EXHIBIT 3(i)
ARTICLES OF RESTATEMENT
restating the
SECOND RESTATED ARTICLES OF INCORPORATION OF
ASHLAND INC.
Pursuant to the provisions of KRS Section 271B.10-070, Ashland Inc.
hereby adopts these Articles of Restatement for the purpose of restating
its Second Restated Articles of Incorporation, as amended to date.
First: The name of the corporation is Ashland Inc.
Second: The text of the corporation's Third Restated Articles of
Incorporation is set forth on Exhibit A attached hereto.
CERTIFICATE
Pursuant to KRS Section 271B.10-070(4), the undersigned hereby
certifies that:
(1) the text of the corporation's Third Restated Articles of
Incorporation set forth on Exhibit A attached hereto does not contain
an amendment to the articles requiring shareholder approval; and
(2) the board of directors adopted the Third Restated Articles of
Incorporation.
These Articles of Restatement restating the Second Restated Articles
of Incorporation of Ashland Inc. have been executed as of the 17th day of
May, 2006.
ASHLAND INC.
By: /s/ David L. Hausrath
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David L. Hausrath
Senior Vice President
THIS INSTRUMENT PREPARED BY:
/s/ Linda L. Foss
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Linda L. Foss
50 E. RiverCenter Boulevard
Covington, Kentucky 41012-0391
(859) 815-3483
EXHIBIT A
THIRD RESTATED ARTICLES OF INCORPORATION
OF
ASHLAND INC.
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ARTICLE I
The name of the corporation is Ashland Inc. (hereinafter called the
"Company" or the "Corporation").
ARTICLE II
The purpose for which the Company is organized is the transaction of
any or all lawful businesses for which corporations may be organized under
the Kentucky Business Corporation Act, or any act amendatory thereof,
supplemental thereto or substituted therefor (hereinafter called the
"Act"), and to do all things necessary, convenient, proper or desirable in
connection with or incident to any of the Company's businesses.
ARTICLE III
A. The Company shall have all the powers conferred upon a corporation
organized under the Act and shall have all powers necessary, convenient or
desirable in order to fulfill and further the purpose of the Company.
B. The Company shall have the power to purchase shares of the stock of
the Company to the extent of unreserved and unrestricted capital and earned
surplus of the Company and to any greater extent permitted by the Act.
C. The Board of Directors of the Company may distribute to the
shareholders of the Company a portion of the Company's assets, in cash or
property, out of capital surplus of the Company and from any other source
permitted by the Act.
ARTICLE IV
A. The aggregate number of shares which the Company is authorized to
issue is 30,000,000 shares of Cumulative Preferred Stock (hereinafter
called the "Preferred Stock"), and 200,000,000 shares of Common Stock, par
value $0.01 per share (hereinafter called the "Common Stock").
B. Preferred Stock
(1) To the extent permitted by the Act, the Board of Directors is
authorized, by resolution, to cause the Preferred Stock to be divided into
and issued from time to time in one or more series and to fix and determine
the designation and number of shares, and the relative rights and
preferences of the shares, of each such series, and to change shares of one
series that have been redeemed or reacquired into shares of another series.
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(2) All shares of Preferred Stock shall rank equally and be
identical in all respects except as to the relative rights and preferences
of any series fixed and determined by the Board of Directors, which may
vary to the extent permitted by the Act.
(3) The Preferred Stock shall be preferred over the Common Stock as
to payment of dividends. Before any dividends or distributions (other than
dividends or distributions payable in Common Stock) on the Common Stock
shall be declared and set apart for payment or paid, the holders of shares
of each series of Preferred Stock shall be entitled to receive dividends
(either in cash, shares of Common Stock or Preferred Stock, or otherwise)
when, as and if declared by the Board of Directors, at the rate and on the
date or dates fixed in the resolution adopted by the Board of Directors
establishing such series, and no more. With respect to each series of
Preferred Stock, the dividends on each share of such series shall be
cumulative from the date of issue of such share unless some other date is
fixed in the resolution adopted by the Board of Directors establishing such
series. Accruals of dividends shall not bear interest.
