Exhibit 3(i) Articles of Incorporation of First Financial Corporation
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF FIRST FINANCIAL CORPORATION
ARTICLE 1
NAME
The name of the Corporation is First Financial Corporation.
ARTICLE 2
PURPOSES AND POWERS
SECTION 2.01. PURPOSES. The purposes for which the Corporation is
formed are the transaction of any or all lawful business for which corporations
may be incorporated under the Indiana Business Corporation Law, as the same may,
from time to time, be amended (the "Act").
SECTION 2.02. POWERS. The Corporation shall have the same powers as an
individual to do all things necessary or convenient to carry out its business
and affairs, including without limitation, all the powers specifically
enumerated in the Act.
ARTICLE 3
TERM OF EXISTENCE
The period during which the Corporation shall continue is perpetual.
ARTICLE 4
REGISTERED OFFICE AND RESIDENT AGENT
The street address of the registered office of the Corporation is:
One First Financial Plaza
P.O. Box 540
Terre Haute, Indiana 47808
and the name and business office address of its registered agent in
charge of such office are:
Donald E. Smith
First Financial Corporation
One First Financial Plaza
P.O. Box 540
Terre Haute, Indiana 47808
ARTICLE 5
NUMBER OF SHARES
The total number of shares which the Corporation shall have authority
to issue is Fifty Million (50,000,000) shares, all of which are without par
value.
ARTICLE 6
TERMS OF SHARES
SECTION 6.01. DESIGNATION OF CLASSES, NUMBER AND PAR VALUE OF SHARES.
The shares of authorized capital shall be divided into Ten Million (10,000,000)
shares of Preferred Stock, without par value, as hereinafter provided
("Preferred Stock"), and Forty Million (40,000,000) shares of Common Stock,
without par value ("Common Stock"), as hereinafter provided.
SECTION 6.02. RIGHTS, PRIVILEGES, LIMITATIONS AND RESTRICTIONS OF
PREFERRED STOCK. The Board of Directors of the Corporation is vested with
authority to determine and state the designations and the relative preferences,
limitations, voting rights, if any, and other rights of the Preferred Stock and
of each series of Preferred Stock by the adoption and filing in accordance with
the Act, before the issuance of any shares of such Preferred Stock or series of
Preferred Stock, of an amendment or amendments to these Articles of
Incorporation as the same may, from time to time, be amended, determining the
terms of such Preferred Stock or series of Preferred Stock ("Preferred Stock
Designation"). All shares of Preferred Stock of the same series shall be
identical with each other in all respects. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
Directors, after giving effect to the provisions in Article 11 hereof ("Voting
Stock"), voting as a single class, without a separate vote of the holders of the
Preferred Stock or any series thereof, unless a vote of any such holders is
required pursuant to the Preferred Stock Designation.
SECTION 6.03. RIGHTS, PRIVILEGES, LIMITATIONS AND RESTRICTIONS OF
COMMON STOCK.
CLAUSE 6.031. SINGLE CLASS. The shares of Common Stock shall
constitute a separate and single class and shall not be issued in
series. All shares of Common Stock shall be identical with each other
in all respects.
CLAUSE 6.032. LIQUIDATION. In the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation,
the holders of the shares of Common Stock shall be entitled. after
payment or provision for payment of the debts and other liabilities of
the Corporation and of all shares of stock having priority over the
Common Stock, in the event of voluntary or involuntary liquidation,
dissolution or winding up, to share ratably in the remaining net assets
of the Corporation.
CLAUSE 6.033. VOTING RIGHTS. Every holder of shares of Common
Stock shall have the right, at every Shareholders' meeting, to one vote
for each share of Common Stock standing in his name on the books of the
Corporation, except as otherwise provided in the Act.
SECTION 6.04. ISSUANCE OF SHARES. The Board of Directors has authority
to authorize and direct the issuance by the Corporation of shares of Preferred
Stock and Common Stock at such times, in such amounts, to such persons, for such
considerations and upon such terms and conditions as it may, from time to time,
determine upon, subject only to the restrictions, limitations, conditions and
requirements imposed by the Act, other applicable laws and these Articles of
Incorporation, as the same may, from time to time, be amended.
SECTION 6.05. DISTRIBUTIONS UPON SHARES. The Board of Directors has
authority to authorize and direct the payment of dividends and the making of
other distributions by the Corporation in respect of the issued and outstanding
shares of Preferred Stock and Common Stock (i) at such times, in such amount and
forms, from such sources and upon such terms and conditions as it may, from time
to time, determine upon, subject only to the restrictions, limitations,
conditions and requirements imposed by the Act, other applicable laws and these
Articles of Incorporation, as the same may, from time to time, be amended, and
(ii) in shares of the same class or series or in shares of any other class or
series without obtaining the affirmative vote or the written consent of the
holders of the shares of the class or series in which the payment or
distribution is to be made.
