SCHEDULE 14C
(Rule 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of the Securities
Exchange Act of 1934
Check the appropriate box:
/x/ Preliminary information statement
/ / Confidential, for use of the Commission
only (as permitted by Rule 14c-5(d)(2))
/ / Definitive information statement
CTB International Corp.
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(Name of Registrant as Specified in Its Charter)
Payment of Filing Fee (Check the appropriate box):
/x/ No fee required.
/ / Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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/ / Fee paid previously with preliminary materials.
/ / Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
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(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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<PAGE>
PRELIMINARY COPY
CTB INTERNATIONAL CORP.
STATE ROAD 15 NORTH
MILFORD, INDIANA 46542
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INFORMATION STATEMENT
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TO: The Stockholders of CTB International Corp.:
Pursuant to a Plan and Agreement of Merger dated as
of September 21, 1999 between CTB International Corp., a Delaware
corporation, and CTB Indiana Corp., an Indiana corporation which is a direct
wholly owned subsidiary of CTB International Corp., CTB International will be
merged into CTB Indiana. As a result, CTB International will reincorporate
under the laws of the state of Indiana and each outstanding share of CTB
International common stock will convert into one share of CTB Indiana common
stock.
The merger has been approved by the Boards of Directors of CTB
International and CTB Indiana. The merger has also been approved by written
consent dated September 22, 1999 by American Securities Partners GP
(Management) Corp., as the indirect holder of 100% of the general partnership
interests of American Securities Partners L.P., ASP/CTB GP Corp., as the
direct holder of 100% of the general partnership interests of ASP/CTB L.P.,
Caryl M. Chocola and J. Christopher Chocola. Together, these stockholders
own 6,756,983 shares constituting 56.2% of the outstanding common stock of
CTB International. The merger does not require the vote or consent of any
other stockholder.
No meeting of stockholders will be held to consider approval of the
merger or the merger agreement, and no vote or additional consent of
stockholders is being solicited.
We are not asking you for a proxy and you are requested not to send
us a proxy.
This Information Statement is first being mailed to stockholders of
CTB International on or about ______________, 1999.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
FAIRNESS OR MERITS OF SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY
-3-
<PAGE>
OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
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The date of this Information Statement is _________,
1999.
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<PAGE>
AVAILABLE INFORMATION
CTB International Corp. is subject to the informational requirements
of the Securities Exchange Act of 1934 and, in accordance therewith, files
reports and other information with the Securities and Exchange Commission.
Such reports and other information filed with the Commission are available to
the public over the Internet at the Commission's web site at
http://www.sec.gov and can be inspected and copied at the public reference
facility maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the regional offices of the
Commission located at 7 World Trade Center, New York, New York 10048 and
Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies can also be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. You may call the Commission at 1-800-SEC-0330 for further
information about the public reference rooms.
No person is authorized to give any information or to make any
representation not contained in this Information Statement and, if given or
made, such information or representation should not be relied upon as having
been authorized.
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<PAGE>
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . i
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PRINCIPAL STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . 1
THE REINCORPORATION PROPOSAL . . . . . . . . . . . . . . . . . . . 3
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Principal Reason for the Reincorporation . . . . . . . . . . . . . 3
Manner of Effecting the Reincorporation . . . . . . . . . . . . . 4
Antitakeover Effects of the Reincorporation Proposal . . . . . . . 5
Comparison of Rights of Shareholders . . . . . . . . . . . . . . . 5
Certain United States Federal Income Tax Consequences . . . . . . 18
INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . 19
APPENDIX A - PLAN AND AGREEMENT OF MERGER DATED AS OF SEPTEMBER 21, 1999
BETWEEN CTB INTERNATIONAL CORP. AND CTB INDIANA CORP.
ii
<PAGE>
INTRODUCTION
This Information Statement is being furnished in
connection with the merger to holders of record as of the close of business
on September 21, 1999 of shares of common stock of CTB International. As a
result of the merger, CTB International will reincorporate as an Indiana
corporation. The name of the surviving corporation will be CTB International
Corp.
CTB International is a designer, manufacturer and
marketer of agricultural equipment comprised of animal agriculture systems,
including automated feeding, watering, ventilation, heating and nests, as
well as automated controls; integrated commercial egg production systems; and
grain storage and handling systems. CTB Indiana is a wholly owned subsidiary
of CTB International formed for the purpose of effecting the merger and has
not conducted any other business.
The principal executive offices of CTB International
and CTB Indiana are each located at State Road 15 North, Milford, Indiana
46542, and the telephone number of each at such address is (219) 658-4191.
PRINCIPAL STOCKHOLDERS
As of the date of this Information Statement, there are ________
shares of common stock outstanding held by approximately _____ stockholders of
record. The following table sets forth certain information with respect to
the beneficial ownership of the Common Stock as of [September 21], 1999,
except as otherwise noted, for (i) each person known by CTB International to
beneficially own more than 5% of the Common Stock, (ii) each of CTB
International's directors, (iii) CTB International's Chief Executive Officer,
(iv) each of CTB International's four other most highly compensated executive
officers for 1998, and (v) all current directors and executive officers as a
group. Unless otherwise noted, the address of each of the Stockholders named
below is the CTB International's principal executive office.
<PAGE>
PERCENT OF
NAME OF BENEFICIAL OWNER NUMBER OF SHARES SHARES
Prudential Insurance Company of America . 1,124,000<F1] 9.4%
751 Broad Street
Newark, NJ 07102-3777
State of Wisconsin Investment Board . . . 770,000<F2> 6.4%
P.O. Box 7842
Madison, WI 53707
American Securities Partners . . . . . . 4,127,189 34.4%
G.P. (Management) Corp.
24th Floor
122 East 42nd Street
New York, NY 10168-0002
ASP/CTB G.P. Corp.(4) . . . . . . . . . . 454,706 3.8%
24th Floor
122 East 42nd Street
New York, NY 10168-0002
Michael G. Fisch<F3><F4>. . . . . . . . . 4,581,895 38.1%
Charles D. Klein<F3><F4> . . . . . . . . . 4,581,895 38.1%
Caryl M. Chocola . . . . . . . . . . . . 1,470,501 12.2%
J. Christopher Chocola . . . . . . . . . 4,581,895 38.1%
Victor A. Mancinelli . . . . . . . . . . -- --
Frank S. Hermance . . . . . . . . . . . . 2,000 --
Larry D. Greene . . . . . . . . . . . . . 300 --
David L. Horing . . . . . . . . . . . . . -- --
Gerard van Rooijen . . . . . . . . . . . 1,000 --
Roger W. Townsend . . . . . . . . . . . . 75,437 0.6%
Don J. Steinhilber . . . . . . . . . . . 60,171 0.5%
Mark A. Lantz . . . . . . . . . . . . . . 29,062 0.2%
George W. Murdoch . . . . . . . . . . . . 600 --
All directors and executive officers as a
group . . . . . . . . . . . . . . . . . . 7,097,517 59.1%
[FN]
<F1> Based on Schedule 13G dated February 1, 1999 which indicates as of
December 31, 1998, Prudential Insurance Company of America had sole
voting power over 294,200 shares, shared voting power over 829,800
shares, sole dispositive power over 294,200 shares and shared
dispositive power over 829,800 shares.
<PAGE>
<F2> Based on Schedule 13G dated February 1, 1999 which indicates as of
December 31, 1998, State of Wisconsin Investment Board had sole voting
power over 770,000 shares, shared voting power over no shares, sole
dispositive power over 770,000 shares and shared dispositive power over
no shares.
<F3> Shares of Common Stock shown as beneficially owned by American
Securities Partners GP (Management) Corp. are owned of record by
American Securities Partners, L.P., of which American Securities
Associates, L.P., ("ASALP") is the sole general partner and possesses
sole voting and investment power. American Securities Partners GP
(Management) Corp. is the sole general partner of ASALP and possesses
sole voting and investment power. Messrs. Klein and Fisch as
stockholders of American Securities Partners GP (Management) Corp., may
be deemed to have beneficial ownership of the shares shown as
beneficially owned by American Securities Partners GP (Management) Corp.
Such persons disclaim beneficial ownership of such shares.
<F4> Shares of Common Stock shown as beneficially owned by ASP/CTB G.P. Corp.
are owned of record by ASP/CTB L.P. of which ASP/CTB G.P. Corp. is the
sole general partner and as to which it possesses sole voting and
investment power. Messrs. Klein and Fisch, as stockholders of ASP/CTB
G.P. Corp., may be deemed to have beneficial ownership of the shares
shown as beneficially owned by ASP/CTB G.P. Corp. Such persons disclaim
beneficial ownership of such shares.
THE REINCORPORATION PROPOSAL
General
On September 21, 1999, CTB International's Board of Directors
approved a proposal (the "Reincorporation Proposal") to change the CTB
International's state of incorporation from Delaware to Indiana. This change
(the "Reincorporation") will be accomplished through a merger of the CTB
International into CTB Indiana Corp. ("CTB Indiana"), a wholly owned subsidiary
of CTB International which was recently formed as an Indiana corporation and
the vehicle to effect the Reincorporation. The name of the surviving
corporation following the merger will be CTB International Corp. and reference
hereafter to CTB International will, where appropriate, mean the surviving
corporation. The Reincorporation will be effected pursuant to the terms of
the Plan and Agreement of Merger between CTB International and CTB Indiana
dated as of September 21, 1999 (the "Merger Agreement"). A copy of the Merger
Agreement is attached as Appendix A to this Information Statement.
<PAGE>
As a Delaware corporation, CTB International is governed by the
Delaware General Corporation Law (the "DGCL") and the terms of its Amended and
Restated Certificate of Incorporation (the "Present Charter") and its Amended
and Restated By-Laws (the "Present By-Laws"). Following the Reincorporation,
CTB International will be governed by the Indiana Business Corporation Law
(the "IBCL") and the Restated Articles of Incorporation (the "New Articles")
and By-Laws, as amended (the "New By-Laws"), copies of which are attached as
Annexes 1 and 2, respectively, to the Merger Agreement. Because there are
differences between the DGCL and the IBCL and corresponding differences between
the Present Charter and Present By-Laws as compared to the New Articles and
New By-Laws, the Reincorporation will result in some differences in the rights
of shareholders. These differences are discussed below.
Principal Reason for the Reincorporation
CTB International presently has its executive offices and significant
operations in Indiana. As a Delaware corporation, CTB International is subject
to taxation not only in Delaware but also in Indiana at substantially the same
level as the case would be if it were an Indiana corporation. Under Delaware's
system of taxation, franchise taxes are assessed against CTB International
based, in part, on the number of shares authorized. This formula of taxation
has resulted in greatly increased tax costs to CTB International since its
initial public offering of securities in 1997. Indiana has no comparable
franchise tax system. If CTB International had been an Indiana corporation,
it would have saved approximately $120,000 over the past two years. Management
believes that the Reincorporation will permit CTB International to realize a
substantial reduction in state tax expense prospectively.
Manner of Effecting the Reincorporation
The following summary does not purport to be a complete description
of the Reincorporation Proposal and is qualified in its entirety by reference
to the Merger Agreement.
The Reincorporation will be effected by merging CTB International with
and into CTB Indiana (the "Merger") pursuant to the terms of the Merger
Agreement. At the Effective Time (as defined in the Merger Agreement), the
separate corporate existence of CTB International will cease; CTB Indiana will
succeed to all the business, properties, assets and liabilities of CTB
International and its name will be changed to "CTB International Corp." The
directors, officers and employees of CTB International will become the
directors, officers and employees of the surviving corporation. Shares of CTB
International's Common Stock issued and outstanding immediately prior to the
Effective Time will, by virtue of the Merger, be converted into an equal number
of fully paid and nonassessable shares of CTB Indiana's Common Stock ("Indiana
Shares"). Indiana Shares will have the same terms as CTB International's
Common Stock, subject to the differences arising by virtue of the
<PAGE>
differences between the IBCL and the DGCL and differences between the Present
Charter and Present By-Laws as compared to the New Articles and New By-Laws.
From and after the Effective Time, each holder of a certificate
representing shares of CTB International's Common Stock (a "Delaware
Certificate") shall be deemed for all purposes to be the holder of the Indiana
Shares into which the shares represented by his or her Delaware Certificate
have been converted. Such certificates shall continue to represent Indiana
Shares and need not be surrendered for exchange. While it is not necessary for
shareholders to surrender their Delaware Certificates for certificates
representing Indiana Shares, following the Effective Time each holder of a
Delaware Certificate outstanding immediately prior to the Effective Time will
be entitled to surrender his or her Delaware Certificate for cancellation and
in exchange for a new certificate representing the same number of Indiana
Shares.
Approval of the Reincorporation Proposal will not result in any
change in the name, business, management, location of the principal executive
offices or other facilities, capitalization, assets or liabilities of CTB
International. The Indiana Shares will continue to be traded without
interruption on the Nasdaq Stock Market. CTB International's 1999 Stock
Incentive Plan, as well as prior stock option agreements between CTB
International and various members of CTB International's management, will be
continued by the surviving corporation and each outstanding option issued
pursuant to such plan and/or agreements will be converted into an option for
Indiana Shares equal to the number of shares of CTB International's Common
Stock related to each such option immediately prior to the Effective Time, at
the same price per share and upon the same terms and subject to the same
conditions as are in effect immediately prior to the Effective Time. CTB
International's other employee benefit plans and arrangements will also be
continued by the surviving corporation upon the same terms and subject to the
same conditions.
