EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
INDIANA GAS COMPANY, INC.
ARTICLE 1
IDENTIFICATION
The name of the Corporation is INDIANA GAS COMPANY, INC.
ARTICLE 2
PRINCIPAL OFFICE
SECTION 2.01. The Ohio principal office of the Corporation is
located at 175 West Wenger Road, Englewood, Montgomery County,
Ohio 45322.
ARTICLE 3
PURPOSE AND POWERS
SECTION 3.01. Purpose. The purpose for which the Corporation is
formed is the transaction of any or all lawful business for which
corporations may be incorporated under applicable law, as
described herein (the "Act").
SECTION 3.02. Powers. The Corporation, subject to any limitations
or restrictions imposed by the Act, other law or these Amended
and Restated Articles of Incorporation, as the same may, from
time to time, be amended (these "Articles"), shall have the
following general rights, privileges and powers:
Clause (a). Personal Property. To acquire (by purchase, exchange,
lease, hire or otherwise), hold, own, use, lease, mortgage,
pledge, give as security, sell, convey, exchange or otherwise
deal in and dispose of, either alone or in conjunction with
others, personal property, tangible or intangible, and
commodities of every kind, character and description whatsoever
and any interests therein.
Clause (b). Real Estate. To acquire (by purchase, grant,
exchange, lease, hire or otherwise), hold, own, use, lease,
mortgage, sell, convey, exchange or otherwise deal in and dispose
of, either alone or in conjunction with others, real estate of
every kind, character and description whatsoever and any
interests therein, and any improvements thereon or appurtenances
thereto.
Clause (c). Operating Rights. To acquire (by application, grant,
purchase, exchange, lease or otherwise) permits, concessions,
grants, franchises, indeterminate permits, licenses, rights and
privileges of every kind and nature; to hold, own, use, develop,
operate under, lease, mortgage, pledge, sell, convey, exchange or
otherwise deal with and dispose of the same to the extent
permitted by law.
Clause (d). Patents and Similar Rights. To acquire (by
application, purchase, exchange, lease, hire or otherwise), hold,
own, use, lease, mortgage, pledge, sell, convey, exchange, and
grant licenses or sublicenses in respect of, or otherwise deal
with and dispose of, letters patent of the United States of
America or any foreign country, patent rights, licenses,
privileges, inventions, discoveries, improvements, processes,
formulae, copyrights, trademarks, trade names and intellectual
property of any kind or character.
Clause (e). Acquisition of Assets, Properties, Business, and
Goodwill. To acquire (by purchase, exchange, lease, hire or
otherwise) all or any part of the assets, properties, business or
goodwill of any corporation, unincorporated association, business
trust, estate, partnership, trust, joint venture, individual or
other legal entity (collectively, "Legal Entities," and
individually, a "Legal Entity"); to pay for the same in cash,
shares or obligations of the Corporation or otherwise; to assume
in connection therewith any liabilities of any such transferor;
and to hold, own, use, develop, operate and in any manner dispose
of the whole, or any part, of the assets, properties, business or
goodwill so acquired.
Clause (f). Securities. To purchase, take, receive, subscribe for
or otherwise acquire, guarantee, own, hold, vote, use, employ,
sell, mortgage, lend, pledge or otherwise deal in and dispose of
shares or other interests in, or obligations of, any one or more
Legal Entities, including direct or indirect obligations or other
securities of the United States of America or of any other
government, State, territory, governmental district or
municipality or of any agency or instrumentality thereof.
Clause (g). Arrangements with Others. To enter into any lawful
arrangement for sharing profits, union of interest, joint
venture, reciprocal association, or cooperative association or
partnership with any one or more Legal Entities.
Clause (h). Agency. To act as agent of or representative for any
one or more Legal Entities.
