EXHIBIT 3.1
Articles of Incorporation of PCB Holding Company
ARTICLES OF INCORPORATION
OF
PCB HOLDING COMPANY
ARTICLE I
NAME
The name of this corporation is PCB Holding Company.
ARTICLE II
PURPOSE
The purpose of this corporation is the transaction of any and all lawful
business for which corporations may be incorporated under the Indiana Business
Corporation Law.
ARTICLE III
CAPITAL STOCK
SECTION 3.01. AMOUNT. The total number of shares of all classes of stock
which this corporation shall have authority to issue is five million
(5,000,000), of which four million (4,000,000) shall be common stock, par value
$.01 per share, and one million (1,000,000) shall be serial preferred stock, par
value $.01 per share.
SECTION 3.02. TERMS OF PREFERRED STOCK. The shares of preferred stock may
be issued from time to time in one or more series. The board of directors of
this corporation shall have authority to fix by resolution or resolutions the
designations and the powers, preferences and relative, participating, optional
or other special rights and qualifications, limitations or restrictions thereof,
including, without limitation, the voting rights, the dividend rate, conversion
rights, redemption price and liquidation preference, of any series of shares of
preferred stock, to fix the number of shares constituting any such series, and
to increase or decrease the number of shares of any such series (but not below
the number of shares thereof then outstanding). In case the number of shares of
any such series shall be so decreased, the shares constituting such decrease
shall resume the status which they had prior to the adoption of the resolution
or resolutions originally fixing the number of shares of such series.
SECTIONS 3.03. TERMS OF COMMON STOCK. The shares of common stock may be
issued from time to time. Each share of common stock shall have the same
relative rights as and be identical in
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all respects with all the other shares of common stock. Except as provided in
Section 3.04, every holder of common stock shall have the right, at every
stockholders' meeting, to one vote for each share standing in his or her name on
the books of the corporation.
Whenever there shall have been paid, or declared and set aside for payment,
to the holders of the outstanding shares of any class of stock having preference
over the common stock as to the payment of dividends, the full amount of
dividends and of sinking fund or retirement fund or other retirement payments,
if any, to which such holders are respectively entitled in preference to the
common stock, then dividends may be paid on the common stock and on any class or
series of stock entitled to participate therewith as to dividends, out of any
assets legally available for the payment of dividends, but only when and as
declared by the board of directors.
In the event of any liquidation, dissolution or winding up of this
corporation, after there shall have been paid to or set aside for the holders of
any class having preferences over the common stock in the event of liquidation,
dissolution or winding up the full preferential amounts to which they are
respectively entitled, the holders of the common stock, and any class or series
of stock entitled to participate therewith, in whole or in part, as to the
distribution of assets, shall be entitled after payment or provision for payment
of all debts and liabilities of this corporation, to receive the remaining
assets of this corporation available for distribution, in cash or in kind.
SECTION 3.04 LIMITATION ON VOTING RIGHTS. 1. Notwithstanding any other
provision of these Articles, in no event shall any record owner of any
outstanding common stock which is beneficially owned, directly or indirectly, by
a person who, as of any record date for the determination of stockholders
entitled to vote on any matter, beneficially owns in excess of 10% of the then-
outstanding shares of common stock (the "Limit"), be entitled, or permitted to
any vote in respect of the shares held in excess of the Limit, unless a majority
of the Whole Board (as hereinafter defined) shall have by resolution granted in
advance such entitlement or permission. The number of votes which may be cast
by any record owner by virtue of the provisions hereof in respect of common
stock beneficially owned by such person owning shares in excess of the Limit
shall be a number equal to the total number of votes which a single record owner
of all common stock owned by such person would be entitled to cast, multiplied
by a fraction, the numerator of which is the number of shares of such class or
series which are both beneficially owned by such person and owned of record by
such record owner and the denominator of which is the total number of shares of
common stock beneficially owned by such person owning shares in excess of the
Limit.
2. The following definitions shall apply to this Section 3.04 of
this Article III.
(a) "Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on the date of filing of these Articles.