(4) The Preferred Stock shall be preferred over the Common Stock as
to assets so that the holders of each series of Preferred Stock shall be
entitled to be paid, upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company and before any distribution is
made to the holders of Common Stock, the amount fixed in the resolution
adopted by the Board of Directors establishing such series, but in such
case the holders of such series of Preferred Stock shall not be entitled to
any other or further payment. If upon any such liquidation, dissolution or
winding up of the Company its net assets shall be insufficient to permit
the payment in full of the respective amounts to which the holders of all
outstanding Preferred Stock are entitled, the entire remaining net assets
of the Company shall be distributed among the holders of each series of
Preferred Stock in amounts proportionate to the full amounts to which the
holders of each such series are respectively so entitled. For purposes of
this paragraph (4), the voluntary sale, lease, exchange or transfer of all
or substantially all of the Company's property or assets to, or its
consolidation or merger with, one or more corporations shall not be deemed
to be a voluntary or involuntary liquidation, dissolution or winding up of
the Company.
(5) All shares of any series of Preferred Stock shall be redeemable
to the extent permitted by the Act and fixed in the resolution adopted by
the Board of Directors establishing such series. All shares of any series
of Preferred Stock shall be convertible into shares of Common Stock or into
shares of any other series of Preferred Stock to the extent permitted by
the Act and fixed in the resolution adopted by the Board of Directors
establishing such series.
(6) Unless otherwise provided herein or by the Act, or unless
otherwise provided in the resolution adopted by the Board of Directors
establishing any series of Preferred Stock, the holders of shares of
Preferred Stock shall be entitled to one vote for each share of Preferred
Stock held by them on all matters properly presented to shareholders, the
holders of Common Stock and the holders of all series of Preferred Stock
voting together as one class.
(7) So long as any shares of Preferred Stock are outstanding, the
Company shall not:
(a) Redeem, purchase or otherwise acquire any shares of Common
Stock if at the time of making such redemption, purchase or acquisition,
the Company shall be in default with respect to any dividends accrued on,
or any obligation to retire, shares of Preferred Stock.
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(b) Without the affirmative vote or consent of the holders of
at least 66-2/3% of the number of shares of Preferred Stock at the time
outstanding, voting or consenting (as the case may be) separately as a
class without regard to series, given in person or by proxy, either in
writing or by resolution adopted at a meeting called for the purpose, (i)
create any class of stock ranking prior to the Preferred Stock as to
dividends or upon liquidation or increase the authorized number of shares
of any such class of stock or (ii) alter or change any of the provisions of
these Articles of Incorporation so as adversely to affect the relative
rights and preferences of the Preferred Stock or (iii) increase the
authorized number of shares of Preferred Stock.
(c) Without the affirmative vote or consent of the holders of
at least 66-2/3% of the number of shares of any series of Preferred Stock
at the time outstanding, voting or consenting (as the case may be)
separately as a series, given in person or by proxy, either in writing or
by resolution adopted at a meeting called for the purpose, alter or change
any of the provisions of these Articles of Incorporation so as adversely to
affect the relative rights and preferences of such series.
C. Common Stock
(1) The holders of Common Stock of the Company shall be entitled to
one vote for each share of Common Stock held by them on all matters
properly presented to shareholders, except as otherwise provided herein or
by the Act.
(2) Subject to the preferential rights of Preferred Stock set forth
herein or in the resolution adopted by the Board of Directors establishing
any series of Preferred Stock, such dividends (either in cash, shares of
Common Stock or Preferred Stock, or otherwise) as may be determined by the
Board of Directors may be declared and paid on the Common Stock from time
to time in accordance with the Act.
(3) Subject to the preferential rights of Preferred Stock set forth
herein or in the resolution adopted by the Board of Directors establishing
any series of Preferred Stock, the holders of Common Stock shall be
entitled to receive the net assets of the Company upon dissolution.
D. No holder of shares of any class of stock of the Company shall have
any preemptive right to subscribe to stock, obligations, warrants,
subscription rights or other securities of the Company of any class,
whether now or hereafter authorized.
ARTICLE V
The Company shall have perpetual existence.
ARTICLE VI
Subject to the restriction that the number of directors shall not be
less than the number required by the laws of the Commonwealth of Kentucky,
the number of directors may be fixed, from time to time, pursuant to the
By-laws of the Company.