Clause (i). To Raise Funds. To borrow or raise monies from time
to time, without limit as to amount; to issue, execute, accept,
endorse and deliver, as evidence of such borrowing, all kinds of
securities, including without limitation promissory notes,
drafts, bills of exchange, bonds, debentures and other negotiable
or non-negotiable instruments and evidences of indebtedness; and
to secure the payment and performance of the obligations
thereunder, by mortgage on, pledge of, or other security interest
in the whole or any part of the assets, properties, business or
goodwill of the Corporation, whether owned at the time or
thereafter acquired.
Clause (j). To Loan Funds. To lend money to any one or more 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 loan of money or
property to, and no guarantee of any obligation of, any of the
Directors of the Corporation (collectively, the "Directors," and
individually, a "Director"), except in the manner and upon the
terms provided by the Act.
Clause (k). Contracts. To enter into, perform, modify, terminate
and rescind contracts and other agreements.
Clause (l). Guarantees. To make any guarantee respecting the
shares, dividends, securities, indebtedness, interest, contracts
or other obligations created by any one or more Legal Entities.
Clause (m). Dealing in Its Own Shares. To purchase, take, receive
or otherwise acquire, hold, own, use, pledge, cancel, sell,
transfer or otherwise dispose of shares of the Corporation
(collectively, "Shares," and individually, a "Share") to the
extent permitted by the Act and these Articles.
Clause (n). Contributions. To make payments or donations for the
public welfare or for charitable, scientific or educational
purposes.
Clause (o). Capacity to Act. To have the capacity to act
possessed by natural persons, but to have authority to perform
only such acts as are necessary or convenient to carry out its
business and affairs.
Clause (p). Officers, Agents, and Employees. To elect Officers of
the Corporation (collectively, "Officers," and individually, an
"Officer"), to appoint agents and to hire employees of the
Corporation; to define their duties; to determine their
compensation; and to pay pensions and establish and administer
pension plans, pension trusts, profit sharing plans, stock bonus
plans, stock option plans, welfare plans, qualified and
non-qualified retirement plans, and benefit or incentive plans
for any or all of its current or former Directors, Officers and
employees.
Clause (q). Indemnification. To indemnify persons to the extent,
upon the terms and in the manner permitted by the Act, and as
provided in Section 7.09 hereof.
Clause (r). Statutory Powers. To have and exercise all the
general rights, privileges and powers set forth in the Act.
Clause (s). Ancillary Powers. To do all acts and things that are
necessary or convenient to carry out its business and affairs.
SECTION 3.03. Construction of Powers as Purposes. The powers
enumerated in Section 3.02 shall be construed as purposes as well
as powers, and the matters expressed in each Clause thereof shall
be in no wise limited by reference to, or inference from, the
terms of any other Clause, each of such Clauses being regarded as
creating independent powers and purposes. Enumeration of specific
additional powers in the Clauses of Section 3.02 shall not be
construed as limiting or restricting in any manner, either the
meaning of general terms used in this Article 3 or the scope of
powers of the Corporation created thereby; nor shall the
expression of one thing be deemed to exclude another not
expressed although it be of like nature.
SECTION 3.04. Carrying Out of Purposes and Exercise of Powers in
Any Jurisdiction. The Corporation may carry out its purposes and
exercise its powers in any State, territory, district or
possession of the United States of America, or in any foreign
country (collectively, "Governmental Jurisdictions," and
individually, a "Governmental Jurisdiction"), to the extent that
such purposes and powers are not forbidden by the respective laws
of such Governmental Jurisdictions; and, in the case of any
Governmental Jurisdiction in which one or more of such purposes
or powers are forbidden by law, limit, in any application to do
business in such Governmental Jurisdiction, the purpose or
purposes that the Corporation proposes to carry on or the powers
it proposes to exercise in such Governmental Jurisdiction to such
purpose or purposes or powers as are not forbidden by the law
thereof.
ARTICLE 4
NUMBER OF SHARES
The Corporation shall have authority to issue a total of Eight
Hundred Fifty (850) Shares, all of which shall be Common Shares
("Common Stock").