(b) "Beneficial ownership" shall be determined pursuant to Rule
13d-3 of the General Rules and Regulations under the Securities Exchange Act of
1934 (or any successor
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rule or statutory provision), or, if said Rule 13d-3 shall be rescinded and
there shall be no successor rule or provision thereto, pursuant to said Rule
13d-3 as in effect on the date of filing of these Articles; provided, however,
that a person shall, in any event, also be deemed the "beneficial owner" of any
common stock:
(i) which such person or any of its affiliates
beneficially owns, directly or indirectly; or
(ii) which such person or any of its affiliates 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
(but shall not be deemed to be the beneficial owner of any voting shares solely
by reason of an agreement, contract, or other arrangement with this corporation
to effect any transaction which is described in any one or more of subparagraphs
(1)(a) through (h) of Section 5.01 of Article V or upon the exercise of
conversion rights, exchange rights, warrants, or options or otherwise, or (B)
sole or shared voting or investment power with respect thereto pursuant to any
agreement, arrangement, understanding, relationship or otherwise (but shall not
be deemed to be the beneficial owner of any voting shares solely by reason of a
revocable proxy granted for a particular meeting of stockholders, pursuant to a
public solicitation of proxies for such meeting, with respect to shares of which
neither such person nor any such affiliate is otherwise deemed the beneficial
owner); or
(iii) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person or any of its
affiliates acts as a partnership, limited partnership, syndicate or other group
pursuant to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of capital stock of this
corporation; and provided further, however, that (i) no director or officer of
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this corporation (or any Affiliate of any such director or officer) shall,
solely by reason of any or all of such directors of officers acting in their
capacities as such, be deemed, for any purposes hereof, to beneficially own any
common stock beneficially owned by any other such director or officer (or any
Affiliate thereof), and (ii) neither any employee stock ownership or similar
plan of this corporation or any subsidiary of this corporation, nor any trustee
with respect thereto or any Affiliate of such trustee (solely by reason of such
capacity of such trustee), shall be deemed, for any purposes hereof, to
beneficially own any common stock held under any such plan. For purposes of
computing the percentage beneficial ownership of common stock of a person, the
outstanding common stock shall include shares deemed owned by such person
through application of this subsection but shall not include any other common
stock which may be issuable by this corporation pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise. For all
other purposes, the outstanding common stock shall include only common stock
then outstanding and shall not include any common stock which may be issuable by
this corporation pursuant to any agreement, or upon the exercise of conversion
rights, warrants or options, or otherwise.
(c) A "person" shall mean any individual, firm, corporation, or
other entity.
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(d) "Whole Board" shall mean the total number of directors which
the corporation would have if there were no vacancies on the board of directors.
3. The board of directors shall have the power to construe and apply
the provisions of this Section and to make all determinations necessary or
desirable to implement such provisions, including but not limited to matters
with respect to (i) the number of shares of common stock beneficially owned by
any person, (ii) whether a person is an affiliate of another, (iii) whether a
person has an agreement, arrangement, or understanding with another as to the
matters referred to in the definition of beneficial ownership, (iv) the
application of any other definition or operative provision of this Section to
the given facts, or (v) any other matter relating to the applicability or effect
of this Section.
4. The board of directors shall have the right to demand that any
person who is reasonably believed to beneficially own common stock in excess of
the Limit (or holds of record common stock beneficially owned by any person in
excess of the Limit) supply the corporation with complete information as to (i)
the record owner(s) of all shares beneficially owned by such person who is
reasonably believed to own shares in excess of the Limit, and (ii) any other
factual matter relating to the applicability or effect of this section as may
reasonably be required of such person.
5. Except as otherwise provided by law or expressly provided in this
Section 3.04, the presence, in person or by proxy, of the holders of record of
shares of capital stock of the corporation entitling the holders thereof to cast
a majority of the votes (after giving effect, if required, to the provisions of
this Section 3.04) entitled to be cast by the holders of shares of capital stock
of the corporation entitled to vote shall constitute a quorum at all meetings of
the stockholders, and every reference in these Articles to a majority or other
proportion of capital stock (or the holders thereof) for purposes of determining
any quorum requirement or any requirement for stockholder consent or approval
shall be deemed to refer to such majority or other proportion of the votes (or
the holders thereof) then entitled to be cast in respect of such capital stock.
