ARTICLES OF INCORPORATION
OF
ALLTRISTA NEWCO CORPORATION
The undersigned incorporator, Timothy J. Bender, desiring to form a corporation
(the "Corporation") pursuant to the provisions of the Indiana Business
Corporation Law (the "Act"), executes the following Articles of Incorporation.
ARTICLE I
Name
The name of the Corporation is Alltrista Newco Corporation.
ARTICLE II
Purposes and Powers
The Corporation is formed for the following purposes and shall have the
following powers:
1. To acquire, own, hold, use, lease, mortgage, pledge, give as security, sell,
convey, or otherwise dispose of property, real and personal, tangible and
intangible, and any interests or rights therein, and commodities of every kind,
character and description whatsoever and any interests therein.
2. To acquire, guarantee, hold, own and vote, and to sell, assign, transfer,
mortgage, pledge or otherwise dispose of or deal in the shares, bonds,
securities or evidences of indebtedness of any other corporations, associations,
partnerships, individuals, or other entities, domestic or foreign, for whatever
purpose or purposes formed or operated, or direct or indirect obligations of the
United States or of any government, state, territory, governmental district or
municipality or of any instrumentality thereof.
3. To apply for, obtain, register, purchase, lease or otherwise acquire letters
patent of the United States or of any foreign country, permits, concessions,
patent rights, licenses, privileges, inventions, improvements, processes,
copyrights, trademarks and trade names; to grant licenses thereunder and to
sell, assign, lease, pledge, mortgage, transfer or otherwise deal in or dispose
of, any such letters patent, patent rights, licenses, privileges, inventions,
improvements, processes, copyrights, trademarks and trade names.
4. To make contracts, guaranties and incur liabilities, borrow money at such
rates of interest as the Corporation may determine, issue its notes, bonds and
other obligations, and secure any of its obligations by mortgage or pledge of
any or all of its properties, franchise and income.
5. To conduct business in this state, and elsewhere; to have one or more offices
in or out of this State; and to acquire, own, hold and use, and to lease,
mortgage, pledge, sell, convey or otherwise dispose of property, real and
personal, tangible and intangible, or any interests or rights therein, out of
this State.
6. To enter into any lawful arrangements for sharing profits, partnership, union
of interests, reciprocal association, or cooperative association with any
corporation, association, partnership, individual, or other legal entity, for
the carrying on of any business or transaction deemed necessary, convenient, or
incidental to the carrying out any of the purposes of the corporation.
7. To appoint such officers and agents and to hire such employees as the
business of the Corporation may require, and to define their duties and fix
their compensation.
8. To pay pensions and establish pension plans, pension trusts, profit sharing
and retirement plans, stock bonus plans for all of its directors, officers and
employees.
9. To transact all business incidental to or connected with any of the foregoing
provisions.
10. To have the capacity to act possessed by natural persons, and in general to
carry on any other lawful business whatsoever in connection with the foregoing,
or which is calculated, directly or indirectly, to promote the interest of the
Corporation, or to enhance the value of its properties, and to have and exercise
all the rights, powers and privileges which are now or may hereinafter be
conferred by the laws of Indiana upon corporations, except as expressly limited
by the Act under which this corporation is formed.
11. To lend money to corporations, associations, partnerships, individuals, and
other legal entities, including employees of the Corporation or its
subsidiaries, to take and hold any property as security for the payment of funds
so loaned; but to make no advancement on account of services to be performed in
the future or any loan to any officer or director of the Corporation unless in
compliance with the provisions of the Act.
12. To make contributions out of the gross income of the Corporation to such
entities, and for anyone or more of such purposes, as the Directors may
reasonably believe will constitute such contributions deducted from such gross
income in computing the net income of the Corporation subject to tax pursuant to
the provisions of the Internal Revenue Code of 1986 as amended from time to
time.
13. To transact any or all lawful business for which corporations may be
incorporated under the Indiana Business Corporation Law.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
Resident Agent and Principal Office
Section 1. Resident Agent. The name and address of the Resident Agent in charge
of the Corporation's principal office is Angi Knowlton, 301 South High Street,
Muncie, Indiana 47305.
Section 2. Principal Office. The post office address of the principal office of
the Corporation is 301 South High Street, Muncie, Indiana 47305.
