EXHIBIT 3(a)
STATE OF INDIANA
OFFICE OF THE SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
of
ITT INDUSTRIES, INC.
I, TODD ROKITA, Secretary of State of Indiana, hereby certify that Articles of
Amendment of the above For-Profit Domestic Corporation have been presented to me
at my office, accompanied by the fees prescribed by law and that the
documentation presented conforms to law as prescribed by the provisions of the
Indiana Business Corporation Law.
The name following said transaction will be:
ITT CORPORATION
NOW, THEREFORE, with this document I certify that said transaction will become
effective Saturday, July 01, 2006.
In Witness Whereof, I have caused to be
affixed my signature and the seal of the
State of Indiana, at the City of
Indianapolis, June 7, 2006.
[SEAL] /s/ TODD ROKITA
------------------------
TODD ROKITA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
OF THE
RESTATED ARTICLES OF INCORPORATION
OF
ITT INDUSTRIES, INC.
(WHICH NAME IS HEREBY CHANGED TO ITT CORPORATION)
In compliance with the requirements of the Indiana Business Corporation
Law, as amended (the "IBCL"), ITT Industries, Inc., an Indiana corporation
incorporated on September 5, 1995 (the "Corporation"), desiring to give notice
of corporate action effectuating the amendment of its Articles of Incorporation,
certifies the following facts:
ARTICLE I
Amendment to the Restated Articles of Incorporation
SECTION 1. The name of the Corporation is ITT Industries, Inc., which
shall be changed hereby to ITT Corporation.
SECTION 2. Article First of the Corporation's Restated Articles of
Incorporation hereby is amended (the "Amendment") to read in its entirety as
follows:
ARTICLE FIRST
The name of the corporation is ITT Corporation (the "Corporation").
SECTION 3. The Amendment hereby effected shall be effective on July 1,
2006.
ARTICLE II
Manner of Adoption and Vote
SECTION 1. At a meeting of the Board of Directors on March 7, 2006, the
foregoing Amendment to the Corporation's Restated Articles of Incorporation was
adopted by the Board of Directors. The Board of Directors submitted the
Amendment, together with its recommendation for approval, to the shareholders of
the Corporation.
The foregoing Amendment to the Corporation's Restated Articles of
Incorporation required shareholder approval. At an annual meeting of the
shareholders of the Corporation held on May 9, 2006, the shareholders of the
Corporation entitled to vote with respect to the foregoing Amendment approved
the proposed Amendment. The result of such vote is as follows:
<Table>
<Caption>
COMMON STOCK,
$1.00 PAR VALUE PER SHARE,
DESIGNATION OF EACH VOTING GROUP VOTING AS A SINGLE CLASS
- -------------------------------- --------------------------
Number of Outstanding Shares.......................... 184,810,236
Number of Votes Entitled to be Cast................... 184,810,236
Number of Votes Represented at Meeting................ 154,390,998
Shares Voted in Favor................................. 151,948,686
Shares Voted Against.................................. 996,213
</Table>
The number of votes cast in favor of the Amendment was sufficient for
approval thereof pursuant to all applicable provisions of the IBCL and the
Corporation's Restated Articles of Incorporation.
SECTION 2. The manner of the adoption of the Amendment to the
Corporation's Restated Articles of Incorporation and the vote by which it was
adopted constitute full legal compliance with the provisions of the IBCL and the
Corporation's Restated Articles of Incorporation and By-Laws.
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IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed
these Articles of Amendment this 5(th) day of June, 2006.
ITT INDUSTRIES, INC.