SECTION 6.06. ACQUISITION OF SHARES. The Board of Directors has
authority to authorize and direct the acquisition by the Corporation of the
issued and outstanding shares of Preferred Stock and Common Stock at such times,
in such amounts, from such persons, for such considerations, from such sources
and upon such terms and conditions as it may, from time to time, determine upon,
subject only to the restrictions, limitations, conditions and requirements
imposed by the Act, other applicable laws and these Articles of Incorporation,
as the same may, from time to time, be amended.
SECTION 6.07. RECOGNITION PROCEDURE FOR BENEFICIAL OWNERSHIP OF SHARES
OR RIGHTS. The Board of Directors may establish in the Code of By-Laws of the
Corporation a recognition procedure by which the beneficial owner of any share
or right of the Corporation that is registered on the books of the Corporation
in the name of a nominee is recognized by the Corporation, to the extent
provided in any such recognition procedure, as the owner thereof.
SECTION 6.08. DISCLOSURE PROCEDURE FOR BENEFICIAL OWNERSHIP OF SHARES
OR RIGHTS. The Board of Directors may establish in the Corporation's Code of
By-Laws a disclosure procedure by which the name of the beneficial owner of any
share or right of the Corporation that is registered on the books of the
Corporation in the name of a nominee shall, to the extent not prohibited by the
Act or other applicable laws, be disclosed to the Corporation. Any disclosure
procedure established by the Board of Directors may include reasonable sanctions
to ensure compliance therewith, including without limitation (i) prohibiting the
voting of, (ii) providing for mandatory or optional reacquisition by the
Corporation of, and (iii) the withholding or payment into escrow of any dividend
or other distribution in respect of, any share or right of the Corporation as to
which the name of the beneficial owner is not disclosed to the Corporation as
required by such disclosure procedure.
SECTION 6.09. NO PRE-EMPTIVE RIGHTS. The holders of the Common Stock
and the holders of the Preferred Stock or any series of the Preferred Stock
shall have no pre-emptive rights to subscribe to or purchase any shares of
Common Stock, Preferred Stock or other securities of the Corporation.
SECTION 6.10. RECORD OWNERSHIP OF SHARES OR RIGHTS. The Corporation, to
the extent permitted by law, shall be entitled to treat the person in whose name
any share or right of the Corporation is registered on the books of the
Corporation as the owner thereof for all purposes, and shall not be bound to
recognize any equitable or any other claim to, or interest in, such share or
right on the part of any other person, whether or not the Corporation shall have
notice thereof.
ARTICLE 7
DIRECTORS
SECTION 7.01. NUMBER. The number of Directors of the Corporation shall
not be less than five (5) nor more than twenty (20), as may be specified from
time to time by resolution adopted by a majority of the total number of the
Corporation's Directors. If and whenever the Board of Directors has not
specified the number of Directors, the number shall be fourteen (14). The
directors elected by the Shareholders shall be divided into three (3) classes,
as nearly equal in number as possible, with the term of office of the first
class to expire at the Annual Meeting of Shareholders held following the fiscal
year ended December 31, 1997, the term of office of the second class to expire
at the Annual Meeting of Shareholders held following the fiscal year ended
December 31, 1998, and the term of office of the third class to expire at the
Annual Meeting of Shareholders held following the fiscal year ended December 31,
1999. At each Annual Meeting of Shareholders following such initial
classification, Directors elected by the Shareholders to succeed those Directors
whose term expires shall be elected for a term of office to expire at the third
succeeding Annual Meeting of Shareholders after their election. Each Director
shall hold office until his successor is chosen and qualified. There shall be no
cumulative voting by Shareholders of any class or series in the election of
Directors of the Corporation.
SECTION 7.02. VACANCIES. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, newly-created directorships
resulting from any increase in the authorized number of Directors or any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
only by a majority vote of the Continuing Directors, as defined below, although
less than a quorum of the Board of Directors. Directors so chosen shall hold
office for a term expiring at the Annual Meeting of Shareholders at which the
term of the class to which they have been elected expires. No decrease in the
number of authorized Directors constituting the entire Board of Directors shall
shorten the term of any incumbent Director. For purposes of this section, the
term "Continuing Director" shall mean any Director then serving as such who was
a member of the Corporation's Board of Directors on April 16, 1997. or was
recommended for appointment or election (before such person's initial assumption
of office as a Director) by a majority of the Continuing Directors then on the
Board.
SECTION 7.03. REMOVAL. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any Director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 66 2/3% of the voting power
of all of the shares of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class. For purposes of this
section, removal for cause shall be limited to the grounds then specifically
enumerated in 12 C.F.R. Section 563.39 (or any successor provision) with respect
to termination for cause.
