Exhibit
3.1
AMENDED
AND RESTATED
ARTICLES
OF INCORPORATION
OF
MAGNETECH
INTEGRATED SERVICES CORP.
The
undersigned, an officer of MAGNETECH INTEGRATED SERVICES CORP. (the
“Corporation”),
an
Indiana corporation existing pursuant to the provisions of the Indiana Business
Corporation Law (as amended from time to time, the “Act”),
desiring to give notice of corporate action effectuating the amendment and
restatement of the Articles of Incorporation of the Corporation, sets forth
the
following:
TEXT
OF
AMENDED AND RESTATED ARTICLES
The
exact
text of the entire Articles of Incorporation of the Corporation, as amended
and
restated, now is as follows:
ARTICLE
I
Name
The
name
of the Corporation is: MISCOR Group, Ltd.
Purposes
The
purpose for which the Corporation is organized is to engage in any lawful
business for which corporations may be incorporated under the Act.
ARTICLE
III
Amount
of Capital Stock
The
total
number of shares of capital stock which the Corporation has authority to
issue
is Three Hundred Twenty Million (320,000,000), consisting of 300,000,000
shares
of common stock without par value (“Common
Stock”)
and
20,000,000 shares of preferred stock without par value (“Preferred
Stock”).
ARTICLE
IV
Terms
of Capital Stock
Section
4.01 Rights,
Privileges, Limitations and Restrictions of Preferred Stock.
The
Board of Directors of the Corporation is vested with authority to determine
and
state the designations and the relative rights, privileges, limitations and
restrictions of the Preferred Stock and of each series of Preferred Stock,
by
the adoption and filing in accordance with the Act, before the issuance of
any
shares of such Preferred Stock or series of Preferred Stock, of an amendment
or
amendments to these Amended and Restated Articles of Incorporation (as may
be
further amended or restated from time to time, these “Articles
of Incorporation”),
determining the terms of such Preferred Stock or series of Preferred Stock
(“Preferred
Stock Designation”).
All
shares of Preferred Stock of the same series shall be identical with each
other
in all respects.
The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, the determination of the following:
(a) the
number of shares constituting such series and the distinctive designation
of
such series;
(b) the
dividend rate on the shares of such series, whether dividends shall be
cumulative, and, if so, from which date or dates, and the relative rights
of
priority, if any, of payment of dividends on shares of such series;
(c) whether
such series shall have voting rights, in addition to the voting rights provided
by law, and, if so, the terms of such voting rights;
(d) whether
such series shall have conversion privileges, and, if so, the terms and
conditions of such conversion, including without limitation provision for
adjustment of the conversion rate in such events as the Board of Directors
shall
determine;
(e) whether
the shares of such series shall be redeemable, and, if so, the terms and
conditions of such redemption, including without limitation the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and
at
different redemption dates;
(f) whether
such series shall have a sinking fund for the redemption or purchase of shares
of such series, and, if so, the terms and amount of such sinking
fund;
(g) the
rights of the shares of such series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, and the relative
rights of priority, if any, of payment of shares of such series;
and
(h) Any
other
relative rights, preferences and limitations of such series.
Section
4.02 Rights,
Privileges, Limitations and Restrictions of Common Stock.
The
Common Stock shall have the following rights, privileges, limitations and
restrictions:
(a) Single
Class.
The
shares of Common Stock shall constitute a separate and single class and shall
not be issued in series. None of the shares of Common Stock shall be entitled
to
any preference, and each share of Common Stock shall be identical with every
other share of Common Stock in all respects.
(b) Dividends.
After
payment or declaration of all dividends on any shares of capital stock having
a
priority over the Common Stock as to dividends, dividends on the shares of
Common Stock may be declared and paid, but only when and as determined by
the
Board of Directors. Shares of Common Stock shall share equally as to any
dividends declared.
(c) Liquidation.
In the
event of any voluntary or involuntary liquidation, dissolution, or winding
up of
the Corporation, the holders of the shares of Common Stock shall be entitled,
after payment or provision for payment of the debts and other liabilities
of the
Corporation and of all shares of capital stock having priority over the Common
Stock in the
event
of
voluntary or involuntary liquidation, dissolution or winding up, to share
ratably in the remaining net assets of the Corporation.
(d) Voting
Rights.
Each
holder of shares of Common Stock shall have the right to one (1) vote for
each
share of Common Stock standing in his or her name on the books of the
Corporation on each matter submitted to a vote of the shareholders.
ARTICLE
V
Directors
Section
5.01 Number,
Term.
The
number of Directors shall be determined as provided in the Code of By-Laws
of
the Corporation. Directors shall be elected at each annual meeting of
shareholders, except as provided in Section 5.03. Each Director shall continue
in office until the election and qualification of his or her successor in
office
or earlier resignation or removal.
Section
5.02 Classification.
Commencing with the election of Directors at any annual meeting of shareholders,
if prior to the issuance of notice of such meeting, the Board of Directors
has
adopted a resolution providing for the future service of Directors elected
by
the shareholders in staggered terms, the Board of Directors shall be divided
into three (3) classes, with the term of office of one (1) class expiring
each
year. The initial assignment of each Director nominee to each class shall
be
determined by the Board of Directors so as to make all classes as nearly
equal
in number as possible. Commencing with such annual meeting of shareholders,
each
class of Directors whose term shall then expire shall be elected to hold
office
for a three-year term.
Section
5.03 Vacancies.
If a
vacancy occurs on the Board of Directors, including without limitation a
vacancy
resulting from an increase in the number of Directors, the vacancy shall
be
filled only by a majority vote of the Continuing Directors (as defined below)
with the Director so elected to serve for the remainder of the term of the
Director being replaced or, in the case of an additional Director, for the
remainder of the term of the class to which the Director has been assigned.