ARTICLE 5
GENERAL PROVISIONS REGARDING
SHARES OF THE CORPORATION
SECTION 5.01. Common Stock. All of the Common Shares that the
Corporation has authority to issue constitute a separate and
single class of Shares known as Common Stock, which shall be
without par value and shall not be issued in series. All Common
Shares shall be identical with each other in all respects.
SECTION 5.02. Issuance of Shares. The Board has authority to
authorize and direct the issuance by the Corporation of Common
Shares at such times, in such amounts, to such persons, for such
consideration 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.
SECTION 5.03. Distributions Upon Shares. The Board has authority
to authorize and direct in respect of the issued and outstanding
Common Shares (i) the payment of dividends and the making of
other distributions by the Corporation at such times, in such
amounts 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, and (ii) the making by the Corporation of Share
dividends and Share splits, pro rata and without consideration,
subject only to any restrictions, limitations, conditions and
requirements imposed by the Act, other applicable laws and these
Articles.
SECTION 5.04. Acquisition of Shares. The Board has authority to
authorize and direct the acquisition by the Corporation of the
issued and outstanding Common Shares 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.
SECTION 5.05. 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 (a "Right") 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 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.
SECTION 5.06. Recognition Procedure for Beneficial Ownership of
Shares or Rights. The Board may establish in the By-Laws a
recognition procedure by which the beneficial owner of any Share
or Right 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 5.07. Disclosure Procedure for Beneficial Ownership of
Shares or Rights. The Board may establish in the By-Laws a
disclosure procedure by which the name of the beneficial owner of
any Share or Right 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 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 as to which the name of the beneficial owner is
not disclosed to the Corporation as required by such disclosure
procedure.
ARTICLE 6
VOTING RIGHTS OF SHARES
OF THE CORPORATION
SECTION 6.01. Common Stock. The holders of Common Shares have the
right, voting separately by class, to cast one vote for each duly
authorized, issued and outstanding Common Share held by them upon
each question or matter submitted to the holders of Shares of the
Corporation
ARTICLE 7
DIRECTORS
SECTION 7.01. Number. The number of Directors of the Corporation
shall not be less than five (5), and shall be specified in the
Code By-Laws and Code of Regulations (Code). If and whenever the
Code does not contain a provision specifying the number of
Directors, the number shall be five (5). Each Director shall hold
office until the next Annual Meeting of Shareholders or until his
successor is duly qualified and elected. Directors need not be
Shareholders of the Corporation.
SECTION 7.02. Vacancies. Except as may be expressly provided by
law, newly created directorships resulting from any increase in
the authorized number of Directors or any vacancies in the Board
resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority
vote of the Directors then in office, and Directors so chosen
shall hold office for a term expiring at the next Annual Meeting
of Shareholders.
SECTION 7.03. Removal. Any Director, or the entire Board, may be
removed from office at any time, but only for cause and only by
the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then outstanding Shares
entitled to vote generally in the election of Directors ("Voting
Stock"), voting together as a single class.
SECTION 7.04. Amendment, Repeal. Notwithstanding anything
contained in these Articles to the contrary, the affirmative vote
of the holders of at least eighty percent (80%) 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 7.
ARTICLE 8
PROVISIONS FOR REGULATION OF BUSINESS
AND CONDUCT OF AFFAIRS OF CORPORATION
SECTION 8.01. Action By Shareholders. Meetings of the
Shareholders shall be held at such place as may be specified in
the Code of By-Laws and Code of Regulations (Code) 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 8.02. Action By Directors. Meetings of the Board or any
committees thereof (collectively, "Committees," and individually,
a "Committee") shall be held at such place as may be specified in
the Code or in the respective notices, or waivers of notice,
thereof and shall be conducted in such manner as may be specified
in the Code or permitted by the Act. Any action required or
permitted to be taken at any meeting of the Board or a Committee
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
or such Committee, and such written consent is filed with the
minutes of the proceedings of the Board or such Committee.
