Exhibit
3.1
April
2007
FRANKLIN
ELECTRIC CO., INC.
AMENDED
AND RESTATED ARTICLES OF INCORPORATION
ARTICLE
I
Name
The
name
of the Corporation is Franklin Electric Co., Inc.
ARTICLE
II
Purposes
and Powers
2.01.
Purposes.
The
purposes for which the Corporation is formed are (a) to engage in the general
business of manufacturing production and selling products, and (b) without
limitation, to engage in any and all lawful business or activity for which
corporations may be incorporated under the Indiana Business Corporation Law,
as
may be amended from time to time (the "IBCL").
2.02.
Powers.
The
Corporation shall have (a) the same powers as an individual to do all things
necessary or convenient to carry out its business and affairs, and (b) without
limitation, all powers, rights and privileges granted to corporations by
the
IBCL.
ARTICLE
III
Term
of Existence
The
period during which the Corporation shall continue is perpetual.
ARTICLE
IV
Registered
Office and Registered Agent
The
current street address of the Corporation's registered office is 400 East
Spring
Street, Bluffton, Indiana 46714, and the name of the Corporation's registered
agent at that office is Thomas J. Strupp.
ARTICLE
V
Amount
of Capital Stock
The
total
number of shares into which the authorized capital stock of the Corporation
is
divided is 70,100,000 shares, consisting of 5,100,000 shares without par
value
and 65,000,000 shares with par value of $.l0 per share.
ARTICLE
VI
Terms
of Capital Stock
The
shares of authorized capital stock are divided into classes as
follows:
1. 100,000
shares of Preference Stock, without par value (hereinafter sometimes referred
to
as "Preference Stock");
2. 5,000,000
shares of Preferred Stock, without par value (hereinafter sometimes referred
to
as "Preferred Stock"); and
3. 65,000,000
shares of Common Stock, par
value
$.10 per share (hereinafter sometimes referred to as "Common
Stock").
The
preferences, limitations and relative rights of each class are as
follows:
A. Preference
Stock.
Shares
of
Preference Stock may be issued from time to time in one or more series, in
such
amounts and for such consideration as the Board of Directors may determine
and
with such preferences, limitations and relative rights as shall be determined
and stated by the Board of Directors. Such preferences, limitations and relative
rights shall be determined and stated for each such series of Preference
Stock
by resolution of the Board of Directors prior to the issuance of each of
such
series, which resolution shall authorize the issuance of such series and
the
authority for which is hereby granted to the Board of Directors of the
Corporation. Without limiting the generality of the authority granted to
the
Board of Directors herein, the Board of Directors shall have the power, right
and authority to determine the following preferences, limitations and relative
rights:
(1) Designation.
The
designation of each series, which designation shall be by distinguishing
letter,
number, title or combination thereof.
(2) Number.
The
number of shares of any series to be issued.
(3) Dividend
Source, Rate and Dates. The
source, rate and dates of any dividends payable with respect to shares of
any
series; provided, however, that no dividends shall be payable upon the shares
of
Preference Stock to the extent that (i) the Corporation would not be able
to pay
its debts as they become due in the usual course of business; or (ii) the
Corporation's total assets would be less than the sum of its total liabilities
plus (unless otherwise provided in these Articles of Incorporation) the amount
that would be needed, if the Corporation were to be dissolved at the time
of the
distribution, to satisfy the preferential rights upon dissolution of the
shareholders whose preferential rights are superior to those receiving the
distribution.
(4) Dividend
Accumulations. Whether
any dividends which may be payable with respect to shares of any series shall
be
cumulative; and, if they shall be cumulative, then the dates from which such
dividends shall start to cumulate.
(5) Dividend
Preferences. The
preference or
preferences, if any, to be accorded dividends payable with respect to shares
of
any series.
(6) Redemption.
The
redemption rights and prices, if any, with respect to shares of any
series.
(7) Sinking
Fund The
terms
and amount of any sinking fund provided for the redemption of shares of any
series.
