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