6. Any constructions, applications, or determinations made by the
board of directors pursuant to this Section in good faith and on the basis of
such information and assistance as was then reasonably available for such
purpose shall be conclusive and binding upon the corporation and its
stockholders.
7. In the event any provision (or portion thereof) of this Section
3.04 shall be found to be invalid, prohibited or unenforceable for any reason,
the remaining provisions (or portions thereof) of this Section shall remain in
full force and effect, and shall be construed as if such invalid, prohibited or
unenforceable provision had been stricken here from or otherwise rendered
inapplicable, it being the intent of this corporation and its stockholders that
each such remaining provision (or portion thereof) of this Section 3.04 remain,
to the fullest extent permitted by law, applicable and enforceable as to all
stockholders, including stockholders owning an amount of stock over the Limit,
notwithstanding any such finding.
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ARTICLE IV
BOARD OF DIRECTORS
SECTION 4.01. GENERAL. All corporate powers shall be exercised by or under
the authority of, and the business and affairs of the corporation shall be
managed under the direction of, a board of directors except as may be otherwise
provided by law or these Articles of Incorporation.
SECTION 4.02. NUMBER AND TERMS. The authorized number of directors shall in
no case be fewer than five (5) nor more than fifteen (15). The exact number of
directors shall be fixed in or in accordance with the Bylaws. The directors
shall be divided into three classes, as nearly equal in number as reasonably
possible, with the term of office of the first class to expire at the conclusion
of the first annual meeting of the stockholders after their election, the term
of office of the second class to expire at the conclusion of the second annual
meeting of stockholders after their election, and the term of office of the
third class to expire at the conclusion of the third annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified. At each annual
meeting of stockholders following the initial classification and election,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified. Directors need not
be stockholders of the corporation. There shall be no cumulative voting by
stockholders of any class or series in the election of directors of the
corporation.
SECTION 4.03. INITIAL DIRECTORS. The names and addresses of the initial
board of directors of the corporation are as follows:
NAME ADDRESS
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Class 1 Directors (initial term to expire at the conclusion of the first annual
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meeting of stockholders after their election)
James L. Wittmer 16 11th Street, Tell City, Indiana 47586
Howard L. Traphagen R.R. 2, Box 698, Tell City, Indiana 47586
Class 2 Directors (initial term to expire at the conclusion of the second annual
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meeting of stockholders after their election)
James G. Tyler 17 Jonick Road, Tell City, Indiana 47586
Daniel P. Lutgring HC 64, Box 91, Tell City, Indiana 47586
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Class 3 Directors (initial term to expire at the conclusion of the third annual
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meeting of stockholders after their election)
Carl D. Smith 2230 Franklin Street, Tell City, Indiana 47586
Marion L. Ress 814 11th Street, Tell City, Indiana 47586
SECTION 4.04. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Any vacancies on
the board of directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be filled by the
affirmative vote of a majority of directors then in office, although less than a
quorum, or by the sole remaining director, or, in the event of the failure of
the directors or sole remaining director so to act, by the stockholders at the
next election of directors. Directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of the class to
which they have been elected expires. A director elected to fill a vacancy by
reason of an increase in the number of directorships shall be elected by a
majority vote of the directors then in office, although less than a quorum of
the board of directors, to serve until the next election of the class for which
such director shall have been chosen. If the number of directors is changed,
any increase or decrease shall be apportioned among the three (3) classes so as
to make all classes as nearly equal in number as possible. If, consistent with
the preceding requirement, the increase or decrease may be allocated to more
than one (1) class, the increase or decrease may be allocated to any such class
the board of directors selects in its discretion. No decrease in the number of
directors constituting the board of directors shall shorten the term of any
incumbent director.
SECTION 4.05. REMOVAL. A director, or the entire board of directors, may be
removed only for cause as determined by the affirmative vote of the holders of
at least a two-thirds (2/3) majority of the shares then entitled to vote in an
election of directors, which vote may only be taken at a meeting of stockholders
called expressly for that purpose. Cause for removal shall be deemed to exist
only if the director whose removal is proposed has been convicted of a felony by
a court of competent jurisdiction or has been adjudged by a court of competent
jurisdiction to be liable for gross negligence or misconduct in the performance
of such director's duty to the corporation, in a matter of substantial
importance to the corporation and such conviction or adjudication is no longer
subject to direct appeal.