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The members of the Board of Directors (other than those who may be
elected by the holders of any class or series of capital stock of the
Company having a preference over the Common Stock as to dividends or upon
liquidation pursuant to the terms of these Articles of Incorporation or of
such class or series of stock) shall be classified, with respect to the
time for which they severally hold office, into three classes, as nearly
equal in number as possible, as shall be provided in the By-laws of the
Company, one class to be originally elected for a term expiring at the
first annual meeting of the shareholders after their election, another
class to be originally elected for a term expiring at the second annual
meeting of the shareholders after their election, and another class to be
originally elected for a term expiring at the third annual meeting of the
shareholders after their election, with each class to hold office until the
successors of such class are elected and qualified. At each annual meeting
of the shareholders, the date of which shall be fixed by or pursuant to the
By-laws of the Company, the successors of the class of directors whose term
expires at that meeting shall be elected to hold office for a term expiring
at the annual meeting of shareholders held in the third year following the
year of their election.
Subject to any requirements of law and the rights of any class or
series of capital stock of the Company having a preference over the Common
Stock as to dividends or upon liquidation pursuant to the terms of these
Articles of Incorporation or of such class or series of stock (and
notwithstanding the fact that a lesser percentage may be specified by law,
these Articles of Incorporation or the terms of such class or series), the
affirmative vote of the holders of 80% or more of the voting power of the
then outstanding voting stock of the Company, voting together as a single
class, shall be required to remove any director without cause. For purposes
of this Article VI, "cause" shall mean the willful and continuous failure
of a director to substantially perform such director's duties to the
Company, other than any such failure resulting from incapacity due to
physical or mental illness, or the willful engaging by a director in gross
misconduct materially and demonstrably injurious to the Company. As used in
these Articles of Incorporation, "voting stock" shall mean shares of
capital stock of the Company entitled to vote generally in an election of
directors.
Subject to any requirements of law and the rights of any class or
series of capital stock of the Company having a preference over the Common
Stock as to dividends or upon liquidation pursuant to the terms of these
Articles of Incorporation or of such class or series of stock, newly
created directorships resulting from any increase in the number of
directors may be filled by the Board of Directors, or as otherwise provided
in the By-laws, and any vacancies on the Board of Directors resulting from
death, resignation, removal or other cause shall only be filled by the
affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors, or by a sole
remaining director, or as otherwise provided in the By-laws. Any director
elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successors shall have been elected and qualified.
ARTICLE VII
In furtherance and not in limitation of the powers conferred upon it
by law, the Board of Directors is expressly authorized to:
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A. adopt any By-laws that the Board of Directors may deem necessary or
desirable for the efficient conduct of the affairs of the Company,
including, but not limited to, provisions governing the conduct of, and the
matters which may properly be brought before, annual or special meetings of
the shareholders and provisions specifying the manner and extent to which
prior notice shall be given of the submission of proposals to be considered
at any such meeting or of nominations for election of directors to be held
at any such meeting; and
B. repeal, alter or amend the By-laws.
In addition to any requirements of law and any other provisions of
these Articles of Incorporation or the terms of any class or series of
capital stock having a preference over the Common Stock as to dividends or
upon liquidation (and notwithstanding the fact that a lesser percentage may
be specified by law, these Articles of Incorporation or the terms of such
class or series), the affirmative vote of the holders of 80% or more of the
voting power of the then outstanding voting stock of the Company, voting
together as a single class, shall be required to amend, alter or repeal any
provision of the By-laws.