SECTION 7.04. SHAREHOLDER NOMINATION OF DIRECTOR CANDIDATES AND
INTRODUCTION OF BUSINESS. Advance notice of Shareholder nominations for the
election of Directors and of business to be brought by Shareholders before any
meeting of the Shareholders of the Corporation shall be given in the manner
provided in the Corporation's Code of By-Laws.
SECTION 7.05. CALLING OF SPECIAL SHAREHOLDER MEETINGS. Special meetings
of the Shareholders 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 of the Corporation.
SECTION 7.06. CODE OF BY-LAWS. 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 Code of By-Laws of the Corporation by the
affirmative vote of a number of Directors equal to a majority of the number who
constitute a full Board of Directors at the time of such action. Shareholders
shall not have any power to make, alter, amend or repeal the Corporation's Code
of By-Laws.
SECTION 7.07. FACTORS TO BE CONSIDERED BY BOARD. 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 corporate
action on any matter, including making or declining to make any recommendation
to the Shareholders of the Corporation, the Board of Directors may in its
discretion consider the long-term as well as short-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 the effect on the
Corporation's ability to fulfill its corporate obligations as a bank holding
company and on the ability of any of its subsidiary financial institutions to
fulfill the objectives of a financial institution under applicable statutes and
regulations, and any other factors the Directors consider pertinent.
SECTION 7.08. AUTHORIZED BOARD ACTIONS. In furtherance and not in
limitation of the powers conferred by law or in these Articles of Incorporation,
as the same may, from time to time, be amended, the Board of Directors (and any
committee of the Board of Directors) is expressly authorized, to the extent
permitted by law, to take such action or actions as the Board or such committee
may determine to be reasonably necessary or desirable to (A) encourage any
person (as defined in Section 10.03, Clause 10.031 hereof) to enter into
negotiations with the Board of Directors and management of the Corporation with
respect to any transaction which may result in a change in control of the
Corporation which is proposed or initiated by such person or (B) contest or
oppose any such transaction which the Board of Directors or such committee
determines to be unfair, abusive or otherwise undesirable with respect to the
Corporation and its business, assets or properties or the Shareholders of the
Corporation, including, without limitation, the adoption of such plans or the
issuance of such rights, options, capital stock, notes, debentures or other
evidences of indebtedness or other securities of the Corporation (which issuance
may be with or without consideration, and may (but need not) be issued pro
rata), which rights, options, capital stock, notes, evidences of indebtedness
and other securities (i) may be exchangeable for or convertible into cash or
other securities on such terms and conditions as may be determined by the Board
or such committee and (ii) may provide for the treatment of any holder or class
of holders thereof designated by the Board of Directors or any such committee in
respect of the terms, conditions, provisions and rights of such securities which
is different from, and unequal to, the terms, conditions, provisions and rights
applicable to all other holders thereof.
SECTION 7.09. AMENDMENT, REPEAL. Notwithstanding anything contained in
the Articles of Incorporation or the Code of By-Laws of the Corporation to the
contrary and notwithstanding that a lesser percentage or no vote may be
specified by law, but in addition to any affirmative vote of the
holders of any particular class or series of capital stock of the Corporation
required by law or any Preferred Stock Designation, the affirmative vote of the
holders of at least 66 2/3% of the voting power of all of the then-outstanding
shares of Voting Stock, voting together as a single class, shall be required to
alter, amend, change or repeal this Article 7.
ARTICLE 8
DIRECTORS
The names and post office addresses of the initial Board of Directors
of the Corporation are as follows:
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NAME POST OFFICE ADDRESS
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Walter A. Bledsoe P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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B. Guille Cox, Jr. P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Thomas T. Dinkel P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Anton H. George P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Mari H. George P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Gregory L. Gibson P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Max L. Gibson P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Norman L. Lowery P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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William A. Niemeyer P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Patrick O'Leary P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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John W. Ragle P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Chapman J. Root, II P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Donald E. Smith P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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Virginia L. Smith P.O. Box 540
One First Financial Plaza
Terre Haute, Indiana 47808
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ARTICLE 9
PROVISIONS FOR REGULATION OF BUSINESS AND CONDUCT OF AFFAIRS OF CORPORATION
SECTION 9.01. AMENDMENTS OF ARTICLES OF INCORPORATION. Except as
otherwise provided in Articles 7 and 10 hereof, the Corporation reserves the
right to increase or decrease the number of its authorized shares, or any class
or series thereof, and to reclassify the same, and to amend, alter, change or
repeal any provision contained in these Articles of Incorporation, or any
amendment hereto, or to add any provision to these Articles of Incorporation or
to any amendment hereto, in any manner now or hereafter prescribed or permitted
by the Act or any other applicable laws, and all rights and powers conferred
upon Shareholders, Directors and/or Officers in these Articles of Incorporation,
or any amendment hereto, are granted subject to this reserve power. No
Shareholder has a vested property right resulting from any provision in these
Articles of Incorporation, or any amendment hereto, or authorized to be in the
Code of By-Laws of the Corporation or these Articles of Incorporation by the
Act, including, without limitation, provisions relating to management, control,
capital structure, dividend entitlement, or purpose or duration of the
Corporation.