(8) Rights
of Purchase. The
rights, if any, of the Corporation to purchase for retirement, other than
by way
of redemption, shares of any series, and the terms and conditions of any
such
purchase rights.
(9) Conversion.
Whether
or not the shares of any series shall be convertible into Common Stock or
into
shares of stock of any other series or number of series or into any other
security; and, if so, the conversion price or prices, any adjustments thereof
and/or any other terms and conditions upon which such conversion may be
effected.
(10) Liquidation.
The
preference or preferences, if any, with respect to shares of any series entitled
to receive the net assets of the Corporation upon liquidation, dissolution
or
winding up of the Corporation.
(11) Voting.
The
voting rights, if any, to which the holders of the shares of Preference Stock
may be entitled.
B. Series
I Junior Participating Preference Stock.
This
Section B of this Article VI hereby creates a series of Preference Stock
and
hereby states the designation and number of shares, and fixes the relative
powers, preferences and rights of such series.
(1) Designation
and Amount. The
shares of such series shall be designated as "Series I Junior Participating
Preference Stock" (the "Series I Preference Stock") and the number of shares
constituting the Series I Preference Stock shall be 100,000. Such number
of
shares may be increased or decreased by resolution of the Board of Directors;
provided,
that no
decrease shall reduce the number of Series I Preference
Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the conversion of any outstanding securities issued
by the Corporation convertible into Series I Preference Stock.
(2) Dividend
Rights. Subject
to the rights of the holders of any shares of any series of Preference Stock
(or
any similar shares) ranking prior and superior to the Series I Preference
Stock
with respect to dividends, the holders of Series I Preference Stock, in
preference to the holders of Common Stock and
of
any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the fifteenth day of February, May, August and
November in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment
Date
after the first issuance of a share or fraction of a share of Series I
Preference Stock, in an amount per share (rounded to the nearest cent) equal
to
the greater of (i) $16.00 or (ii) subject to the provision for adjustment
hereinafter set forth, 100 times the
aggregate per
share amount
of
all cash dividends,
and
100
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in Common Stock or
a
subdivision of the outstanding Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment
Date,
since the first issuance of any Series I Preference Stock or fraction of
a
Series I Preference Stock. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in Common Stock,
or
effect a subdivision or combination or consolidation of the outstanding Common
Stock (by reclassification or otherwise than by payment of a dividend in
Common
Stock) into a greater or lesser number of shares of Common Stock, then in
each
such case the amount to which holders of Series I Preference Stock were entitled
immediately prior to such event under clause (ii) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator
of
which is the number of shares of Common Stock outstanding immediately after
such
event and the denominator of which is the number of shares of Common Stock
that
were outstanding immediately prior to such event.
The
Corporation shall declare a dividend or distribution on the Series I Preference
Stock as provided in this paragraph 2 immediately after it declares a dividend
or distribution on the Common Stock (other than a dividend payable in Common
Stock); provided that, in the event no dividend or distribution shall have
been
declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend
of $16.00 per share on the Series I Preference Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
Dividends
shall begin to accrue and be cumulative on outstanding Series I Preference
Stock from
the
Quarterly Dividend Payment Date next preceding the date of issue of such
shares,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date
of issue is a Quarterly Dividend Payment Date or is a date after the record
date
for the determination of holders of Series I Preference Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in
either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the Series I Preference Stock in an
amount
less than the total amount of such dividends at the time accrued and payable
on
such shares shall be allocated pro rata on a share-by-share basis among all
such
shares at the time outstanding. The Board of Directors may fix a record date
for
the determination of holders of Series I Preference Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date
shall
be not more than 60 days prior to the date fixed for the payment
thereof.
(3) Redemption.
The
Series I Preference Stock shall not be redeemable.
(4) Conversion.
The
Series I Preference Stock shall not be convertible into Common Stock or shares
of any other series of any other class of preferred stock of the Corporation
("Preferred Stock") or Preference Stock unless the terms of any such series
provide otherwise.