ARTICLE VIII
A. A higher than majority vote of shareholders for certain Business
Combinations shall be required as follows:
(1) In addition to any affirmative vote otherwise required by law
or these Articles of Incorporation or the terms of any class or series of
capital stock of the Company having a preference over the Common Stock as
to dividends or upon liquidation (and notwithstanding the fact that a
lesser percentage may be specified by law, these Articles of Incorporation
or the terms of such class or series) and except as otherwise expressly
provided in Section B of this Article VIII:
(a) any merger or consolidation of the Company or any
Subsidiary with an Interested Shareholder or with any other corporation,
whether or not itself an Interested Shareholder, which is, or after such
merger or consolidation would be, an Affiliate of an Interested Shareholder
who was an Interested Shareholder prior to the transaction;
(b) any sale, lease, transfer, or other disposition, other than
in the ordinary course of business, in one transaction or a series of
transactions in any twelve-month period, to any Interested Shareholder or
any Affiliate of an Interested Shareholder, other than the Company or any
Subsidiary, of any assets of the Company or any Subsidiary having, measured
at the time the transaction or transactions are approved by the Board of
Directors, an aggregate book value as of the end of the Company's most
recently ended fiscal quarter of 5% or more of the total market value of
the outstanding stock of the Company or of its net worth as of the end of
its most recently ended fiscal quarter;
(c) the issuance or transfer by the Company or any Subsidiary,
in one transaction or a series of transactions in any twelve-month period,
of any equity securities of the Company or any Subsidiary which have an
aggregate market value of 5% or more of the total market value of the
outstanding stock of the Company, determined as of the end of the Company's
most recently ended fiscal quarter prior to the first such issuance or
transfer, to any Interested
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Shareholder or any Affiliate of any Interested Shareholder, other than the
Company or any Subsidiary, except pursuant to the exercise of warrants or
rights to purchase securities offered pro rata to all holders of the
Company's voting stock or any other method affording substantially
proportionate treatment to the holders of voting stock;
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Company in which anything other than cash will be
received by an Interested Shareholder or any Affiliate of an Interested
Shareholder; or
(e) any reclassification of securities, including any reverse
stock split; any recapitalization of the Company; any merger or
consolidation of the Company with any Subsidiary; or any other transaction
which has the effect, directly or indirectly, in one transaction or a
series of transactions, of increasing by 5% or more the proportionate
amount of the outstanding shares of any class of equity securities of the
Company or any Subsidiary which is directly or indirectly beneficially
owned by any Interested Shareholder or any Affiliate of any Interested
Shareholder;
shall require the recommendation of the Board of Directors and the
affirmative vote of the holders of at least (i) 80% of the voting power of
the then outstanding voting stock of the Company, voting together as a
single class, and (ii) two-thirds of the voting power of the then
outstanding voting stock other than voting stock beneficially owned by the
Interested Shareholder who is, or whose Affiliate is, a party to the
Business Combination or by an Affiliate or Associate of such Interested
Shareholder, voting together as a single class.
(2) The term "Business Combination" as used in this Article VIII
shall mean any transaction which is referred to in any one or more of
clauses (a) through (e) of paragraph (1) of Section A of this Article VIII.
B. The provisions of Section A of this Article VIII shall not be
applicable to any Business Combination, and such Business Combination shall
require only such affirmative vote (if any) as is required by law, any
other provision of these Articles of Incorporation or the terms of any
class or series of capital stock of the Company having a preference over
the Common Stock as to dividends or upon liquidation, if all conditions
specified in either of the following paragraphs (1) or (2) are met:
(1) The Business Combination shall have been approved by resolution
by a majority of the Continuing Directors at a meeting of the Board of
Directors at which a quorum consisting of at least a majority of the then
Continuing Directors was present; or
(2) All the following five conditions have been met:
(a) The aggregate amount of the cash and the market value as of
the Valuation Date of consideration other than cash to be received per
share by holders of Common Stock in such Business Combination is at least
equal to the highest of the following:
(i) the highest per share price, including any brokerage
commissions, transfer taxes and soliciting dealers' fees, paid by the
Interested Shareholder for any shares of Common
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Stock (a) within the two-year period immediately prior to the Announcement
Date or (b) in the transaction in which it became an Interested
Shareholder, whichever is higher;
(ii) the market value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is higher; and
(iii) the price per share equal to the market value per
share of Common Stock determined pursuant to clause (ii) immediately
preceding, multiplied by the fraction resulting from (a) the highest per
share price, including any brokerage commissions, transfer taxes and
soliciting dealers' fees, paid by the Interested Shareholder for any shares
of Common Stock acquired by it within the two-year period immediately prior
to the Announcement Date, over (b) the market value per share of Common
Stock on the first day in such two-year period on which the Interested
Shareholder acquired any shares of Common Stock.