SECTION 8.03. Code of By-Laws and Code of Regulations. The
Shareholders shall have power to make, alter, amend or repeal the
Code by at least a majority vote of all outstanding shares at a
meeting held for such purpose.
SECTION 8.04. Board Committees. Unless the Code otherwise
provides, the Board may, by resolution adopted by a majority of
the actual number of Directors elected and qualified, from time
to time, designate from among its members one or more Committees,
each of which shall, to the extent provided in the resolution or
Code and not prohibited by the Act and other applicable laws,
have and exercise all of the authority of the Board in the
management of the Corporation.
SECTION 8.05. Places of Keeping of Corporate Records. The
Corporation shall keep at its principal office a copy of (1)
these Articles, and all amendments thereto currently in effect;
(2) the Code, 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 (3)
years; (4) all written communications by the Corporation to the
Shareholders including the financial statements furnished by the
Corporation to the Shareholders for the prior three (3) years;
(5) a list of the names and business addresses of the current
Directors and the current Officers; 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 as may be
provided, from time to time, in the Code, (1) minutes of all
meetings of the Board and of each Committee, and records of all
actions taken by the Board 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 by class of Shares, stating
the number and class of Shares held by each Shareholder; and (4)
Shareholders Minutes for periods preceding the prior three (3)
years. All of the records of the Corporation described in this
Section (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 8.06. The Act. For purposes of these Articles, the Act
shall mean the Indiana and Ohio Business Corporation Laws, as the
same may be amended from time to time.
SECTION 8.07. Provisions for Working Capital. The Board shall
have the power, from time to time, to fix and determine and to
vary an amount to be reserved as working capital of the
Corporation and, before the payment of any dividends, 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 or
for the equalizing of dividends, or for repairing or maintaining
any property of the Corporation, or for any corporate purposes
that the Board shall think conducive to the best interest of the
Corporation, subject only to such limitations as the By-Laws may
from time to time impose.
SECTION 8.08. Interest of Directors in Contracts. Any contract or
other transaction between the Corporation and (i) any Director,
or (ii) any 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, a Committee with
authority to act thereon, or the Shareholders entitled to vote
thereon, and the Board, such Committee or such Shareholders
authorized, approved or ratified the Conflict Transaction. A
Conflict Transaction is authorized, approved or ratified:
(1) By the Board 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 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.
This Section 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 8.09. Limitation of Liability and Indemnification of
Directors, Officers and Others.
Clause (a). Limitation of Liability. The following provisions
apply with respect to liability on the part of a Director, a
member of any Committee or of another committee appointed by the
Board (an "Appointed Committee"), Officer, employee or agent of
the Corporation (collectively, "Corporate Persons," and
individually, a "Corporate Person") for any loss or damage
suffered on account of any action taken or omitted to be taken by
a Corporate Person:
(1) General Limitation. No 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 (i) 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 (ii) such Corporate Person's breach of or failure to act in
accordance with the standards of conduct set forth in Clause
(a)(1)(i) above (the "Standards of Conduct") did not constitute
willful misconduct or recklessness.
(2) 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
(i) the Corporate Records, or (ii) 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 or an Appointed Committee,
of which such Corporate Person is not a member, if such Corporate
Person reasonably believes such Committee or Appointed Committee
merits confidence, or (D) the Board, if such Corporate Person is
not a Director and reasonably believes that the Board merits
confidence.