(5) Liquidation.
In
the
event of any voluntary or involuntary liquidation, dissolution or winding
up of
the Corporation, no distribution shall be made, (i) to the holders of stock
ranking junior (either as to dividends or upon liquidation) to the holders
of
Series I Preference Stock unless, prior thereto, the holders of Series I
Preference Stock shall have received from the assets of the Corporation a
preferential amount equal to $5,000 per share plus all accrued and unpaid
dividends thereon, whether or not declared, to the date of payment, provided
that the holders of Series I Preference Stock shall be entitled to receive
an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed per
share
to holders of Common Stock, or (ii) to the holders of stock ranking on a
parity
(either as to dividends or upon liquidation, dissolution
or
winding up) with the Series I Preference Stock, except distributions made
ratably on the Series I Preference Stock and all such parity stock in proportion
to the total amounts to which the holders of all such stock are entitled
upon
such liquidation, dissolution or winding up. In the event the Corporation
shall
at any time declare or pay any dividend on the Common Stock payable in Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding Common Stock (by reclassification or otherwise than by payment
of a
dividend in Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of Series
I
Preference Stock were entitled immediately prior to such event under the
proviso
in clause (i) of the preceding sentence shall be adjusted by multiplying
such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is
the number of shares of Common Stock that were outstanding immediately prior
to
such event.
(6) Voting.
Except
as
provided herein or as may be required by law, holders of Series I Preference
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common
Stock as set forth herein) for taking any corporate action.
In
addition to any other voting rights as a separate class or otherwise to which
the holders of Series I Preference Stock may be entitled by law and subject
to
the provision for adjustment hereinafter set forth, each share of Series
I
Preference Stock shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the shareholders of the Corporation. In the event
the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in Common Stock, or effect a subdivision or combination or consolidation
of the outstanding Common Stock (by reclassification or otherwise than by
payment of a dividend in Common Stock) into a greater or lesser number of
shares
of Common Stock, then in each such case the number of votes per share to
which
holders of Series I Preference Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after
such event and the denominator of which is the number of shares of Common
Stock
that were outstanding immediately prior to such event.
Except
as
otherwise provided herein, in any other provisions of the Restated Articles
of
Incorporation of the Corporation creating a series of Preferred Stock or
Preference Stock or any similar stock, or by law, the holders of Series I
Preference Stock and the holders of Common stock and any other capital stock
of
the Corporation having general voting rights shall vote together as one class
on
all matters submitted to a vote of shareholders of the Corporation.
If
at the
time of any annual meeting of shareholders for the election of directors
a
"default in preference dividends," (as that term is hereinafter defined),
on the
Series I Preference Stock shall exist, the number of directors constituting
the
Board of Directors of the Company shall be increased by two (2), and the
holders
of the Series I Preference Stock and any other series of Preference Stock
(whether or not the holders of such stock would be entitled to vote for the
election of directors if such default in preference dividends did not exist)
shall have the right at such meeting, voting together as a single class without
regard to series, to the exclusion of the holders of Common Stock, to elect
two
(2) directors of the Company to fill such newly created directorships. Such
right shall continue until there are no dividends in arrears upon the Series
I
Preference Stock. Each director elected by the holders of Series I Preference
Stock and any other series of Preference Stock (a "Preferred Director") shall
continue to serve as such director for the full term for which he shall have
been elected, notwithstanding that prior to the end of such term a default
in
preference dividends shall cease to exist. Any Preferred Director may be
removed
by, and shall not be removed except by, the vote of the holders of record
of the
outstanding Series I Preference Stock and any other series of Preference
Stock
voting together as a single class without regard to series, at a meeting
of the
shareholders or of the holders of Series I Preference Stock and any other
series
of Preference Stock called for the purpose. So long as a default in any
preference dividends on the Series I Preference Stock shall exist, (i) any
vacancy in the office of a Preferred Director may be filled (except as provided
in the following clause (ii)) by an instrument in writing signed by the