It is anticipated that the Merger will become effective by the end
of ________, 1999. However, the Merger Agreement provides that the Merger may
be abandoned by the Board of Directors of CTB International prior to the
Effective Time either before or after shareholder approval. In addition, the
Merger Agreement may be amended prior to the Effective Time, either before or
after shareholder approval, provided that the Merger Agreement may not be
amended after shareholder approval if such amendment would (i) alter or change
the number or kind of shares to be received by shareholders in the Merger,
(ii) alter or change any term of the New Articles or New By-Laws or (iii) alter
or change any of the terms and conditions of the Merger Agreement if such
alteration or change would adversely affect the shareholders of CTB
International.
Appraisal rights will not be available to holders of CTB
International's Common Stock in connection with the Reincorporation Proposal.
<PAGE>
Antitakeover Effects of the Reincorporation Proposal
Certain provisions of the IBCL, specifically the Constituent
Interests Provision and the Control Share Acquisitions Provisions as described
in "-Comparison of Rights of Shareholders," below, have no comparable
provisions under Delaware law. These statutory provisions and certain
provisions of the New Articles and New By-Laws, specifically the provisions
regarding Preferred Stock, and the supermajority vote required for certain
business combinations, some of which are carried over from the Present Articles
and Present By-Laws may have the effect of discouraging an unsolicited attempt
by another person or entity to acquire control of CTB International. Such
provisions may make tender offers, and certain other transactions, more
difficult or more costly and could discourage or limit shareholder
participation in such types of transactions, whether or not such transactions
were favored by the majority of the shareholders. As of this date, the Board
of Directors is unaware of any specific effort to accumulate CTB
International's Common Stock or to obtain control of CTB International by means
of a merger, tender offer or otherwise.
Comparison of Rights of Shareholders
The DGCL differs from the IBCL in many respects. The material
differences of these statutes are discussed below. Because of these statutory
differences, certain changes from the Present Charter and Present By-Laws have
been made to the New Articles and New By-Laws. The material differences
between the Present Charter and Present By-Laws as compared to the New Articles
and New By-Laws are also discussed below.
Capital Stock. The Reincorporation will not affect the capital stock
of CTB International except to the extent that rights of shareholders will be
governed by Indiana law rather than Delaware law. The number of authorized
shares will remain at 44,000,000, consisting of 40,000,000 shares of Common
Stock, par value $0.01 per share, and 4,000,000 shares of Preferred Stock, par
value $0.01 per share.
After the Reincorporation, holders of CTB International's Common
Stock will continue to be entitled to one vote per share on all matters
submitted to a vote of the shareholders, including the election of directors.
As a result, the holders of CTB International's Common Stock entitled to
exercise more than 50% of the voting rights in an election of directors can
elect all of the directors to be elected if they choose to do so. The holders
of CTB International's Common Stock will be entitled to such dividends as may
be declared from time to time by the Board of Directors from funds legally
available therefor, and will be entitled to receive, pro rata, all assets
available for distribution to such holders upon liquidation. No shares of CTB
International's Common Stock have any preemptive, redemption or conversion
rights, or the benefits of any sinking fund. All of the shares issued by the
surviving corporation in the Reincorporation will be validly issued, fully
paid and nonassessable.
<PAGE>
Under the Present Charter, 30,000 shares of Preferred Stock, par
value $0.01 per share, have been designated as 6% Series A Preferred Stock.
The powers, designations, preferences and relative participating, optional and
other special rights and the qualifications, limitations and restrictions of
the 6% Series A Preferred Stock under the New Articles will be identical to
those contained in the Present Charter.
Both the DGCL and the IBCL permit the certificate or articles of
incorporation to allow the board of directors to issue and fix the dividend,
voting and redemption rights, liquidation preferences and other rights,
privileges and restrictions of one or more series of preferred stock without
further shareholder action. CTB International's Preferred Stock may be issued
from time to time in one or more series with such relative dividend, voting and
other rights, privileges and restrictions as the Board of Directors may
determine. The ability of the Board to issue Preferred Stock and determine its
relative dividend, voting and other rights without further shareholder action
will not be affected by the Reincorporation. The issuance of Preferred Stock,
while providing flexibility in connection with possible acquisitions and other
corporate purposes, could, among other things, adversely affect the voting
power of the holders of Common Stock and, under certain circumstances, make it
more difficult for a third party to gain control of CTB International,
discourage bids for CTB International's Common Stock at a premium or otherwise
affect the market price of CTB International's Common Stock.
Size and Classification of the Board of Directors. Section 141(b) of
the DGCL provides that the board of directors of a Delaware corporation shall
consist of one or more members. The number of directors shall be fixed by, or
in the manner provided in, the by-laws unless the certificate of incorporation
fixes the number of directors, in which case a change in the number of
directors shall be made only by amendment of the certificate. Section
23-1-33-3 of the IBCL provides that the board of directors of an Indiana
corporation must consist of one or more individuals, with the number specified
in or fixed in accordance with the articles of incorporation or by-laws.
Pursuant to Section 141(d) of the DGCL, the directors may, by the
certificate of incorporation, by an initial by-law or by a by-law adopted by a
vote of the shareholders, be divided into one, two or three classes. Section
23-1-33-3 of the IBCL provides that the articles of incorporation, or, if the
articles of incorporation so authorize, the by-laws, may provide for staggering
the terms of directors by dividing the total number of directors into either
two or three classes.
CTB International's Board of Directors is currently composed of nine
members, which number may be changed by the Board of Directors, provided that
the number of directors will not be less than one or more than fifteen. The
Board of Directors of CTB International following the Reincorporation will have
the same number of directors and composition as CTB
<PAGE>
International's current Board of Directors. None of the Present Charter, the
Present By-Laws, the New Articles or the New By-Laws provide for staggered
terms for directors.
Removal of Directors. Section 141(k) of the DGCL provides that any
director or the entire board of directors may generally be removed with or
without cause by a majority shareholder vote.
Under Section 23-1-33-8 of the IBCL, directors may be removed in any
manner provided in the articles of incorporation. In addition, unless the
articles of incorporation provide otherwise, the shareholders or directors may
remove one or more directors with or without cause. A director may be removed
by the shareholders, if they are otherwise authorized to do so, only at a
meeting called for that purpose and such purpose must be stated in the notice
of the meeting. A director elected by a voting group of shareholders may be
removed only by that voting group.
The Present By-laws permit directors to be removed from office with
or without cause by the shareholders. The New Articles permit directors to be
removed from office with or without cause by either a majority shareholder vote
or by a majority vote of the entire Board of Directors.
Newly Created Directorships and Vacancies. Under Section 223 of the
DGCL, unless the certificate of incorporation or the by-laws of a corporation
provide otherwise, a majority vote of the directors then in office may fill
vacancies and newly created directorships, even if the number of current
directors is less than a quorum or only one director remains. If the directors
filling a vacancy on the board constitute less than a majority of the whole
board (as measured before an increase in the size of the board), the Delaware
Court of Chancery may, upon application of shareholders holding at least 10% of
the outstanding voting shares, summarily order an election to fill the vacancy
or replace directors chosen by the directors then in office. Unless otherwise
provided in the certificate of incorporation or by-laws, when one or more
directors resign effective at a future date, a majority of directors then in
office, including those who have so resigned, may vote to fill the vacancy.
Under Section 23-1-33-9 of the IBCL, unless the articles of
incorporation provide otherwise, if a vacancy occurs on the board of
directors, including a vacancy resulting from an increase in the number of
directors, the remaining directors, even if less than a quorum, may fill the
vacancy by majority vote. If the vacant office was held by a director
elected by a voting group of shareholders, only the holders of shares of that
voting group may vote to fill the vacancy if it is filled by shareholders. A
vacancy that will occur at a specific later date by reason of resignation of
a director effective at a later date may be filled before the vacancy occurs,
but the new director may not take office until the vacancy occurs.
<PAGE>
The Present By-Laws permit vacancies and newly created directorships
to be filled by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director or by the shareholders. The New
By-Laws provide that any vacancy occurring on the Board of Directors, from
whatever cause, will be filled by a majority vote of the remaining directors,
although less than a quorum; provided that if the vacancy or vacancies leave
the board of directors with no members or the remaining directors cannot
agree or determine not to fill the vacancy, the shareholders may fill such
vacancy by a majority vote at a special meeting called for that purpose or
at the next annual meeting of shareholders.
Quorum and Vote Required to Take Action. Section 141(b) of the DGCL
provides that a majority of the total number of directors shall constitute a
quorum for the transaction of business unless the certificate of incorporation
or by-laws of the corporation require a greater number. In addition, unless the
certificate of incorporation provides otherwise, the by-laws may provide for a
quorum of less than a majority, which in no case shall be less than one-third
of the total number of directors. The board of directors shall act by the
vote of a majority of the directors present at a meeting at which a quorum is
present, unless the certificate of incorporation or the by-laws require the
vote of a greater number.
Under Section 23-1-34-5 of the IBCL, unless the articles of
incorporation or by-laws require a greater number, a majority of the fixed or
prescribed number of directors constitutes a quorum. Additionally, the
articles of incorporation or by-laws may authorize a quorum of no fewer than
one-third of the fixed or prescribed number of directors. If a quorum is
present when a vote is taken, the affirmative vote of a majority of the
directors present is the act of the board of directors unless the articles of
incorporation or by-laws provide otherwise.
The Present By-Laws provide that one-third of the total number of
directors constitutes a quorum for the transaction of business and that,
unless otherwise provided by law, the certificate of incorporation, the by-laws
or any contract or agreement to which CTB International is a party, the act of
a majority of the directors present at any meeting at which there is quorum is
the act of the Board of Directors. The New By-Laws contain the same
provisions except that a majority of the whole Board of Directors is necessary
to constitute a quorum for the transaction of any business, except the filling
of vacancies.
Limitation on Directors' Liability. Section 102(b)(7) of the DGCL
allows a corporation, through its certificate of incorporation, to limit or
eliminate the personal liability of directors to the corporation and its
shareholders for damages for breach of fiduciary duty. However, this
provision excludes any limitation on liability for (i) any breach of the
director's duty of loyalty to the corporation or its shareholders, (ii) acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) willful or negligent violation of the laws
<PAGE>
governing the payment of dividends or the purchase or redemption of stock or
(iv) any transaction from which the director derives an improper personal
benefit.
Section 23-1-35-1 of the IBCL provides that a director is
not liable for any action taken as a director, or any failure to act, unless
the director has breached or failed to perform the duties of the director's
office in compliance with Section 23-1-35-1 and the breach or failure to
perform constitutes willful misconduct or recklessness. Subject to this
standard, a director who votes or assents to distributions in violation of
Section 23-1-28-3 of the IBCL or the articles of incorporation is personally
liable to the corporation for the amount of the illegal distribution and is
entitled to contribution from the other directors who voted for or assented
to such distribution and the shareholders who received the distribution.
The Present Charter contains a provision limiting director
liability as permitted by Section 102(b) of the DGCL. The New Articles
contain a provision which outlines the necessary factors for compliance with
Section 23-1-35-1 of the IBCL.
Indemnification of Directors and Officers. Section 145 of
the DGCL provides that a corporation may indemnify any person made a party or
threatened to be made a party to any type of proceeding (other than certain
actions by or in right of the corporation) because he or she is or was a
director, officer, employee or agent of the corporation or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such
proceeding if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation; or in a criminal proceeding, if he or she had no reasonable
cause to believe his or her conduct was unlawful. Expenses incurred by an
officer or director (or other employees or agents as deemed appropriate by
the board of directors) in defending a civil, criminal or administrative
proceeding may be paid by the corporation in advance of the final disposition
of such proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it is ultimately determined that such person
is not entitled to be indemnified by the corporation. To indemnify a party,
the corporation must determine that the party met the applicable standards of
conduct.
Section 23-1-37-8 and Section 23-1-37-13 of the IBCL provide
that a corporation may indemnify any individual made a party to a proceeding
(including a proceeding by or in the right of the corporation) because the
individual is or was a director, officer, employee or agent of the
corporation against liability incurred in the proceeding if the individual
acted in good faith and reasonably believed (i) in the case of conduct in the
individual's official capacity with the corporation, that the individual's
conduct was in the corporation's best interests and (ii) in all other cases,
<PAGE>
that the individual's conduct was at least not opposed to the corporation's
best interests. In the case of any criminal proceeding, the individual must
have had either reasonable cause to believe the conduct was lawful or no
reasonable cause to believe that it was unlawful. In addition, Section 23-1-
37-9 and Section 23-1-37-13 provide that a corporation, unless limited by its
articles of incorporation, must indemnity a director or officer who was
wholly successful in the defense of any proceeding to which the director or
officer was a party because the director or officer is or was a director or
officer of the corporation against reasonable expenses incurred by the
director or officer in connection with the proceeding.
The provisions concerning indemnification in the New
Articles are substantially identical to the IBCL provisions and are
nonexclusive. The Present Charter provides for mandatory indemnification to
the fullest extent permitted by Delaware law. The New Articles provide that
the Board of Directors may approve indemnification to the fullest extent
permitted by applicable law in effect at such time.
Loans to Directors. Section 143 of the DGCL allows a
corporation to lend money to, or guarantee an obligation of, an officer or
employee, including one who acts as a director, if the assistance is
reasonably expected to benefit the corporation. Such assistance may be
provided without shareholder approval.