(b) The aggregate amount of the cash and the market value as of
the Valuation Date of consideration other than cash to be received per
share by holders of shares of any class or series of outstanding stock
other than Common Stock is at least equal to the highest of the following,
whether or not the Interested Shareholder has previously acquired any
shares of a particular class or series of stock:
(i) the highest per share price, including any brokerage
commissions, transfer taxes and soliciting dealers' fees, paid by the
Interested Shareholder for any shares of such class of stock acquired by it
(a) within the two-year period immediately prior to the Announcement Date
or (b) in the transaction in which it became an Interested Shareholder,
whichever is higher;
(ii) the highest preferential amount per share to which the
holders of shares of such class of stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Company;
(iii) the market value per share of such class of stock on
the Announcement Date or on the Determination Date, whichever is higher;
and
(iv) the price per share equal to the market value per
share of such class of stock determined pursuant to clause (iii)
immediately preceding, multiplied by the fraction resulting from (a) the
highest per share price, including any brokerage commissions, transfer
taxes and soliciting dealers' fees, paid by the Interested Shareholder for
any shares of any class of voting stock acquired by it within the two-year
period immediately prior to the Announcement Date over (b) the market value
per share of the same class of voting stock on the first day in such
two-year period on which the Interested Shareholder acquired any shares of
the same class of voting stock.
(c) In making any price calculation under paragraph (2) of this
Section B, appropriate adjustments shall be made to reflect any
reclassification or stock split (including any reverse stock split), stock
dividend, recapitalization or any similar transaction which has the effect
of increasing or reducing the number of outstanding shares of the stock.
The consideration to be received by holders of any class or series of
outstanding stock is to be in cash or in the same form as the Interested
Shareholder has previously paid for shares of the same class or series
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of stock. If the Interested Shareholder has paid for shares of any class of
stock with varying forms of consideration, the form of consideration for
such class of stock shall be either in cash or the form used to acquire the
largest number of shares of such class or series of stock previously
acquired by it.
(d) After the Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business Combination:
(i) there shall have been no failure to declare and pay at
the regular date therefor any full periodic dividends, whether or not
cumulative, on any outstanding Preferred Stock of the Company or other
capital stock entitled to a preference over the Common Stock as to
dividends or upon liquidation;
(ii) there shall have been no reduction in the annual rate
of dividends paid on the Common Stock, except as necessary to reflect any
subdivision of the Common Stock, and no failure to increase the annual rate
of dividends as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or other similar
transaction which has the effect of reducing the number of outstanding
shares of Common Stock; and
(iii) the Interested Shareholder did not become the
beneficial owner of any additional shares of stock of the Company except as
part of the transaction which resulted in such Interested Shareholder or by
virtue of proportionate stock splits or stock dividends.
The provisions of clauses (i) and (ii) immediately preceding shall not
apply if neither an Interested Shareholder nor any Affiliate or Associate
of an Interested Shareholder voted as a director of the Company in a manner
inconsistent with such clauses and the Interested Shareholder, within ten
days after any act or failure to act inconsistent with such clauses,
notifies the Board of Directors of the Company in writing that the
Interested Shareholder disapproves thereof and requests in good faith that
the Board of Directors rectify such act or failure to act.
(e) After the Interested Shareholder has become an Interested
Shareholder, the Interested Shareholder shall not have received the
benefit, directly or indirectly, except proportionately as a shareholder,
of any loans, advance, guarantees, pledges or other financial assistance
provided by the Company or any Subsidiary, whether in anticipation of or in
connection with such Business Combination or otherwise.
C. For purposes of this Article VIII:
(1) "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 June 30, 2005
(the term "registrant" in such Rule 12b-2 meaning in this case the
Company).
(2) "Announcement Date" means the first general public announcement
of the proposal or intention to make a proposal of the Business Combination
or its first communication generally to shareholders of the Company,
whichever is earlier.
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(3) "Beneficial owner" when used with respect to any voting stock,
means a person who, individually or with any Affiliate or Associate has:
(i) the right to acquire voting stock, whether such right is
exercisable immediately or only after the passage of time and whether or
not such right is exercisable only after specified conditions are met
pursuant to any agreement, arrangement, or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise;
(ii) the right to vote voting stock pursuant to any agreement,
arrangement, or understanding; or
(iii) any agreement, arrangements, or understanding for the
purpose of acquiring, holding, voting or disposing of voting stock with any
other person who beneficially owns, or whose Affiliates or Associates
beneficially own, directly or indirectly, such shares of voting stock.