remaining Preferred Director and filed with the Company and (ii) in the case
of
the removal of any Preferred Director, the vacancy may be filled by the vote
of
the holders of the outstanding Series I Preference Stock and any other series
of
Preference Stock voting together as a single class without regard to series,
at
the same meeting at which such removal shall be voted. Each director appointed
as aforesaid by the remaining Preferred Director shall be deemed, for all
purposes hereof, to be a Preferred Director. Whenever the term of office
of the
Preferred Directors shall end and a default in preference dividends shall
no
longer exist, the number of directors constituting the Board of Directors
of the
Company shall be reduced by two (2). For the purposes hereof, a "default
in
preference dividends" on the Series I Preference Stock shall be deemed to
have
occurred whenever the amount of accrued dividends upon any series of the
Series
I Preference Stock shall be equivalent to six (6) full quarterly dividends
or
more, and, having so occurred, such default shall be deemed to exist thereafter
until, but only until, all accrued dividends on all Series I Preference Stock
of
each and every series then outstanding shall have been paid to the end of
the
last preceding quarterly dividend period.
(7) Certain
Restrictions.
(a) Whenever
quarterly dividends or other dividends or distributions payable on the Series
I
Preference Stock as provided in paragraph 2 of this Section B are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether
or not declared, on Series I Preference Stock outstanding shall have been
paid
in full, the Corporation shall not:
(i) declare
or pay dividends, or make any other distributions, on any stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to
the
Series I Preference Stock;
(ii) declare
or pay dividends, or make any other distributions, on any stock ranking on
a
parity (either as to dividends or upon liquidation, dissolution or winding
up)
with the Series I Preference Stock, except dividends paid ratably on the
Series
I Preference Stock and all such parity stock on which dividends are payable
or
in arrears in proportion to the total amounts to which the holders of all
such
stock are then entitled;
(iii) redeem
or
purchase or otherwise acquire for consideration any stock ranking junior
(either
as to dividends or upon liquidation, dissolution or winding up) to the Series
I
Preference Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for any
shares
of the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series I Preference Stock; or
(iv) redeem
or
purchase or otherwise acquire for consideration any Series I Preference Stock,
or any stock ranking on a parity with the Series I Preference Stock, except
in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such stock upon such
terms as the Board of Directors, after consideration of
the
respective annual dividend rates and other relative rights and preferences
of
the respective series and classes, shall determine in good faith will result
in
fair and equitable treatment among the respective series or
classes.
(b) The
Corporation shall not permit any subsidiary of the Corporation to purchase
or
otherwise acquire for consideration any stock of the Corporation unless the
Corporation could, under paragraph 7(a) of this Section B, purchase or otherwise
acquire such stock at such time and in such manner.
(8) Consolidation,
Merger, etc. In
case
the Corporation shall enter into any consolidation, merger, combination or
other
transaction in which the Common Stock is exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case
each
share of Series I Preference Stock shall at the same time
be
similarly exchanged or
changed into an
amount
per share, subject to the provision for adjustment hereinafter set forth,
equal
to 100 times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay
any
dividend on the Common Stock payable in Common Stock, or effect a subdivision
or
combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in Common Stock)
into a greater or lesser number of shares of Common Stock, then in each such
case the amount set forth in the preceding sentence with respect to the exchange
or change of Series I Preference Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is
the number of shares of Common Stock that were outstanding immediately prior
to
such event.
(9) Priorities.
So
long
as any Series I Preference Stock remains outstanding, the Corporation shall
not,
without the affirmative vote or written consent of the holders of at least
two-thirds of the outstanding Series I Preference Stock, voting together
as a
single class, amend, alter or repeal any of the provisions of these Restated
Articles of Incorporation so as adversely to affect the preferences, limitations
and relative rights of Series I Preference Stock. So long as any Series I
Preference Stock remains outstanding, Series I Preference Stock shall rank,
with
respect to the payment of dividends and the distribution of assets, junior
to
any other series of any other class of Preference Stock, unless the
terms
of any such series shall provide otherwise.