When
the number of Directors is changed, subject to the rights of the holders
of any
series of Preferred Stock, any newly created directorships or any decrease
in
directorships shall be so assigned among the classes by a majority of the
Continuing Directors then in office, though less than a quorum, so as to
make
all classes as nearly equal in number as possible. No decrease in the number
of
Directors shall have the effect of shortening the term of any incumbent
Director. A “Continuing
Director”
for
purposes of this Article V means any Director then serving who was a member
of
the Corporation’s Board of Directors on the date on which these Articles of
Incorporation became effective under the Act, or who was recommended for
appointment or election (before such person’s initial assumption of office as a
Director) by a majority of the Continuing Directors or a nominating committee
of
the Board consisting solely of Continuing Directors.
Section
5.04 Removal.
Directors may be removed from office at any time, with or without cause,
by the
affirmative vote of the holders of a majority of the voting power of all
of the
shares of the class or classes of Common Stock, or series of Preferred Stock,
that elected them. Directors may be removed by the Board of Directors at
any
time, but only for cause. For purposes of this Section 5.04, the term
“cause”
means
an act or acts of dishonesty by a Director
constituting
a felony under applicable law or resulting or intending to result directly
or
indirectly in improper gain to or personal enrichment of such Director at
the
Corporation’s expense.
Section
5.05 Shareholder
Nomination of Director Candidates and Introduction of Business.
Advance
notice of shareholder nominations for the election of Directors and of business
to be brought by shareholders before any meeting of the shareholders of the
Corporation shall be given in the manner provided in the Corporation’s Code of
By-Laws.
Section
5.06 Calling
of Special shareholder Meetings.
Special
meetings of the shareholders of the Corporation may only be called by the
Chairman of the Board of Directors or by the Board of Directors pursuant
to a
resolution adopted by a majority of the total number of Directors of the
Corporation.
Section
5.07 Code
of By-Laws.
The
Board of Directors of the Corporation shall have power, without the assent
or
vote of the shareholders, to make, alter, amend or repeal the Code of By-Laws
of
the Corporation by the affirmative vote of a number of Directors equal to
a
majority of the number who constitute a full Board of Directors at the time
of
such action. Shareholders shall not have any power to make, alter, amend
or
repeal the Corporation’s Code of By-Laws.
Section
5.08 Factors
to be Considered by Board.
In
addition to any other considerations which the Board of Directors may lawfully
take into account, in determining whether to take or to refrain from taking
corporate action on any matter, including without limitation making or declining
to make any recommendation to the shareholders of the Corporation, the Board
of
Directors may in its discretion consider the long-term as well as short-term
best interests of the Corporation (including without limitation the possibility
that these interests may be best served by the continued independence of
the
Corporation), taking into account, and weighing as the Directors deem
appropriate, the social and economic effects of such action on present and
future employees, suppliers, customers of the Corporation and its subsidiaries,
the effect upon communities in which offices or other facilities of the
Corporation are located, and the effect on the Corporation’s ability to fulfill
its obligations, and any other factors the Directors consider
pertinent.
Section
5.09 Authorized
Board of Director Actions.
In
furtherance and not in limitation of the powers conferred by law or in these
Articles of Incorporation, the Board of Directors (and any committee of the
Board of Directors) is expressly authorized, to the extent permitted by law,
to
take such action or actions as the Board or such committee may determine
to be
reasonably necessary or desirable to (a) encourage any person to enter into
negotiations with the Board of Directors or such committee and management
of the
Corporation with respect to any transaction which (alone or taken together
with
other transactions) may result in a change in control of the Corporation
and
which is proposed or initiated by such person or (b) contest or oppose any
such
transaction which the Board of Directors or such committee determines to
be
unfair, abusive or otherwise undesirable with respect to the Corporation
and its
business, assets or properties or the shareholders of the Corporation, including
without limitation the adoption of such plans or the issuance of such rights,
options, capital stock, notes, debentures or other evidence of indebtedness
or
other securities of the Corporation (which issuance may be with or without
consideration, and may (but need not) be issued pro rata), which rights,
options, capital stock, notes, evidences of indebtedness and other securities
(i) may be exchangeable for or convertible
into
cash
or other securities on such terms and conditions as may be determined by
the
Board of Directors or such committee and (ii) may provide for the treatment
of
any holder or class of holders thereof designated by the Board of Directors
or
any such committee in respect of the terms, conditions, provisions and rights
of
such securities which is different from, and unequal to, the terms, conditions,
provisions and rights applicable to all other holders thereof. For purposes
of
this Section 5.09, a “person”
shall
include an individual, a group acting in concert, a corporation, a limited
liability company, a partnership, an association, a joint venture, a pool,
a
joint stock company, a trust, an unincorporated organization or similar company,
a syndicate or any other group formed for the purpose of acquiring, holding
or
disposing of securities.
Section
5.10 Amendment,
Repeal.
Notwithstanding anything contained in these Articles of Incorporation or
the
Code of By-Laws of the Corporation to the contrary and notwithstanding that
a
lesser percentage or no vote may be specified by law, but in addition to
any
affirmative vote of the holders of any particular class or series of capital
stock of the Corporation required by law or any Preferred Stock Designation,
the
affirmative vote of the holders of at least 80% of the voting power of all
of
the then-outstanding shares of voting capital stock of the Corporation, voting
together as a single class, shall be required to alter, amend, change or
repeal
this Article V.
ARTICLE
VI
Provisions
for Regulation of Business and Conduct of Affairs of
Corporation
Section
6.01 Amendments
of Articles of Incorporation.
Except
as otherwise provided in Article V or Article VII hereof, the Corporation
reserves the right to increase or decrease the number of its authorized shares,
or any class or series thereof, and to reclassify the same, and to amend,
alter,
change or repeal any provision contained in these Articles of Incorporation,
or
any amendment hereto, or to add any provision to these Articles of Incorporation
or to any amendment hereto, in any manner now or hereafter prescribed or
permitted by the Act or any other applicable laws, and all rights and powers
conferred upon shareholders, Directors and/or Officers of the Corporation
in
these Articles of Incorporation are granted subject to this reserve power.