SECTION 4.06. SPECIAL STOCKHOLDER MEETINGS. Special meetings of the
stockholders of the corporation may only be called by the chairman of the board
of directors or by the board of directors pursuant to a resolution adopted by a
majority of the total number of directors which the corporation would have if
there were no vacancies on the board of directors.
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ARTICLE V
APPROVAL OF CERTAIN BUSINESS COMBINATIONS
The stockholder vote required to approve Business Combinations (as
hereinafter defined) shall be as set forth in this section.
SECTION 5.01. TRANSACTIONS WITH RELATED PERSONS.
1. Except as otherwise expressly provided in this Article, the
affirmative vote of the holders of (i) at least 80% of the outstanding shares
entitled to vote thereon (and, if any class or series of shares is entitled to
vote thereon separately, the affirmative vote of the holders of at least 80% of
the outstanding shares of each such class or series), and (ii) at least a
majority of the outstanding shares entitled to vote thereon, not including
shares deemed beneficially owned by a Related Person (as hereinafter defined),
shall be required in order to authorize any of the following:
(a) any merger or consolidation of the corporation with or into
a Related Person (as hereinafter defined);
(b) any sale, lease, exchange, transfer or other disposition,
including without limitation, a mortgage, or any other security device, of all
or any Substantial Part (as hereinafter defined) of the assets of the
corporation (including without limitation any voting securities of a subsidiary)
or of a subsidiary, to a Related Person;
(c) any merger or consolidation of a Related Person with or into
the corporation or a subsidiary of the corporation;
(d) any sale, lease, exchange, transfer or other disposition of
all or any Substantial Part of the assets of a Related Person to the corporation
or a subsidiary of the corporation;
(e) the issuance of any securities of the corporation or a
subsidiary of the corporation to a Related Person;
(f) the acquisition by the corporation or a subsidiary of the
corporation of any securities of a Related Person;
(g) any reclassification of the common stock of the corporation,
or any recapitalization involving the common stock of the corporation; and
(h) any agreement, contract or other arrangement providing for
any of the transactions described in this Article.
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2. Such affirmative vote shall be required notwithstanding any other
provision of these Articles, any provision of law, or any agreement with any
regulatory agency or national securities exchange which might otherwise permit a
lesser vote or no vote.
3. The term "Business Combination" as used in this Article shall
mean any transaction which is referred to in any one or more of subparagraphs
(1)(a) through (h) above.
SECTION 5.02. EXCEPTION FOR PRIOR APPROVED TRANSACTIONS. The provisions of
Section 5.01 shall not be applicable to any particular Business Combination, and
such Business Combination shall require only such affirmative vote as is
required by any other provision of these Articles, any provision of law, or any
agreement with any regulatory agency or national securities exchange, if the
Business Combination shall have been approved by a two-thirds vote of the
Continuing Directors (as hereinafter defined); provided, however, that such
approval shall only be effective if obtained at a meeting at which a Continuing
Director Quorum (as hereinafter defined) is present.
SECTION 5.03. DEFINITIONS. For the purposes of this Article the following
definitions apply:
1. The term "Related Person" shall mean and include (a) any
individual, corporation, partnership or other person or entity which together
with its "affiliates" (as that term is defined in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended),
"beneficially owns" (as that term is defined in Rule 13d-3 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended) in the
aggregate 10% or more of the outstanding shares of the common stock of the
corporation; and (b) any "affiliate" (as that term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended) of any such individual,
corporation, partnership or other person or entity. Without limitation, any
shares of the common stock of the corporation which any Related Person has the
right to acquire pursuant to any agreement, or upon exercise or conversion
rights, warrants or options, or otherwise, shall be deemed "beneficially owned"
by such Related Person.
2. The term "Substantial Part" shall mean more than 25% of the total
assets of the corporation, as of the end of its most recent fiscal year ending
prior to the time the determination is made.