By: /s/ Kathleen S. Stolar
------------------------------------
Name: Kathleen S. Stolar
Title: Vice President, Secretary
and Associate General
Counsel
ARTICLES OF AMENDMENT OF THE RESTATED ARTICLES OF INCORPORATION
ITT Corporation, a corporation organized and existing under the laws of the
State of Indiana (the "Corporation"), hereby certifies as follows:
ITT Industries, Inc. was originally incorporated under the name ITT
Indiana, Inc. pursuant to its original Articles of Incorporation filed with the
Secretary of State for the State of Indiana on September 5, 1995. Effective
December 20, 1995, ITT Corporation, a Delaware corporation, was merged with and
into the Corporation, and the name of the Corporation was changed to ITT
Industries, Inc. This Amendment of the Restated Articles of Incorporation
includes an amendment to ARTICLE FIRST to change the name of the Corporation to
ITT Corporation. The amendment was approved by the holders of the outstanding
shares of Common Stock of the Corporation at the 2006 Annual Meeting of
Shareholders held on May 9, 2006. The text of the Articles of Incorporation as
amended is hereby restated to read as herein set forth in full:
ARTICLES OF AMENDMENT OF THE RESTATED ARTICLES OF INCORPORATION
OF
ITT CORPORATION
ARTICLE FIRST
The name of the corporation is ITT Corporation (the "Corporation").
ARTICLE SECOND
The address of the registered office of the Corporation in the State of
Indiana is One North Capitol Avenue, Suite 1180, Indianapolis, Indiana 46204.
The name of the registered agent of the Corporation at such address is The
Corporation Trust Company.
ARTICLE THIRD
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.
ARTICLE FOURTH
(a) The aggregate number of shares of stock that the Corporation shall have
authority to issue is 300,000,000 shares, consisting of 250,000,000 shares
designated "Common Stock" and 50,000,000 shares designated "Preferred Stock".
The shares of Common Stock shall have a par value of $1 per share, and the
shares of Preferred Stock shall not have any par or stated value, except that,
solely for the purpose of any statute or regulation imposing any fee or tax
based upon the capitalization of the Corporation, the shares of Preferred Stock
shall be deemed to have a par value of $.01 per share.
(b) The Board of Directors of the Corporation shall have the full authority
permitted by law, at any time and from time to time, to divide the authorized
and
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unissued shares of Preferred Stock into classes or series, or both, and to
determine the following provisions, designations, powers, preferences and
relative, participating, optional and other special rights and the
qualifications, limitations or restrictions thereof for shares of any such class
or series of Preferred Stock:
(1) the designation of such class or series, the number of shares to
constitute such class or series and the stated or liquidation value
thereof;
(2) whether the shares of such class or series shall have voting
rights, in addition to any voting rights provided by law, and, if so, the
terms of such voting rights;
(3) the dividends, if any, payable on such class or series, whether
any such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, the
preference or relation which such dividends shall bear to the dividends
payable on any shares of stock of any other class or any other series of
the same class;
(4) whether the shares of such class or series shall be subject to
redemption at the election of the Corporation and/or the holders of such
class or series and, if so, the times, price and other conditions of such
redemption, including securities or other property payable upon any such
redemption, if any;
(5) the amount or amounts, if any, payable upon shares of such class
or series upon, and the rights of the holders of such class or series in,
the voluntary or involuntary liquidation, dissolution or winding up, or any
distribution of the assets, of the Corporation; provided that in no event
shall the amount or amounts, if any, exceed $100 per share plus accrued
dividends in the case of involuntary liquidation, dissolution or winding
up;
(6) whether the shares of such class or series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such class or series for retirement
or other corporate purposes and the terms and provisions relative to the
operation thereof;
(7) whether the shares of such class or series shall be convertible
into, or exchangeable for, shares of stock of any other class or any other
series of the same class or any securities, whether or not issued by the
Corporation, and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same, and
any other terms and conditions of conversion or exchange;
(8) the limitations and restrictions, if any, to be effective while
any shares of such class or series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or any other series of the same class;
(9) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issuance of any additional
shares of stock,
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including additional shares of such class or series or of any other series
of the same class or of any other class;
(10) the ranking (be it pari passu, junior or senior) of each class or
series vis-a-vis any other class or series of any class of Preferred Stock
as to the payment of dividends, the distribution of assets and all other
matters; and
(11) any other powers, preferences and relative, participating,
optional and other special rights and any qualifications, limitations or
restrictions thereof, insofar as they are not inconsistent with the
provisions of these Articles of Incorporation, to the full extent permitted
in accordance with the laws of the State of Indiana.