(10) Status
of Reacquired Shares. The
Corporation shall retire and cancel any shares of Series I Preference Stock
that
it redeems, purchases or otherwise acquires. All such shares shall upon their
cancellation become authorized but unissued shares of Preference Stock and
may
be reissued as part of a new series of Preference Stock subject to the
conditions and restrictions on issuance set forth in the restated Articles
of
Incorporation creating a series of Preference Stock or as otherwise required
by
law.
C. Preferred
Stock.
Preferred
Stock may be issued from time to time in one or more series as may from
time
to time be determined by the Board of Directors. Each series shall be distinctly
designated. All shares of any one series of the Preferred Stock shall be
alike
in every particular, except that there may be different dates from which
dividends thereon, if any, shall be cumulative, if made cumulative. The powers,
preferences and relative, participating, optional and other rights of each
such
series, and the qualifications, limitations or restrictions thereof, if any,
may
differ from those of any other series at any time
outstanding.
Subject to the provisions of Section D of this ARTICLE VI, the Board of
Directors is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of each particular
series of Preferred Stock, the designation, powers, preferences and relative,
participating, optional and other rights, and the qualifications, limitations
and restrictions thereof, if any, of such series, including, but without
limiting the generality of the foregoing, the following:
| (a) |
the
distinctive designation of, and the number of
Preferred
|
Stock
which shall constitute the series, which number may be increased (except
as
otherwise fixed by the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time by action of
the
Board of Directors;
| (b) |
the
rate and times at which, and the terms and conditions
upon
|
which,
dividends, if any, on shares of the series shall be paid, the extent of
preferences or relation, if any, of such dividends to the dividends payable
on
any other class or classes of shares of the Corporation, or
on any
series of Preferred Stock or of any other class or classes of shares of the
Corporation and whether such dividends shall be cumulative or
non-cumulative;
| (c) |
the
right, if any, of the holders of shares of the series to
|
convert
the same into, or exchange the same for, shares of any other class or classes
of
shares of the Corporation, or of any series of Preferred Stock, and the terms
and conditions of such conversion or exchange;
| (d) |
whether
shares of the series shall be subject to a redemption
|
price
or
prices including, without limitation, a redemption price or prices payable
in
Common Stock and the time or times at which, and the terms and conditions
upon
which shares of the series may be redeemed;
| (e) |
the
rights, if any, of the holders of shares of the series upon
|
voluntary
or involuntary liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding up of the Corporation;
| (f) |
the
terms of the sinking fund or redemption or purchase account,
|
if
any,
to be provided for shares of the series; and
| (g) |
the
voting powers, if any, of the holders of shares of the
|
series
which may, without limiting the generality of the foregoing, include (i)
the
right to more or less than one vote per share on any or all matters voted
upon
by the shareholders and (ii) the right to vote, as a series by itself or
together with other series of Preferred Stock or together with all series
of
Preferred Stock as a class, upon such matters, under such circumstances and
upon
such conditions as the Board of Directors may fix, including, without
limitation, the right, voting as a series by itself or together with other
series of Preferred Stock or together with all series of Preferred Stock
as a
class, to elect one or more directors of this Corporation in the event there
shall have been a default in the payment of dividends on any one or more
series
of Preferred Stock or under such other circumstances and upon such conditions
as
the Board of Directors may determine.
No
holder
of any share of any series of Preferred Stock shall be entitled to vote for
the
election of directors or in respect of any other matter except as may be
required by the Indiana Business Corporation
Law,
as
amended, or as is permitted by the resolution or resolutions adopted by the
Board of Directors authorizing the issue of such series of Preferred
Stock.
D. Common
Stock.