Pursuant to Section 23-1-35-3 of the IBCL, a corporation may
not lend money to, or guarantee the obligation of, a director of the
corporation unless (i) the loan or guarantee is approved by a majority of the
disinterested shares, or (ii) the board of directors determines that the loan
or guarantee benefits the corporation and either approves the specific loan
or guarantee or a general plan authorizing loans and guarantees.
Dividends. Subject to any restrictions in a corporation's
certificate of incorporation, Section 170 of the DGCL allows the board of
directors of a Delaware corporation to declare and pay dividends out of
surplus or, if there is no surplus, out of its net profits for the fiscal
year in which the dividend is declared and/or the preceding fiscal year.
Section 23-1-28-1 of the IBCL allows a board of directors to
make distributions to shareholders, unless otherwise provided in the articles
of incorporation. However, pursuant to Section 23-1-28-3 of the IBCL, no
distribution may be made if, after giving effect to the distribution (i) the
corporation would be unable to pay its debts as they become due in the
ordinary course of business or (ii) the corporation's assets would be less
than the sum of its liabilities plus, except as otherwise specifically
allowed by the 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 rights of preferential shareholders whose rights are superior to
those receiving the distribution.
<PAGE>
Action by Shareholders through Written Consent. Under
Section 228(a) of the DGCL, unless otherwise provided in a corporation's
certificate of incorporation, any action required to be taken at an annual or
special meeting of the shareholders may be taken in the absence of a meeting,
without prior written notice and without a vote. Such action may be taken by
the written consent of shareholders in lieu of a meeting setting forth the
action so taken and signed by the holders of outstanding stock representing
the number of shares necessary to take such action at a meeting at which all
shares entitled to vote were present and voted.
Under Section 23-1-29-4 of the IBCL, any action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting if a written consent thereto is signed by all the shareholders
entitled to vote on the action.
The New Articles contain a provision permitting shareholder
action by unanimous written consent.
Special Meetings of Shareholders. Under Section 211(d) of
the DGCL, special meetings of shareholders may be called by the board of
directors and by such other person or persons as may be authorized to do so
by the corporation's certificate of incorporation or by-laws.
Section 23-1-29-2 of the IBCL provides that a corporation
with more than 50 shareholders must hold a special meeting of shareholders on
demand of its board of directors or the person or persons specifically
authorized to do so by the articles of incorporation or by-laws.
Under the Present By-Laws, special meetings of the
shareholders may be called by the President for any purpose and shall be
called by the President or Secretary if directed by the Board of Directors or
requested in writing by the holders of no less than 25% of the capital stock
of CTB International, which shareholder requests state the purpose of the
proposed meeting. The New By-Laws provide that special meetings of the
shareholder may be called by the Board of Directors, Chairman of the Board or
President of CTB International and shall be called by the Board of Directors
if the Secretary receives written, dated and signed demands for a special
meeting, describing the purpose of the meeting, from holders of at least 25%
of all shares entitled to vote on the issue to be considered at the proposed
special meeting.
Cumulative Voting. Both Section 214 of the DGCL and Section
23-1-30-9 of the IBCL allow a corporation to provide for cumulative voting in
the certificate of incorporation or the articles of incorporation.
Neither the Present Charter nor the New Articles provide for
cumulative voting.
<PAGE>
Necessary Vote to Effect Merger (Not Involving Interested
Shareholder). The DGCL requires a majority vote of the shares entitled to
vote in order to effectuate a merger between two Delaware corporations
(Section 251(c)) or between a Delaware corporation and a corporation
organized under the laws of another state (a "foreign corporation") (Section
252(c)). However, unless required by the certificate of incorporation,
Sections 251(f) and 252(e) do not require a vote of the shareholders of a
constituent corporation surviving the merger if (i) the merger agreement does
not amend that corporation's certificate of incorporation, (ii) each share of
that corporation's stock outstanding before the effective date of the merger
is identical to an outstanding or treasury share of the surviving corporation
after the merger and (iii) in the event the merger plan provides for the
issuance of common stock or securities convertible into common stock by the
surviving corporation, the common stock issued and the common stock issuable
upon conversion of the issued securities do not exceed 20% of the shares
outstanding immediately before the effective date of the merger.
Section 23-1-40-3 of the IBCL requires a majority vote of
the shares entitled to vote in order to effectuate a merger or share
exchange. However, the vote of the shareholders of the surviving corporation
on a plan of merger is not required if (i) the articles of incorporation of
the surviving corporation will not differ from its articles before the
merger, (ii) each shareholder of the surviving corporation whose shares were
outstanding immediately before the effective date of the merger will hold the
same proportionate number of shares relative to the number of shares held by
all such shareholders (except for shares of the surviving corporation
received solely as a result of the shareholder's proportionate shareholdings
in the other corporations party to the merger), with identical designations,
preferences, limitations and relative rights, immediately after the merger,
(iii) the number of voting shares outstanding immediately after the merger,
plus the number of voting shares issuable as a result of the merger (either
by the conversion of securities issued pursuant to the merger or the exercise
of rights and warrants issued pursuant to the merger), will not exceed by
more than 20% the total number of voting shares of the surviving corporation
outstanding immediately before the merger and (iv) the number of
participating shares outstanding immediately after the merger, plus the
number of participating shares issuable as a result of the merger (either by
the conversion of securities issued pursuant to the merger or the exercise of
rights and warrants issued pursuant to the merger), will not exceed by more
than 20% the total number of participating shares of the surviving
corporation outstanding immediately before the merger.
Business Combinations Involving Interested Shareholders.
Section 203 of the DGCL provides that, with certain exceptions, a Delaware
corporation may not engage in any of a broad range of business combinations,
such as mergers, consolidations and sales of assets, with an "interested
shareholder" for a period of three years from the date that such person
became an interested shareholder unless (i) the transaction that results in
the person's becoming an interested shareholder or the business combination
<PAGE>
is approved by the board of directors of the corporation before the person
becomes an interested shareholder, (ii) upon consummation of the transaction
which results in the shareholder becoming an interested shareholder, the
interested shareholder owns 85% or more of the voting stock of the
corporation outstanding at the time the transaction commenced, excluding
shares owned by persons who are directors and also officers and shares owned
by certain employee stock plans or (iii) on or after the date the person
becomes an interested shareholder, the business combination is approved by
the corporation's board of directors and by holders of at least two-thirds of
the corporation's outstanding voting stock, excluding shares owned by the
interested shareholder, at a meeting of shareholders. Under Section 203, an
"interested shareholder" is defined as any person, other than the corporation
and any direct or indirect majority-owned subsidiary, that is (i) the owner
of 15% or more of the outstanding voting stock of the corporation or (ii) an
affiliate or associate of the corporation and was the owner of 15% or more of
the outstanding voting stock of the corporation at any time within the three-
year period immediately prior to the date on which it is sought to be
determined whether such person is an interested shareholder. Section 203
does not apply to a corporation that so provides in an amendment to its
certificate of incorporation or by-laws passed by a majority of its
outstanding shares at any time. Such shareholder action does not become
effective for 12 months following its adoption and would not apply to persons
who were already interested shareholders at the time of the amendment.
Sections 23-1-43-1 to 23-1-43-23 of the IBCL restrict the
ability of a "resident domestic corporation" to engage in any business
combination with an "interested shareholder" for five years after the
interested shareholder's date of acquiring shares unless the business
combination or the purchase of shares by the interested shareholder on the
interested shareholder's share acquisition date is approved by the board of
directors of the resident domestic corporation before that date. If the
combination was not previously approved, the interested shareholder may
effect a combination after the five-year period only if such shareholder
receives approval from a majority of the disinterested shares or the offer
meets certain fair price criteria. For purposes of the above provisions,
"resident domestic corporation" means an Indiana corporation that has 100 or
more shareholders. "Interested shareholder" means any person, other than the
resident domestic corporation or its subsidiaries, who is (i) the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the
outstanding voting shares of the resident domestic corporation or (ii) an
affiliate or associate of the resident domestic corporation and at any time
within the five-year period immediately before the date in question was the
beneficial owner of 10% or more of the voting power of the then outstanding
shares of the resident domestic corporation. The above provisions do not
apply to corporations that so elect in its original articles of incorporation
or in an amendment to its articles of incorporation approved by a majority of
the disinterested shares. Such an amendment, however, would not become
effective for 18 months after its passage and would apply only to stock
acquisitions occurring after its effective date.
<PAGE>
The Present Charter does not exclude CTB International from
restrictions imposed under Section 203 of the DGCL. The New Articles elect
not to be governed by Section 23-1-43 of the IBCL and contain provisions
restricting business combinations with interested shareholders similar to
those contained in Section 203 of the DGCL.
For the purposes of the provisions of the New Articles, the
term "interested shareholder" does not include (i) American Securities
Partners GP (Management) Corp. , ASP/CTB G.P. Corp. or any of their
respective affiliates or (ii) any member of the Caryl M. Chocola family.
Control Share Acquisitions. Pursuant to Sections 23-1-42-1
to 23-1-42-11 of the IBCL (the "Control Share Acquisition Provisions"), an
acquiring person who makes a "control share acquisition" in an "issuing
public corporation" may not exercise voting rights on any "control shares"
unless such voting rights are conferred by a majority vote of the
disinterested shareholders of the issuing corporation at a special meeting of
such shareholders held upon the request and at the expense of the acquiring
person. Unless otherwise provided in a corporation's articles of
incorporation or by-laws before a control share acquisition has occurred, in
the event that control shares acquired in a control share acquisition are
accorded full voting rights and the acquiring person acquires control shares
with a majority or more of all voting power, all shareholders of the issuing
corporation have dissenters' rights to receive the fair value of their
shares. Under the IBCL, "control shares" means shares acquired by a person
that, when added to all other shares of the issuing public corporation owned
by that person or in respect of which that person may exercise or direct the
exercise of voting power, would otherwise entitle that person to exercise
voting power of the issuing public corporation in the election of directors
within any of the following ranges: (i) one-fifth or more but less than one-
third, (ii) one-third or more but less than a majority or (iii) a majority or
more. "Control share acquisition" means, subject to certain exceptions, the
acquisition, directly or indirectly, by any person of ownership of, or the
power to direct the exercise of voting power with respect to, issued and
outstanding control shares. Shares acquired within 90 days or pursuant to a
plan to make a control share acquisition are considered to have been acquired
in the same acquisition. "Issuing public corporation" means a corporation
which is organized in Indiana, has 100 or more shareholders, has its
principal place of business, its principal office or substantial assets
within Indiana and has either (i) more than 10% of its shareholders resident
in Indiana, (ii) more than 10% of its shares owned by Indiana residents or
(iii) 10,000 shareholders resident in Indiana. The above provisions do not
apply if, before a control share acquisition is made, the corporation's
articles of incorporation or by-laws (including board adopted by-laws)
provide that they do not apply.
There is no corresponding provision under the DGCL.
<PAGE>
The New Articles will exclude CTB International following
the Reincorporation from the restrictions imposed by the Control Share
Acquisition Provisions of the IBCL.
Constituent Interests. Section 23-1-35-1 of the IBCL (the
"Constituent Interests Provision") provides that the board of directors, in
discharging its duties, may consider, in its discretion, both the long-term
and short-term best interests of the corporation, taking into account, and
weighing as the directors deem appropriate, the effects of an action on the
corporation's shareholders, employees, suppliers and customers and the
communities in which offices or other facilities of the corporation are
located and any other factors the directors consider pertinent. Section 23-
1-35-1 specifically provides that certain judicial decisions in Delaware and
other jurisdictions, which might be looked upon for guidance in interpreting
Indiana law, including decisions that propose a higher or different degree of
scrutiny in response to a proposed acquisition of the corporation, are
inconsistent with the proper application of that section.
There is no corresponding provision in the DGCL.
Procedures to Regulate Changes in Control.
Section 23-1-22-4 of the IBCL provides that, in addition to any other
provision authorized by any other section of the IBCL or contained in the
articles of incorporation or the by-laws, a corporation may establish one or
more procedures to regulate transactions that would, when consummated, result
in a change of "control" of the corporation. Such a procedure may be
established in the original articles of incorporation or by-laws, by an
amendment to the articles of incorporation or, notwithstanding the fact that
a vote of the shareholders would otherwise be required by any other provision
of the IBCL or the articles of incorporation, by an amendment to the by-laws.
For the purposes of Section 23-1-22-4, "control" means, for any corporation
that has 100 or more shareholders, the beneficial ownership, or the direct or
indirect power to direct the voting, of not less than 10% of the voting
shares of a corporation's outstanding voting shares.
There is no corresponding provision under the DGCL.
Appraisal Rights; Dissenters' Rights. Both Section 262 of
the DGCL and Section 23-1-44-8 of the IBCL provide that shareholders have the
right, in some circumstances, to dissent from certain corporate
reorganizations and to instead demand payment of the fair value of their
shares. Under Section 262 of the DGCL, unless a corporation's certificate of
incorporation provides otherwise, dissenters do not have the rights of
appraisal with respect to (i) a merger or consolidation by a corporation, the
shares of which are either listed on a national securities exchange or held
by more than 2,000 shareholders, if the shareholders receive (a) shares in
the surviving corporation, (b) shares of another corporation that are
publicly listed or held by more than 2,000 shareholders, (c) cash in lieu of
fractional shares described in (a) and (b) of this paragraph or (d) any
<PAGE>
combination of the above, or (ii) shareholders of a corporation surviving a
merger if no vote of the shareholders of the surviving corporation is
required to approve the merger. Under Section 23-1-44-8 of the IBCL,
dissenters do not have rights of appraisal (i) with respect to shares of any
class or series of stock registered on a national securities exchange or
traded on the National Association of Securities Dealers, Inc. Automated
Quotation System Over-the-Counter Markets-National Market Issues or a similar
market or (ii) unless the articles of incorporation, by-laws or resolution of
the board of directors provide that non-voting shares are entitled to
dissent, if they were not entitled to vote on the corporate reorganization.