(c) Such divisions and determinations may be accomplished by an amendment
to this ARTICLE FOURTH, which amendment may be made solely by action of the
Board of Directors, which shall have the full authority permitted by law to make
such divisions and determinations.
(d) The powers, preferences and relative, participating, optional and other
special rights of each class or series of Preferred Stock and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other classes or series at any time outstanding; provided
that each series of a class is given a distinguishing designation and that all
shares of a series have powers, preferences and relative, participating,
optional and other special rights and the qualifications, limitations or
restrictions thereof identical with those of other shares of the same series
and, except to the extent otherwise provided in the description of the series,
with those other series of the same class.
(e) Holders of shares of Preferred Stock shall be entitle to receive, when,
as and if declared by the Board of Directors, out of funds legally available for
the payment thereof, dividends at the rates of fixed by the Board of Directors
for the respective series before any dividends shall be declared and paid, or
set aside for the payment, on shares of Common Stock with respect to the same
dividend period. Nothing in this ARTICLE FOURTH shall limit the power of the
Board of Directors to create a series of Preferred Stock with dividends the rate
of which is calculated by reference to, and the payment of which is concurrent
with, dividends on shares of Common Stock.
(f) In the event of the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, holders of shares of each series of Preferred
Stock will be entitled to receive the amount fixed for such series upon any such
event (not in excess of $100 per share in the case of involuntary liquidation,
dissolution or winding up) plus, in the case of any series on which dividends
will have been determined by the Board of Directors to be cumulative, an amount
equal to all dividends accumulated and unpaid thereon to the date of final
distribution whether or not earned or declared before any distribution shall be
paid, or set aside for payment, to holders of Common Stock. If the assets of the
Corporation are not sufficient to pay such amounts in full, holders of all
shares of Preferred Stock will participate in the distribution of assets ratably
in proportion to the full amounts to which they are entitled or in such order or
priority, if any, as will have been fixed in the resolution or resolutions
providing for the
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issue of the series of Preferred Stock. Neither the merger nor consolidation of
the Corporation into or with any other corporation, nor a sale, transfer or
lease of all or part of its assets, will be deemed a liquidation, dissolution or
winding up of the Corporation within the meaning of this paragraph except to the
extent specifically provided for herein. Nothing in this ARTICLE FOURTH shall
limit the power of the Board of Directors to create a series of Preferred Stock
for which the amount to be distributed upon any liquidation, dissolution or
winding up of the Corporation is calculated by reference to, and the payment of
which is concurrent with, the amount to be distributed to the holders of shares
of Common Stock.
(g) The Corporation, at the option of the Board of Directors, may redeem
all or part of the shares of any series of Preferred Stock on the terms and
conditions fixed for such series.
(h) Except as otherwise required by law, as otherwise provided herein or as
otherwise determined by the Board of Directors as to the shares of any series of
Preferred Stock prior to the issuance of any such shares, the holders of
Preferred Stock shall have no voting rights and shall not be entitled to any
notice of meetings of shareholders.
(i) Each holder of shares of Common Stock shall be entitled to one vote for
each share of Common Stock held of record on all matters on which the holders of
shares of Common Stock are entitled to vote. Subject to the provisions of
applicable law and any certificate of designation providing for the issuance of
any series of Preferred Stock, the holders of outstanding shares of Common Stock
shall have and possess the exclusive right to notice of shareholders' meetings
and the exclusive power to vote. No shareholder will be permitted to cumulate
votes at any election of directors.