No
shareholder has a vested property right resulting from any provision in these
Articles of Incorporation, or authorized to be in the Code of By-Laws of
the
Corporation or these Articles of Incorporation by the Act, including without
limitation provisions relating to management, control, capital structure,
dividend entitlement, or purpose or duration of the Corporation.
Section
6.02 Action
by shareholders.
Meetings of the shareholders of the Corporation shall be held at such place,
within or without the State of Indiana, as may be specified in the Code of
By-Laws of the Corporation or in the respective notices, or waivers of notice,
thereof. Any action required or permitted to be taken at any meeting of the
shareholders may be taken without a meeting by written consent as provided
in
the Code of By-Laws of the Corporation. If the Corporation does not have
a class
of voting shares registered with the Securities and Exchange Commission at
the
time action is to be taken by the shareholders and the action is taken by
written consent pursuant to Section 23-1-29-4.5 of the Act, no prior notice
of
the proposed action shall be required to be given to the shareholders.
Section
6.03 Action
by Directors.
Meetings of the Board of Directors of the Corporation or any committee thereof
shall be held at such place, within or without the State of Indiana, as
may
be
specified in the Code of By-Laws of the Corporation or in the respective
notices, or waivers of notice, thereof. Any action required or permitted
to be
taken at any meeting of the Board of Directors, or of any committee thereof,
may
be taken without a meeting if a consent in writing setting forth the action
so
taken is signed by all members of the Board of Directors or of such committee,
as the case may be, and such written consent is filed with the minutes of
the
proceedings of such Board or committee.
Section
6.04 Places
of Keeping of Corporate Records.
The
Corporation shall keep at its principal office a copy of (a) these Articles
of
Incorporation, and all amendments thereto currently in effect; (b) its Code
of
By-Laws, and all amendments thereto currently in effect; (c) minutes of all
meetings of the shareholders and records of all actions taken by the
shareholders without a meeting for the prior three years; (d) all written
communications by the Corporation to the shareholders, including without
limitation the financial statements furnished by the Corporation to the
shareholders for the prior three years; (e) a list of the names and business
addresses of the current Directors and the current Officers of the Corporation;
and (f) the most recent Annual Report of the Corporation as filed with the
Secretary of State of Indiana. The Corporation shall also keep and maintain
at
its principal office, or at such other place or places within or without
the
State of Indiana as may be provided from time to time, in the Code of By-Laws,
(i) minutes of all meetings of the Board of Directors and of each committee
of
the Board, and records of all actions taken by the Board of Directors and
by
each committee without a meeting; (ii) appropriate accounting records of
the
Corporation; and (iii) a record of the shareholders in a form that permits
preparation of a list of the names and addresses of all the shareholders,
in
alphabetical order, stating the number of shares held by each shareholder.
All
of the records of the Corporation described in this Section 6.04 (collectively,
the “Corporate
Records”)
shall
be maintained in written form or in another form capable of conversion into
written form within a reasonable time.
Section
6.05 Limitation
of Liability and Reliance on Corporate Records and Other
Information.
(a) General
Limitation.
No
Director, member of any committee of the Board of Directors or of another
committee appointed by the Board, or Officer of the Corporation (“Corporate
Person”)
shall
be liable for any loss or damage if, in taking or omitting to take any action
causing such loss or damage, either (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)(i) above (the “Standards
of Conduct”)
did
not constitute willful misconduct or recklessness.
(b) 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 without limitation
financial statements and other financial data) prepared or presented by (A)
one
or more other Corporate Persons, any employee or agent of the Corporation,
or
any director, officer, partner, member, manager, trustee, employee or agent
of
another enterprise, whom such
Corporate
Person reasonably believes to be competent in the matters presented, (B)
legal
counsel, public accountants or other persons as to matters that such Corporate
Person reasonably believes are within such person’s professional or expert
competence, (C) a committee of the Board of Directors or other committee
appointed by the Board of Directors, of which such Corporate Person is not
a
member, if such Corporate Person reasonably believes such committee of the
Board
of Directors or such appointed committee merits confidence, or (D) the Board
of
Directors, if such Corporate Person is not a Director and reasonably believes
that the Board merits confidence. The term “another
enterprise”
as used
in this Section 6.05(b) shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or
other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, partner, member, manager, trustee, employee
or agent. The provisions of this Section 6.05(b) shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may
be
deemed to have met the Standards of Conduct.
Section
6.06 Interest
of Directors in Contracts.
Any
contract or other transaction between the Corporation and (i) any Director,
or
(ii) any corporation, unincorporated association, business trust, estate,
partnership, trust, joint venture, individual or other legal entity
(“Legal
Entity”)
in
which the Director has a material financial interest, or in which the Director
is a general partner, or in which the Director is a director, officer or
trustee
(collectively, a “Conflict
Transaction”),
shall
be valid for all purposes, if the material facts of the Conflict Transaction
and
the Director’s interest were disclosed or known to the Board of Directors, a
committee of the Board of Directors with authority to act thereon, or the
shareholders entitled to vote thereon, and the Board of Directors, such
committee or such shareholders authorized, approved or ratified the Conflict
Transaction. A Conflict Transaction is authorized, approved or
ratified:
(a) By
the
Board of Directors or such committee, if it receives the affirmative vote
of a
majority of the Directors who have no interest in the Conflict Transaction,
notwithstanding the fact that such majority may not constitute a quorum or
a
majority of the Board of Directors or such committee or a majority of the
Directors present at the meeting, and notwithstanding the presence or vote
of
any Director who does have such an interest; provided,
however,
that no
Conflict Transaction may be authorized, approved or ratified by a single
Director; and
(b) By
such
shareholders, if it receives the vote of a majority of the shares entitled
to
vote on the Conflict Transaction; provided,
however,
that a
majority of such shares shall constitute a quorum for the purpose of
authorizing, approving or ratifying the Conflict Transaction. Shares owned
or
voted under the control of any Director who, or of any Legal Entity that,
has an
interest in the Conflict Transaction shall be entitled to vote on such Conflict
Transaction.