(1) Dividend
Rights. Subject
to the rights of all stock of the Corporation ranking, as to dividends, senior
to Common Stock, the holders of Common Stock shall be entitled to receive
such
dividends, if any, as may be declared by the Board of Directors of the
Corporation from time to time and paid on Common Stock out of any assets
of the
Corporation at the time legally available for the payment of
dividends.
(2) Liquidation.
In
the
event of any voluntary or involuntary liquidation, dissolution or winding
up of
the Corporation, the holders of the shares of the Common Stock shall be entitled
to share ratably in the assets of the Corporation remaining after all
distributions or payments shall have been made to the holders of any class
of
stock (or series thereof) of the Corporation ranking senior, as to liquidation
rights, to Common Stock.
The
merger or share exchange of the Corporation with any other corporation, or
a
sale, lease or conveyance of all or substantially all of its assets, shall
not
be regarded as a liquidation, dissolution or winding up of the Corporation
within the meaning of this section.
(3) Voting.
Except
as
provided herein or as may be required by law, all voting power shall vest
exclusively in the holders of shares of Common Stock. Each share of Common
Stock
shall be entitled to one vote on each matter submitted to a vote of the
shareholders of the Corporation.
E Distributions
to Shareholders.
The
Board
of Directors may authorize and the Corporation may make distributions to
its
shareholders if, after giving the distribution effect, (a) the Corporation
would
be able to pay its debts as they become due in the usual course of business
and,
(b) the Corporation's total assets would be greater than its total liabilities,
without regard to any amount that would be needed, if the Corporation were
to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are superior to
those
receiving the distribution.
ARTICLE
VII
Voting
Rights of Common Stock
7.01.
Common
Stock.
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 IBCL.
ARTICLE
VIII
Directors
8.01.
Number.
The
number of Directors shall be not less than three (3) nor more than eleven
(11)
and the exact number may from time to time be fixed by the By-Laws. If the
By-Laws do not fix the number of Directors, then the number of Directors
shall
be five (5).
8.02.
Classes
of Director.
The
By-Laws may provide that the Directors shall be divided into two (2) or three
(3) classes, with each class containing one-half (1/2) or one third (1/3)
of the
total, with an equal number of Directors or as near equal as may be, and
whose
terms of office shall expire at different times. If Directors are divided
into
classes, the terms of the Directors in the first class shall expire at the
first
annual shareholders' meeting after their election, the terms of the second
class
shall expire at the second annual shareholders' meeting after their election,
and the terms of the third class, if any, shall expire at the third annual
shareholders' meeting after their election. At each annual shareholders'
meeting
thereafter, Directors shall be chosen for a term of two (2) years or three
(3)
years, as the case may be, to succeed those whose term expire. If the By-Laws
provide for a classified Board, then prior to the completion of their term
of
office, a Director may be removed, with or without cause, only at a meeting
of
the shareholders called and held for that purpose, by the affirmative vote
of
the holders of outstanding shares of not less than two-thirds (2/3) of the
shares entitled to vote, by class, if applicable. Directors need not be
shareholders. A majority of the Directors at any time shall be citizens of
the
United States.
8.03.
Vacancies.
Vacancies occurring in the Board of Directors shall be filled in the manner
provided in the By-Laws, or if the By-Laws do not provide for the filling
of
vacancies then in the manner provided by Indiana law. The By-Laws may also
provide that in certain circumstances specified therein, vacancies occurring
in
the Board of Directors may be filled by vote of the shareholders at a special
meeting called for that purpose or at the next annual meeting of
shareholders.
8.04.
Removal
of Directors.
Prior to
the completion of their term of office, and subject to the provisions of
Section
8.02, a Director may only be removed by the shareholders, and in the manner
as
provided under the IBCL.
ARTICLE
IX
Provisions
for Regulation of Business And
Conduct
of Affairs of Corporation
9.01.
Shareholder
Meetings and Board Meetings.