(j) Subject to all the rights of the Preferred Stock, the holders of the
Common Stock shall be entitled to receive, when, as and if declared by the Board
of Directors, out of funds legally available for the payment thereof, dividends
payable in cash, stock or otherwise. Upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, and after the
holders of the Preferred Stock of each series shall have been paid in full in
cash the amounts to which they respectively shall be entitled or a sum
sufficient for such payment in full shall have been set aside, the remaining net
assets of the Corporation shall be distributed pro rata to the holders of the
Common Stock in accordance with their respective rights and interests, to the
exclusion of the holders of the Preferred Stock.
SERIES A PARTICIPATING CUMULATIVE PREFERRED STOCK
A description of such Series A Participating Cumulative Preferred Stock
with the designations, voting powers, preferences and relative, participating,
optional and other special rights and qualifications, limitations or
restrictions relating thereto is as follows:
SECTION 1. Designation and Number of Shares. The shares of such
series shall be designated as "Series A Participating Cumulative Preferred
Stock" (the "Series A Preferred Stock"), without par value. The number of
shares
4
initially constituting the Series A Preferred Stock shall be 300,000;
provided, however, that, if more than a total of 300,000 shares of Series A
Preferred Stock shall be issuable upon the exercise of Rights (the
"Rights") issued pursuant to that Rights Agreement between the Corporation
and The Bank of New York, a New York banking corporation, as Rights Agent
(the "Rights Agreement"), the Board of Directors of the Corporation,
pursuant to Section 23-1-25-2(d) of the Business Corporation Law of the
State of Indiana, shall direct by resolution or resolutions that articles
of amendment be properly executed and delivered to the Secretary of State
for the State of Indiana for filing in accordance with the provisions of
Section 23-1-18-1 and Section 23-1-38-6 thereof, providing for the total
number of shares of Series A Preferred Stock authorized to be issued to be
increased (to the extent that the Articles of Incorporation then permit) to
the largest number of whole shares (rounded up to the nearest whole number)
issuable upon exercise of such Rights.
SECTION 2. Dividends or Distributions. (a) Subject to the prior and
superior rights of the holders of shares of any other series of Preferred
Stock or other class of capital stock of the Corporation ranking prior and
superior to the shares of Series A Preferred Stock with respect to
dividends, the holders of shares of the Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors,
out of the assets of the Corporation legally available therefor, (1)
quarterly dividends payable in cash on the last day of each fiscal quarter
in each year, or such other dates as the Board of Directors of the
Corporation shall approve (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or a fraction of
a share of Series A Preferred Stock, in the amount of $.01 per whole share
(rounded to the nearest cent) less the amount of all cash dividends
declared on the Series A Preferred Stock pursuant to the following clause
(2) since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock
(the total of which shall not, in any event, be less than zero) and (2)
dividends payable in cash on the payment date for each cash dividend
declared on the Common Stock in an amount per whole share (rounded to the
nearest cent) equal to the Formula Number (as hereinafter defined) then in
effect times the cash dividends then to be paid on each share of Common
Stock. In addition, if the Corporation shall pay any dividend or make any
distribution on the Common Stock payable in assets, securities or other
forms of noncash consideration (other than dividends or distributions
solely in shares of Common Stock), then, in each such case, the Corporation
shall simultaneously pay or make on each outstanding whole share of Series
A Preferred Stock a dividend or distribution in like kind equal to the
Formula Number then in effect times such dividend or distribution on each
share of the Common Stock. As used herein, the "Formula Number" shall be
1,000; provided, however, that, if at any time after the Distribution
Record Date (as defined in that Notice of Special Meeting and Proxy
Statement, dated August 30, 1995, filed with the Securities and Exchange
5
Commission by ITT Corporation), the Corporation shall (i) declare or pay
any dividend on the Common Stock payable in shares of Common Stock or make
any distribution on the Common Stock in shares of Common Stock, (ii)
subdivide (by a stock split or otherwise) the outstanding shares of Common
Stock into a larger number of shares of Common Stock or (iii) combine (by a
reverse stock split or otherwise) the outstanding shares of Common Stock
into a smaller number of shares of Common Stock, then in each such event
the Formula Number shall be adjusted to a number determined by multiplying
the Formula Number in effect immediately prior to such event by a fraction,
the numerator of which is the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which is
the number of shares of Common stock that are outstanding immediately prior
to such event (and rounding the result to the nearest whole number); and
provided further, that, if at any time after the Distribution Record Date,
the Corporation shall issue any shares of its capital stock in a merger,
reclassification, or change of the outstanding shares of Common Stock, then
in each such event the Formula Number shall be appropriately adjusted to
reflect such merger, reclassification or change so that each share of
Preferred Stock continues to be the economic equivalent of a Formula Number
of shares of Common Stock prior to such merger, reclassification or change.