This
Section 6.06 shall not be construed to require authorization, ratification
or
approval by the shareholders of any Conflict Transaction, or to invalidate
any
Conflict Transaction that would otherwise be valid under the common and
statutory law applicable thereto.
Section
6.07 Compensation
of Directors.
Notwithstanding Section 6.06 above, the Board of Directors is hereby
specifically authorized to make provision, either in and by the Code of By-Laws
of the Corporation or by resolution duly adopted by the Board of Directors,
for
reasonable
compensation to its members for their services as Directors, and to fix the
basis and conditions upon which such compensation shall be paid. Any Director
of
the Corporation may also serve the Corporation in any other capacity and
receive
compensation therefor in any form.
Section
6.08 Direction
of Purposes and Exercise of Powers by Directors.
The
Board of Directors, subject to any specific limitations or restrictions imposed
by the Act or these Articles of Incorporation, shall direct the carrying
out of
the purposes and exercise the powers of the Corporation, without previous
authorization or subsequent approval by the shareholders of the
Corporation.
ARTICLE
VII
Provisions
for Regulation of Certain Business Combinations
Section
7.01 Business
Combinations During Five-Year Period.
Any
Business Combination (as defined in this Article VII) consummated during
the
five-year period beginning on the date the Interested Shareholder (as defined
in
this Article VII) became an Interested Shareholder must:
(a) satisfy
the requirements of Chapter 43 of the Act (so long as Chapter 43 of the Act
is
applicable to the Corporation), including without limitation the affirmative
vote of the Board of Directors required by Chapter 43, and any other provisions
of these Articles of Incorporation, any other provision of law, and any
Preferred Stock Designation; and
(b) meet
one
of the following conditions:
(i) The
Business Combination must have been approved by a majority of the Non-Interested
Directors (as defined in this Article VII) before the Interested Shareholder
became an Interested Shareholder; or
(ii) Both
(A)
the acquisition of shares causing the Interested Shareholder to become an
Interested Shareholder must have been approved by a majority of the
Non-Interested Directors before the date of such acquisition, and (B) the
Business Combination must have been approved by a majority of the Non-Interested
Directors before the Business Combination was consummated; or
(iii) The
Business Combination must have been approved by 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 capital stock of the Corporation, voting
together as a single class. This affirmative vote shall be required
notwithstanding that any other provisions of these Articles of Incorporation,
or
Chapter 43 of the Act or any other provision of law, or any Preferred Stock
Designation, or any agreement with any national securities exchange or otherwise
that might otherwise permit a lesser vote or no vote.
Section
7.02 Business
Combinations After Five-Year Period.
Any
Business Combination consummated after the five-year anniversary of the date
the
Interested Shareholder became an Interested Shareholder must:
(a) satisfy
the requirements of Chapter 43 of the Act (so long as Chapter 43 of the Act
is
applicable to the Corporation), including without limitation the affirmative
vote of the Board of Directors required by Chapter 43, and any other provisions
of these Articles of Incorporation, any other provision of law, and any
Preferred Stock Designation; and
(b) in
the
case of a Business Combination that does not involve any cash or other
consideration being received by the shareholders of the Corporation, solely
in
their capacity as shareholders of the Corporation, satisfy the condition
specified in Section 7.02(b)(i) below or, in the case of any other Business
Combination, the condition specified in either Section 7.02(b)(i) or Section
7.02(b)(ii) below:
(i) Approval
by Non-Interested Directors.
The
Business Combination must have been approved by a majority of the Non-Interested
Directors before the Business Combination was consummated.
(ii) Price
and Procedure Requirements.
All of
the following conditions must have been met:
(A) The
consideration to be received by holders of a particular class (or series)
of
outstanding shares of capital stock of the Corporation (including without
limitation Common Stock) shall be in cash or in the same form as the Interested
Shareholder or any of its Affiliates has previously paid for shares of such
class (or series). If the Interested Shareholder or any of its Affiliates
has
paid for shares of any class (or series) with varying forms of consideration,
the form of consideration to be received per share by holders of shares of
such
class (or series) shall be either cash or the form used to acquire the largest
number of shares of such class (or series) previously acquired by the Interested
Shareholder.
(B) The
aggregate amount of (x) the cash and (y) the Fair Market Value of the
consideration other than cash to be received per share by holders of Common
Stock in the Business Combination, determined as of the date of the consummation
of the Business Combination (the “Consummation
Date”),
shall
be at least equal to the higher of the following (in each case appropriately
adjusted in the event of any share dividend, share split, combination of
shares
or similar event):
(1) (if
applicable) the highest per share price (including without limitation any
brokerage commissions, transfer taxes and soliciting dealers’ fees) paid by the
Interested Shareholder or any of its Affiliates for any shares of Common
Stock
acquired by them within the two-year period immediately prior to the date
of the
first public announcement of the proposal of the Business Combination (the
“Announcement
Date”)
or in
any transaction in which the Interested Shareholder became an Interested
Shareholder, whichever is higher; plus, in either case, interest compounded
annually from the earliest date on which the highest per share acquisition
price
was paid through the Consummation Date at the rate for one year United States
Treasury
obligations
from time to time in effect; less the aggregate amount of any cash dividends
paid and the Fair Market Value of any dividends paid other than in cash,
per
share of Common Stock, since such earliest date, up to the amount of the
interest; and
(2) the
Fair
Market Value per share of Common Stock on the Announcement Date or on the
date
on which the Interested Shareholder became an Interested Shareholder (the
“Determination
Date”),
whichever is higher; plus, in either case, interest compounded annually from
the
earliest date on which the highest per share acquisition price was paid through
the Consummation Date at the rate for one year United States Treasury
obligations from time to time in effect; less the aggregate amount of any
cash
dividends paid and the Fair Market Value of any dividends paid other than
in
cash, per share of Common Stock, since such earliest date, up to the amount
of
the interest.