Redeemable Shares. Section 151(b) of the DGCL provides that
the certificate of incorporation or a resolution of the board of directors
providing for the issuance of a class of stock may make such class of stock
subject to redemption at the option of the corporation or the shareholders,
or upon the happening of a specified event, as long as immediately following
any such redemption the corporation has at least one share of at least one
series of stock with full voting powers.
Section 23-1-25-1 of the IBCL provides that the articles of
incorporation of a corporation may authorize one or more classes of shares
that are redeemable or convertible as specified in the articles of
incorporation at the option of the corporation, the shareholder or another
person or upon the occurrence of a designated event.
Rights, Warrants or Options. Under Section 157 of the DGCL,
rights or options to purchase shares of any class of stock may be authorized
by a corporation's board of directors subject to the provisions of the
certificate of incorporation. The terms of such rights or options must be
fixed and stated in the certificate of incorporation or in a resolution or
resolutions adopted by the board of directors.
Under Section 23-1-26-5 of the IBCL, a corporation, acting
through its board of directors, may create or issue rights, options or
warrants for the purchase of shares or other securities of the corporation or
any successor in interest of the corporation. The board of directors shall
determine the terms upon which the rights, options or warrants are issued,
their form and content and the consideration for which the shares or other
securities are to be issued.
Preemptive Rights. Under Section 102(b)(3) of the DGCL and
Section 23-1-27-1 of the IBCL, absent an express provision in a corporation's
certificate of incorporation or articles of incorporation, a shareholder does
not, by operation of law, possess preemptive rights to subscribe to an
additional issue of stock. Neither the Present Charter nor the New Articles
provide for preemptive rights.
Amendment of Certificate or Articles of Incorporation and
By-Laws. Section 242 of the DGCL and Sections 23-1-38-3 and 23-1-38-4 of the
<PAGE>
IBCL permit a corporation to amend its certificate of incorporation or
articles of incorporation in any respect, provided the amendment contains
only provisions that would be lawful in an original certificate of
incorporation or articles of incorporation filed at the time of amendment.
To amend a certificate of incorporation or the articles of incorporation, the
board must adopt a resolution presenting the proposed amendment. In
addition, under the DGCL, a majority of the shares entitled to vote, as well
as a majority of shares of each class entitled to vote, must approve the
amendment to make it effective. Under the IBCL, an amendment to the articles
of incorporation of an Indiana corporation generally may be adopted if the
votes cast favoring the amendment exceed the votes cast opposing the
amendment, except that any amendment that would create dissenters' rights
must be approved by a majority of the votes entitled to be cast. Under the
DGCL and the IBCL, when the substantial rights of a class of shares will be
affected by an amendment, the holders of those shares are entitled to vote as
a class even if the shares are non-voting shares. When one or more series in
a class of shares, and not the entire class, will be adversely affected by an
amendment, the affected series may vote as a class. Under Section 242(b)(2)
of the DGCL, the right to vote as a class may be limited in certain
circumstances. Any provision in the certificate of incorporation which
requires a greater vote than required by law cannot be amended or repealed
except by such greater vote. Section 242(c) of the DGCL provides that, in
its resolution proposing an amendment, the board may insert a provision
allowing the board to abandon the amendment, without concurrence by
shareholders, after the amendment has received shareholder approval but
before its filing with the Secretary of State.
The majority vote of the holders of the outstanding Common
Stock of CTB International is required to amend the provisions of the Present
Charter relating to the number of authorized shares of any class of stock.
Section 109 of the DGCL provides that the power to amend the
by-laws rests with the shareholders entitled to vote, although the
certificate of incorporation may confer the power to amend the by-laws upon
the board of directors. Section 109 further provides that the fact that the
certificate of incorporation confers such power upon the board of directors
neither limits nor divests the shareholders of the power to amend the
by-laws. Section 23-1-39-1 of the IBCL, on the other hand, provides that,
unless the articles of incorporation provide otherwise, only the board of
directors of a corporation may amend the by-laws.
The Present Articles provide that the Board of Directors,
acting by majority vote, may amend the by-laws of the corporation. The New
By-Laws contain a similar provision requiring the affirmative vote of a
majority of the entire number of directors at the time of amendment, unless
otherwise provided by the Articles of Incorporation or the IBCL.
Inspection of Books and Records. Section 220 of the DGCL
entitles any shareholder of record of a corporation, in person or by an
<PAGE>
agent, upon written demand under oath stating the purpose thereof, to inspect
during usual business hours, for any proper purpose, the corporation's stock
ledger, a list of its shareholders and its other books and records, and to
make copies or extracts therefrom. A proper purpose means a purpose
reasonably related to such person's interest as a shareholder.
Section 23-1-52-2 of the IBCL entitles any shareholder of a
corporation to inspect and copy, during regular business hours, certain
enumerated corporate records if the shareholder gives the corporation at
least five days' advance written notice. Certain records may be inspected
only if: (i) the shareholder's demand is made in good faith and for a proper
purpose, (ii) the shareholder describes with reasonable particularity the
shareholder's purpose and (iii) the records to be inspected are directly
connected with the shareholder's purpose.
Advance Notice Provisions. The Present By-Laws establish an
advance notice procedure for shareholders to make nominations of candidates
for election as directors. The Present By-Laws provide that only persons who
are nominated by, or at the direction of, the Board of Directors, by any
nominating committee appointed by the Board of Directors or by a shareholder
who has given timely written notice to the Secretary of CTB International
prior to the meeting at which directors are to be elected, will be eligible
for election as directors of CTB International. Under the Present By-Laws,
for notice of shareholder nominations to be made at a meeting to be timely,
such notice must be received by CTB International not less than 60 days nor
more than 90 days prior to the meeting, or in the event that less than 70
days' notice or prior public disclosure of the date of the meeting is given
or made to shareholders, notice by the shareholder to be timely must be
received not later than the close of business on the tenth day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made.
The New By-Laws contain a similar advance notice procedure
for shareholders to make nominations of candidates for election as directors
or to bring other business before an annual meeting of shareholders of CTB
International. Under the New By-Laws, the shareholders shall conduct only
such business as has been properly brought before the annual meeting. To be
properly brought before the annual meeting, business must be specified in the
notice of the meeting given by or at the direction of the board of directors,
otherwise brought before the meeting by or at the direction of the board or
properly brought before a meeting by a shareholder of record who is entitled
to vote at the meeting and who has given timely written notice to the
Secretary of CTB International at the principal executive offices. The New
By-Laws also provide that nominations of persons for election as directors
may be made by the Board of Directors or by any shareholder of record who is
entitled to vote in the election and who gives timely written notice of such
shareholder's intent to make a nomination. In either case, to be timely, a
shareholder's written notice must be delivered not less than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
<PAGE>
meeting, or in the event that less than 70 days' notice or prior public
disclosure of the date of the meeting is given or made to shareholders,
notice by the shareholder to be timely must be received not later than the
close of business on the tenth day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made.
Under both the Present By-Laws and the New By-Laws, a
shareholder's advance notice must also contain certain additional information
specified in the by-laws.
Certain United States Federal Income Tax Consequences
The following general discussion summarizes the material U.S. federal
income tax consequences of the Merger applicable to stockholders of CTB
International who hold their stock as a capital asset. However, it is not a
complete description of all the tax consequences of the Merger. In addition,
no assurance can be given that the Internal Revenue Service will agree with
the analysis described below. The summary may not apply to stockholders in
special situations, such as dealers or traders in securities, financial
institutions, tax-exempt organizations, insurance companies, persons holding
stock of CTB International as part of a hedging, integrated, conversion or
constructive sale transaction or a straddle, non-U.S. persons, persons whose
functional currency is not the U.S. dollar and stockholders of CTB
International who acquired their stock pursuant to the exercise of employee
stock options or otherwise as compensation. In addition, no information is
provided herein with respect to the tax consequences of the Merger under
state, local or foreign laws. Consequently, each stockholder of CTB
International is advised to consult a tax advisor as to the specific tax
consequences of the Merger to such stockholder.
CTB International believes that the Merger will qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that CTB International and CTB
Indiana will each be a party to the reorganization under Section 368(b) of
the Code. In such case, (i) no gain or loss will be recognized by CTB
International or CTB Indiana as a result of the Merger; (ii) no gain or loss
will be recognized by the stockholders of CTB International upon the
conversion of their shares in CTB International into CTB Indiana Shares;
(iii) the aggregate tax basis of such a stockholder's Indiana Shares will be
the same as the aggregate tax basis of the shares of CTB International deemed
exchanged therefor; and (iv) the holding period of such a stockholder's
Indiana Shares will include the holding period of the shares of CTB
International deemed exchanged therefor.
<PAGE>
INCORPORATION BY REFERENCE
CTB International's annual report for the fiscal year ended
December 31, 1998 on Form 10-K, quarterly reports for the quarters ended
March 31 and June 30, 1999 and periodic reports on Form 8-K dated February 10,
1999 and September 21, 1999 are incorporated by reference herein. Copies of
these reports are available, without charge, upon written request to Don J.
Steinhilber, Vice President and Chief Financial Officer, CTB International
Corp., P.O. Box 2000, Milford, Indiana 46542-2000, U.S.A.
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER ("Merger Agreement") dated as of
September 21, 1999, is made by and between CTB INTERNATIONAL CORP., a
Delaware corporation ("CTB Delaware"), and CTB INDIANA CORP., an Indiana
corporation ("CTB Indiana"). CTB Delaware and CTB Indiana are hereinafter
sometimes collectively referred to as the "Constituent Corporations."
WHEREAS, the outstanding authorized capital stock of CTB Indiana
consists of one (1) share of common stock, par value $0.01 per share, which
is owned by CTB Delaware.
WHEREAS, CTB Delaware, as the sole shareholder of CTB Indiana, desires
to effect a merger of CTB Delaware with and into CTB Indiana pursuant to the
provisions of the General Corporation Law of the State of Delaware (the
"DGCL") and the Indiana Business Corporation Law (the "IBCL").
WHEREAS, the respective Boards of Directors of CTB Delaware and CTB
Indiana have determined that it is advisable and in the best interests of
each of such corporations that CTB Delaware be merged with and into CTB
Indiana upon the terms and subject to the conditions herein provided.
WHEREAS, the Board of Directors of CTB Indiana and CTB Delaware, as the
sole shareholder of CTB Indiana, have approved this Merger Agreement by
unanimous written consents and directed that it be executed by the
undersigned officers.
WHEREAS, the Board of Directors of CTB Delaware has approved this Merger
Agreement by unanimous written consent and directed that it be executed by
the undersigned officers and that it be submitted to a vote of the
shareholders of CTB Delaware at a special meeting or by written consent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties agree that CTB Delaware shall be
merged with and into CTB Indiana and that the terms and conditions of the
merger, the mode of carrying the merger into effect, the manner of converting
the shares of the Constituent Corporations and certain other provisions
relating thereto shall be as follows:
ARTICLE I
THE MERGER
1.01 Surviving Corporation. Subject to the terms and provisions of this
Agreement, and in accordance with the DGCL and the IBCL, at the Effective
Time (as defined in Section 1.08 hereof) CTB Delaware shall be merged with
and into CTB Indiana (the "Merger"). CTB Indiana shall be the surviving
corporation (hereinafter sometimes called the "Surviving Corporation") of the
<PAGE>
Merger and shall continue its corporate existence under the laws of the State
of Indiana. At the Effective Time, the separate corporate existence of CTB
Delaware shall cease.
1.02 Name of the Surviving Corporation. As of the Effective Time, the
name of the Surviving Corporation will be changed to "CTB International
Corp."
1.03 Effect of the Merger. At the Effective Time, the Merger shall have
the effects provided for herein and in Section 259 of the DGCL and Section
23-1-40-6 of the IBCL.
1.04 Articles of Incorporation. As of the Effective Time, the Articles
of Incorporation of CTB Indiana, as in effect immediately prior to the
Effective Time, shall be amended and restated in their entirety by the
Restated Articles of Incorporation attached hereto as Annex 1, which Restated
Articles of Incorporation will become, at the Effective Time, the Articles of
Incorporation of the Surviving Corporation until thereafter duly altered,
amended or repealed in accordance with the provisions thereof and applicable
law.
1.05 By-Laws. As of the Effective Time, the By-Laws of CTB Indiana, as
in effect immediately prior to the Effective Time, shall be amended and
restated in their entirety by the By-Laws attached hereto as Annex 2, which
By-Laws will become, at the Effective Time, the By-Laws of the Surviving
Corporation until thereafter duly altered, amended or repealed in accordance
with the provisions thereof, the Articles of Incorporation of the Surviving
Corporation and applicable law.
1.06 Directors of the Surviving Corporation. At the Effective Time,
each person who is a director of CTB Delaware immediately prior to the
Effective Time shall become a director of the Surviving Corporation and each
such person shall serve as a director of the Surviving Corporation until the
next annual meeting of shareholders of the Surviving Corporation and until
his or her successor is duly elected and qualified in the manner provided in
the By-Laws or the Articles of Incorporation of the Surviving Corporation or
as otherwise provided by law or until his or her earlier death, resignation
or removal in the manner provided in the By-Laws or the Articles of
Incorporation of the Surviving Corporation or as otherwise provided by law.