SECTION 9.02. ACTION BY SHAREHOLDERS. Meetings of the Shareholders of
the Corporation shall be held at such place, within or without the State of
Indiana, as may be specified in the Code of By-Laws of the Corporation or in the
respective notices, or waivers of notice, thereof. Any action required or
permitted to be taken at any meeting of the Shareholders may be taken without a
meeting if a consent in writing setting forth the action so taken is signed by
all the Shareholders entitled to vote with respect thereto, and such written
consent is filed with the minutes of the proceedings of the Shareholders.
SECTION 9.03. ACTION BY DIRECTORS. Meetings of the Board of Directors
of the Corporation or any committee thereof shall be held at such place, within
or without the State of Indiana, as may be specified in the Code of By-Laws of
the Corporation or in the respective notices, or waivers of notice, thereof. Any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by all members of
the Board of Directors or of such committee, as the case may be, and such
written consent is filed with the minutes of the proceedings of such Board or
committee.
SECTION 9.04. PLACES OF KEEPING OF CORPORATE RECORDS. The Corporation
shall keep at its principal office a copy of (1) its Articles of Incorporation,
and all amendments thereto currently in effect; (2) its Code of By-Laws, and all
amendments thereto currently in effect; (3) minutes of all meetings of the
Shareholders and records of all actions taken by the Shareholders without a
meeting (collectively, "Shareholders Minutes") for the
prior three years; (4) all written communications by the Corporation to the
Shareholders including the financial statements furnished by the Corporation to
the Shareholders ("Shareholder Communications") for the prior three years; (5) a
list of the names and business addresses of the current Directors and the
current Officers of the Corporation; and (6) the most recent Annual Report of
the Corporation as filed with the Secretary of State of Indiana. The Corporation
shall also keep and maintain at its principal office, or at such other place or
places within or without the State of Indiana as may be provided, from time to
time, in the Code of By-Laws, (1) minutes of all meetings of the Board of
Directors and of each committee of such Board, and records of all actions taken
by the Board of Directors and by each committee without a meeting; (2)
appropriate accounting records of the Corporation; (3) a record of the
Shareholders in a form that permits preparation of a list of the names and
addresses of all the Shareholders, in alphabetical order, stating the number of
shares held by each Shareholder; and (4) Shareholders Minutes for periods
preceding the prior three years. All of the records of the Corporation described
in this Section 9.04 (collectively, the "Corporate Records") shall be maintained
in written form or in another form capable of conversion into written form
within a reasonable time.
SECTION 9.05. LIMITATION OF LIABILITY AND RELIANCE ON CORPORATE
RECORDS AND OTHER INFORMATION.
CLAUSE 9.051. GENERAL LIMITATION. No Director, member of any
committee of the Board of Directors, or of another committee appointed
by the Board, Officer, employee or agent of the Corporation ("Corporate
Person") shall be liable for any loss or damage if, in taking or
omitting to take any action causing such loss or damage, either (1)
such Corporate Person acted (A) in good faith, (B) with the care an
ordinarily prudent person in a like position would have exercised under
similar circumstances, and (C) in a manner such Corporate Person
reasonably believed was in the best interests of the Corporation, or
(2) such Corporate Person's breach of or failure to act in accordance
with the standards of conduct set forth in Clause 9.051 (1) above (the
"Standards of Conduct") did not constitute willful misconduct or
recklessness.
CLAUSE 9.052. RELIANCE ON CORPORATE RECORDS AND OTHER
INFORMATION. Any "Corporate Person" shall be fully protected, and shall
be deemed to have complied with the Standards of Conduct, in relying in
good faith, with respect to any information contained therein, upon (1)
the Corporate Records, or (2) information, opinions, reports or
statements (including financial statements and other financial data)
prepared or presented by (A) one or more other Corporate Persons whom
such Corporate Person reasonably believes to be competent in the
matters presented, (B) legal counsel, public accountants or other
persons as to matters that such Corporate Person reasonably believes
are within such person's professional or expert competence, (C) a
committee of the Board of Directors or other committee appointed by the
Board of Directors, of which such Corporate Person is not a member, if
such Corporate Person reasonably believes such committee of the Board
of Directors or such appointed committee merits confidence, or (D) the
Board of Directors, if such Corporate Person is not a Director and
reasonably believes that the Board merits confidence.