(4) "Continuing Director" means any member of the Board of
Directors who is not an Affiliate or Associate of an Interested Shareholder
or any of its Affiliates, other than the Company or any Subsidiary, and who
was a director of the Company prior to the time the Interested Shareholder
became an Interested Shareholder, and any other member of the Board of
Directors who is not an Affiliate or Associate of an Interested Director or
any of its Affiliates, other than the Company or any Subsidiary, and was
recommended or elected by a majority of the Continuing Directors at a
meeting at which a quorum consisting of a majority of the Continuing
Directors is present.
(5) "Determination Date" means the date on which an Interested
Shareholder first became an Interested Shareholder.
(6) "Equity Security" means:
(a) any stock or similar security, certificate of interest, or
participation in any profit-sharing agreement, voting trust certificate, or
certificate of deposit for the foregoing;
(b) any security convertible, with or without consideration,
into an equity security, or any warrant or other security carrying any
right to subscribe to or purchase an equity security; or
(c) any put, call, straddle, or other option, right or
privilege of acquiring an equity security from or selling an equity
security to another without being bound to do so.
(7) "Interested Shareholder" means any person, other than ATB
Holdings Inc., a corporation incorporated under the laws of Delaware on
March 9, 2004 ("HoldCo"), the Company or any Subsidiary, who:
(a) is the beneficial owner, directly or indirectly, of 10% or
more of the voting power of the outstanding voting stock of the Company; or
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(b) is an Affiliate of the Company and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting
power of the then outstanding voting stock of the Company.
For the purpose of determining whether a person is an Interested
Shareholder, the number of shares of voting stock deemed to be outstanding
shall include shares deemed owned by the person through application of
paragraph (3) of this Section C but shall not include any other 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. Furthermore, any such beneficial ownership or voting
power arising solely out of a trustee or custodial relationship of any
person in connection with a Company "employee benefit or stock plan" shall
be excluded for purposes of determining whether or not any such person is
an Interested Stockholder. For purposes hereof, the term "employee benefit
or stock plan" of the Company shall mean any option, bonus, appreciation,
profit sharing, retirement, incentive, thrift, employee stock ownership,
dividend reinvestment, savings or similar plan of the Company.
(8) "Market Value" means:
(a) in the case of stock, the highest closing sale price during
the 30 calendar 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 such Composite Tape, on
the New York Stock Exchange, or if such stock is not listed on the New York
Stock Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 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
calendar 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 quotation is available, the fair market
value on the date in question of a share of such stock as determined by a
majority of the Continuing Directors at a meeting of the Board of Directors
at which a quorum consisting of at least a majority of the then Continuing
Directors is present; and
(b) 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 a
majority of the Continuing Directors at a meeting of the Board of Directors
at which a quorum consisting of at least a majority of the then Continuing
Directors is present.
(9) "Subsidiary" means any corporation of which voting stock having
a majority of the votes entitled to be cast is owned, directly or
indirectly, by the Company.
(10) "Valuation Date" means:
(a) for a Business Combination voted upon by shareholders, the
later of the day prior to the date of the shareholders' vote or the date 20
business days prior to the consummation of the Business Combination; and
(b) for a Business Combination not voted upon by shareholders,
the date of the consummation of the Business Combination.
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(11) "Voting Stock" means shares of capital stock of the Company
entitled to vote generally in an election of directors.
D. In addition to any requirements of law and any other provisions of
these Articles of Incorporation or the terms of any class or series of
capital stock of the Company entitled to a preference over the Common Stock
as to dividends or upon liquidation (and notwithstanding the fact that a
lesser percentage may be specified by law, these Articles of Incorporation
or the terms of such class or series), the affirmative vote of:
(1) the holders of at least 80% of the voting power of the then
outstanding voting stock of the Company, voting together as a single class,
and
(2) the holders of at least two-thirds of the voting power of the
then outstanding voting stock of the Company other than the Interested
Shareholder, voting together as a single class,
shall be required to amend, alter or repeal, or adopt any provision
inconsistent with, this Article VIII.
