuable
upon
conversion or exchange of all such Convertible Securities shall be
deemed to
have been
issued for such price per share as of the date of the issue or
sale of such
Convertible
Securities and thereafter shall be deemed to be outstanding,
provided that (x)
except as
otherwise provided in subparagraph (iii) below, no further
adjustment of the
Conversion
Price shall be made upon the actual issue of such shares of Common
Stock
upon
conversion or exchange of such Convertible Securities and (y) if
any such issue
or sale
of such Convertible Securities is made upon exercise of any
Options to
purchase any such
Convertible Securities for which adjustments of the Conversion
Price have
been or are to
be made pursuant to any other provisions of this subparagraph 6.4,
no further
adjustment
of the Conversion Price shall be made by reason of such issue or
sale.
(iii) Upon the happening of any of the following events,
namely, if the
purchase price provided for in any Option referred to in
subparagraph (i)
above, the
number of shares of Common Stock or number or amount of
Convertible
Securities
subject to such Option, the additional consideration, if any,
payable upon the
exercise of
any Option referred to in subparagraph (i) above which relates to
Convertible
Securities,
the additional consideration, if any, payable upon the conversion
or exchange
of any
Convertible Securities referred to in subparagraph (i) or (ii)
above, or the rate
at which
Convertible Securities referred to in subparagraph (i) or (ii)
above are
convertible into or
exchangeable for shares of Common Stock, shall change at any time
(including,
but not
limited to, changes under or by reason of provisions designed to
protect against
dilution),
the Conversion Price in effect at the time of such event shall
forthwith be
readjusted to
the Conversion Price which would have been in effect at such time
(subject to
any other
adjustments under the other provisions of this subparagraph 6.4
subsequent to
the time of
such initial grant, issue or sale) had such Options or Convertible
Securities
still
outstanding provided for such changed purchase price, additional
consideration
or
conversion rate, as the case may be, at the time initially
granted, issued or
sold, but only
if as a result of such adjustment the Conversion Price then in
effect hereunder
is thereby
reduced; and on the expiration of any Option or the termination of
any right to
convert
or exchange Convertible Securities, the Conversion Price then in
effect
hereunder shall
forthwith be adjusted to the Conversion Price which would have
been in effect
at the time
of such expiration or termination had such Option or Convertible
Securities, to
the extent
outstanding immediately prior to such expiration or termination,
never been
issued and
thereafter the shares of Common Stock theretofore issuable upon
the exercise
of such
Option or the conversion or exchange of such Convertible
Securities shall no
longer be
deemed to be outstanding.
(iv) In case the Corporation shall declare a dividend or make
any other
distribution upon any stock of the Corporation payable in Options
or
Convertible
Securities (except for (A) dividends or other distributions upon
the Series C
Convertible
Preferred Stock to the exclusion of any other class or series or,
if other classes
or series
participate in such dividend or distribution, then dividends or
distributions
declared ratably
(as determined in good faith by the Board of Directors of the
Corporation)
among the
Series C Convertible Preferred Stock and such other classes or
series, and (B)
the issuance
of stock dividends or distributions upon the outstanding shares of
Common
Stock for
which adjustment is made pursuant to any other paragraph or
subsection
hereof), the
provisions of this subparagraph 6.4 shall be applicable, except
that any
Options or
Convertible Securities, as the case may be, issuable in payment of
such
dividend or
distribution shall be deemed to have been issued or sold without
consideration
for
purposes of calculating the consideration in subparagraphs (i)
through (iii)
above.