3. The term "Continuing Director" shall mean any member of the board
of directors of the corporation who is unaffiliated with the Related Person and
was a member of the board prior to the time that the Related Person became a
Related Person, and any successor of a Continuing Director who is unaffiliated
with the Related Person and is recommended to succeed a Continuing Director by a
majority of Continuing Directors then on the board.
4. The term "Continuing Director Quorum" shall mean two-thirds of
the Continuing Directors capable of exercising the powers conferred on them.
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ARTICLE VI
EVALUATION OF BUSINESS COMBINATIONS
In addition to any other considerations which the board of directors may
lawfully take into account in determining whether to take or to refrain from
taking any corporate action on any matter, including making or declining to make
any recommendation to the stockholders of the corporation, the board of
directors may in its discretion consider both the short-term and long-term best
interests of the corporation (including the possibility that these interests may
be best served by the continued independence of the corporation), taking into
account, and weighing as the directors deem appropriate, the social and economic
effects of such action on present and future employees, suppliers, customers of
the corporation and its subsidiaries (including account holders and borrowers of
any of the corporation's subsidiaries), the effect upon communities in which
offices or other facilities of the corporation are located and any other factors
the directors consider pertinent.
ARTICLE VII
STOCKHOLDER NOMINATIONS AND PROPOSALS
SECTION 7.01. NOTICE OF NOMINATIONS AND PROPOSALS. Nominations for the
election of directors and proposals for any new business to be taken up at any
annual or special meeting of stockholders may be made by the board of directors
of the corporation or by any stockholder of the corporation entitled to vote
generally in the election of directors. In order for a stockholder of the
corporation to make any such nominations and/or proposals, he or she shall give
notice thereof in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the corporation not less than thirty
(30) days nor more than sixty (60) days prior to any such meeting; provided,
however, that if less than thirty-one (31) days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the corporation not later than the close of the
tenth day following the day on which notice of the meeting was mailed to
stockholders.
SECTION 7.02. ADDITIONAL INFORMATION. Each such notice given by a
stockholder with respect to nominations for election of directors shall set
forth (i) the name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal occupation or
employment of each such nominees, (iii) the number of shares of stock of the
corporation which are beneficially owned by each such nominee, (iv) such other
information as would be required to be included in a proxy statement soliciting
proxies for the election of the proposed nominee pursuant to Regulation 14A of
the Securities Exchange Act of 1934, as amended, including, without limitation,
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director, if elected, and (v) as to the stockholder giving
such notice (a) his name and address as they appear on the corporation's books
and (b) the class and number of shares of the corporation which are beneficially
owned by such stockholder. In addition, the stockholder making
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such nomination shall promptly provide any other information reasonably
requested by the corporation. Each such notice given by a stockholder to the
Secretary with respect to business proposals to bring before a meeting shall set
forth in writing as to each matter: (i) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting; (ii) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business; (iii) the class
and number of shares of the corporation which are beneficially owned by the
stockholder; and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in these Articles to the contrary, no business shall be
conducted at the meeting except in accordance with the procedures set forth in
this Article.
SECTION 7.03. ACCEPTANCE OF NOMINATIONS AND PROPOSALS. The Chairman of the
annual or special meeting of stockholders may, if the facts warrant, determine
and declare to the meeting that a nomination or proposal was not made in
accordance with the foregoing procedure, and, if the Chairman should so
determine, the Chairman shall so declare to the meeting and the defective
nomination or proposal shall be disregarded and laid over for action at the next
succeeding adjourned, special or annual meeting of the stockholders taking place
thirty (30) days or more thereafter. This provision shall not require the
holding of any adjourned or special meeting of stockholders for the purpose of
considering such defective nomination or proposal.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. GENERAL PROVISIONS. The corporation shall, to the fullest
extent to which it is empowered to do so by the Indiana Business Corporation Act
or any other applicable laws, as from time to time in effect, indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, by
reason of the fact that he is or was a director, officer or employee of the
corporation, or who, while serving as such director, officer or employee of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
whether for profit or not, against expenses (including attorneys' fees),
judgments, settlements, penalties and fines (including excise taxes assessed
with respect to employee benefit plans) actually or reasonably incurred by him
in accordance with such action, suit or proceeding, if he acted in good faith
and in a manner he reasonably believed, in the case of conduct in his official
capacity, was in the best interest of the corporation, and in all other cases,
was not opposed to the best interests of the corporation, and with respect to
any criminal action or proceeding, he either had reasonable cause to believe his
conduct was lawful or no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not meet the prescribed
standard of conduct.