(C) The
aggregate amount of (x) the cash and (y) the Fair Market Value, determined
as of
the Consummation Date, of the consideration other than cash to be received
per
share by holders of shares of any class (or series) of outstanding capital
stock
of the Corporation, other than Common Stock, shall be at least equal to the
highest of the following (in each case appropriately adjusted in the event
of
any share dividend, share split, combination of shares or similar event),
it
being intended that the requirements of this subparagraph (C) shall be required
to be met with respect to every such class (or series) of outstanding shares
of
capital stock of the Corporation, other than Common Stock, whether or not
the
Interested Shareholder or any of its Affiliates has previously acquired any
shares of a particular class (or series):
(1) (if
applicable) the highest per share price (including without limitation any
brokerage commissions, transfer taxes and soliciting dealers’ fees) paid by the
Interested Shareholder or any of its Affiliates for any shares of such class
(or
series) acquired by them within the two-year period immediately prior to
the
Announcement Date or in any transaction in which it became an Interested
Shareholder, whichever is higher; plus, in either case, interest compounded
annually from the earliest date on which the highest per share acquisition
price
was paid through the Consummation Date at the rate for one year United States
Treasury obligations from time to time in effect; less the aggregate amount
of
any cash dividends paid and the Fair Market Value of any dividends paid other
than in cash, per share of such class (or series), since such earliest date,
up
to the amount of the interest;
(2) the
Fair
Market Value per share of such class (or series) on the Announcement Date
or on
the Determination Date, whichever is higher; plus, in either case, interest
compounded annually from the earliest date on which the highest per share
acquisition price was paid through the Consummation Date at the rate for
one
year United States
Treasury
obligations from time to time in effect; less the aggregate amount of any
cash
dividends and the Fair Market Value of any dividends paid other than in cash,
per share of such class (or series), since such earliest date, up to the
amount
of the interest; and
(3) (if
applicable) the highest preferential amount per share, if any, to which the
holders of shares of such class (or series) would be entitled in the event
of
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; plus the aggregate amount of any dividends declared or due as
to
which the holders are entitled before payment of dividends on some other
class
or series of shares (unless the aggregate amount of the dividends is included
in
the preferential amount).
(D) After
such Interested Shareholder has become an Interested Shareholder and prior
to
the consummation of such Business Combination:
(1) except
as
approved by a majority of the Non-Interested Directors, there shall have
been no
failure to declare and pay at the regular date therefor any full dividends
(whether or not cumulative) on any outstanding shares of Preferred
Stock;
(2) there
shall have been (i) no reduction in the annual rate of dividends paid on
the
Common Stock (except as necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the Non-Interested Directors,
and
(ii) an increase in such annual rate of dividends as necessary to reflect
any
reclassification (including without limitation any reverse share split),
recapitalization, reorganization or any similar transaction which 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 Non-Interested
Directors; and
(3) neither
such Interested Shareholder nor any of its Affiliates shall have become the
beneficial owner of any additional voting shares of capital stock of the
Corporation except as part of the transaction which results in such Interested
Shareholder becoming an Interested Shareholder.
(E) After
such Interested Shareholder has become an Interested Shareholder, such
Interested Shareholder and any of its Affiliates shall not have received
the
benefit, directly or indirectly (except proportionately, solely in such
Interested Shareholder’s or Affiliate’s capacity as a shareholder of the
Corporation), of any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided by the
Corporation, whether in anticipation of or in connection with such Business
Combination or otherwise.
(F) A
proxy
or information statement describing the proposed Business Combination and
complying with the requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (or any subsequent provisions
replacing such Exchange Act, rules or regulations) shall be mailed to all
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 such Exchange
Act or
subsequent provisions).
(G) Such
Interested Shareholder shall have provided the Corporation with such information
as shall have been requested pursuant to Section 7.05 within the time period
set
forth therein.
Section
7.03 Certain
Definitions.
For the
purposes of this Article VII:
(a) “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.
(b) A
person
shall be a “Beneficial
Owner”
of any
voting shares and the voting shares shall be “Beneficially
Owned”
by the
person:
(i) which
such person or any of its Affiliates or Associates beneficially owns, directly
or indirectly, within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934; or
(ii) which
such person or any of its Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only after the passage
of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise (however, a person is not considered the beneficial owner of shares
tendered under a tender or exchange offer made by the person or any of the
person’s Affiliates or Associates until the tendered shares are accepted for
purchase or exchange), or (B) the right to vote pursuant to any agreement,
arrangement or understanding (but neither such person nor any such Affiliate
or
Associate shall be deemed to be the beneficial owner of any voting shares
solely
by reason of a revocable proxy granted for a particular meeting of shareholders,
pursuant to a public solicitation of proxies for such meeting, and with respect
to which shares neither such person nor any such Affiliate or Associate is
otherwise deemed the beneficial owner); or
(iii) which
are
beneficially owned, directly or indirectly, within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, by any other person with which
such
person or any of its Affiliates or Associates has any agreement, arrangement
or
understanding for the purpose of acquiring, holding, voting (other than solely
by reason of a revocable proxy as described in subparagraph (ii) of this
Section
7.03(b)) or disposing of any voting shares; provided,
however,
that in
the case of any employee stock ownership or similar plan of the Corporation
or
of any Subsidiary (as
defined
in this Article VII) in which the beneficiaries thereof possess the right
to
vote any voting shares held by such plan, no such plan nor any trustee with
respect thereto (nor any Affiliate of such trustee), solely by reason of
such
capacity of such trustee, shall be deemed, for any purpose hereof, to
beneficially own any voting shares held under any such plan.