(b) The Corporation shall declare a dividend or distribution of
the Series A Preferred Stock as provided in Section 2(a) immediately
prior to or at the same time it declares a dividend or distribution on
the Common Stock (other than a dividend or distribution solely in
shares of Common Stock; provided, however, that, in the event no
dividend or distribution (other than a dividend or distribution in
shares of Common Stock) shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $.01
per share on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date. The Board
of Directors may fix a record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive a dividend or
distribution declares thereon, which record date shall be the same as
the record date for any corresponding dividend or distribution on the
Common Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from and after the
Quarterly Dividend Payment Date next preceding the date of original
issue of such shares of Series A Preferred Stock; provided, however,
that dividends on such shares which are originally issued after the
record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend and on or
prior to the next succeeding Quarterly Dividend Payment Date shall
begin to accrue and be cumulative from and after such Quarterly
Dividend Payment Date. Notwithstanding the foregoing, dividends on
shares of Series A Preferred Stock which are originally issued prior
to
6
the record date for the determination of holders of shares or Series A
Preferred Stock entitled to receive a quarterly dividend on the first
Quarterly Dividend Payment Date shall be calculated as if cumulative
from and after the last day of the fiscal quarter next preceding the
date of original issuance of such shares. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding.
(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends or other distributions shall be declared,
paid or distributed, or set aside for payment or distribution, on the
Common Stock unless, in each case, the dividend required by this
Section 2 to be declared on the Series A Preferred Stock shall have
been declared.
(e) The holders of the shares of Series A Preferred Stock shall
not be entitled to receive any dividends or other distributions except
as provided herein.
SECTION 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each holder if Series A Preferred Stock shall be entitled to
a number of votes equal to the Formula Number then in effect, for each
share of Series A Preferred Stock held of record on each matter on
which holders of the Common Stock or shareholders generally are
entitled to vote, multiplied by the maximum number of votes per share
which any holder of the Common Stock or shareholders generally then
have with respect to such matter (assuming any holding period or other
requirement to vote a greater number of shares is satisfied).
(b) Except as otherwise provided herein or by applicable law, the
holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock shall vote together as one class for the
election of directors of the Corporation and on all other matters
submitted to a vote of shareholders of the Corporation.
(c) If, at the time of any annual meeting of shareholders for the
election of directors, the equivalent of six quarterly dividends
(whether or not consecutive) payable on any share or shares of Series
A Preferred Stock are in default, the number of directors constituting
the Board of Directors of the Corporation shall be increased by two.