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SECTION 8.02. INDEMNIFICATION AUTHORIZED. To the extent that a director,
officer or employee of the corporation has been successful, on the merits or
otherwise, in the defense of any action, suit or proceeding referred to in
Section 8.01 of this Article, or in the defense of any claim, issue or matter
therein, the corporation shall indemnify such person against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith. Any other indemnification under Section 8.01 of this Article (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case, upon a determination that indemnification of the director,
officer or employee is permissible in the circumstances because he has met the
applicable standard of conduct. Such determination shall be made (a) by the
board of directors by a majority vote of a quorum consisting of directors who
were not at the time parties to such action, suit or proceeding; or (b) if a
quorum cannot be obtained under subdivision (a), by a majority vote of a
committee duly designated by the board of directors (in which designation
directors who are parties may participate), consisting solely of two or more
directors not at the time parties to such action, suit or proceeding; or (c) by
special legal counsel: (i) selected by the board of directors or its committee
in the manner prescribed in subdivision (a) or (b), or (ii) if a quorum of the
board of directors cannot be obtained under subdivision (a) and a committee
cannot be designated under subdivision (b), selected by a majority vote of the
full board of directors (in which selection directors who are parties may
participate); or (d) by stockholders, but shares owned by or voted under the
control of directors who are at the time parties to such action, suit or
proceeding may not be voted on the determination.
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection (c)
to select counsel.
SECTION 8.03. DEFINITION OF GOOD FAITH. For purposes of any determination
under Section 8.01 of this Article, a person shall be deemed to have acted in
good faith and to have otherwise met the applicable standard of conduct set
forth in Section 8.01 if his action is based on information, opinions, reports,
or statements, including financial statements and other financial data, if
prepared or presented by (a) one or more officers or employees of the
corporation or other enterprise whom he reasonably believes to be reliable and
competent in the matters presented; (b) legal counsel, public accountants,
appraisers or other persons as to matters he reasonably believes are within the
person's professional or expert competence; or (c) a committee of the board of
directors of the corporation or another enterprise of which the person is not a
member if he reasonably believes the committee merits confidence. The term
"another enterprise" as used in this Section 8.03 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise of which such person is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent. The
provisions of this Section 8.03 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standards of conduct set forth in Section 8.01 of this Article.
SECTION 8.04. ADVANCEMENT OF EXPENSES. Expenses incurred in connection
with any civil or criminal action, suit or proceeding may be paid for or
reimbursed by the corporation in advance
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of the final disposition of such action, suit or proceeding, as authorized in
the specific case in the same manner described in Section 8.02 of this Article,
upon receipt of a written affirmation of the director, officer or employee's
good faith belief that he has met the standard of conduct described in Section
8.01 of this Article and upon receipt of a written undertaking on behalf of the
director, officer or employee to repay such amount if it shall ultimately be
determined that he did not meet the standard of conduct set forth in this
Article, and a determination is made that the facts then known to those making
the determination would not preclude indemnification under this Article.
SECTION 8.05. NON-EXCLUSIVITY. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which a person
seeking indemnification may be entitled under these Articles of Incorporation,
the corporation's Bylaws, any resolution of the board of directors or
stockholders, any other authorization, whenever adopted, after notice, by a
majority vote of all voting stock then outstanding, or any contract, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer or employee, and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8.06. VESTMENT OF RIGHTS. The right of any individual to
indemnification under this Article shall vest at the time of occurrence or
performance of any event, act or omission giving rise to any action, suit or
proceeding of the nature referred to in Section 8.01 of this Article and, once
vested, shall not later be impaired as a result of any amendment, repeal,
alteration or other modification of any or all of these provisions.
Notwithstanding the foregoing, the indemnification afforded under this Article
shall be applicable to all alleged prior acts or omissions of any individual
seeking indemnification hereunder, regardless of the fact that such alleged acts
or omissions may have occurred prior to the adoption of this Article. To the
extent such prior acts or omissions cannot be deemed to be covered by this
Article, the right of any individual to indemnification shall be governed by the
indemnification provisions in effect at the time of such prior acts or
omissions.