Meetings of the shareholders may be held either at the principal office of
the
Corporation in the State of Indiana or at any other place, within or without
the
State of Indiana, as provided by the By-Laws of the Corporation and the notices
of such meetings. Meetings of the Board of Directors may be held at such
place,
either within or without the State of Indiana, as may be authorized by the
By-Laws.
9.02.
Powers
of Board.
In
addition to the powers and authorities hereinabove or by statute expressly
conferred, the Board of Directors is hereby authorized to exercise all such
powers and do all such acts and things as may be exercised or done by a
corporation organized and existing under the provisions of the IBCL. The
Board
of Directors shall have the exclusive power to make, amend, repeal
or
waive By-Laws and the provisions thereof.
9.03.
Nonliability
of Shareholders.
Shareholders of the Corporation are not personally liable for the acts or
debts
of the Corporation, nor is private property of shareholders subject to the
payment of corporate debt.
9.04.
Interests
of Directors.
(a) A
conflict of interest transaction is a transaction with the Corporation in
which
a Director of the Corporation has a direct or indirect interest. A conflict
of
interest transaction is not voidable by the Corporation solely because of
the
Director's interest in the transaction if any one (1) of the following is
true:
(1) The
material facts of the transaction and the director's interest were disclosed
or
known to the Board of Directors or a Committee of the Board of Directors
and the
Board of Directors or committee authorized, approved, or ratified the
transaction.
(2) The
material facts of the transaction and the Director's interest were disclosed
or
known to the shareholders entitled to vote and they authorized, approved,
or
ratified the transaction.
(3) The
transaction was fair to the Corporation.
(b) For
purposes of this Section 9.04, a Director of the Corporation has an indirect
interest in a transaction if:
(1) another
entity in which the Director has a material financial interest or in which
the
Director is a general partner is a party to the transaction, or
(2) another
entity of which the Director is a director, officer, or trustee is a party
to
the transaction and the transaction is, or is required to be, considered
by the
Board of Directors of the Corporation.
(c) For
purposes of Section 9.04(a)(1), a conflict of interest transaction is
authorized, approved, or ratified if it receives the affirmative vote of
a
majority of the Directors on the Board of Directors (or on the committee)
who
have no direct or indirect interest in the transaction, but a transaction
may
not be authorized, approved, or ratified under this section by a single
Director. If a majority of the Directors who have no direct or indirect interest
in the transaction vote to authorize, approve, or ratify the transaction,
a
quorum shall be deemed present for the purpose of taking action under this
Section 9.04.
The
presence of, or a vote cast by, a Director with a direct or indirect interest
in
the transaction does not affect the validity of any action taken under Section
9.04(a)(l), if the transaction is otherwise authorized, approved, or ratified
as
provided in such subsection.
(d) For
purposes of Section 9.04(a)(2), shares owned by or voted under the control
of a
Director who has a direct or indirect interest in the transaction, and shares
owned by or voted under the control of an entity described in Section 9.04(b),
may be counted in a vote of shareholders to determine whether to authorize,
approve or ratify a conflict of interest transaction.
(e) This
Section 9.04 shall not be construed to require authorization, ratification,
or
approval by the shareholders of any transaction or to invalidate any transaction
that would otherwise be valid under common or statutory law.
ARTICLE
X
Amendment
or Repeal
10.01.
Amendment
or Repeal: Certain Provisions.
Any
amendment or repeal of all or any part of this Article X and of Sections
8.01
and 8.02 of Article VIII, shall require the affirmative vote of the holders
of
outstanding shares of not less than two-thirds (2/3) of the shares entitled
to
vote, by class, if applicable.
10.02
Amendment
or Repeal: Other Provisions.
Except
as is otherwise expressly provided in Section 10.01, all other provisions
of the
Articles of Incorporation, as amended, may be amended or repealed in the
manner
now or hereafter permitted by law, and all rights conferred upon shareholders
by
these Articles of Incorporation, as amended, are conferred subject to this
reservation.