ARTICLE V
Authorized Shares
Section 1. Number. The total number of shares which the Corporation has
authority to issue is one thousand (1,000) shares without par value.
Section 2. Terms.
a. The shares are all of common stock, of one and the same class, having the
same rights and privileges.
b. The Board of Directors shall have the right to issue shares of stock of this
Corporation for such consideration as the Board of Directors shall determine.
Unless the Board of Directors by resolution shall provide otherwise, all
consideration received by the Corporation from the sale of its common stock
shall be allocated to the stated capital of the Corporation.
c. The Corporation shall have the right to purchase, take, receive or otherwise
acquire, hold, own, pledge, cancel, transfer or otherwise dispose of, or deal
in, its own shares to the extent of unreserved and unrestricted capital surplus
available, but with full authority and not in restriction of other authority as
further provided by the Act, provided that no purchase of or payment for its own
shares shall be made at a time when the Corporation is insolvent or when such
purchase or payment would render it insolvent.
d. The Corporation may create and issue rights and options to purchase shares of
stock, and set terms, times, and prices at which, shares or fractional shares
may be purchased, evidenced in such manner as the Board of Directors shall
approve and consistent with the full authority granted by the Act.
e. Such dividends as may be determined by the Board of Directors (after giving
due consideration to the needs of the Corporation for adequate reserves and
working capital) may be declared and paid on the common stock from time to time
out of the unreserved and unrestricted earned and/or capital surplus of the
Corporation, or as otherwise authorized by law, payable either in cash, in
property, or in the shares of the corporation, provided that no such
distribution shall be made out of capital surplus at a time when the Corporation
is insolvent or when such distribution would render the Corporation insolvent.
f. Each owner of common stock of the Corporation shall have the right, at every
shareholders' meeting, to one vote for each share of stock outstanding in his
name on the books of the Corporation at the above said meeting.
g. Shares shall be issued to have such relative rights, preferences, limitations
or restrictions, and bear such designations as shall be determined and stated by
the Board of Directors prior to the issuance of any shares of such stock. The
Board of Directors is hereby expressly vested with the authority to make such
determination by the resolution of the Board.
h. In the absence of a Stock Purchase Agreement between the Shareholders and the
Corporation, the subscription for and ownership of all stock in this Corporation
is made and taken upon the consideration that any shareholder desiring to
transfer said stock by sale, gift or any other means shall first offer his stock
to the Corporation, setting out the terms and conditions of the sale, and the
Corporation shall have thirty (30) days in which to exercise its option to
purchase the same. On the Corporation's refusal to purchase, all other
shareholders shall have fifteen (15) days from the expiration of said thirty
(30) days to exercise their option to purchase said stock. If more than one
shareholder shall exercise his option and no agreement as to distribution can be
reached within the option period, such stock shall be distributed equally among
such shareholders exercising such options. If neither the Corporation nor the
other shareholders exercises the option to purchase, then such shareholder can
sell to any third person, provided that the terms and conditions of said sale
are not more favorable than the terms and conditions of the offer to the
corporation and other shareholders.
i. The shareholders of the common stock of the Corporation shall have the right
from time to time to purchase, at such respective equitable prices, terms and
conditions (including pragmatic adjustments to avoid the issue of fractional
shares) as shall be fixed by the Board of Directors, such of the shares of the
common stock of the Corporation as may be hereafter issued, from time to time,
whether constituting a part of the common stock presently or subsequently
authorized, and including shares held in the treasury of the Corporation, in the
respective ratios which the number of shares held by each shareholder at the
respective times of such issues bears to the total number of shares issued and
outstanding in the names of all shareholders at such respective times.
ARTICLE VI
Directors
Section 1. Number of Directors. The initial Board of Directors is composed of
three (3) members. The number of directors may be, from time to time, fixed by
the By-Laws of the Corporation at any number. In the absence of a By-Law fixing
the number of directors, the number shall be three (3).
Section 2. Names and Post Office Addresses of the Directors. The names and post
office addresses of the initial Board of Directors of the Corporation are:
Name Address
Thomas Clark 301 South High Street Muncie, IN 47305
Kevin Bower 301 South High Street Muncie, IN 47305
William Skinner 301 South High Street Muncie, IN 47305
Section 3. Qualifications of Directors, (If Any). Directors need not be
shareholders of the Corporation.