(c) “Business
Combination”
means
any of the following transactions:
(i) any
merger or consolidation of the Corporation or any Subsidiary with (A) any
Interested Shareholder, or (B) any other corporation, limited liability company
or other entity (whether or not itself an Interested Shareholder) which is,
or
after such merger or consolidation would be, an Affiliate of an Interested
Shareholder; or
(ii) any
sale,
lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Interested Shareholder
or any Affiliate of any Interested Shareholder, of any assets of the Corporation
or any Subsidiary having an aggregate Fair Market Value equaling or exceeding
twenty-five percent (25%) or more of the Fair Market Value of the combined
assets of the Corporation and its Subsidiaries; or
(iii) the
issuance or transfer by the Corporation or any Subsidiary (in one transaction
or
a series of transactions) of any voting securities of the Corporation or
any
Subsidiary to any Interested Shareholder or any Affiliate of any Interested
Shareholder in exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value equaling or exceeding twenty-five
percent (25%) of the Fair Market Value of the combined assets of the Corporation
and its Subsidiaries except pursuant to an employee benefit plan of the
Corporation or any Subsidiary thereof; or
(iv) 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
(v) any
reclassification of securities (including without limitation any share split,
share dividend, other distribution of shares in respect of shares, or any
reverse share split) or recapitalization of the Corporation, or any merger
or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving any Interested
Shareholder) which has the effect, directly or indirectly, of increasing
the
proportionate share of the outstanding shares of any class or series of equity
or convertible securities of the Corporation or any Subsidiary which is
Beneficially Owned directly or indirectly by any Interested Shareholder or
any
Affiliate of any Interested Shareholder.
(d) In
the
event of any Business Combination in which the Corporation survives, the
phrase
“consideration
other than cash to be received”
as used
in Section 7.02(b)(ii)(B) and Section 7.02(b)(ii)(C) shall include the Common
Stock and/or the shares of any other class (or series) of outstanding shares
retained by the holders of those shares.
(e) “Fair
Market Value”
means:
(i) in
the
case of stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share on the composite tape
for
New York Stock Exchange listed shares, or, if the shares are not quoted on
the
composite tape, on the New York Stock Exchange, or, if the shares are not
listed
on such Exchange, on the principal United States securities exchange registered
under the Securities Exchange Act of 1934, as amended, on which the shares
are
listed, or, if the shares are not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or if
no
such quotations are available, the fair market value on the date in question
of
a share as determined by the Board of Directors of the Corporation in accordance
with Section 7.04, in each case with respect to any class of shares,
appropriately adjusted for any dividend or distribution in shares or any
combination or reclassification of outstanding shares into a smaller number
of
shares; and
(ii) in
the
case of property other than cash or stock, the fair market value of such
property on the date in question as determined by the Board of Directors
of the
Corporation in accordance with Section 7.04.
(g) Reference
to “highest
per share price”
shall
in each case with respect to any class of shares reflect an appropriate
adjustment for any dividend or distribution in shares or any share split
or
reclassification of outstanding shares into a greater number of shares or
any
combination or reclassification of outstanding shares into a smaller number
of
shares.
(h) “Interested
Shareholder”
means
any person (other than the Corporation, any Subsidiary or any person who
would
otherwise be deemed to be an Interested Shareholder on the date on which
these
Articles of Incorporation became effective under the Act) who or
which:
(i) is
the
Beneficial Owner, directly or indirectly, of ten percent (10%) or more of
the
voting power of the outstanding voting shares of capital stock of the
Corporation; or
(ii) is
an
Affiliate or an Associate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the Beneficial Owner,
directly or indirectly, of ten percent (10%) or more of the voting power
of the
then-outstanding voting shares of capital stock of the Corporation;
or
(iii) is
an
assignee of or has otherwise succeeded to any voting shares which were at
any
time within the two-year period immediately prior to the date in question
Beneficially Owned by any Interested Shareholder, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933, as amended.
(i) “Non-Interested
Director”
means
any member of the Board of Directors of the Corporation who is not the
Interested Shareholder or an Affiliate of the Interested
Shareholder
and was a member of the Board prior to the time that the Interested Shareholder
became an Interested Shareholder, and any person who is thereafter chosen
to
fill any vacancy on the Board of Directors or who is elected and who, in
either
event, is not the Interested Shareholder or an Affiliate of the Interested
Shareholder and in connection with his or her initial assumption of office
is
recommended for appointment or election by a majority of Non-Interested
Directors then on the Board.
(j) For
the
purposes of determining whether a person is an Interested Shareholder pursuant
to Section 7.03(h), the number of voting shares deemed to be outstanding
shall
include shares deemed owned through application of Section 7.03(b) but shall
not
include any other unissued voting shares which may be issuable pursuant to
any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(k) A
“person”
shall
include an individual, a group acting in concert, a corporation, a partnership,
an association, a limited liability company, a joint venture, a pool, a joint
stock company, a trust, an unincorporated organization or similar company,
a
syndicate or any other group formed for the purpose of acquiring, holding
or
disposing of securities.
(l) “Subsidiary”
means
any corporation or limited liability company 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
Section 7.03(h), the term “Subsidiary”
shall
mean only a corporation or limited liability company of which a majority
of each
class of equity security is owned, directly or indirectly, by the
Corporation.
Section
7.04 Powers
of the Board of Directors.
A
majority of the total number of Directors of the Corporation, but only if
a
majority of the Directors shall then consist of Non-Interested Directors
or, if
a majority of the total number of Directors shall not then consist of
Non-Interested Directors, a majority of the then Non-Interested Directors,
shall
have the power and duty to determine, in good faith, on the basis of information
known to them after reasonable inquiry, all facts necessary to determine
compliance with this Article VII, including without limitation (a) whether
a
person is an Interested Shareholder, (b) the number of voting shares
Beneficially Owned by any person, (c) whether a person is an Affiliate or
Associate of another, (d) whether the applicable conditions set forth in
Section
7.01 or Section 7.02 have been met with respect to any Business Combination,
and
(e) whether the assets which are the subject of any Business Combination
referred to in Section 7.03(c)(ii) have, or the consideration to be received
for
the issuance or transfer of securities by the Corporation or any Subsidiary
in
any Business Combination referred to in Section 7.03(c)(iii) has, an aggregate
Fair Market Value equaling or exceeding twenty-five percent (25%) of the
combined assets of the Corporation and its Subsidiaries.
Section
7.05 Information
to be Supplied to the Corporation.