SECTION 9.06. INTEREST OF DIRECTORS IN CONTRACTS. Any contractor other
transaction between the Corporation and (i) any Director, or (ii) any
corporation, unincorporated association, business trust, estate, partnership,
trust, joint venture, individual or other legal entity ("Legal Entity") (A) in
which any Director has a material financial interest or is a general partner, or
(B) of which any Director is a director, officer, or trustee (collectively, a
"Conflict Transaction"), shall be valid for all purposes, if the material facts
of the Conflict Transaction and the Director's interest were disclosed or known
to the Board of Directors, a committee of the Board of Directors with authority
to act thereon, or the Shareholders entitled to vote thereon, and the Board of
Directors, such committee or such Shareholders authorized, approved or ratified
the Conflict Transaction. A Conflict Transaction is authorized, approved or
ratified:
(1) By the Board of Directors or such committee, if it receives
the affirmative vote of a majority of the Directors who have no
interest in the Conflict Transaction, notwithstanding the fact that
such majority may not constitute a quorum or a majority of the Board of
Directors or such committee or a majority of the Directors present at
the meeting, and notwithstanding the presence or vote of any Director
who does have such an interest; provided, however, that no Conflict
Transaction may be authorized, approved or ratified by a single
Director; and
(2) By such Shareholders, if it receives the vote of a
majority of the shares entitled to be counted, in which vote shares
owned or voted under the control of any Director who, or of any Legal
Entity that, has an interest in the Conflict Transaction may be
counted; provided, however, that a majority of such shares, whether or
not present, shall constitute a quorum for the purpose of authorizing,
approving or ratifying a Conflict Transaction.
This Section 9.06 shall not be construed to require authorization,
ratification or approval by the Shareholders of any Conflict Transaction, or to
invalidate any Conflict Transaction, that would otherwise be valid under the
common and statutory law applicable thereto.
SECTION 9.07. COMPENSATION OF DIRECTORS. The Board of Directors is
hereby specifically authorized, in and by the Code of 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.
SECTION 9.08. DIRECTION OF PURPOSES AND EXERCISE OF POWERS BY
DIRECTORS. The Board of Directors, subject to any specific limitations or
restrictions imposed by the Act or these Articles of Incorporation, as the same
may, from time to time, be amended, shall direct the carrying out of the
purposes and exercise the powers of the Corporation, without previous
authorization or subsequent approval by the Shareholders of the Corporation.
ARTICLE 10
PROVISIONS FOR CERTAIN BUSINESS COMBINATIONS
SECTION 10.01. VOTE REQUIRED.
CLAUSE 10.011. HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In
addition to any affirmative vote required by law or these Articles of
Incorporation, and except as otherwise expressly provided in Section 10.02 of
this Article 10:
1. any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (A) any Interested Shareholder
(as hereinafter defined), or (B) any other corporation (whether or not
itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affi1iate (as hereinafter defined) of an
Interested Shareholder; or
2. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Shareholder or any Affiliate of any Interested
Shareholder, of any assets of the Corporation or any Subsidiary having
an aggregate Fair Market Value equaling or exceeding 25% or more of the
combined assets of the Corporation and its Subsidiaries; or
3. the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate of any Interested Shareholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value equaling or exceeding 25% of the
combined assets of the Corporation and its Subsidiaries except pursuant
to an employee benefit plan of the Corporation or any Subsidiary
thereof; or
4. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of any Interested Shareholder;
or
5. any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
any Interested Shareholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class or series of equity or convertible securities of
the Corporation or any Subsidiary which is Beneficially Owned (as
hereinafter defined) directly or indirectly by any Interested
Shareholder or any Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of all of the then-outstanding shares of Voting Stock, voting together as
a single class. Such affirmative vote shall be required notwithstanding that any
other provisions of these Articles of Incorporation, or any provision of law, or
any Preferred Stock Designation, or any agreement with any national securities
exchange or otherwise might otherwise permit a lesser vote or no vote.
CLAUSE 10.012. DEFINITION OF "BUSINESS COMBINATION." The term "Business
Combination" as used in this Article 10 shall mean any transaction which is
referred to in any one or more of paragraphs (1) through (5) of Clause 10.011 of
this Section 10.01.
SECTION 10.02. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of
Section 10.01 of this Article 10 shall not be applicable to any particular
Business Combination, and such Business Combination shall require only such
affirmative vote as is required by law, and any other provision of these
Articles of Incorporation, and any Preferred Stock Designation, if, in the case
of a Business Combination that does not involve any cash or other consideration
being received by the Shareholders of the Corporation, solely in their capacity
as Shareholders of the Corporation, the condition specified in the following
Clause 10.021 is met or, in the case of any other Business Combination, the
conditions specified in either of the following Clause 10.021 or 10.022 are met:
CLAUSE 10.021. APPROVAL BY CONTINUING DIRECTORS. The Business
Combination shall have been approved by a majority of the Continuing Directors
(as hereinafter defined); provided, however, that this condition shall not be
capable of satisfaction unless there are at least three Continuing Directors.