ARTICLE VII
Incorporator
The name and post office address of the incorporator is Timothy J. Bender, 2700
Market Tower, 10 West Market Street, Indianapolis, Indiana 46204-2982.
ARTICLE VIII
Provisions For Regulation Of Business And Conduct Of Affairs Of Corporation
1. The shareholders and Board of Directors shall have power to hold their
meetings, within or without the State of Indiana, as may be specified in the
By-Laws or in respective notices, or waivers of notice thereof, and to have one
or more offices, within or without the State of Indiana, and to keep the books
of this Corporation (except such as are required by the Act above mentioned to
be kept in Indiana) and documents and papers of the Corporation outside the
State of Indiana, or at such places as may from time to time be designated by
the Board of Directors.
2. All of the powers of the Corporation, insofar as the same may lawfully vest
by these Articles of Incorporation are in the Board of Directors, and except as
otherwise provided herein, are hereby conferred upon the Board of Directors of
the Corporation, to be exercised without previous authorization or subsequent
approval by the stockholders of the Corporation.
3. The Board of Directors of the Corporation shall have power, without the
assent or vote of the shareholders, to make, alter, amend or repeal the By-Laws
of the Corporation, but the affirmative vote of a majority of the members of the
Board of Directors shall be necessary to effect any alteration, amendment or
repeal thereof.
4. Any contract or other transaction between the Corporation and one or more of
its Directors, (except loans to directors and officers, which are regulated by
the Act) or between the Corporation and any firm of which one or more of its
Directors are members or employees, or in which they are interested, or between
the Corporation and any corporation or association of which one or more of its
Directors are shareholders, members, directors, officers or employees, or in
which they are interested, shall be valid for all purposes, notwithstanding the
presence of such Director or Directors at the meeting of the Board of Directors
which acts upon or in reference to such contract or transaction, and
notwithstanding his or their participation in such action, if the fact of such
interest shall be disclosed or known to the Board of Directors and the Board of
Directors shall authorize, approve and ratify such contract or transaction by a
vote of a majority of the Directors present, such interested Director or
Directors to be counted in determining whether a quorum is present, but not to
be counted in calculating the majority of such quorum necessary to carry such
vote. This Section shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common and statutory law
applicable thereto.
5. In addition to the powers and authorities hereinabove or by statute expressly
conferred, the Board of Directors is hereby authorized to exercise all such
powers, and to do all such acts and things as may be exercised or done by a
corporation organized and existing under the provisions of the Act.
6. If the By-Laws provide or shall provide, the Board of Directors may designate
two or more of its members to constitute an Executive Committee, which Committee
to the extent provided in such By-Laws, shall have and exercise all of the
authority of the Board of Directors in the management of the Corporation, except
the authority to amend the Articles of Incorporation or By-Laws, declare
dividends or distributions, approve a plan or merger or consolidation, reduce
earned capital or surplus, recommend to the shareholders a voluntary dissolution
of the corporation, or authorize or approve the reacquisition of shares unless
pursuant to a general formula or method specified by the Board of Directors, and
have the power to authorize the execution of any and all papers, instruments or
documents as well as affix the seal of this Corporation thereto.
7. Dividends may be paid without deduction or depletion of assets by sale or
lapse of time in computation of the earned surplus available for such dividends,
subject to the rights of shareholders and creditors.
8. The Board of Directors may distribute to shareholders out of capital surplus
of the Corporation a portion of its assets, in cash or property, provided that
no such distribution shall be made at a time when the corporation is insolvent
or when such distribution would render the corporation insolvent.
9. Each Director of the Corporation shall be fully protected in relying in good
faith upon the books of account of the Corporation of the value and amounts of
the assets, liabilities and net profits of the Corporation, of any of such
items; or in relying in good faith upon any other information pertinent to the
existence and amount of surplus of other funds from which dividends might
properly be declared and paid.