E. In addition to the higher voting requirements contained in this
Article VIII, the Kentucky Business Combination statutes (Sections
271B.12-200 through 271B.12-230 of the Act, as amended or supplemented)
shall apply to any business combination (as defined therein) of the Company
or any Subsidiary in accordance with their terms, provided that HoldCo
shall be excluded from the definition of an "Interested Shareholder" of the
Corporation thereunder.
ARTICLE IX
In addition to any requirements of law and any other provisions of
these Articles of Incorporation or the terms of any class or series of
capital stock of the Company having a preference over the Common Stock as
to dividends or upon liquidation (and notwithstanding the fact that a
lesser percentage may be specified by law, these Articles of Incorporation
or the terms of such class or series), the affirmative vote of the holders
of 80% or more of the voting power of the then outstanding voting stock of
the Company, voting together as a single class, shall be required to amend,
alter or repeal, or adopt any provision inconsistent with, this Article IX
or Article VI or VII of these Articles of Incorporation. Subject to the
foregoing provisions of this Article IX and Section D of Article VIII, the
Company reserves the right from time to time to amend, alter, change, add
to or repeal any provision contained in these Articles of Incorporation in
any manner now or hereafter prescribed by law and in these Articles of
Incorporation, and all rights and powers at any time conferred upon
shareholders, directors and officers of the Company by these Articles of
Incorporation or any amendment thereof are subject to the provisions of
this Article IX and Section D of Article VIII.
ARTICLE X
The Company may, to the maximum extent permitted by law, indemnify any
director, officer, employee or agent of the Company against costs and
expenses (including but not limited to attorneys' fees) and any liabilities
(including but not limited to judgments, fines, penalties and settlements)
paid by or imposed against any such person in connection with any actual or
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threatened claim, action, suit or proceeding, whether civil, criminal,
administrative, legislative, investigative or other (including any appeal
relating thereto) and whether made or brought by or in the right of the
Company or otherwise, in which any such person is involved, whether as a
party, witness, or otherwise, because he or she is or was a director,
officer, employee or agent of the Company or a predecessor of the Company
or a director, officer, partner, trustee, employee or agent of any other
corporation, partnership, employee benefit plan or other entity.
The indemnification authorized by this Article X shall not supersede
or be exclusive of any other right of indemnification which any such person
may have or hereafter acquire under any provision of these Articles of
Incorporation or the By-laws of the Company, agreement, vote of
shareholders or disinterested directors or otherwise. The Company may take
such steps as may be deemed appropriate by the Board of Directors to
provide indemnification to any such person, including, without limitation,
entering into contracts for indemnification between the Company and
individual directors, officers, employees or agents which may provide
rights to indemnification which are broader or otherwise different than the
rights authorized by this Article X. The Company may take such steps as may
be deemed appropriate by the Board of Directors to secure, subject to the
occurrence of such conditions or events as may be determined by the Board
of Directors, the payment of such amounts as are required to effect any
indemnification permitted or authorized by this Article X, including,
without limitation, purchasing and maintaining insurance, creating a trust
fund, granting security interests or using other means (including, without
limitation, irrevocable letters of credit).
Any amendment or repeal of this Article X shall operate prospectively
only and shall not affect any action taken, or failure to act, by the
Company or any such person prior to such amendment or repeal.
ARTICLE XI
No director shall be personally liable to the Company or its
shareholders for monetary damages for breach of his or her duties as a
director except to the extent that the applicable law from time to time in
effect shall provide that such liability may not be eliminated or limited.
Neither the amendment nor repeal of this Article XI shall affect the
liability of any director of the Company with respect to any act or failure
to act which occurred prior to such amendment or repeal.
This Article XI is not intended to eliminate or limit any protection
otherwise available to the directors of the Company.
ARTICLE XII
The name of the Incorporator is Linda L. Foss, and the mailing address
of the Incorporator is 50 E. RiverCenter Boulevard, P.O. Box 391,
Covington, Kentucky 41012-0391.
ARTICLE XIII
The mailing address of the principal office of the Company is 50 E.
RiverCenter Boulevard, P.O. Box 391, Covington, Kentucky 41012-0391.
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