CLAUSE 10.022. PRICE AND PROCEDURE REQUIREMENTS. All of the following
conditions shall have been met:
1. The consideration to be received by holders of shares of a
particular class (or series) of outstanding capital stock (including
Common Stock) shall be in cash or in the same form as the Interested
Shareholder or any of its Affiliates has previously paid for shares of
such class (or series) of capital stock. If the Interested Shareholder
or any of its Affiliates has paid for shares of any class (or series)
of capital stock with varying forms of consideration, the form of
consideration to be received per share by holders of shares of such
class (or series) of capital stock shall be either cash or the form
used to acquire the largest number of shares of such class (or series)
of capital stock previously acquired by the Interested Shareholder.
2. The aggregate amount of (x) the cash and (y) the Fair
Market Value as of the date (the "Consummation Date") of the
consummation of the Business Combination, of the consideration other
than cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the higher of the
following (in each case appropriately adjusted in the event of any
stock dividend, stock split, combination of shares or similar event):
A. (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder
or any of its Affiliates for any shares of Common Stock
acquired by them within the two-year period immediately prior
to the date of the first public announcement of the proposal
of the Business Combination (the "Announcement Date") or in
any transaction in which the Interested Shareholder became an
Interested Shareholder, whichever is higher; and
B. The Fair Market Value per share of Common Stock on
the Announcement Date or on the date on which the Interested
Shareholder became an Interested Shareholder (the
"Determination Date"), whichever is higher.
3. The aggregate amount of (x) the cash and (y) the Fair
Market Value, as of the Consummation Date, of the consideration other
than cash to be received per share by holders of shares of any class
(or series), other than Common Stock, of outstanding capital stock of
the Corporation shall be at least equal to the highest of the following
(in each case appropriately adjusted in the event of any stock
dividend, stock split, combination of shares or similar event), it
being intended that the requirements of this subparagraph (3) shall be
required to be met with respect to every such class (or series) of
outstanding capital stock whether or not the Interested Shareholder or
any of its Affiliates has previously acquired any shares of a
particular class (or series) of capital stock:
A. (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder
or any of its Affiliates for any shares of such class (or
series) of capital stock acquired by them within the two-year
period immediately prior to the Announcement Date or in any
transaction in which it became an Interested Shareholder,
whichever is higher;
B. the Fair Market Value per share of such class (or
series) of capital stock on the Announcement Date or on the
Determination Date, whichever is higher; and
C. (if applicable) the highest preferential amount per
share, if any, to which the holders of shares of such class
(or series) of capital stock would be entitled in the event of
any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation.
4. After such Interested Shareholder has become an Interested
Shareholder and prior to the
consummation of such Business Combination: (a) except as approved by a
majority of the Continuing Directors, there shall have been no failure
to declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any outstanding Preferred
Stock; (b) there shall have been (I) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved by a majority of
the Continuing Directors, and (ii) an increase in such annual rate of
dividends as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to increase such
annual rate is approved by a majority of the Continuing Directors; and
(c) neither such Interested Shareholder nor any of its Affiliates shall
have become the beneficial owner of any additional shares of Voting
Stock except as part of the transaction which results in such
Interested Shareholder becoming an Interested Shareholder; provided,
however, that no approval by Continuing Directors shall satisfy the
requirements of this subparagraph (4) unless at the time of such
approval there are at least three Continuing Directors.
5. After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder and any of its Affiliates
shall not have received the benefit, directly or indirectly (except
proportionately, solely in such Interested Shareholder's or Affiliate's
capacity as a Shareholder of the Corporation), of any loans. advances,
guarantees, pledges or other financial assistance or any tax credits or
other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or
otherwise.
6. A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to all Shareholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions).
7. Such Interested Shareholder shall have provided the
Corporation with such information as shall have been requested pursuant
to Section 10.05 of this Article 10 within the time period set forth
therein.
SECTION 10.03. CERTAIN DEFINITIONS. For the purposes of this Article
10:
CLAUSE 10.031. A "person" shall include an individual, a group acting
in concert, a corporation, a partnership, an association, a joint venture, a
pool, a joint stock company, a trust, an unincorporated organization or similar
company, a syndicate or any other group formed for the purpose of acquiring,
holding or disposing of securities.
CLAUSE 10.032. "Interested Shareholder" means any person (other than
the Corporation or any Subsidiary) who or which:
1. is the beneficial owner (as hereinafter defined), directly
or indirectly, of ten percent or more of the voting power of the
outstanding Voting Stock; or
2. is an Affiliate or an Associate of the Corporation and at
any time within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly, of ten
percent or more of the voting power of the then outstanding Voting
Stock; or
3. is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of
1933, as amended.