Clause (b). Indemnification of Corporate Persons and Related
Matters. The following provisions apply to the indemnification by
the Corporation of Corporate Persons and matters related thereto:
(1) Indemnification Standards. The Corporation shall 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 or criminal, administrative or
investigative, formal or informal (an "Action"), by reason of the
fact that he is or was a Corporate Person of the Corporation or
is or was serving at the request of the Corporation as a
Corporate Person, partner, trustee or member or in another
authorized capacity (collectively, an "Authorized Capacity") of
or for another Legal Entity, whether or not organized or formed
for profit (collectively, "Another Entity"), against expenses
(including attorneys' fees) ("Expenses") and judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such Action, if
such person (i) acted in good faith, (ii) acted in a manner he
reasonably believed (A) with respect to actions as a Corporate
Person of the Corporation, to be in the best interests of the
Corporation, or (B) with respect to actions in an Authorized
Capacity of or for Another Entity, was not opposed to the best
interests of the Corporation, and (iii) with respect to any
criminal Action, either (A) had reasonable cause to believe his
conduct was lawful, or (B) had no reasonable cause to believe his
conduct was unlawful. The termination of any Action by judgment,
order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, be determinative that
the person did not meet the standards for indemnification set
forth in this Clause (b)(1) (the "Indemnification Standards").
(2) Indemnification in Successfully Defended Actions. To the
extent that a person who is or was a Corporate Person of the
Corporation, or is or was serving at the request of the
Corporation in an Authorized Capacity of or for Another Entity,
has been successful on the merits or otherwise in the defense of
any Action referred to in Clause (b)(1) above, or in the defense
of any claim, issue or matter in any such Action, the Corporation
shall indemnify him against Expenses actually and reasonably
incurred by him in connection therewith.
(3) Indemnification Procedure. Unless ordered by a court, any
indemnification of any person under Clause (b)(1) above shall be
made by the Corporation only as authorized in the specific case
upon a determination that indemnification of such person is
proper in the circumstances because he met the Indemnification
Standards. Such determination shall be made (i) by the Board, by
a majority vote of a quorum consisting of Directors who are not
at the time parties to the Action involved ("Parties"); or (ii)
if a quorum cannot be obtained under Subparagraph (i), by a
majority vote of a Committee duly designated by the Board (in
which designation Directors who are Parties may participate),
consisting solely of two (2) or more Directors who are not at the
time Parties; or (iii) by written opinion of independent legal
counsel, who has neither been retained by or performed services
for the Corporation or any person to be indemnified within the
past five years, and is (A) selected by the Board or such
Committee in the manner prescribed in Subparagraph (i) or (ii),
respectively, or (B) if a quorum cannot be obtained or a
Committee cannot be designated under Subparagraphs (i) and (ii),
respectively, selected by a majority of the full Board, in which
selection Directors who are Parties may participate; or (iv) by
the Shareholders who are not at the time Parties, voting together
as a single class.
(4) Advances for Expenses. Expenses reasonably incurred in
defending an Action by any person who may be entitled to
indemnification under Clause (b)(1) above may be paid by the
Corporation in advance of the final disposition of such Action if
(i) such person furnishes the Corporation with (A) a written
affirmation of his good faith belief that he has met, (B) a
written undertaking pledging to reasonably cooperate with the
Corporation concerning the action, suit or proceeding, and (C) a
written undertaking, executed personally or on his behalf, to
repay the advance (an "Undertaking") if it is ultimately
determined that he did not meet, the Indemnification Standards;
and (ii) a determination is made, under the procedure set forth
in Clause (b)(3) above, that the facts then known to those making
the determination would not preclude indemnification under Clause
(b)(1) above. An Undertaking must be an unlimited general
obligation of the person making it, but need not be secured and
may be accepted by the Corporation without reference to such
person's financial ability to make repayment.
(5) Rights Not Exclusive. The indemnification provided in these
Articles (i) shall not be deemed exclusive of any other rights to
which a person seeking indemnification may be entitled under (A)
any law, (B) the By-Laws, (C) any resolution of the Board or of
the Shareholders, (D) any other authorization, whenever adopted,
after notice, by a majority vote of all Shares entitled to vote
on General Voting Matters, or (E) the articles of incorporation,
code of by-laws or other governing documents, or any resolution
of or other authorization by the directors, shareholders,
partners, trustees, members, owners or governing body, of Another
Entity; (ii) shall inure to the benefit of the heirs, executors
and administrators of such person; and (iii) shall continue as to
any such person who has ceased to be a Corporate Person of the
Corporation or to be serving in an Authorized Capacity of or for
Another Entity.