In addition to voting together with the holders of Common Stock for
the election of other directors of the Corporation, the holders of
record of the Series A Preferred Stock, voting separately as a class
to the exclusion of the holders of Common Stock, shall be entitled at
said meeting of shareholders (and at each subsequent annual meeting of
shareholders), unless all dividends in arrears have been paid or
declared and set apart for payment prior thereto, to
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vote for the election of two directors of the Corporation, the holders
of any Series A Preferred Stock being entitled to cast a number of
votes per share of Series A Preferred Stock equal to the Formula
Number. Until the default in payments of all dividends which permitted
the election of said directors shall cease to exists, any director who
shall have been so elected pursuant to the next preceding sentence may
be removed at any time, either with or without cause, only by the
affirmative vote of the holders of the shares of Series A Preferred
Stock at the time entitled to cast a majority of the votes entitled to
be cast for the election of any such director at a special meeting of
such holders called for that purpose, and any vacancy thereby created
may be filled by the vote of such holders. If and when such default
shall cease to exist, the holders of the Series A Preferred Stock
shall be divested of the foregoing special voting rights, subject to
revesting in the event of each and every subsequent like default in
payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been
elected directors pursuant to said special voting rights shall
forthwith terminate, and the number of directors constituting the
Board of Directors shall be reduced by two. The voting rights granted
by this Section 3(c) shall be in addition to any other voting rights
granted to the holders of the Series A Preferred Stock in this Section
3.
(d) Except as provided herein, in Section 11 or by applicable
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for authorizing or taking any corporate action.
SECTION 4. Certain Restrictions. (a) Whenever quarterly dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid in full, the Corporation
shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions or any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid ratably
on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as
to dividends or upon
8
liquidation, dissolution or winding up) with the Series A
Preferred Stock; provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
SECTION 5. Liquidation Rights. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received an amount, equal to
the accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, plus an amount equal to the greater
of (x) $.01 per whole share or (y) an aggregate amount per share equal to
the Formula Number then in effect times the aggregate amount to be
distributed per share to holders of Common Stock or (2) to the holders of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or
winding up; provided that in no event shall the amount or amounts, if any,
exceed $100 per share plus accrued dividends in the case of involuntary
liquidation, dissolution or winding up of the Corporation.
SECTION 6. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash or any other property, then in any such case the
then outstanding shares of Series A Preferred Stock shall at the same time
be similarly exchanged or changed into an amount per share equal to the
Formula Number then in effect times the aggregate amount of stock,
securities, cash or any other property
9
(payable in kind), as the case may be, into which or for which each share
of Common Stock is exchanged or changed. In the event both this Section 6
and Section 2 appear to apply to a transaction, this Section 6 will
control.
SECTION 7. No Redemption; No Sinking Fund. (a) The shares of Series
A Preferred Stock shall not be subject to redemption by the Corporation or
at the option of any holder of Series A Preferred Stock; provided, however,
that the Corporation may purchase or otherwise acquire outstanding shares
of Series A Preferred Stock in the open market or by offer to any holder or
holders of shares of Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not be subject
to or entitled to the operation of a retirement or sinking fund.
SECTION 8. Ranking. The Series A Preferred Stock shall rank junior
to all other series of Preferred Stock of the Corporation, unless the Board
of Directors shall specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other special rights
of the shares of such series and the qualifications, limitations or
restrictions thereof.
SECTION 9. Fractional Shares. The Series A Preferred Stock shall be
issuable upon exercise of the Rights issued pursuant to the Rights
Agreement in whole shares or in any fraction of a share that is one one-
thousandths (1/1,000ths) of a share or any integral multiple of such
fraction which shall entitle the holder, in proportion to such holder's
fractional shares, to receive dividends, exercise voting rights,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock. In lieu of fractional shares, the
Corporation, prior to the first issuance of a share or a fraction of a
share of Series A Preferred Stock, may elect (1) to make a cash payment as
provided in the Rights Agreement for fractions of a share other than one
one-thousandths (1/1,000ths) of a share or any integral multiple thereof or
(2) to issue depository receipts evidencing such authorized fraction of a
share of Series A Preferred Stock pursuant to an appropriate agreement
between the Corporation and a depository selected by the Corporation;
provided that such agreement shall provide that the holders of such
depository receipts shall have all the rights, privileges and preferences
to which they are entitled as holders of the Series A Preferred Stock.
SECTION 10. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancelation become authorized but
unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors pursuant to the provisions of ARTICLE FOURTH of the
Articles of Incorporation.