1.07 Officers of the Surviving Corporation. At the Effective Time, each
person who is an officer of CTB Delaware immediately prior to the Effective
Time shall become an officer of the Surviving Corporation with each such
person to hold the same office in the Surviving Corporation, in accordance
with the By-Laws thereof, as he or she held in CTB Delaware immediately prior
to the Effective Time.
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1.08 Effective Time. The Merger shall become effective in accordance
with the provisions of Section 23-1-40-5 of the IBCL and Section 252 of the
DGCL, upon the later to occur of (a) completion of the filing of articles of
merger with the Secretary of State of Indiana, and (b) the filing of a
certificate of merger with the Secretary of State of Delaware; provided,
however, that such articles of merger and certificate of merger shall not be
filed prior to the date which is 20 calendar days after the date on which an
Information Statement of CTB Delaware prepared in accordance with the rules
of the Securities Exchange Act of 1934, as amended, is mailed to CTB
Delaware's shareholders of record on the record date determined by the board
of directors of CTB Delaware. The date and time when the Merger shall become
effective is herein referred to as the "Effective Time."
1.09 Additional Actions. If, at any time after the Effective Time, the
Surviving Corporation shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or desirable
(a) to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to and possession of any property or right of CTB Delaware
acquired or to be acquired by reason or as a result of the Merger, or (b)
otherwise to carry out the purpose of this Merger Agreement, CTB Delaware and
its proper officers and directors shall be deemed to have granted hereby to
the Surviving Corporation an irrevocable power of attorney to execute and
deliver all such proper deeds, assignments and assurances in law and to do
all acts necessary or proper to vest, perfect or confirm title to and the
possession of such property or rights in the Surviving Corporation and
otherwise to carry out the purposes of this Merger Agreement, and the proper
officers and directors of the Surviving Corporation are hereby fully
authorized in the name of CTB Delaware to take any and all such action.
ARTICLE II
MANNER, BASIS AND EFFECT OF CONVERTING SHARES
2.01 Conversion of Shares. At the Effective Time:
(a) Each share of Common Stock of CTB Delaware, par value $0.01 per
share ("Delaware Common Stock"), issued and outstanding immediately
prior to the Effective Time shall be converted into one fully paid
and nonassessable share of Common Stock of CTB Indiana, par value
$0.01 per share ("Indiana Common Stock") by virtue of the Merger
and without any action on the part of the holder thereof.
(b) Each share of Delaware Common Stock held in the treasury of CTB
Delaware immediately prior to the Effective Time shall be converted
into one fully paid and nonassessable share of Indiana Common Stock
by virtue of the Merger and without any action on the part of CTB
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Delaware and shall be held in the treasury of the Surviving
Corporation;
(c) Each share of 6% Series A Preferred Stock of CTB Delaware, par
value $0.01 per share ("Delaware Preferred Stock"), issued and
outstanding immediately prior to the Effective Time, if any, shall
be converted into one fully paid and nonassessable share of 6%
Series A Preferred Stock of CTB Indiana, par value $0.01 per share
("Indiana Preferred Stock") by virtue of the Merger and without any
action on the part of the holder thereof.
(d) Each share of Indiana Common Stock, issued and outstanding
immediately prior to the Effective Time shall be redeemed,
canceled and retired and shall cease to exist by virtue of the
Merger and without any action on the part of the holder thereof.
2.02 Effect of Conversion. At and after the Effective Time, each share
certificate which immediately prior to the Effective Time represented
outstanding shares of Delaware Common Stock or Delaware Preferred Stock
("Delaware Certificate") shall be deemed for all purposes to evidence
ownership of, and to represent, the number of shares of Indiana Common Stock
or Indiana Preferred Stock, as the case may be, into which the shares of
Delaware Common Stock or Delaware Preferred Stock represented by such
certificate immediately prior to the Effective Time have been converted
pursuant to Section 2.01 hereof. The registered owner of any Delaware
Certificate outstanding immediately prior to the Effective Time, as such
owner appears in the books and records of CTB Delaware or its transfer agent
immediately prior to the Effective Time, shall, until such certificate is
surrendered for transfer or exchange, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividends or other
distributions on the shares of Indiana Common Stock or Indiana Preferred
Stock, as the case may be, into which the shares represented by any such
certificate have been converted pursuant to Section 2.01 hereof.
2.03 Exchange of Certificate. Each holder of a Delaware Certificate
shall, upon the surrender of such certificate to the Surviving Corporation or
its transfer agent for cancellation after the Effective Time, be entitled to
receive from the Surviving Corporation or its transfer agent a certificate
representing the number of shares of Indiana Common Stock or Indiana
Preferred Stock, as the case may be, into which the shares of Delaware Common
Stock or Delaware Preferred Stock represented by such certificate have been
converted pursuant to Section 2.01 hereof.
2.04 Stock Options and Stock Option and Incentive Plans. By virtue of
the Merger and without any action on the part of the holder, each right or
option to purchase shares of Delaware Common Stock granted under CTB
Delaware's 1999 Stock Incentive Plan, stock option agreements between CTB
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Delaware and that certain members of it's management or otherwise as to which
CTB Delaware or any of its affiliates has assumed or incurred obligations
(hereinafter collectively referred to as the "Options") which is outstanding
immediately prior to the Effective Time shall be converted into and become a
right or option to purchase the same number of shares of Indiana Common Stock
at the same option price per share and upon the same terms and subject to the
same conditions as are in effect at the Effective Time. The Surviving
Corporation shall reserve for purposes of the Options a number of shares of
Indiana Common Stock, equal to the number of shares of Delaware Common Stock
reserved by CTB Delaware for issuance under the Options as of the Effective
Time. As of the Effective Time, CTB Indiana hereby assumes the Options and
all obligations of CTB Delaware under the Options.
ARTICLE III
APPROVAL; AMENDMENT; ABANDONMENT; MISCELLANEOUS
3.01 Approval. This Merger Agreement shall be submitted for approval by
the shareholders of CTB Delaware at a special meeting of shareholders or by
written consent.
3.02 Amendment. Subject to applicable law, this Merger Agreement may be
amended, modified or supplemented by written agreement of the Constituent
Corporations at any time prior to the Effective Time, except that after the
approval contemplated by Section 3.01 hereof, there shall be no amendments
that would (a) alter or change the amount or kind of shares to be received by
shareholders in the Merger, (b) alter or change any term of the Restated
Articles of Incorporation or By-Laws of the Surviving Corporation that are to
take effect as of the Effective Time pursuant to Sections 1.04 and 1.05
hereof, or (c) alter or change any of the terms and conditions of this Merger
Agreement if such alteration or change would adversely affect the holders of
any class of stock of either of the Constituent Corporations.
3.03 Abandonment. At any time prior to the Effective Time, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of CTB Indiana or CTB Delaware, or both, notwithstanding approval
of this Merger Agreement by the sole shareholder of CTB Indiana and the
shareholders of CTB Delaware.
3.04 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and the same
agreement.
3.05 Statutory Agent in Indiana. The name and address of the statutory
agent of the Surviving Corporation in Indiana upon whom any process, notice
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or demand against CTB Delaware or the Surviving Corporation may be served
are:
CTB International Corp.
P.O. Box 2000
State Road 15 North
Milford, Indiana 46542-2000
Attention: Corporate Secretary
3.06 Designated Agent in Delaware. The Surviving Corporation agrees
that it may be served with process in the State of Delaware in any proceeding
for enforcement of any obligation of CTB Delaware, as well as for enforcement
of any obligation of the Surviving Corporation arising from the Merger, and
the Surviving Corporation irrevocably appoints the Delaware Secretary of
State as its agent to accept service of process in any such suit or other
proceedings. A copy of such process is requested to be mailed by the
Delaware Secretary of State to:
CTB International Corp.
P.O. Box 2000
State Road 15 North
Milford, Indiana 46542-2000
Attention: Corporate Secretary
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IN WITNESS WHEREOF, CTB Delaware and CTB Indiana have caused this Merger
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
CTB INDIANA CORP.
(an Indiana corporation)
By:________________________________
Victor A. Mancinelli, President and
Chief Executive Officer
ATTEST:
By:_________________________
Michael J. Kissane, Secretary
CTB INTERNATIONAL CORP.
(a Delaware corporation)
By:________________________________
Victor A. Mancinelli, President and
Chief Executive Officer
ATTEST:
By:__________________________
Michael J. Kissane, Secretary
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Annex 1
RESTATED ARTICLES OF INCORPORATION
OF
CTB INTERNATIONAL CORP.
(FORMERLY KNOWN AS CTB INDIANA CORP.)
CTB Indiana Corp., an Indiana corporation (the "Corporation"), and
the survivor of a merger with CTB International Corp., a Delaware
corporation, effected pursuant to a Plan and Agreement of Merger dated
September 21, 1999, desiring to amend and restate its Articles of
Incorporation pursuant to the Indiana Business Corporation Law (the
"Corporation Law") and to change its name, submits the following Restated
Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is CTB International Corp.
ARTICLE II
Purpose and Powers
Section 2.1. Purpose of the Corporation. The purpose for which
the Corporation is formed is to engage in the transaction of any or all
lawful business for which corporations may now or hereafter be incorporated
under the Corporation Law.
Section 2.2. Powers of the Corporation. The Corporation shall
have (a) all powers now or hereafter authorized by or vested in corporations
pursuant to the provisions of the Corporation Law, (b) all powers now or
hereafter vested in corporations by common law or any other statute or act
and (c) all powers authorized by or vested in the Corporation by the
provisions of these Restated Articles of Incorporation or by the provisions
of its By-Laws as from time to time in effect.
ARTICLE III
Term of Existence
The period during which the Corporation shall continue is
perpetual.
<PAGE>
ARTICLE IV
Registered Office and Agent
The street address of the Corporation's registered office at the
time of adoption of these Restated Articles of Incorporation is State
Road 15 North, Milford, Indiana 46542-2000, and the name of its Resident
Agent at such office at the time of adoption of these Restated Articles of
Incorporation is Michael J. Kissane.
ARTICLE V
Authorized Shares
Section 5.1. Authorized Classes and Number of Shares. The total
number of shares of all classes of capital stock which the Corporation shall
have authority to issue is 44,000,000 shares, of which 40,000,000 shares
shall be common stock, par value $0.01 per share ("Common Stock"), and
4,000,000 shares shall be preferred stock, par value $0.01 per share
("Preferred Stock").
Section 5.2. General Terms of All Shares. The Corporation shall
have the power to acquire (by purchase, redemption or otherwise), hold, own,
pledge, sell, transfer, assign, reissue, cancel or otherwise dispose of the
shares of the Corporation in the manner and to the extent now or hereafter
permitted by the laws of the State of Indiana (but such power shall not imply
an obligation on the part of the owner or holder of any share to sell or
otherwise transfer such share to the Corporation), including the power to
purchase, redeem or otherwise acquire the Corporation's own shares, directly
or indirectly, and without pro rata treatment of the owners or holders of any
class or series of shares, unless, after giving effect thereto, the
Corporation would not be able to pay its debts as they become due in the
usual course of business or the Corporation's total assets would be less than
its total liabilities (calculated without regard to any amounts that would be
needed, if the Corporation were to be dissolved at the time of the purchase,
redemption or other acquisition, to satisfy the preferential rights upon
dissolution of shareholders whose preferential rights are superior to those
of the holders of the shares of the Corporation being purchased, redeemed or
otherwise acquired, unless otherwise expressly provided with respect to a
series of Preferred Stock in the provisions of these Restated Articles of
Incorporation describing the terms of such series). Shares of the
Corporation purchased, redeemed or otherwise acquired by it shall constitute
authorized but unissued shares, unless prior to any such purchase, redemption
or other acquisition, or within thirty (30) days thereafter, the Board of
Directors adopts a resolution providing that such shares constitute
authorized and issued but not outstanding shares.
The Board of Directors of the Corporation may dispose of, issue and
sell shares in accordance with, and in such amounts as may be permitted by,
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the laws of the State of Indiana and the provisions of these Restated
Articles of Incorporation and for such consideration, at such price or
prices, at such time or times and upon such terms and conditions (including
the privilege of selectively repurchasing the same) as the Board of Directors
of the Corporation shall determine, without the authorization or approval by
any shareholders of the Corporation. Shares may be disposed of, issued and
sold to such persons, firms or entities as the Board of Directors may
determine, without any preemptive or other right on the part of the owners or
holders of other shares of the Corporation of any class or kind to acquire
such shares by reason of their ownership of such other shares.
When the Corporation receives the consideration specified in a
subscription agreement entered into before incorporation, or for which the
Board of Directors authorized the issuance of shares, as the case may be, the
shares issued therefor shall be fully paid and nonassessable.
The Corporation shall have the power to declare and pay dividends
or other distributions upon the issued and outstanding shares of the
Corporation, subject to the limitation that a dividend or other distribution
may not be made if, after giving it effect, the Corporation would not be able
to pay its debts as they become due in the usual course of business or the
Corporation's total assets would be less than its total liabilities
(calculated without regard to any amounts that would be needed, if the
Corporation were to be dissolved at the time of the dividend or other
distribution, to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights are superior to those of the holders
of shares receiving the dividend or other distribution, unless otherwise
expressly provided with respect to a series of Preferred Stock in the
provisions of these Restated Articles of Incorporation describing the terms
of such series). The Corporation shall have the power to issue shares of one
class or series as a share dividend or other distribution in respect of that
class or series or one or more other classes or series.