(v) In case any shares of Common Stock, Options or
Convertible Securities
shall be issued or sold for cash, the consideration received
therefor shall be
deemed to be
the amount received by the Corporation therefor, without deduction
therefrom
of any
expenses incurred or any underwriting commissions or concessions
paid or
allowed by the
Corporation in connection therewith. In case any shares of Common
Stock,
Options or
Convertible Securities shall be issued or sold for a consideration
other than
cash, the
amount of the consideration other than cash received by the
Corporation, for
purposes of
calculating the consideration in subparagraphs (i) through (iii)
above, shall be
deemed to
be the fair value of such consideration as determined reasonably
and in good
faith by the
Board of Directors of the Corporation, without deduction of any
expenses
incurred or any
underwriting commissions or concessions paid or allowed by the
Corporation in
connection therewith. In case any Options or Convertible
Securities shall be
issued in
connection with the issue and sale of other securities of the
Corporation,
together
comprising one integral transaction in which no specific
consideration is
allocated to such
Options or Convertible Securities by the parties thereto, such
Options and
Convertible
Securities shall be deemed to have been issued for such
consideration as
determined
reasonably and in good faith by the Board of Directors of the
Corporation.
(vi) In case the Corporation shall take a record of the
holders of shares of
Common Stock or any other class of stock or series thereof of the
Corporation
for the
purpose of entitling them (A) to receive a dividend or other
distribution
payable in shares
of Common Stock, Options or Convertible Securities or (B) to
subscribe for or
purchase
shares of Common Stock, Options or Convertible Securities, then
such record
date shall
be deemed to be the date of the issue or sale of the shares of
Common Stock to
be issued
or sold upon the declaration of such dividend or the making of
such other
distribution or
the date of the granting of such right of subscription or
purchase, as the case
may be.
(vii) The number of shares of Common Stock outstanding at
any time
shall not
include shares of Common Stock owned or held by or for the account
of the
Corporation,
and the disposition of any such shares of Common Stock shall be
considered an
issue or
sale of shares of Common Stock for the purpose of this
subparagraph 6.4
6.5 Certain Issues of Common Stock Excepted. Anything herein to
the
contrary
notwithstanding, the Corporation shall not be required to make any
adjustment of
the Conversion Price
in the case of any issuances, from and after the date of filing of these
terms of the
Series C Convertible
Preferred Stock, of (i) shares of Common Stock or Options to directors,
officers,
employees or consultants
of the Corporation pursuant to a stock option or incentive plan approved by
the
affirmative vote of at least
a majority of the outstanding shares of Series C Convertible Preferred
Stock or (ii)
shares of Common
Stock upon the exercise of any such Options.
6.6 Subdivision or Combination of Common Stock. In case the
Corporation
shall at
any time subdivide (by any stock split, stock dividend or otherwise) its
outstanding
shares of Common
Stock into a greater number of shares, the Conversion Price in effect
immediately
prior to such subdivision
shall be proportionately reduced, and, conversely, in case the outstanding
shares of
Common Stock shall
be combined into a smaller number of shares, the Conversion Price in effect
immediately prior to such
combination shall be proportionately increased. In the case of any such
subdivision,
no further adjustment
shall be made pursuant to subparagraph 6.4(iv) by reason thereof.
6.7 Fundamental Changes. In case of any reclassification or
change of the
outstanding
shares of Common Stock, sale or conveyance of substantially all the assets
of the
Corporation, or
consolidation or merger of the Corporation with another corporation (each,
a
"Fundamental Change"), a
holder of a share of Series C Convertible Preferred Stock then outstanding
shall
thereafter have the right
to receive upon conversion the kind and amount of shares of stock and other
securities and property
receivable upon such Fundamental Change by a holder of the number of shares
of
Common Stock which
the holder of such share of Series C Convertible Preferred Stock would have
had the
right to receive upon
conversion immediately prior to such Fundamental Change, at a price equal
to the
Conversion Price then
in effect pertaining to such share of Series C Convertible Preferred Stock,
provided,
however, that the
Corporation shall not permit, or enter into an agreement which will result
in a
Fundamental Change unless
such Fundamental Change has been approved by the vote of the holders of at
least
two-thirds of the then
outstanding shares of Series C Convertible Preferred Stock, voting
separately as a
single class.