SECTION 11. Amendment. None of the powers, preferences and relative,
participating, optional and other special rights of the Series A Preferred
Stock as provided herein or in the Articles of Incorporation shall be
amended in
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any manner which would alter or change the powers, preferences, rights or
privileges of the holders of Series A Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least 66 2/3%
of the outstanding shares of Series A Preferred Stock, voting as a separate
class, provided, however, that no such amendment approved by the holders of
at least 66 2/3% of the outstanding shares of Series A Preferred Stock
shall be deemed to apply to the powers, preferences, rights or privileges
of any holder of shares of Series A Preferred Stock originally issued upon
exercise of a Right after the time of such approval without the approval of
such holder.
ARTICLE FIFTH
(a) Special meetings of shareholders of the Corporation may be called only
by the Chairman of the Board of Directors or by a majority vote of the entire
Board of Directors.
(b) Shareholders of the Corporation shall not have any preemptive rights to
subscribe for additional issues of stock of the Corporation except as may be
agreed from time to time by the Corporation and any such shareholder.
(c) Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation, if any, shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of shareholders, an election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of the applicable resolution or resolutions of the Board of Directors
adopted pursuant to ARTICLE FOURTH of these Articles of Incorporation.
ARTICLE SIXTH
To the fullest extent permitted by applicable law as then in effect, no
director or officer shall be personally liable to the Corporation or any of its
shareholders for damages for breach of fiduciary duty as a director or officer,
except for liability (a) for breach of duty if such breach constitutes wilful
misconduct or recklessness or (b) for the payment of distributions to
shareholders in violation of Section 23-1-28-3 of the Indiana Business
Corporation Law. Any repeal or modification of this ARTICLE SIXTH by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director or officer of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
ARTICLE SEVENTH
The holders of the capital stock of the Corporation shall not be personally
liable for the payment of the Corporation's debts and the private property of
the holders of the capital stock of the Corporation shall not be subject to the
payment of debts of the Corporation to any extent whatsoever.
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ARTICLE EIGHTH
Subject to any express provision of the laws of the State of Indiana, these
Articles of Incorporation or the By-laws of the Corporation, the By-laws of the
Corporation may from time to time be supplemented, amended or repealed, or new
By-laws may be adopted, by the Board of Directors at any regular or special
meeting of the Board of Directors, if such supplement, amendment, repeal or
adoption is approved by a majority of the entire Board of Directors. Subject to
any express provision of the laws of the State of Indiana, these Articles of
Incorporation or the By-laws of the Corporation, the By-laws of the Corporation
may from time to time be supplemented, amended or repealed, or new By-laws may
be adopted, by the shareholders at any regular or special meeting of the
shareholders at which a quorum is present, if such supplement, amendment, repeal
or adoption is approved by the affirmative vote of the holders of at least a
majority of the voting power of all outstanding shares of stock of the
Corporation entitled to vote generally in an election of directors.
ARTICLE NINTH
The Corporation reserves the right to supplement, amend or repeal any
provision contained in these Articles of Incorporation, in the manner now or
hereafter prescribed by the laws of the State of Indiana, and all rights
conferred on shareholders herein are granted subject to this reservation.
ARTICLE TENTH
The name and address of the original incorporator signing the Articles of
Incorporation is:
<Table>
<Caption>
ADDRESS
NAME
George W. Bilicic, Jr. 825 Eighth Avenue
New York, New York 10019
</Table>
These Articles of Amendment of the Restated Articles of Incorporation were
duly adopted by the Board of Directors of the Corporation in accordance with the
provisions of Section 23-1-38-7 of the Indiana Business Corporation Law.
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IN WITNESS WHEREOF, I have executed these Articles of Amendment of the
Restated Articles of Incorporation this 5th day of June, 2006.
/s/ KATHLEEN S. STOLAR
----------------------------------------
Name: Kathleen S. Stolar
Title: Vice President, Secretary
and Associate General Counsel
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