(6) Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
Corporate Person of the Corporation, or is or was serving at the
request of the Corporation in an Authorized Capacity of or for
Another Entity, against any liability asserted against 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 Clause (b).
(7) Definition of Corporation. For the purposes of this Clause
(b), references to "the Corporation" include any constituent
corporation absorbed in a consolidation or merger (a
"Constituent") as well as the resulting or surviving corporation
(the "Survivor"), such that any person who is or was a Corporate
Person of such a Constituent, or is or was serving at the request
of such Constituent in an Authorized Capacity of or for Another
Entity, shall stand in the same position under the provisions of
this Clause (b) with respect to the Survivor as he would if he
had served the Survivor, or at its request, in the same capacity.
SECTION 8.10. Compensation of Directors. The Board is hereby
specifically authorized, in and by the Code, or by resolution
duly adopted by the 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 may also serve the Corporation in any
other capacity and receive compensation therefor in any form.
SECTION 8.11. Direction of Purposes and Exercise of Powers By
Directors. The Board, subject to any specific limitations or
restrictions imposed by the Act or these Articles, shall direct
the carrying out of the purposes and exercise the powers of the
Corporation, without previous authorization or subsequent
approval by the Shareholders.
SECTION 8.12. Amendments of Articles of Incorporation. Except as
otherwise expressly provided in Articles 7 and 9 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, or in any amendment
hereto, or to add any provision to these Articles or to any
amendment hereto, in any manner now or hereafter prescribed or
permitted by the Act or by any other applicable laws; and all
rights conferred upon the Shareholders in these Articles or any
amendment hereto are granted subject to this reservation. No
Shareholder has a vested property right resulting from any
provision in these Articles, or authorized to be in the Code by
the Act or these Articles, including without limitation
provisions relating to management, control, capital structure,
dividend entitlement, or purpose or duration of the Corporation.
ARTICLE 9
PROVISIONS FOR CERTAIN BUSINESS COMBINATIONS
SECTION 9.01. Vote Required.
Clause (a). Higher Vote for Certain Business Combinations. In
addition to any affirmative vote required by law or these
Articles, and except as otherwise expressly provided in Section
9.02:
(1) Any merger or consolidation or any similar transaction 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) that is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested
Shareholder; or
(2) Any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any
Affiliate of any Interested Shareholder of any assets of the
Corporation or any Subsidiary having an aggregate Fair Market
Value (as hereinafter defined) of One Million Dollars
($1,000,000) or more; or
(3) The issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate of any Interested Shareholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value of One Million
Dollars ($1,000,000) or more; or
(4) The adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of any Interested
Shareholder; or
(5) Any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or
into or otherwise involving an Interested Shareholder) that has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding Shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary that is directly or indirectly owned by any Interested
Shareholder or any Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least
eighty percent (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
the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
Clause (b). Definition of "Business Combination". The term
"Business Combination" as used in this Article 9 shall mean any
transaction that is referred to in any one or more of paragraphs
(1) through (5) of Clause (a) of this Section 9.01.
SECTION 9.02. When Higher Vote is Not Required. The provisions of
Section 9.01 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, if all of the conditions specified
in either of the following Clauses (a) & (b) are met:
Clause (a). Approval By Continuing Directors. The Business
Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined).