6.8 Fair Market Value. For purposes of this paragraph 6, the
"Fair Market
Value" of
a share of Common Stock shall be the fair market value of such a share as
determined by the Board of
Directors of the Corporation in the good faith exercise of its informed,
business
judgment for the purposes
of the then applicable issuance or sale; provided, however, that the
Corporation
shall, within five days of
such determination give to the holders of Series C Convertible Preferred
Stock
written notice of such
determination and the basis therefor; provided, further, that such Fair
Market
Value shall be the fair
market value of such share of the Corporation determined by an appraisal
if, within
15 days of receipt of
such notice, the holders of a majority of the shares of Series C
Convertible Preferred
Stock then
outstanding shall so elect by service of written notice on the Corporation
to such
effect. In the event that
the Fair Market Value of a share of Common Stock is, in accordance with the
immediately preceding
proviso, to be determined by an appraisal, such appraisal shall be
conducted by a
regionally or nationally
recognized independent appraiser with experience in the appraisal of
businesses
similar to those of the
Corporation and mutually acceptable to the Corporation and the holders of a
majority of the shares of
Series C Convertible Preferred Stock then outstanding. All fees and
expenses
associated with the appraisal
shall be paid by the Corporation. The valuation made in an appraisal
pursuant to
this subparagraph 6.8
shall be made in conformity with standard appraisal techniques in use at
the time of
such appraisal,
including, without limitation, discounted cash flow analysis and shall
apply the
market and economic facts
then relevant. The Corporation shall cause any appraiser appointed
pursuant to
this subparagraph 6.8 to
report in writing to the Corporation and the holders of Series C
Convertible
Preferred Stock the results
of the appraisal, including the Fair Market Value of a share of Common
Stock as of
the time such
determination is to be made in accordance with this subparagraph 6.8.
Within five
days after any
appraiser appointed pursuant to this subparagraph 6.8 delivers its report
to the
Corporation as to the Fair
Market Value of a share of Common Stock, the Corporation shall give to the
holders
of Series C
Convertible Preferred Stock a copy of such appraisal report. Such report
shall be
binding on the
Corporation and the holders of the Series C Convertible Preferred Stock.
6.9 Notice of Adjustment. Upon any adjustment of the Conversion
Price, then
and
in each such case the Corporation shall give written notice thereof, by
delivery in
person, certified or
registered mail, return receipt requested, or telecopier, addressed to each
holder of
shares of Series C
Convertible Preferred Stock at the address of such holder as shown by the
records of
the Corporation,
which notice shall state the Conversion Price resulting from such
adjustment,
setting forth in reasonable
detail the method upon which such calculation is based.
6.10 Other Notices. In case at any time: (i) the Corporation
shall declare any
dividend
upon its Common Stock payable in cash or stock or make any other
distribution to
the holders of its
Common Stock; (ii) the Corporation shall offer for subscription pro rata to
the
holders of its Common
Stock any additional shares of stock of any class or other rights; (iii)
there shall be
any capital
reorganization or reclassification of the capital stock of the Corporation,
or a
consolidation or merger of
the Corporation with or into another entity or entities, or a sale, lease,
abandonment, transfer or other
disposition of all or substantially all its assets; or (iv) there shall be
a voluntary or
involuntary dissolution,
liquidation or winding up of the Corporation; then, in any one or more of
said cases,
the Corporation shall
give, by delivery in person, certified or registered mail, return receipt
requested, or
telecopier, addressed
to each holder of any shares of Series C Convertible Preferred Stock at the
address
of such holder as
shown by the records of the Corporation, (x) at least 20 days' prior
written notice of
the date on which
the books of the Corporation shall close or a record shall be taken for
such dividend,
distribution or
subscription rights or for determining rights to vote in respect of any
such
reorganization, reclassification,
consolidation, merger, disposition, dissolution, liquidation or winding up
and (y) in
the case of any such
reorganization, reclassification, consolidation, merger, disposition,
dissolution,
liquidation or winding up,
at least 20 days' prior written notice of the date when the same shall take
place.