A
majority of the total number of Directors of the Corporation, but only if
a
majority of the Directors shall then consist of Non-Interested Directors
or, if
a majority of the total number of Directors shall not then consist of
Non-Interested Directors, a majority of the then Non-Interested Directors,
shall
have the right to demand that any person who is reasonably believed to be
an
Interested Shareholder (or holder of record of voting shares Beneficially
Owned
by any Interested Shareholder) supply
the
Corporation with complete information as to (a) the record owner(s) of all
shares Beneficially Owned by such person who it is reasonably believed is
an
Interested Shareholder, (b) the number of, and class or series of, shares
Beneficially Owned by such person who is reasonably believed to be an Interested
Shareholder and held of record by each such record owner and the number(s)
of
the certificate(s) evidencing such shares, and (c) any other factual matter
relating to the applicability or effect of this Article VII, as may be
reasonably requested of such person, and such person shall furnish such
information within ten (10) days after receipt of such demand.
Section
7.06 No
Effect on Fiduciary Obligations of Interested Shareholders.
Nothing
contained in this Article VII shall be construed to relieve any Interested
Shareholder from any fiduciary obligation imposed by law.
Section
7.07 Redemption
of Shares Acquired in Control Share Acquisitions.
If and
whenever the provisions of Chapter 42 of the Act apply to the Corporation,
the
Corporation is authorized to redeem its securities pursuant to IC
23-1-42-10.
Section
7.08 Amendment,
Repeal.
Notwithstanding anything contained in these Articles of Incorporation or
the
Code of By-Laws of the Corporation to the contrary and notwithstanding that
a
lesser percentage or no vote may be specified by law, but in addition to
any
affirmative vote of the holders of any particular class or series of capital
stock of the Corporation required by law or any Preferred Stock Designation,
the
affirmative vote of the holders of at least 80% of the voting power of all
of
the then-outstanding shares of voting capital stock of the Corporation, voting
together as a single class, shall be required to alter, amend, change or
repeal
this Article VII.
ARTICLE
VIII
Indemnification
Section
8.01 General.
The
Corporation, to the fullest extent to which it is empowered to do so by the
Act,
or any other applicable laws, as from time to time in effect, shall indemnify
any Director or Officer of the Corporation and, if approved as provided in
the
last sentence of this Section 8.01, any employee or agent of the Corporation,
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, by reason
of the
fact that he or she is or was a Director, Officer, employee or agent of the
Corporation, or who, while serving as such Director, Officer, employee or
agent
of the Corporation, is or was serving at the request of the Corporation as
a
director, officer, partner, member, manager, trustee, employee or agent of
another corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise, whether for profit or not,
against expenses (including without limitation counsel fees), judgments,
settlements, penalties and fines (including without limitation excise taxes
assessed with respect to employee benefit plans) actually or reasonably incurred
by him or her in accordance with such action, suit or proceeding, if he or
she
acted in good faith and in a manner he or she reasonably believed, in the
case
of conduct in his or her official capacity, was in the best interest of the
Corporation, and in all other cases, was not opposed to the best interests
of
the Corporation, and, with respect to any criminal action or proceeding,
he or
she either had reasonable cause to believe his or her conduct was lawful
or no
reasonable cause to believe his or her conduct was unlawful. The termination
of
any
action, suit or proceeding by judgment, order, settlement or conviction,
or upon
a plea of nolo
contendere
or its
equivalent, shall not, of itself, create a presumption that the person did
not
meet the prescribed standard of conduct. An employee or agent of the Corporation
shall receive indemnification under this Section 8.01 only if approved (a)
by
the Board of Directors by a majority vote of a quorum consisting of Directors
who were not at the time parties to such action, suit or proceeding, or (b)
if a
quorum cannot be obtained under Clause (a), by a majority vote of a committee
duly designated by the Board of Directors (in which designation Directors
who
are parties may participate), consisting solely of two or more Directors
not at
the time parties to such action, suit or proceeding.
Section
8.02 Authorization
of Indemnification.
To the
extent that a Director, Officer or, if indemnification under Section 8.01
is
approved by the Board of Directors, employee or agent of the Corporation
has
been successful, on the merits or otherwise, in the defense of any action,
suit
or proceeding referred to in Section 8.01, or in the defense of any claim,
issue
or matter therein, the Corporation shall indemnify such person against expenses
(including without limitation counsel fees) actually and reasonably incurred
by
such person in connection therewith. Any other indemnification under Section
8.01 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case, upon a determination that indemnification
of
the Director, Officer, employee or agent is permissible in the circumstances
because he or she has met the applicable standard of conduct. Such determination
shall be made (a) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not at the time parties to such action,
suit or
proceeding; (b) if a quorum cannot be obtained under Clause (a), by a majority
vote of a committee duly designated by the Board of Directors (in which
designation Directors who are parties may participate), consisting solely
of two
or more Directors not at the time parties to such action, suit or proceeding;
(c) by special legal counsel: (i) selected by the Board of Directors or its
committee in the manner prescribed in Clause (a) or (b), or (ii) if a quorum
of
the Board of Directors cannot be obtained under Clause (a) and a committee
cannot be designated under Clause (b), selected by a majority vote of the
full
Board of Directors (in which selection Directors who are parties may
participate); or (d) by the holders of shares of Common Stock, but shares
owned
by or voted under the control of Directors who are at the time parties to
such
action, suit or proceeding may not be voted on the determination.
Authorization
of indemnification and evaluation as to reasonableness of expenses shall
be made
in the same manner as the determination that indemnification is permissible,
except that if the determination is made by special legal counsel, authorization
of indemnification and evaluation as to reasonableness of expenses shall
be made
by those entitled under Clause (c) above to select such counsel.
Section
8.03 Good
Faith Defined.