SECTION 8.07. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or who is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against or incurred by the
individual in that capacity or arising from the individual's status as a
director, officer, employee or agent, whether or not the corporation would have
power to indemnify the individual against the same liability under this Article.
SECTION 8.08. OTHER DEFINITIONS.
For purposes of this Article, serving an employee benefit plan at the
request of the corporation shall include any service as a director, officer or
employee of the corporation which imposes duties on, or involves services by
such director, officer or employee with respect to an employee benefit plan, its
participants, or beneficiaries. A person who acted in good faith and in a manner
he reasonably believed to be in the best interests of the participants and
beneficiaries of an
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employee benefit plan shall be deemed to have acted in a manner "not opposed to
the best interest of the corporation" referred to in this Article.
For purposes of this Article, "party" includes any individual who is or was
a plaintiff, defendant or respondent in any action, suit or proceeding.
For purposes of this Article, "official capacity," when used with respect
to a director, shall mean the office of director of the corporation; and when
used with respect to an individual other than a director, shall mean the office
in the corporation held by the officer or the employment or agency relationship
undertaking by the employee or agent on behalf of the corporation. "Official
capacity" does not include service for any other foreign or domestic corporation
or any partnership, joint venture, trust, employee benefit plan, or other
enterprise, whether for profit or not, except as set forth in Section 1 of this
Article.
SECTION 8.09. BUSINESS EXPENSES. Any payments made to any indemnified
party under this Article under any other right of indemnification shall be
deemed to be an ordinary and necessary business expense of the corporation, and
payment thereof shall not subject any person responsible for the payment, or the
board of directors, to any action for corporate waste or to any similar action.
ARTICLE IX
REGISTERED AGENT
The address of this corporation's principal office in the State of Indiana
is 819 Main Street, Tell City, Indiana 47586. The name of its registered agent
at such address is Carl D. Smith.
ARTICLE X
CONDUCT OF AFFAIRS OF CORPORATION
SECTION 10.01. CONTROL SHARE ACQUISITIONS CHAPTER OF THE INDIANA BUSINESS
CORPORATIONS LAW. The provisions of the Control Share Acquisitions Chapter of
the Indiana Business Corporations Law, codified at Indiana Code (S)23-1-42, as
amended from time to time, shall not apply to Control Share Acquisitions of
shares of the corporation.
SECTION 10.02. BUSINESS COMBINATIONS CHAPTER OF THE INDIANA BUSINESS
CORPORATIONS LAW. The corporation elects not to be subject to or be governed by
the provisions of the Business Combinations Chapter of the Indiana Business
Corporations Law, codified at Indiana Code (S)23-1-43, as amended from time to
time.
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ARTICLE XI
AMENDMENT AND REPEAL OF ARTICLES OF INCORPORATION
This corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation in the manner now or
hereafter prescribed by statute. Notwithstanding the foregoing, (i) the approval
of at least a two-thirds (2/3) majority of the directors then in office (or such
greater proportion of directors and stockholders as may otherwise be required
pursuant to any specific provision of these Articles of Incorporation) shall be
required to amend, alter, repeal or change any provision of these Articles of
Incorporation and (ii) the provisions set forth in Section 3.04 of Article III,
Sections 4.02, 4.05 and 4.06 of Article IV, and in Articles V, VI, VII, VIII, X
and this Article XI may not be repealed, altered, amended or rescinded in any
respect unless the same is approved by the affirmative vote of the holders of
not less than two-thirds of the outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors (considered
for this purpose as a single class) cast at a meeting of the stockholders called
for that purpose (provided that notice of such proposed adoption, repeal,
alteration, amendment or rescission is included in the notice of such meeting).
ARTICLE XII
AMENDMENT AND REPEAL OF BYLAWS
Bylaws may be adopted, amended or repealed by a resolution adopted by a
two-thirds (2/3) majority of the directors then in office.
ARTICLE XIII
INCORPORATOR
The name and address of the incorporator of the corporation is as follows:
Carl D. Smith
819 Main Street
Tell City, Indiana 47586
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