Such notice in
accordance with the foregoing clause (x) shall also specify, in the case of
any such
dividend, distribution
or subscription rights, the date on which the holders of shares of Common
Stock
shall be entitled thereto
and such notice in accordance with the foregoing clause (y) shall also
specify the date
on which the
holders of shares of Common Stock shall be entitled to exchange their
shares of
Common Stock for
securities or other property deliverable upon such reorganization,
reclassification,
consolidation, merger,
disposition, dissolution, liquidation or winding up, as the case may be.
6.11 Reservation of Shares. The Corporation shall at all times
reserve from its
authorized Common Stock a sufficient number of shares to provide for
conversion of
all Series C
Convertible Preferred Stock from time to time outstanding. As a condition
precedent
to the taking of any
action which would cause an adjustment reducing the Conversion Price, the
Corporation will take such
corporate action as may be necessary in order that it may validly and
legally issue to
holders of Series C
Convertible Preferred Stock upon conversion fully paid and non-assessable
shares of
Common Stock at
such adjusted Conversion Price. If the Common Stock issuable upon
conversion of
the Series C
Convertible Preferred Stock is listed on any national securities exchange
or
automated quotation system
of NASD, the Corporation will cause, within 60 days of any such listing,
and within
60 days of any
adjustment reducing the Conversion Price, all shares reserved for such
conversion to
be listed on such
exchange or automated quotation system, subject to official notice of
issuance upon
such conversion.
6.12 Taxes. The issuance of certificates for shares of Common
Stock upon
conversion
of Series C Convertible Preferred Stock shall be made without charge to the
holders
thereof for any
issuance tax in respect thereof, provided that the Corporation shall not be
required
to pay any tax which
may be payable in respect of any transfer involved in the issuance and
delivery of
any certificate in a
name other than that of the holder of the Series C Convertible Preferred
Stock
which is being converted.
6.13 Closing of Books. The Corporation will at no time close its
transfer books
against
the transfer of any Series C Convertible Preferred Stock or of any shares
of Common
Stock issued or
issuable upon the conversion of any shares of Series C Convertible
Preferred Stock
in any manner which
interferes with the timely conversion of such Series C Convertible
Preferred Stock,
except as may
otherwise be required to comply with applicable securities laws.
6.14 Definition of Common Stock. As used in this paragraph 6, the
term
"Common
Stock" shall mean and include the Corporation's authorized Common Shares,
without par value, as
constituted on the date of filing of these terms of the Series C
Convertible Preferred
Stock, and shall also
include any capital stock of any class of the Corporation thereafter
authorized (other
than the Series C
Convertible Preferred Stock) which shall not be limited to a fixed sum or
percentage
in respect of the
rights of the holders thereof to participate in dividends or in the
distribution of
assets upon the voluntary
or involuntary liquidation, dissolution or winding up of the Corporation;
provided
that the shares of
Common Stock receivable upon conversion of shares of Series C Convertible
Preferred Stock shall include
only shares designated as shares of Common Stock of the Corporation on the
date of
filing of this
instrument, or in case of any reorganization or reclassification of the
outstanding
shares thereof, the stock,
securities or assets provided for in subparagraph 6.7.
6.15 Mandatory Conversion. If at any time the Corporation shall
effect a firm
commitment underwritten public offering of shares of Common Stock in which
(i) the
aggregate price paid
for such shares by the public (net of underwriting discounts and other
expenses)
shall be at least
$25,000,000, (ii) the public offering price for such shares shall be at
least three times
the Conversion Price
in effect immediately prior to such public offering and (iii) the holders
of at least
two-thirds of the then
outstanding shares of Series C Convertible Preferred Stock have approved
the
selection of the managing
underwriter of such public offering, then effective upon the closing of the
sale of such
shares by the
Corporation pursuant to such public offering, all outstanding shares of
Series C
Convertible Preferred
Stock shall automatically convert to shares of Common Stock on the basis
set forth
in this paragraph 6.