Section 5.3. Voting Rights of Shares.
(a) Common Stock. Except as otherwise provided by the Corporation
Law and subject to such shareholder disclosure and recognition procedures
(which may include voting prohibition sanctions) as the Corporation may by
action of its Board of Directors establish, the Common Stock has unlimited
voting rights and, when validly issued by the Corporation, each outstanding
share of Common Stock shall entitle the record holder thereof to one vote at
all shareholders' meetings on all matters submitted to a vote of the
shareholders of the Corporation.
(b) Preferred Stock. Except as required by the Corporation Law or
by the provisions of these Restated Articles of Incorporation describing the
terms of the Preferred Stock or a series thereof, the holders of Preferred
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Stock shall have no voting rights or powers. When validly issued by the
Corporation, shares of Preferred Stock shall entitle the record holder
thereof to vote as and on such matters, but only as and on such matters, as
the holders thereof are entitled to vote under the Corporation Law or under
the provisions of these Restated Articles of Incorporation describing the
terms of the Preferred Stock or a series thereof (which provisions may
provide for special, conditional, limited or unlimited voting rights,
including multiple or fractional votes per share, or for no right to vote,
except to the extent required by the Corporation Law) and subject to such
shareholder disclosure and recognition procedures (which may include voting
prohibition sanctions) as the Corporation may by action of the Board of
Directors establish.
Section 5.4. Other Terms of Common Stock. The shares of Common
Stock shall be equal in every respect insofar as their relationship to the
Corporation is concerned, but such equality of rights shall not imply
equality of treatment as to redemption or other acquisition of shares by the
Corporation. Subject to the rights of the holders of any outstanding
Preferred Stock, the holders of Common Stock shall be entitled to share
ratably in such dividends or other distributions (other than purchases,
redemptions or other acquisitions of shares by the Corporation), if any, as
are declared and paid from time to time on the Common Stock at the discretion
of the Board of Directors. In the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, after payment
shall have been made to the holders of the Preferred Stock of the full amount
to which they shall be entitled under this Article V, the holders of Common
Stock shall be entitled, to the exclusion of the holders of the Preferred
Stock of any and all series, to share, ratably according to the number of
shares of Common Stock held by them, in all remaining assets of the
Corporation available for distribution to its shareholders.
Section 5.5. Other Terms of Preferred Stock.
(a) Preferred Stock may be issued from time to time in one or more
series, each such series to have such distinctive designation and such
preferences, limitations and relative voting and other rights as shall be set
forth in these Restated Articles of Incorporation. Subject to the
requirements of the Corporation Law and subject to all other provisions of
these Restated Articles of Incorporation, the Board of Directors of the
Corporation may create one or more series of Preferred Stock and may
determine the preferences, limitations and relative voting and other rights
of one or more series of Preferred Stock before the issuance of any shares of
that series by the adoption of an amendment to these Restated Articles of
Incorporation that specifies the terms of the series of Preferred Stock. All
shares of a series of Preferred Stock must have preferences, limitations and
relative voting and other rights identical with those of other shares of the
same series and, if the description of the series set forth in these Restated
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Articles of Incorporation so provides, no series of Preferred Stock need have
preferences, limitations or relative voting or other rights identical with
those of any other series of Preferred Stock.
Before issuing any shares of a series of Preferred Stock (in
addition to the series authorized at the time of adoption of these Restated
Articles of Incorporation), the Board of Directors shall adopt an amendment
to these Restated Articles of Incorporation, which shall be effective without
any shareholder approval or other action, that sets forth the preferences,
limitations and relative voting and other rights of the series, and authority
is hereby expressly vested in the Board of Directors by such amendment:
(1) To fix the distinctive designation of such series and the
number of shares which shall constitute such series, which number
may be increased or decreased (but not below the number of shares
thereof then outstanding) from time to time by action of the Board
of Directors;
(2) To fix the voting rights of such series, which may
consist of special, conditional, limited or unlimited voting
rights, including multiple or fractional votes per share, or no
right to vote (except to the extent required by the Corporation
Law);
(3) To fix the dividend or distribution rights of such series
and the manner of calculating the amount and time for payment of
dividends or distributions, including, but not limited to:
(A) the dividend rate, if any, of such series;
(B) any limitations, restrictions or conditions on
the payment of dividends or other distributions,
including whether dividends or other distributions shall
be noncumulative or cumulative or partially cumulative
and, if so, from which date or dates;
(C) the relative rights of priority, if any, of
payment of dividends or other distributions on shares of
that series in relation to Common Stock and shares of any
other series of Preferred Stock; and
(D) the form of dividends or other distributions,
which may be payable at the option of the Corporation,
the shareholder or another person (and in such case to
prescribe the terms and conditions of exercising such
option), or upon the occurrence of a designated event in
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cash, indebtedness, stock or other securities or other
property, or in any combination thereof,
and to make provisions, in the case of dividends or other
distributions payable in stock or other securities, for adjustment
of the dividend or distribution rate in such events as the Board of
Directors shall determine;
(4) To fix the price or prices at which, and the terms and
conditions on which, the shares of such series may be redeemed or
converted, which may be
(A) at the option of the Corporation, the
shareholder or another person or upon the occurrence of a
designated event;
(B) for cash, indebtedness, securities or other
property or any combination thereof; and
(C) in a designated amount or in an amount
determined in accordance with a designated formula or by
reference to extrinsic data or events;
(5) To fix the amount or amounts payable upon the shares of
such series in the event of any liquidation, dissolution or winding
up of the Corporation and the relative rights of priority, if any,
of payment upon shares of such series in relation to shares of
Common Stock and shares of any other series of Preferred Stock; and
to determine whether or not any such preferential rights upon
dissolution need be considered in determining whether or not the
Corporation may make dividends, repurchases or other distributions;
(6) To determine whether or not the shares of such series
shall be entitled to the benefit of a sinking fund to be applied to
the purchase or redemption of such series and, if so entitled, the
amount of such fund and the manner of its application;
(7) To determine whether or not the issue of any additional
shares of such series or of any other series in addition to such
series shall be subject to restrictions in addition to
restrictions, if any, on the issue of additional shares imposed in
the provisions of these Restated Articles of Incorporation fixing
the terms of any outstanding series of Preferred Stock and, if
subject to additional restrictions, the extent of such additional
restrictions; and
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(8) Generally to fix the other preferences or rights, and any
qualifications, limitations or restrictions of such preferences or
rights, of such series to the full extent permitted by the
Corporation Law; provided, however, that no such preferences,
rights, qualifications, limitations or restrictions shall be in
conflict with these Restated Articles of Incorporation or any
amendment hereof.
(b) Shares of Preferred Stock of any series that have been
redeemed (whether through the operation of a sinking fund or otherwise) or
purchased by the Corporation, or which, if convertible, have been converted
into shares of the Corporation of any other class or series, may be reissued
as a part of such series or of any other series of Preferred Stock, subject
to such limitations (if any) as may be specified or provided for in the
provisions of these Restated Articles of Incorporation describing the terms
of any series of Preferred Stock.
Section 5.6. Terms of the 6% Series A Preferred Stock. Thirty
thousand (30,000) shares of Preferred Stock are hereby designated "6%
Series A Preferred Stock." The powers, designations, preferences and
relative participating, optional and other special rights, and the
qualifications, limitations or restrictions of the 6% Series A Preferred
Stock, in addition to those set forth in these Restated Articles of
Incorporation that are applicable to shares of Preferred Stock of all series,
are as follows:
(a) Rank. The 6% Series A Preferred Stock shall, with respect to
dividend rights, rights on redemption and rights on liquidation, winding up
and dissolution, rank prior to all classes of Common Stock of the
Corporation. All of such equity securities of the Corporation to which the
6% Series A Preferred Stock ranks prior are collectively referred to herein
as the "Junior Stock."
(b) Dividends.
(1) The holders of 6% Series A Preferred Stock shall be
entitled to receive in preference to the holders of any of the
Junior Stock, out of any funds legally available for the payment of
dividends, noncumulative dividends at the rate of $60.00 in cash
for each share of 6% Series A Preferred Stock held (determined by
multiplying 6% by the Liquidation Preference, as defined in
Section 5.6(c)) per fiscal year of the Corporation. The rights to
such dividends on the 6% Series A Preferred Stock shall not be
cumulative, and no rights shall accrue to holders of 6% Series A
Preferred Stock by reason of the fact that dividends on said shares
are not declared in any previous dividend period, nor shall any
undeclared or unpaid dividends bear or accrue interest.
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(2) All dividends paid with respect to shares of the 6%
Series A Preferred Stock pursuant to Section 5.6(b)(1) shall be
paid pro rata to the holders entitled thereto.
(3) Holders of shares of the 6% Series A Preferred Stock
shall be entitled to receive the dividends provided for in
Section 5.6(b)(1) in preference to and in priority over any
dividends upon any of the Junior Stock.
(4) Each fractional share of 6% Series A Preferred Stock
outstanding shall be entitled to a ratably proportionate amount of
all dividends accruing with respect to each outstanding share of 6%
Series A Preferred Stock pursuant to Section 5.6(b)(1).
(c) Liquidation Preference. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of shares of 6% Series A Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders an amount equal to $1,000.00
for each share outstanding (the "Liquidation Preference"), plus an amount
equal to all declared but unpaid dividends thereon to the date fixed for
liquidation, dissolution or winding up before any payment shall be made or
any assets distributed to the holders of any of the Junior Stock. Except as
provided in the preceding sentence, holders of 6% Series A Preferred Stock
shall not be entitled to any distribution in the event of liquidation,
dissolution or winding up of the affairs of the Corporation. If the assets
of the Corporation are not sufficient to pay in full the liquidation payments
payable to the holders of outstanding shares of 6% Series A Preferred Stock,
then the holders of all such shares shall share ratably in accordance with
the respective amounts to which the holders of outstanding shares of 6%
Series A Preferred Stock would be entitled if all amounts payable thereon
were paid in full.
The liquidation payment with respect to each outstanding fractional
share of 6% Series A Preferred Stock shall be equal to a ratably
proportionate amount of the liquidation payment with respect to each
outstanding share of the 6% Series A Preferred Stock.
(d) Redemption. Upon the occurrence of an Initial Public Offering
(as defined below) or a Change of Control (as defined below), the 6% Series A
Preferred Stock shall be redeemable, at the option of the Corporation, in
whole or in part, from time to time at a redemption price of $1,000.00 per
share of the 6% Series A Preferred Stock, plus an amount equal to all
declared but unpaid dividends thereon to the date fixed for redemption.
"Initial Public Offering" shall mean the sale of shares of the Corporation's
capital stock to the public pursuant to a registration statement under the
Securities Act of 1933, as amended. "Change of Control" shall mean any
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person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) other than American Securities
Capital Partners, L.P. ("ASCP"), investment funds managed by ASCP or its
affiliates, J. Christopher Chocola or Caryl M. Chocola shall have acquired
beneficial ownership or control of over 15% of the voting stock (on a fully
diluted basis) of the Corporation.
(e) Procedure for Redemption.
(1) In the event that fewer than all the outstanding shares
of 6% Series A Preferred Stock are to be redeemed, the number of
shares to be redeemed shall be determined by the Board of Directors
and the shares to be redeemed shall be selected pro rata based upon
the number of outstanding shares of 6% Series A Preferred Stock
held by each holder thereof prior to the redemption.
(2) In the event the Corporation shall redeem shares of 6%
Series A Preferred Stock, notice of such redemption shall be given
by first class mail, postage prepaid, mailed not less than 30 days
nor more than 60 days prior to the redemption date, to all holders
of record of the shares to be redeemed at such holder's address as
the same appears on the stock register of the Corporation. Each
such notice shall state: (i) the redemption date; (ii) the
aggregate number of shares of 6% Series A Preferred Stock to the
redeemed and, if less than all the shares held by such holder are
to be redeemed from such holder, the number of shares to be
redeemed from such holder; (iii) the redemption price; and (iv) the
place or places where certificates for such shares are to be
surrendered for payment of the redemption price.
(3) Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the
Corporation in providing money for the payment of the redemption
price of the shares called for redemption) said shares shall no
longer be deemed to be outstanding and shall have the status of
authorized but unissued shares of 6% Series A Preferred Stock, and
shall not be reissued as shares of 6% Series A Preferred Stock, and
all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board shall so
require and the notice shall so state), such shares shall be
redeemed by the Corporation at the redemption price aforesaid. In
the event fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued
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representing the unredeemed shares without cost to the holder
thereof.
(f) Voting Rights. The holders of record of shares of 6% Series A
Preferred Stock shall not be entitled to any voting rights except as
otherwise provided by law.
ARTICLE VI
Directors
Section 6.1. Number. The Board of Directors at the time of
adoption of these Restated Articles of Incorporation is composed of nine (9)
members, which number may be changed from time to time by amendment to the
By-Laws, provided that such number shall not be less than one (1) or more
than fifteen (15).
Section 6.2. Qualifications. Directors need not be shareholders
of the Corporation or residents of this or any other state in the United
States.
Section 6.3. 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, in the manner provided
by the Corporation 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.