Clause (b). Price and Procedure Requirements. All of the
following conditions shall have been met:
(1) The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per Share by holders
of Common Stock in such Business Combination shall be at least
equal to the highest of the following:
(A) The highest per Share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees
[collectively, "Commissions, Taxes and Fees"]) paid by the
Interested Shareholder for any Shares of Common Stock acquired by
it (i) within the two (2) year period immediately prior to the
first public announcement of the proposal of the Business
Combination (the "Announcement Date"), or (ii) in the transaction
in which it became an Interested Shareholder, whichever is
higher;
(B) The Fair Market Value per Share of Common Stock on (i) the
Announcement Date, or (ii) on the date on which the Interested
Shareholder became an Interested Shareholder (the "Determination
Date"), whichever is higher; and
(C) The price per Share equal to the Fair Market Value per Share
of Common Stock determined pursuant to Clause (b)(1)(B) above,
multiplied by the ratio of (i) the highest per Share price
(including any Commissions, Taxes and Fees) paid by the
Interested Shareholder for any Shares of Common Stock acquired by
it within the two (2) year period immediately prior to the
Announcement Date, to (ii) the Fair Market Value per Share of
Common Stock on the first day in such two (2) year period upon
which the Interested Shareholder acquired any Shares of Common
Stock.
(2) The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per Share by holders
of Shares of any other class or series of outstanding Voting
Stock shall be at least equal to the highest of the following (it
being intended that the requirements of this Clause (b)(2) shall
be required to be met with respect to every class of outstanding
Voting Stock whether or not the Interested Shareholder has
previously acquired any Shares of a particular class of Voting
Stock):
(A) The highest per Share price (including any Commissions, Taxes
and Fees) paid by the Interested Shareholder for any Shares of
such class of Voting Stock acquired by it (i) within the two (2)
year period immediately prior to the Announcement Date or (ii) in
the transaction in which it became an Interested Shareholder,
whichever is higher;
(B) The highest preferential amount per Share to which the
holders of Shares of such class of Voting Stock are entitled in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(C) The Fair Market Value per Share of such class of Voting Stock
on the Announcement Date or the Determination Date, whichever is
higher; and
(D) The price per Share equal to the Fair Market Value per Share
of such class of Voting Stock determined pursuant to Clause
(b)(2)(C) above, multiplied by the ratio of (i) the highest per
Share price (including any Commissions, Taxes and Fees) paid by
the Interested Shareholder for any Shares of such class of Voting
Stock acquired by it within the two (2) year period immediately
prior to the Announcement Date, to (ii) the Fair Market Value per
Share of such class of Voting Stock on the first day in such two
(2) year period upon which the Interested Shareholder acquired
any Shares of such class of Voting Stock;
(3) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall
be in cash or in the same form as the Interested Shareholder has
previously paid for Shares of such class of Voting Stock. If the
Interested Shareholder has paid for Shares of any class of Voting
Stock with varying forms of consideration, the form of
consideration for such class of Voting Stock shall be either cash
or the form used to acquire the largest number of Shares of such
class of Voting Stock previously acquired by it.
(4) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination:
(A) there shall have been (i) no reduction in the annual rate of
dividends paid on Common Stock (except as necessary to reflect
any subdivision of 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 that
has the effect of reducing the number of outstanding Shares of
Common Stock, unless the failure so to increase such annual rate
is approved by a majority of the Continuing Directors; and
(B) such Interested Shareholder shall have not become the
beneficial owner of any additional Shares of Voting Stock except
as part of the transaction that results in such Interested
Shareholder becoming an Interested Shareholder.
(5) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received
the benefit, directly or indirectly (except proportionately as a
Shareholder), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in anticipation
of or in connection with such Business Combination or otherwise.
(6) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (collectively, the "Exchange Act"), or any subsequent
provisions replacing the Exchange Act, shall be mailed to
Shareholders of the Corporation at least thirty (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 the Exchange Act or such subsequent provisions).
SECTION 9.03. Certain Definitions. For the purposes of this
Article 8:
Clause (a). A "person" shall include any Legal Entity. When two
(2) or more persons act as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring voting
stock of the Company, such partnership, syndicate or group shall
be deemed a "person."