Holders of shares of Series C Convertible Preferred Stock so converted may
deliver
to the Corporation
at its principal office (or such other office or agency of the Corporation
as the
Corporation may designate
by notice in writing to such holders) during its usual business hours, the
certificate
or certificates for the
shares so converted. As promptly as practicable thereafter, the
Corporation shall
issue and deliver to such
holder a certificate or certificates for the number of whole shares of
Common Stock
to which such holder
is entitled, together with any cash dividends and payment in lieu of
fractional
shares to which such holder
may be entitled pursuant to subparagraph 6.3. Until such time as a holder
of shares
of Series C
Convertible Preferred Stock shall surrender his, her or its certificates
therefor as
provided above, such
certificates shall be deemed to represent the shares of Common Stock to
which such
holder shall be
entitled upon the surrender thereof.
7. Redemption. The shares of Series C Convertible Preferred Stock
shall be
redeemed as
follows:
7.1 Mandatory Redemption. Each holder of shares of Series C
Convertible
Preferred
Stock shall have the right by written notice delivered to the Company (a
"Redemption Notice") to request
the Company to redeem all or any portion of the shares of Series C
Convertible
Preferred Stock held by
such holder at any time following the earlier of (i) the sixth anniversary
of the date
of first issuance of
any shares of Series C Convertible Preferred Stock or (ii) unless waived by
the
holders of at least 75%
of the outstanding shares of Series C Convertible Preferred Stock, the
occurrence of
any of the following
events:
(a) The Corporation shall default in the payment of any
installment of
principal or interest under any subordinated note of the
Corporation issued
pursuant to the
Securities Purchase Agreement among the Corporation, Inroads
Capital
Partners, L.P.,
Mesirow Capital Partners VII, L.P., Edgewater Private Equity Fund
II, L.P.,
Michael F.
McCoy and William L. Wildman (the "Purchase Agreement") when the
same
shall
become due and payable, and such default shall continue unremedied
for a
period of five
business days after the date payment is due;
(b) The Corporation shall default in the performance of any
covenant,
condition or agreement on its part to be performed or observed
pursuant to the
terms of
the Purchase Agreement, unless waived pursuant to the Purchase
Agreement,
and such
default shall continue unremedied for a period of ten business
days after the
delivery to
the Corporation of written notice thereof;
(c) Any representation or warranty made by the Corporation
in the
Purchase
Agreement shall fail to be true and correct in any material
respect when made
or deemed
to have been made pursuant to the Purchase Agreement, unless
waived
pursuant to the
Purchase Agreement;
(d) The Corporation shall: (i) file a petition commencing a
voluntary case
under any chapter of Title 11 of the United States Code; (ii) make
a general
assignment
for the benefit of creditors; (iii) admit in writing its inability
to pay its debts as
they
mature; (iv) file an application for, or consent to the
appointment of, any
receiver or a
permanent or interim trustee of the Corporation, including,
without limitation,
the
appointment or authorization of a trustee, receiver or agent under
applicable
law or under
a contract to take charge of its property for the purpose of
enforcing a lien
against such
property or for the purpose of general administration of such
property for the
benefit of
its creditors; (v) file a petition seeking a reorganization of its
financial affairs
or to take
advantage of any bankruptcy, reorganization, insolvency,
readjustment of
debt, dissolution
or liquidation law or statute, or an answer admitting the material
allegations
of a petition
filed against it in any proceeding under such law or statute; or
(vi) take any
corporate
action for the purpose of effecting any of the foregoing;
(e) An involuntary case is commenced against the Corporation
by the filing
of a petition under chapter 7 or chapter 11 of Title 11 of the
United States
Code and
within 60 days after the filing thereof either the petition is not
dismissed or an
order for
relief is entered therein; or an order, judgment or decree is
entered against the
Corporation
or against all or any portion of its property, including, without
limitation, the
entry of an
order, judgment or decree appointing or authorizing a trustee,
receiver or
agent to take
charge of the property of the Corporation for the purpose of
general
administration of
such property or for the benefit of creditors of the Corporation
and such order,
judgment
or decree shall continue unstayed and in effect for a period of 60
days; or an
order,
judgment or decree is entered, without the approval or consent of
the
Corporation,
approving or authorizing the reorganization, insolvency,
readjustment of debt,
dissolution
or liquidation of the Corporation under any law or statute, and
such order,
judgment or
decree shall continue unstayed and in effect for a period of 60
days; and
(f) The Corporation shall sell, lease, abandon, transfer or
otherwise dispose
of all or substantially all of its assets, except in connection
with any such
transaction
effected in the form of a securitization.