CLAUSE 10.033. A person shall be a "beneficial owner" of, or shall
"Beneficially Own," any Voting Stock:
1. which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or indirectly
within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as in effect on April 16, 1997; or
2. which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (b) the right to vote pursuant to any agreement, arrangement or
understanding (but neither such person nor any such Affiliate or
Associate shall be deemed to be the beneficial owner of any shares of
Voting Stock solely by reason of a revocable proxy granted for a
particular meeting of Shareholders, pursuant to a public solicitation
of proxies for such meeting, and with respect to which shares neither
such person nor any such Affiliate or Associate is otherwise deemed the
beneficial owner); or
3. which are beneficially owned, directly or indirectly,
within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as in effect on April 16, 1997, by any other person with which
such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding,
voting (other than solely by reason of a revocable proxy as described
in subparagraph (2) of this Clause 10.033) or disposing of any shares
of Voting Stock; provided, however, that in the case of any employee
stock ownership or similar plan of the Corporation or of any Subsidiary
in which the beneficiaries thereof possess the right to vote any shares
of Voting Stock held by such plan, no such plan nor any trustee with
respect thereto (nor any Affiliate of such trustee), solely by reason
of such capacity of such trustee, shall be deemed, for any purpose
hereof, to beneficially own any shares of Voting Stock held under any
such plan.
CLAUSE 10.034. For the purposes of determining whether a person is an
Interested Shareholder pursuant to Clause 10.032 of this Section 10.03, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of Clause 10.033 of this Section 10.03 but
shall not include any other unissued shares of Voting Stock which may be
issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
CLAUSE 10.035. "Affiliate" or" Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on April 16,
1997.
CLAUSE 10.036. "Subsidiary" means any corporation of which a majority
of any class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in Clause 10.032 of this Section 10.03, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the Corporation.
CLAUSE 10.037. "Continuing Director" for purposes of this Article 10
means any member of the Board of Directors of the Corporation who is
unaffiliated with the Interested Shareholder and was a member of the Board prior
to the time that the Interested Shareholder became an Interested Shareholder,
and any director who is thereafter chosen to fill any vacancy on the Board of
Directors or who is elected and who, in either event, is unaffiliated with the
Interested Shareholder and in connection with his or her initial assumption of
office is recommended for appointment or election by a majority of Continuing
Directors then on the Board.
CLAUSE 10.038. "Fair Market Value" means: (i) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934, as amended, on which such stock is listed,
or, if
such stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or if no
such quotations are available, the fair market value on the date in question of
a share of such stock as determined by the Board in accordance with Section
10.04 of this Article 10, in each case with respect to any class of stock,
appropriately adjusted for any dividend or distribution in shares of such stock
or any combination or reclassification of outstanding shares of such stock into
a smaller number of shares of such stock; and (ii) in the case of property other
than cash or stock, the fair market value of such property on the date in
question as determined by the Board in accordance with Section 10.04 of this
Article 10.
CLAUSE 10.039. Reference to "highest per share price" shall in each
case with respect to any class of stock reflect an appropriate adjustment for
any dividend or distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater number of
shares of such stock or any combination or reclassification of outstanding
shares of such stock into a smaller number of shares of such stock.
CLAUSE 10.310. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be received"
as used in Clauses 10.022(2) and 10.022(3) of Section 10.02 of this Article 10
shall include the shares of Common Stock and/or the shares of any other class
(or series) of outstanding capital stock retained by the holders of such shares.
SECTION 10.04. POWERS OF THE BOARD OF DIRECTORS. A majority of the
total number of Directors of the Corporation, but only if a majority of such
Directors shall then consist of Continuing Directors or, if a majority of the
total number of Directors shall not then consist of Continuing Directors, a
majority of the then Continuing Directors, shall have the power and duty to
determine, on the basis of information known to them after reasonable inquiry,
all facts necessary to determine compliance with this Article 10, including,
without limitation, (a) whether a person is an Interested Shareholder, (b) the
number of shares of Voting Stock beneficially owned by any person, (c) whether a
person is an Affiliate or Associate of another, (d) whether the applicable
conditions set forth in Clause 10.022 of Section 10.02 have been met with
respect to any Business Combination, (e) the Fair Market Value of stock or other
property in accordance with Clause 10.038 of Section 10.03 of this Article 10,
and (1) whether the assets which are the subject of any Business Combination
referred to in Clause 10.011 (2) of Section 10.01 have, or the consideration to
be received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination referred to in Clause 10.011(3) of
Section 10.01 has, an aggregate Fair Market Value equaling or exceeding 25% of
the combined assets of the Corporation and its Subsidiaries.