Clause (b). "Interested Shareholder" shall mean any person (other
than the Corporation or any Subsidiary) who or that:
(1) Is the beneficial owner, directly or indirectly, of more than
ten percent (10%) of the voting power of the outstanding Voting
Stock; or
(2) Is an Affiliate of the Corporation that at any time within
the two (2) year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of ten percent
(10%) or more of the voting power of the then outstanding Voting
Stock; or
(3) Is an assignee of or has otherwise succeeded to any Shares of
Voting Stock that were at any time within the two (2) year period
immediately prior to the date in question beneficially owned by
any Interested Shareholder, if such assignment or succession
shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
Clause (c). A person shall be a "beneficial owner" of any Shares
of Voting Stock that:
(1) Such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly;
or
(2) Such person or any of its Affiliates or Associates has (A)
the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (B) the right to vote pursuant to any agreement,
arrangement or understanding; or
(3) Are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any
Shares of Voting Stock.
Clause (d). For the purpose of determining whether a person is an
Interested Shareholder pursuant to Clause (b) of this Section
9.03, the number of Shares of Voting Stock deemed to be
outstanding shall include Shares deemed owned through application
of Clause (c) of this Section 9.03, but shall not include any
other Shares of Voting Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
Clause (e). "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act, as in effect on
October 28, 1983.
Clause (f). "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 (b) of this Section 9.03, 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 (g). "Continuing Director" means any member of the Board
who is unaffiliated with the Interested Shareholder and was a
member of the Board prior to the time that the Interested
Shareholder became an Interested Shareholder, and any successor
of a Continuing Director who is unaffiliated with the Interested
Shareholder and is recommended to succeed a Continuing Director
by a majority of Continuing Directors then on the Board.
Clause (h). "Fair Market Value" means:
(1) In the case of stock, (i) the highest closing sale price (or,
with respect to Subparagraph (D), bid quotation) during the
thirty (30) day period immediately preceding the date in question
of a share of such stock on (A) the Composite Tape for New York
Stock Exchange-List Stock, or (B) if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or (C) if
such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the Exchange
Act on which such stock is listed or (D) if such stock is not
listed on any such exchange, on the National Association of
Securities Dealers, Inc. Automated Quotations System or any
system then in use; or (ii) if such stock is not listed on any
such exchange and there is no such quotation of a share of such
stock, as determined by the Board in good faith; and(2) In the
case of property other than cash or stock, the fair market value
of such property on the date in question as determined by the
Board in good faith.
Clause (i). In the event of any Business Combination in
which the Corporation survives, the phrase "other
consideration to be received" as used in clauses (b)(1) and
(2) of Section 9.02 shall include the Shares of Common Stock
and/or the Shares of any other class of outstanding Voting
Stock by the holders of such Shares.
SECTION 9.04. Powers of the Board of Directors. A majority
of the Directors shall have the power and duty to determine
for the purposes of this Article 9, on the basis of
information known to them after reasonable inquiry, (a)
whether a person is an Interested Shareholder, (b) the
number of Shares of Voting Stock beneficially owned by any
person, (c) whether a person is an Affiliate or Associate of
another, and (d) whether the assets that are the subject of
any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination
has, an aggregate Fair Market Value of One Million Dollars
($1,000,000) or more.
SECTION 9.05. No Effect on Fiduciary Obligations of
Interested Shareholders. Nothing contained in this Article 9
shall be construed to relieve any Interested Shareholder
from any fiduciary obligation imposed by law.
SECTION 9.06. Amendment, Repeal, etc. Notwithstanding any
other provisions of these Articles or the By-Laws (and
notwithstanding the fact that a lesser percentage may be
specified by law, these Articles or the By-Laws), the
affirmative vote of the holders of eighty percent (80%) or
more of the voting power of the Shares of the then
outstanding Voting Stock, voting together as a single class,
shall be required to amend or repeal, or adopt provisions
inconsistent with, this Article 9.