10. The Board of Directors shall have the right to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Section.
11. The Board of Directors of the Corporation shall have power, from time to
time to fix and determine and to vary the amount to be reserved as working
capital of the Corporation and, before the payment of any dividends or the
making of any distribution of profits, it may set aside, out of the net profits
of the Corporation, such sum or sums as it may from time to time, in its
absolute discretion, determine to be proper, whether as a reserve fund to meet
contingencies for the equalizing of dividends, or repairing or maintaining any
property of the Corporation, or for an addition to corporate surplus, or for any
corporate purposes that the Board of Directors shall think conducive to the best
interest of the Corporation, subject only to such limitations as the By-Laws of
the Corporation may, from time to time, impose.
12. After it remains unclaimed for a period of seven (7) years, any stock,
dividend, demand obligation or past due obligation of this Corporation,
interest, distribution or other claim against or obligation of this Corporation
shall be subject to the Indiana Uniform Disposition of Unclaimed Property Act
(the Unclaimed Property Act"), if applicable, of, if the Unclaimed Property Act
is not applicable, shall revert to this Corporation.
13. The Board of Directors is hereby specifically authorized, in and by the
By-Laws of the Corporation, or by resolution duly adopted by such Board, to make
provision for reasonable compensation to its members for their services as
Directors, and to fix the basis and conditions upon which such compensation
shall be paid. Any Director of the Corporation may also serve the Corporation in
any other capacity and receive compensation therefor in any form.
14. The Corporation reserves the right to alter, amend or repeal any provisions
contained in these Articles of Incorporation in the manner now or hereafter
prescribed by the provisions of the Act, or any other pertinent enactment of the
General Assembly of the State of Indiana; and all rights and powers conferred
hereby on shareholders, directors, and officers of the Corporation are subject
to such reserved right.
ARTICLE IX
Indemnification
Section 1. Definitions.
a. "Director" means an individual who is or was a director of the Corporation or
any subsidiary of the Corporation, or an individual who, while a director of the
Corporation, is or was serving at the Corporation's request as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, whether for profit or not. A director is considered to be serving an
employee benefit plan at the Corporation's request if the director's duties to
the Corporation also impose duties on, or otherwise involve services by, the
director to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
b. "Expenses" include counsel fees.
c. "Liability" means the obligation to pay a judgment, settlement, penalty, fine
(including an excise tax assessed with respect to an employee benefit plan),
and/or reasonable expenses incurred with respect to a proceeding.
d. "Official Capacity" means:
(i) when used with respect to a director, the office of director in the
Corporation or its subsidiaries, as the case may be; and
(ii) when used with respect to an individual other than a director, as
contemplated in Section 7 herein, the office in the Corporation or its
subsidiaries, as the case may be, held by the officer or the employment or
agency relationship undertaken by the employee or agent on behalf of the
Corporation.
"Official capacity" does not include service for any other foreign or domestic
corporation, except the Corporation's subsidiaries, or any partnership, joint
venture, trust, employee benefit plan, or other enterprise, whether for profit
or not.
e. "Party" includes an individual who was, is, or is threatened to be made a
named defendant or respondent in a proceeding.
f. "Proceeding" means any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal.
Section 2. Optional Indemnification. The Corporation may indemnify an individual
made a party to a proceeding because the individual is or was a director against
liability incurred in the proceeding if:
a. The individual's conduct was in good faith; and
b. The individual reasonably believed:
(i) in the case of conduct in the individual's official capacity with the
Corporation or its subsidiaries, as the case may be, that the individual's
conduct was in its best interests; and
(ii) in all other cases, that the individual's conduct was at least not opposed
to the best interests of the Corporation or its subsidiaries, as the case may
be; and
(c) In the case of any criminal proceeding, the individual either:
(i) had reasonable cause to believe the individual's conduct was lawful; or
(ii) had no reasonable cause to believe the individual's conduct was unlawful.
A Director's conduct with respect to an employee benefit plan for a purpose the
Director reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection b. (ii).
The termination of a proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the Director did not meet the standard of conduct described
in this section.
Section 3. Mandatory Indemnification. The Corporation shall indemnify a Director
who was wholly successful, on the merits or otherwise, in the defense of any
proceeding to which the Director was a party because the Director is or was a
Director of the Corporation or of a subsidiary of the Corporation against
reasonable expenses incurred by the Director in connection with the proceeding.