7.2 Redemption Price and Payment. Shares of Series C Convertible
Preferred
Stock
for which redemption is requested pursuant to subparagraph 7.1 shall be
redeemed
on the tenth business
day following delivery to the Corporation of the Redemption Notice (the
"Redemption
Date") by paying
on the Redemption Date an amount in cash equal to $1,000 per share plus (i)
an
amount equal to all
dividends declared but unpaid thereon, computed to the date of redemption,
(such
amount being referred
to as the "Redemption Price") and (ii) in the case of any failure by the
Corporation to
redeem such share
on the Redemption Date, interest at a rate of 13.5%, compounded annually,
on the
Redemption Price from
the Redemption Date through the actual date of redemption. The Redemption
Price
shall be paid only
upon surrender of the certificate or certificates representing the shares
to be
redeemed. If fewer than all
of the shares represented by a certificate are to be redeemed, then the
Corporation
shall issue a
replacement certificate for the unredeemed shares.
7.3 Redemption Mechanics. From and after the close of business
on the
Redemption
Date, unless there shall have been a default in the payment of the
Redemption
Price, all rights of holders
of shares of Series C Convertible Preferred Stock (except the right to
receive the
Redemption Price) for
which redemption has been requested shall cease with respect to such
shares, and
such shares shall not
thereafter be transferred on the books of the Corporation or be deemed to
be
outstanding for any purpose
whatsoever. If the funds of the Corporation legally available for
redemption of
shares of Series C
Convertible Preferred Stock on the Redemption Date are insufficient to
redeem the
number of outstanding
shares of Series C Convertible Preferred Stock for which redemption has
been
requested, the holders of
shares of Series C Convertible Preferred Stock for which redemption has
been
requested shall share ratably
in any funds legally available for redemption of such shares according to
the
respective amounts which
would be payable with respect to the full number of shares owned by them
for which
redemption has been
requested. The shares of Series C Convertible Preferred Stock not redeemed
shall
remain outstanding and
entitled to all rights and preferences provided herein. At any time
thereafter when
additional funds of the
Corporation are legally available for the redemption of such shares of
Series C
Convertible Preferred
Stock, such funds will be used to redeem the balance of such shares for
which
redemption has been
requested, or such portion thereof for which funds are then legally
available, on the
basis set forth above.
7.4 Redeemed or Otherwise Acquired Shares to be Retired. Any
shares of
Series C
Convertible Preferred Stock redeemed pursuant to this paragraph 7 or
otherwise
acquired by the
Corporation in any manner whatsoever shall be canceled and shall not under
any
circumstances be
reissued; and the Corporation may from time to time take such appropriate
corporate action as may be
necessary to reduce accordingly the number of authorized shares of Series C
Convertible Preferred Stock.
8. Record Holders. The Corporation and its transfer agent, if any,
for the Series
C
Convertible Preferred Stock may deem and treat the record holder of any
shares of
Series C Convertible
Preferred Stock as the sole true and lawful owner thereof for all purposes,
and
neither the Corporation nor
any such transfer agent shall be affected by any notice to the contrary.
9. Amendments. No provision of these terms of the Series C
Convertible
Preferred Stock
may be amended, modified or waived without the affirmative vote of the
holders of
at least two-thirds of
the then outstanding shares of Series C Convertible Preferred Stock.
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