SECTION 10.05. INFORMATION TO BE SUPPLIED TO THE CORPORATION. A
majority of the total number of Directors of the Corporation, but only if a
majority of such Directors shall then consist of Continuing Directors or, if a
majority of the total number of Directors shall not then consist of Continuing
Directors, a majority of the then Continuing Directors, shall have the right to
demand that any person who it is reasonably believed is an Interested
Shareholder (or holds of record shares of Voting Stock Beneficially Owned by any
Interested Shareholder) supply the Corporation with complete information as to
(i) the record owner(s) of all shares Beneficially Owned by such person who it
is reasonably believed is an Interested Shareholder, (ii) the number of, and
class or series of, shares Beneficially Owned by such person who it is
reasonably believed is an Interested Shareholder and held of record by each such
record owner and the number(s) of the stock certificate(s) evidencing such
shares, and (iii) any other factual matter relating to the applicability or
effect of this Article 10, as may be reasonably requested of such person, and
such person shall furnish such information within 10 days after receipt of such
demand.
SECTION 10.06. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED
SHAREHOLDERS. Nothing contained in this Article 10 shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by law.
SECTION 10.07. AMENDMENT, REPEAL, ETC. Notwithstanding any other
provisions of these Articles of Incorporation or the Code of By-Laws of the
Corporation to the contrary and notwithstanding that a lesser vote or no vote
may be specified by law, but in addition to any affirmative vote of the holders
of any particular class or series of the Corporation's capital stock required by
law or any Preferred Stock Designation, the affirmative vote of the holders of
at least 66 2/3 percent of the voting power of all of the then-outstanding
shares of Voting Stock, voting together as a single class, shall be required to
alter, amend or repeal this Article 10.
ARTICLE 11
INDEMNIFICATION
SECTION 11.01. GENERAL. The Corporation shall, to the fullest extent to
which it is empowered to do so by the 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, employee or agent of the Corporation, or who, while serving as such
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 corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, whether for profit or not. against
expenses (including counsel 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 interests 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.
SECTION 11.02. AUTHORIZATION OF INDEMNIFICATION. To the extent that a
Director, Officer, employee or agent of the Corporation has been successful, on
the merits or otherwise, in the defense of any action, suit or proceeding
referred to in Section 11.01 of this Article, or in the defense of any claim,
issue or matter therein, the Corporation shall indemnify such person against
expenses (including counsel fees) actually and reasonably incurred by such
person in connection therewith. Any other indemnification under Section 11.01 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, employee or agent is permissible in the circumstances
because he has met the applicable standard of conduct. Such determination shall
be made (1) 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 (2) if a quorum cannot be obtained under subdivision (1), 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
(3) by special legal counsel: (A) selected by the Board of Directors or its
committee in the manner prescribed in subdivision (1) or (2), or (B) if a quorum
of the Board of Directors cannot be obtained under subdivision (1) and a
committee cannot be designated under subdivision (2), selected by a majority
vote of the full Board of Directors (in which selection Directors who are
parties may participate); or (4) by the Shareholders, 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 (3)
to select counsel.
SECTION 11.03. GOOD FAITH DEFINED. For purposes of any determination
under Section 11.01 of this Article 11, 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 11.01 if his action is based on information, opinions, reports,
or statements, including financial statements and other financial data, if
prepared or presented by (1) one or more Officers or employees of the
Corporation or another enterprise whom he reasonably believes to be reliable and
competent in the matters presented; (2) legal counsel, public accountants,
appraisers or other persons as to matters he reasonably believes are within the
person's professional or expert competence; or (3) 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 11.03 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 11.03 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 11.01 of this Article 11.
SECTION 11.04. PAYMENT OF EXPENSES IN ADVANCE. Expenses incurred in
connection with any civil or criminal action, suit or proceeding may be paid for
or reimbursed by the Corporation in advance of the final disposition of such
action, suit or proceeding, as authorized in the specific case in the same
manner described in Section 11.02 of this Article, upon receipt of a written
affirmation of the Director, Officer, employee or agent's good faith belief that
he has met the standard of conduct described in Section 11.01 of this Article
and upon receipt of a written undertaking by or on behalf of the Director,
Officer, employee or agent to repay such amount if it shall ultimately be
determined that he did not meet the standard of conduct set forth in this
Article 11, and a determination is made that the facts then known to those
making the determination would not preclude indemnification under this Article
11.
SECTION 11.05. PROVISIONS NOT EXCLUSIVE. 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 Code of By-Laws, any resolution of the Board of Directors or
Shareholders, 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, employee or agent, and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 11.06. VESTED RIGHT TO INDEMNIFICATION. 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 11.01 of this
Article 11 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 11, 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 11.07. 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
11.
SECTION 11.08. ADDITIONAL DEFINITIONS. For purposes of this Article,
references to the "Corporation" shall include any domestic or foreign
predecessor entity of the Corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the transaction.
For purposes of this Article, serving an employee benefit plan at the
request of the Corporation shall include any service as a Director, Officer,
employee or agent of the Corporation which imposes duties on or involves
services by such Director, Officer, employee, or agent 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 employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests 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, or
who is threatened to be made a named 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 undertaken 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.
SECTION 11.09. PAYMENTS A BUSINESS EXPENSE. Any payments made to any
indemnified party under this Article under any other right to 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.