Section 4. Expense Reimbursement. The Corporation may pay for or reimburse the
reasonable expenses incurred by a Director who is a party to a proceeding in
advance of final disposition of the proceeding if:
a. The Director furnishes the Corporation a written affirmation of the
Director's good faith belief that the Director has met the standard of conduct
described in Section 2;
b. The Director furnishes the Corporation a written undertaking, executed
personally or on the Director's behalf, to repay the advance if it is ultimately
determined that the Director did not meet the standard of conduct; and
c. A determination is made that the facts then known to those making the
determination would not preclude indemnification under this Article.
The undertaking required by subsection b. of this Section must be an unlimited
general obligation of the Director but need not be secured and may be accepted
without reference to financial ability to make repayment.
Determinations and authorizations of payments under this section shall be made
in the manner specified in Section 6 herein.
Section 5. Court Ordered Indemnification. A Director of the Corporation who is a
party to a proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers necessary may
order indemnification if it determines:
a. The Director is entitled to mandatory indemnification under Section 2 herein,
in which case the court shall also order the Corporation to pay the Director's
reasonable expenses incurred to obtain court-ordered indemnification; or
b. The Director is fairly and reasonably entitled to indemnification in view of
all the relevant circumstances, whether or not the Director met the standard of
conduct set forth in Section 2 herein.
Section 6. Procedure. The Corporation may not indemnify a Director under Section
2 herein unless authorized in the specific case after a determination has been
made that indemnification of the Director is permissible in the circumstances
because the Director has met the standard of conduct set forth in Section 2
herein.
The determination shall be made by any one (1) of the following procedures:
a. By the Board of Directors by majority vote of a quorum consisting of
Directors not at the time parties to the proceeding.
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 (2) or more
Directors not at the time parties to the proceeding.
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).
d. By the shareholders, but shares owned by or voted under the control of
Directors who are at the time parties to the 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 7. Miscellaneous Indemnification Provisions. An officer of the
Corporation or of a subsidiary of the Corporation, whether or not a Director, is
entitled to mandatory indemnification under Section 3 herein and is entitled to
apply for court-ordered indemnification under Section 5 herein, in each case to
the same extent as a Director.
The Corporation may indemnify and advance expenses hereunder to an officer,
employee, or agent of the Corporation or of a subsidiary of the Corporation,
whether or not a Director, to the same extent as to a Director.
The Corporation may also indemnify and advance expenses to an officer, employee,
or agent, whether or not a Director, to the extent, consistent with public
policy, that may be provided by these Articles of Incorporation, the By-Laws,
general or specific action of the Board of Directors, or by contract.
The Corporation may purchase and maintain insurance on behalf of an individual
who is or was a Director, officer, employee, or agent of the Corporation, or of
a subsidiary of the Corporation, or who, while a Director, officer, employee, or
agent of the Corporation, is or was serving at the request of the Corporation as
a Director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise, against 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 Sections 2 or
3 herein; provided, however, that when and to the extent that the Corporation
has purchased and maintained such insurance, it shall have no duty hereunder to
indemnify any such person to the extent such liabilities are covered by
insurance.
The rights of indemnification provided hereunder shall continue to exist as to a
person who has ceased to be a Director, officer, or employee or agent of the
Corporation, or of any of its subsidiaries, and shall inure to the benefit of
the heirs, executors and administrators of any such person. The indemnification
provided by Article IX herein shall be applicable to all proceedings made or
commenced after the adoption hereof, arising from acts or omissions to act
occurring whether before or after the adoption hereof.
The provisions of this Article IX do not limit the Corporation's power to pay or
reimburse expenses incurred by a Director, officer, employee or agent in
connection with the person's appearance as a witness in a proceeding at a time
when the person has not been made a named defendant or respondent to the
proceeding.
The indemnification provisions herein are intended to encompass the provisions
of Section 23-1-37 of the Indiana Business Corporation Law, as from time to time
amended, as modified by these Articles of Incorporation as permitted by Section
23-1-37-15 of the Indiana Business Corporation Law, as from time to time
amended.
IN WITNESS WHEREOF, the undersigned, being the incorporator designated in
Article VII, executes these Articles of Incorporation and certifies to the truth
of the facts herein stated this 3rd day of January 1995.
/s/ Timothy J. Bender
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