Section 6.4. Liability of Directors. A Director's responsibility
to the Corporation shall be limited to discharging his or her duties as a
Director, including his or her duties as a member of any committee of the
Board of Directors upon which he or she may serve, in good faith, with the
care an ordinarily prudent person in a like position would exercise under
similar circumstances, and in a manner the Director reasonably believes to be
in the best interests of the Corporation, all based on the facts then known
to the Director.
In discharging his or her duties, a Director is entitled to rely on
information, opinions, reports, or statements, including financial statements
and other financial data, if prepared or presented by:
(a) One (1) or more officers or employees of the Corporation
whom the Director reasonably believes to be reliable and competent
in the matters presented;
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(b) Legal counsel, public accountants or other persons as to
matters the Director reasonably believes are within such person's
professional or expert competence; or
(c) A committee of the Board of which the Director is not a
member if the Director reasonably believes the Committee merits
confidence;
but a Director is not acting in good faith if the Director has knowledge
concerning the matter in question that makes reliance otherwise permitted by
this Section 6.4 unwarranted.
A Director shall not be liable for any action taken as a Director,
or any failure to take any action, unless (a) the Director has breached or
failed to perform the duties of the Director's office in compliance with this
Section 6.4, and (b) the breach or failure to perform constitutes willful
misconduct or recklessness.
Section 6.5. Factors to be Considered by Board. In determining
whether to take or refrain from taking any action with respect to any matter,
including making or declining to make any recommendation to shareholders of
the Corporation, the Board of Directors may, in its discretion, consider both
the short term and long term best interests of the Corporation (including the
possibility that these interests may be best served by the continued
independence of the Corporation), taking into account, and weighing as the
Directors deem appropriate, the social and economic effects thereof on the
Corporation's present and future employees, suppliers and customers of the
Corporation and its subsidiaries, the communities in which offices or other
facilities of the Corporation are located and any other factors the Directors
consider pertinent.
Section 6.6. Removal of Directors. Notwithstanding any other
provisions of the Corporation Law, these Restated Articles of Incorporation
or the By-Laws of the Corporation (and notwithstanding the fact that some
lesser percentage may be specified by law, these Restated Articles of
Incorporation or the By-Laws of the Corporation), one or more directors of
the Corporation may be removed at any time, with or without cause, by the
affirmative vote of the holders of a majority or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the shareholders called for that purpose, or by a majority vote of
the entire Board of Directors. Notwithstanding the foregoing, and except as
otherwise required by law, whenever the holders of any one or more series of
Preferred Stock shall have the right, voting separately as a class, to elect
one or more directors of the Corporation, the provisions of this Section 6.6
shall not apply with respect to the director or directors elected by such
holders of Preferred Stock.
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Section 6.7. Election of Directors by Holders of Preferred Stock.
The holders of one (1) or more series of Preferred Stock may be entitled to
elect all or a specified number of Directors, but only to the extent and
subject to limitations as may be set forth in the provisions of these
Restated Articles of Incorporation adopted by the Board of Directors pursuant
to Section 5.5 hereof describing the terms of the series of Preferred Stock.
ARTICLE VII
Provisions for Regulation of Business
and Conduct of Affairs of Corporation
Section 7.1. Meetings of Shareholders. Meetings of the
shareholders of the Corporation shall be held at such time and at such place,
either within or without the State of Indiana, as may be stated in or fixed
in accordance with the By-Laws of the Corporation and specified in the
respective notices or waivers of notice of any such meetings.
Section 7.2. Meetings of Directors. Meetings of the Board of
Directors of the Corporation shall be held at such place, either within or
without the State of Indiana, as may be authorized by the By-Laws and
specified in the respective notices or waivers of notice of any such meetings
or otherwise specified by the Board of Directors. Unless the By-Laws provide
otherwise (a) regular meetings of the Board of Directors may be held without
notice of the date, time, place or purpose of the meeting and (b) the notice
for a special meeting need not describe the purpose or purposes of the
special meeting.
Section 7.3. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or
shareholders, or of any committee of such Board, may be taken without a
meeting, if the action is taken by all members of the Board or all
shareholders entitled to vote on the action, or by all members of such
committee, as the case may be. The action must be evidenced by one (1) or
more written consents describing the action taken, signed by each Director,
or all the shareholders entitled to vote on the action, or by each member of
such committee, as the case may be, and, in the case of action by the Board
of Directors or a committee thereof, included in the minutes or filed with
the corporate records reflecting the action taken or, in the case of action
by the shareholders, delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. Action taken under this
Section 7.3 is effective when the last Director, shareholder or committee
member, as the case may be, signs the consent, unless the consent specifies a
different prior or subsequent effective date, in which case the action is
effective on or as of the specified date. Such consent shall have the same
effect as a unanimous vote of all members of the Board, or all shareholders,
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or all members of the committee, as the case may be, and may be described as
such in any document.
Section 7.4. By-Laws. The Board of Directors shall have the
exclusive power to make, alter, amend or repeal, or to waive provisions of,
the By-Laws of the Corporation by the affirmative vote of a majority of the
entire number of Directors at the time, except as expressly provided by the
Corporation Law. All provisions for the regulation of the business and
management of the affairs of the Corporation not stated in these Restated
Articles of Incorporation shall be stated in the By-Laws. The Board of
Directors may adopt Emergency By-Laws of the Corporation and shall have the
exclusive power (except as may otherwise be provided therein) to make, alter,
amend or repeal, or to waive provisions of, the Emergency By-Laws by the
affirmative vote of a majority of the entire number of Directors at the
time.
Section 7.5. Interest 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 7.5, 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, manager 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.
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(c) For purposes of Section 7.5(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 7.5. 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 7.5(a)(1), if the
transaction is otherwise authorized, approved or ratified as provided in such
subsection.
(d) For purposes of Section 7.5(a)(2), a conflict of interest
transaction is authorized, approved or ratified if it receives the
affirmative vote of the holders of shares representing a majority of the
votes entitled to be cast. 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 7.5(b),
may be counted in such a vote of shareholders.
Section 7.6. 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 debts.
Section 7.7. Indemnification of Officers, Directors, and Other
Eligible Persons.
(a) To the extent not inconsistent with applicable law, every
Eligible Person shall be indemnified by the Corporation against all Liability
and reasonable Expense that may be incurred by him in connection with or
resulting from any Claim, (1) if such Eligible Person is Wholly Successful
with respect to the Claim, or (2) if not Wholly Successful, then if such
Eligible Person is determined, as provided in either Section 7.7(f)
or 7.7(g), to have acted in good faith, in what he reasonably believed to be
the best interests of the Corporation or at least not opposed to its best
interests and, in addition, with respect to any criminal claim is determined
to have had reasonable cause to believe that his conduct was lawful or had no
reasonable cause to believe that his conduct was unlawful. The termination
of any Claim, by judgment, order, settlement (whether with or without court
approval) or conviction or upon a plea of guilty or of nolo contendere, or
its equivalent, shall not create a presumption that an Eligible Person did
not meet the standards of conduct set forth in clause (2) of this
subsection (a). The actions of an Eligible Person with respect to an
employee benefit plan subject to the Employee Retirement Income Security Act
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of 1974 shall be deemed to have been taken in what the Eligible Person
reasonably believed to be the best interests of the Corporation or at least
not opposed to its best interests if the Eligible Person reasonably believed
he was acting in conformity with the requirements of such Act or he
reasonably believed his actions to be in the interests of the participants in
or beneficiaries of the plan.
(b) The term "Claim" as used in this Section 7.7 shall include
every pending, threatened or completed claim, action, suit or proceeding and
all appeals thereof (whether brought by or in the right of this Corporation
or any other corporation or otherwise), civil, criminal, administrative or
investigative, formal or informal, in which an Eligible Person may become
involved, as a party or otherwise:
(1) by reason of his being or having been an Eligible Person,
or
(2) by reason of any action taken or not taken by him in his
capacity as an Eligible Person, whether or not he continued in such
capacity at the time such Liability or Expense shall have been
incurred.
(c) The term "Eligible Person" as used in this Section 7.7 shall
mean every person (and the estate, heirs and personal representatives of such
person) who is or was a Director, officer, employee, or agent of the
Corporation or is or was serving at the request of the Corporation as a
Director, officer, employee, agent, manager or fiduciary of another foreign
or domestic corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan or other organization or entity,
whether for profit or not. An Eligible Person shall also be considered to
have been serving an employee benefit plan at the request of the Corporation
if his duties to the Corporation also imposed duties on, or otherwise
involved services by, him to the plan or to participants in or beneficiaries
of the plan.
(d) The terms "Liability" and "Expense" as used in this
Section 7.7 shall include, but shall not be limited to, counsel fees and
disbursements and amounts of judgments, fines or penalties against (including
excise taxes assessed with respect to an employee benefit plan), and amounts
paid in settlement by or on behalf of, an Eligible Person.
(e) The term "Wholly Successful" as used in this Section 7.7 shall
mean (1) termination of any claim against the Eligible Person in question
without any finding of liability or guilt against him, (2) approval by a
court, with knowledge of the indemnity herein provided, of a settlement of
any Claim, or (3) the expiration of a reasonable period of time after the
making or threatened making of any Claim without commencement of an action,
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suit or proceeding, without any payment or promise made to induce a
settlement.
(f) Every Eligible Person claiming indemnification hereunder
(other than one who has been Wholly Successful with respect to any Claim)
shall be entitled to indemnification (1) if special independent legal
counsel, which may be regular counsel of the Corporation or other
disinterested person or persons, in either case selected by the Board of
Directors, whether or not a disinterested quorum exists (such counsel or
person or persons being hereinafter called the "Referee"), shall deliver to
the Corporation a written finding that such Eligible Person has met the
standards of conduct set forth in Section 7.7(a)(2), and (2) if the Board of
Directors, acting upon such written finding, so determines. The Board of
Directors shall, if an Eligible Person is found to be entitled to
indemnification pursuant to the preceding sentence, also determine the
reasonableness of the Eligible Person's Expenses. The Eligible Person
claiming indemnification shall, if requested, appear before the Referee,
answer questions that the Referee deems relevant and shall be given ample
opportunity to present to the Referee evidence upon which he relies for
indemnification. The Corporation shall, at the request of the Referee, make
available facts, opinions or other evidence in any way relevant to the
Referee's findings that are within the possession or control of the
Corporation.
(g) If an Eligible Person claiming indemnification pursuant to
Section 7.7(f) is found not to be entitled thereto, or if the Board of
Directors fails to select a Referee under Section 7.7(f) within a reasonable
amount of time following a written request of an Eligible Person for the
selection of a Referee, or if the Referee or the Board of Directors fails to
make a determination under Section 7.7(f) within a reasonable amount of time
following the selection of a Referee, the Eligible Person may apply for
indemnification with respect to a Claim to a court of competent jurisdiction,
including a court in which the Claim is pending against the Eligible Person.
On receipt of an application, the court, after giving notice to the
Corporation and giving the Corporation ample opportunity to present to the
court any information or evidence relating to the claim for indemnification
that the Corporation deems appropriate, may order indemnification if it
determines that the Eligible Person is entitled to indemnification with
respect to the Claim because such Eligible Person met the standards of
conduct set forth in Section 7.7(a)(2). If the court determines that the
Eligible Person is entitled to indemnification, the court shall also
determine the reasonableness of the Eligible Person's Expenses.
(h) The rights of indemnification provided in this Section 7.7
shall be in addition to any rights to which any Eligible Person may otherwise
be entitled. Irrespective of the provisions of this Section 7.7, the Board
of Directors may, at any time and from time to time, (1) approve
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indemnification of any Eligible Person to the full extent permitted by the
provisions of applicable law at the time in effect, whether on account of
past or future transactions, and (2) authorize the Corporation to purchase
and maintain insurance on behalf of any Eligible Person against any Liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such Liability or Expense.
(i) Expenses incurred by an Eligible Person with respect to any
Claim may be advanced by the Corporation (by action of the Board of
Directors, whether or not a disinterested quorum exists) prior to the final
disposition thereof upon receipt of an undertaking by or on behalf of the
Eligible Person to repay such amount if he is determined not to be entitled
to indemnification.
(j) The provisions of this Section 7.7 shall be deemed to be a
contract between the Corporation and each Eligible Person, and an Eligible
Person's rights hereunder shall not be diminished or otherwise adversely
affected by any repeal, amendment or modification of this Section 7.7 that
occurs subsequent to such person becoming an Eligible Person.
(k) The provisions of this Section 7.7 shall be applicable to
Claims made or commenced after the adoption hereof, whether arising from acts
or omissions to act occurring before or after the adoption hereof.
ARTICLE VIII
Approval of Business Combinations
Section 8.1. Supermajority Vote.
(a) The Corporation shall not engage in any business
combination with any interested shareholder for a period of three (3) years
following the time that such shareholder became an interested shareholder,
unless:
(1) Prior to such time the Board of Directors of the
Corporation approved either the business combination or the
transaction which resulted in the shareholder becoming an
interested shareholder;
(2) Upon consummation of the transaction which resulted in
the shareholder becoming an interested shareholder, the interested
shareholder owned voting stock of the Corporation representing at
least 85% of the votes entitled to be cast by all voting stock of
the Corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
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outstanding those shares owned (i) by persons who are directors and
also officers of the Corporation and (ii) employee stock plans of
the Corporation or any of its majority-owned subsidiaries in which
employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
(3) At or subsequent to such time, the business
combination is approved by the Board of Directors of the
Corporation and authorized at an annual or special meeting of
shareholders, and not by written consent, by the affirmative vote
of at least sixty-six and two-thirds percent (66 2/3%) of the votes
entitled to be cast by the outstanding voting stock which is not
owned by the interested shareholder.