For
purposes of any determination under Section 8.01, a person shall be deemed
to
have acted in good faith and to have otherwise met the applicable standard
of
conduct set forth in Section 8.01 if his or her action is based on (a) the
Corporate Records, or (b) information, opinions, reports or statements
(including without limitation financial statements and other financial data)
prepared or presented by (i) one or more other Corporate Persons, any employee
or agent of the Corporation, or any director, officer, partner, trustee,
member,
manager, employee or agent of another enterprise, whom he or she reasonably
believes to be competent in the matters presented, (ii) legal counsel, public
accountants or other persons as to matters that he or she reasonably believes
are within such
person’s
professional or expert competence, (C) a committee of the Board of Directors
or
other committee appointed by the Board of Directors, of which he or she is
not a
member, if he or she reasonably believes such committee of the Board of
Directors or such appointed committee merits confidence, or (D) the Board
of
Directors, if he or she is not a Director and reasonably believes that the
Board
merits confidence. The term “another
enterprise”
as used
in this Section 8.03 shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or
other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, partner, member, manager, trustee, employee
or agent. The provisions of this Section 8.03 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may
be
deemed to have met the applicable standards of conduct set forth in Section
8.01.
Section
8.04 Payment
of Expenses in Advance.
Expenses incurred in connection with any civil or criminal action, suit or
proceeding shall be paid for or reimbursed by the Corporation in advance
of the
final disposition of such action, suit or proceeding, as authorized in the
specific case in the same manner described in Section 8.02, upon receipt
of a
written affirmation of the Director, Officer, employee or agent’s good faith
belief that he or she has met the standard of conduct described in Section
8.01,
and upon receipt of a written undertaking by or on behalf of the Director,
Officer, employee or agent to repay such amount if it shall ultimately be
determined that he or she did not meet the standard of conduct set forth
in this
Article VIII, and a determination is made that the facts then known to those
making the determination would not preclude indemnification under this Article
VIII.
Section
8.05 Provisions
Not Exclusive.
The
indemnification provided by this Article VIII shall not be deemed exclusive
of
any other rights to which a person seeking indemnification may be entitled
under
(a) these Articles of Incorporation, (b) the Corporation’s Code of By-Laws, (c)
any resolution of the Board of Directors, (d) any resolution or other
authorization, whenever adopted in accordance with the Act and these Articles
of
Incorporation and the Corporation’s Code of By-laws, by a majority vote of all
voting capital stock then outstanding, or (e) any contract, both as to action
in
his or her official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a Director,
Officer, employee or agent, and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section
8.06 Vested
Right to Indemnification.
The
right of any individual to indemnification under this Article VIII shall
vest at
the time of occurrence or performance of any event, act or omission giving
rise
to any action, suit or proceeding of the nature referred to in Section 8.01
and,
once vested, shall not later be impaired as a result of any amendment, repeal,
alteration or other modification of any or all of these provisions.
Notwithstanding the foregoing, the indemnification afforded under this Article
VIII shall be applicable to all alleged prior acts or omissions of any
individual seeking indemnification hereunder, regardless of the fact that
such
alleged acts or omissions may have occurred prior to the adoption of this
Article VIII. To the extent such prior acts or omissions cannot be deemed
to be
covered by this Article VIII, the right of any individual to indemnification
shall be governed by the indemnification provisions in effect at the time
of
such prior acts or omissions.
Section
8.07 Insurance.
The
Corporation may purchase and maintain insurance on behalf of any person who
is
or was a Director, Officer, employee or agent of the Corporation, or who
is or
was serving at the request of the Corporation as a director, officer, partner,
member, manager, trustee, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan, or
other
enterprise, against any liability asserted against or incurred by the individual
in that capacity or arising from the individual’s status as a Director, Officer,
employee or agent, whether or not the Corporation would have power to indemnify
the individual against the same liability under this Article VIII.
Section
8.08 Additional
Definitions.
For
purposes of this Article VIII, “serving
an employee benefit plan at the request of the Corporation”
shall
include any service as a Director, Officer, employee or agent of the Corporation
which imposes duties on, or involves services by such Director, Officer,
employee, or agent with respect to an employee benefit plan, its participants
or
beneficiaries. A person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a
manner “not
opposed to the best interest of the Corporation”
referred to in this Article VIII.
For
purposes of this Article VIII, “party”
includes any individual who is or was a plaintiff, defendant or respondent
in
any action, suit or proceeding, or who is threatened to be made a named
defendant or respondent in any action, suit or proceeding.
For
purposes of this Article VIII, “official
capacity,”
when
used with respect to a Director, shall mean the office of director of the
Corporation; and when used with respect to an individual other than a Director,
shall mean the office in the Corporation held by the Officer or the employment
or agency relationship undertaken by the employee or agent on behalf of the
Corporation. “Official capacity” does not include service for any other foreign
or domestic corporation or any partnership, limited liability company, joint
venture, trust, employee benefit plan, or other enterprise, whether for profit
or not.
Section
8.09 Payments
as Business Expense.
Any
payments made to any indemnified party under this Article VIII or under any
other right to indemnification shall be deemed to be an ordinary and necessary
business expense of the Corporation, and payment thereof shall not subject
any
person responsible for the payment, or the Board of Directors, to any action
for
corporate waste or to any similar action.
Section
8.10 Limitation.
Notwithstanding any provision of this Article VIII, without advance specific
approval by the Board of Directors, no employee or agent of the Corporation
who
may be entitled to indemnification under this Article VIII, and who was not
a
Director or Officer at the time of the event, act or omission giving rise
to a
claim for indemnity hereunder, shall be entitled to indemnity hereunder if
such
person is or has been a plaintiff or claimant in any action, suit or proceeding
against the Corporation, or any of its Officers or Directors, involving conduct
in their capacities as such.
ARTICLE
IX
Registered
Agent
The
name
and business address of the registered agent at the Corporation’s registered
office is:
John
A.
Martell
1125
South Walnut
South
Bend, Indiana 46619
The
undersigned officer of the Corporation executes these Amended and Restated
Articles of Incorporation of the Corporation and certifies to the truth of
the
facts herein stated this 12th day of September, 2005.
|
/s/
John A. Martell
|
|
John
A. Martell, President
|
20