(b) The restrictions contained in subsection 8.01(a) shall not
apply if:
(1) A shareholder becomes an interested shareholder
inadvertently and (i) as soon as practicable divests itself of
ownership of sufficient shares so that the shareholder ceases to be
an interested shareholder; and (ii) would not, at any time within
the 3-year period immediately prior to a business combination
between the Corporation and such shareholder, have been an
interested shareholder but for the inadvertent acquisition of
ownership;
(2) The business combination is proposed prior to the
consummation or abandonment of and subsequent to the earlier of the
public announcement or the notice required under this paragraph (2)
of a proposed transaction which (i) constitutes one of the
transactions described in the second sentence of this paragraph
(2); (ii) is with or by a person who either was not an interested
shareholder during the previous three (3) years or who became an
interested shareholder with the approval of the Corporation's Board
of Directors; and (iii) is approved or not opposed by a majority of
the members of the Board of Directors then in office (but not less
than one) who were directors of the Corporation prior to any person
becoming an interested shareholder during the previous three (3)
years or were recommended for election or elected to succeed such
directors by a majority of such directors. The proposed
transactions referred to in the preceding sentence are limited to
(x) a merger or consolidation of the corporation (except for a
merger in respect of which, pursuant to IC 23-1-40-3(g) of the
Corporation Law, no vote of the shareholders of the Corporation is
required); (y) a sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
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transactions), whether as part of a dissolution or otherwise, of
assets of the Corporation or of any direct or indirect
majority-owned subsidiary of the Corporation (other than to any
direct or indirect wholly-owned subsidiary or to the Corporation)
having an aggregate market value equal to 50% or more of either the
aggregate market value of all of the assets of the Corporation
determined on a consolidated basis or the aggregate market value of
all the outstanding stock of the Corporation; or (z) a proposed
tender or exchange offer for 50% or more of the outstanding voting
stock of the Corporation. The Corporation shall give not less than
20 days' notice to all interested shareholders prior to the
consummation of any of the transactions described in clause (x) or
(y) of the second sentence of this paragraph (2).
(c) As used in this Section 8.01 only, the term:
(1) "Affiliate" means a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, another person.
(2) "Associate," when used to indicate a relationship with
any person, means: (i) any corporation, partnership, limited
liability company or other entity of which such person is a
director, officer or partner or is, directly or indirectly, the
owner of 20% or more of any class of voting stock; (ii) any trust
or other estate in which such person has at least a 20% beneficial
interest or as to which such person serves as trustee or in a
similar fiduciary capacity; and (iii) any relative or spouse of
such person, or any relative of such spouse, who has the same
residence as such person.
(3) "Business combination," means: (i) any merger or
consolidation of the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation with (A) the
interested shareholder, or (B) with any other corporation,
partnership, limited liability company or other entity if the
merger or consolidation is caused by the interested shareholder and
as a result of such merger or consolidation subsection (a) of this
Section 8.01 is not applicable to the surviving entity; (ii) any
sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions),
except proportionately as a shareholder of the Corporation, to or
with the interested shareholder, whether as part of a dissolution
or otherwise, of assets of the Corporation or of any direct or
indirect majority-owned subsidiary of the Corporation which assets
have an aggregate market value equal to 10% or more of either the
aggregate market value of all the assets of the Corporation
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determined on a consolidated basis or the aggregate market value of
all the outstanding stock of the Corporation; (iii) any transaction
which results in the issuance or transfer by the Corporation or by
any direct or indirect majority-owned subsidiary of the Corporation
of any stock of the Corporation or of such subsidiary to the
interested shareholder, except: (A) pursuant to the exercise,
exchange or conversion of securities exercisable for, exchangeable
for or convertible into stock of the Corporation or any such
subsidiary which securities were outstanding prior to the time that
the interested shareholder became such; (B) pursuant to a merger
under IC 23-1-40-4 of the Corporation Law; (C) pursuant to a
dividend or distribution paid or made, or the exercise, exchange or
conversion of securities exercisable for, exchangeable for or
convertible into stock of the Corporation or any such subsidiary
which security is distributed, pro rata to all holders of a class
or series of stock of the Corporation subsequent to the time the
interested shareholder became such; (D) pursuant to an exchange
offer by the corporation to purchase stock made on the same terms
to all holders of said stock; or (E) any issuance or transfer of
stock by the Corporation; provided however, that in no case under
items (C)-(E) of this subparagraph shall there be an increase in
the interested shareholder's proportionate share of the stock of
any class or series of the Corporation or of the voting stock of
the Corporation; (iv) any transaction involving the Corporation or
any direct or indirect majority-owned subsidiary of the Corporation
which has the effect, directly or indirectly, of increasing the
proportionate share of the stock of any class or series, or
securities convertible into the stock of any class or series, of
the Corporation or of any such subsidiary which is owned by the
interested shareholder, except as a result of immaterial changes
due to fractional share adjustments or as a result of any purchase
or redemption of any shares of stock not caused, directly or
indirectly, by the interested shareholder; or (v) any receipt by
the interested shareholder of the benefit, directly or indirectly
(except proportionately as a shareholder of the Corporation), of
any loans, advances, guarantees, pledges or other financial
benefits (other than those expressly permitted in subparagraphs
(i)-(iv) of this paragraph) provided by or through the Corporation
or any direct or indirect majority-owned subsidiary.
(4) "Control," including the terms "controlling,"
"controlled by" and "under common control with," means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a person, whether
through the ownership of voting stock, by contract or otherwise. A
person who is the owner of 20% or more of the outstanding voting
stock of any corporation, partnership, limited liability company or
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other entity shall be presumed to have control of such entity, in
the absence of proof by a preponderance of the evidence to the
contrary. Notwithstanding the foregoing, a presumption of control
shall not apply where such person holds voting stock, in good faith
and not for the purpose of circumventing this section, as an agent,
bank, broker, nominee, custodian or trustee for one or more owners
who do not individually or as a group have control of such entity.
(5) "Interested shareholder" means any person (other than
the Corporation and any direct or indirect majority-owned
subsidiary of the Corporation) that (i) is the owner of 15% or more
of the outstanding voting stock of the Corporation, or (ii) is an
affiliate or associate of the Corporation and was the owner of 15%
or more of the outstanding voting stock of the Corporation at any
time within the three-year period immediately prior to the date on
which it is sought to be determined whether such person is an
interested shareholder; and the affiliates and associates of such
person; provided, however, that the term "interested shareholder"
shall not include (x) any person whose ownership of shares in
excess of the 15% limitation set forth herein is the result of
action taken solely by the Corporation; provided that such person
shall be an interested shareholder if thereafter such person
acquires additional shares of voting stock of the Corporation,
except as a result of further Corporate action not caused, directly
or indirectly, by such person, (y) American Securities Partners GP
(Management) Corp., ASP/CTB G.P. Corp. or any of their respective
affiliates or associates or (z) any member of the Caryl M. Chocola
family and their respective affiliates. For the purpose of
determining whether a person is an interested shareholder, the
voting stock of the Corporation deemed to be outstanding shall
include stock deemed to be owned by the person through application
of paragraph (8) of this subsection but shall not include any other
unissued stock of Corporation which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(6) "Person" means any individual, corporation,
partnership, limited liability company or other entity.
(7) "Stock" means, with respect to any corporation,
capital stock and, with respect to any other entity, any equity
interest.
(8) "Voting stock" means, with respect to any corporation,
stock of any class or series entitled to vote generally in the
election of directors and, with respect to any entity that is not a
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corporation, any equity interest entitled to vote generally in the
election of the governing body of such entity.
(9) "Owner," including the terms "own" and "owned," when
used with respect to any stock, means a person that individually or
with or through any of its affiliates or associates: (i)
beneficially owns such stock, directly or indirectly; or (ii) has
(A) the right to acquire such stock (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; provided, however, that a person shall not
be deemed the owner of stock tendered pursuant to a tender or
exchange offer made by such person or any of such person's
affiliates or associates until such tendered stock is accepted for
purchase or exchange; or (B) the right to vote such stock pursuant
to any agreement, arrangement or understanding; provided, however,
that a person shall not be deemed the owner of any stock because of
such person's right to vote such stock if the agreement,
arrangement or understanding to vote such stock arises solely from
a revocable proxy or consent given in response to a proxy or
consent solicitation made to ten (10) or more persons; or (iii) has
any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except voting pursuant to a revocable
proxy or consent as described in item (B) of subparagraph (ii) of
this paragraph), or disposing of such stock with any other person
that beneficially owns, or whose affiliates or associates
beneficially own, directly or indirectly, such stock.
Section 8.2. Fiduciary Obligations Unaffected. Nothing in this
Article VIII shall be construed to relieve any interested shareholder from
any fiduciary duty imposed by law.
Section 8.3. Article VIII Nonexclusive. The provisions of this
Article VIII are nonexclusive and are in addition to any other provisions of
law or these restated Articles of Incorporation or the By-Laws of the
Corporation relating to business combinations, interested shareholders or
similar matters.
Section 8.4. Amendments. Any amendment to this Article VIII shall
not be effective until twelve (12) months after the adoption of such
amendment and shall not apply to any business combination with any person who
became an interested shareholder on or prior to such adoption.
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ARTICLE IX
Miscellaneous
Section 9.1. Amendment or Repeal. Except as otherwise expressly
provided for in these Restated Articles of Incorporation, the Corporation
shall be deemed, for all purposes, to have reserved the right to amend,
alter, change or repeal any provision contained in these Restated Articles of
Incorporation to the extent and in the manner now or hereafter permitted or
prescribed by statute, and all rights herein conferred upon shareholders are
granted subject to such reservation.
Section 9.2. Captions. The captions of the Articles and Sections
of these Restated Articles of Incorporation have been inserted for
convenience of reference only and do not in any way define, limit, construe
or describe the scope or intent of any Article or Section hereof.
Section 9.3 Election Not to be Governed by IC 23-1-42. The
Corporation, pursuant to the provisions of IC 23-1-42-5, hereby expressly
elects not to be governed by the provisions of Chapter 42 of the Corporation
Law (IC 23-1-42), regarding control share acquisitions.
Section 9.4. Election Not to be Governed by IC 23-1-43. The
Corporation, pursuant to the provisions of IC 23-1-43-22(B), hereby expressly
elects not to be governed by the provisions of Chapter 43 of the Corporation
Law (IC 23-1-43), regarding business combinations.
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Annex 2
BY-LAWS
OF
CTB INTERNATIONAL CORP.
(formerly CTB Indiana Corp.)
(As Amended ___________ __, 1999)
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meetings. Annual meetings of the shareholders
of the Corporation shall be held on the first Tuesday of May of each year at
such hour and at such place within or without the State of Indiana as shall
be designated by the Board of Directors. In the absence of designation, the
meeting shall be held at the principal office of the Corporation at
11:00 a.m. (local time). The Board of Directors may, by resolution, change
the date or time of such annual meeting. If the day fixed for any annual
meeting of shareholders shall fall on a legal holiday, then such annual
meeting shall be held on the first following day that is not a legal holiday.
Section 1.2. Special Meetings. Special meetings of the
shareholders of the Corporation may be called at any time by the Board of
Directors, Chairman of the Board or the President and shall be called by the
Board of Directors if the Secretary receives written, dated and signed
demands for a special meeting, describing in reasonable detail the purpose or
purposes for which it is to be held, from the holders of shares representing
at least twenty-five percent (25%) of all votes entitled to be cast on any
issue proposed to be considered at the proposed special meeting. If the
Secretary receives one (1) or more proper written demands for a special
meeting of shareholders, the Board of Directors may set a record date for
determining shareholders entitled to make such demand. The Board of
Directors, Chairman of the Board or the President, as the case may be,
calling a special meeting of shareholders shall set the date, time and place
of such meeting, which may be held within or without the State of Indiana.
Section 1.3. Notices. A written notice, stating the date, time
and place of any meeting of the shareholders, and, in the case of a special
meeting, the purpose or purposes for which such meeting is called, shall be
delivered or mailed by the Secretary of the Corporation to each shareholder
of record of the Corporation entitled to notice of or to vote at such meeting
no fewer than ten (10) nor more than sixty (60) days before the date of the
meeting. In the event of a special meeting of shareholders required to be
called as the result of a demand therefor made by shareholders, such notice
shall be given no later than the sixtieth (60th) day after the Corporation's
<PAGE>
receipt of the demand requiring the meeting to be called. Notice of
shareholders' meetings, if mailed, shall be mailed, postage prepaid, to each
shareholder at his or her address shown in the Corporation's current record
of shareholders.
Notice of a meeting of shareholders shall be given to shareholders
not entitled to vote, but only if a purpose for the meeting is to vote on any
amendment to the Corporation's Articles of Incorporation, merger or share
exchange to which the Corporation would be a party, sale of the Corporation's
assets or dissolution of the Corporation. Except as required by the
foregoing sentence or as otherwise required by the Indiana Business
Corporation Law or the Corporation's Articles of Incorporation, notice of a
meeting of shareholders is required to be given only to shareholders entitled
to vote at the meeting.
A shareholder or his or her proxy may at any time waive notice of a
meeting if the waiver is in writing and is delivered to the Corporation for
inclusion in the minutes or filing with the Corporation's records. A
shareholder's attendance at a meeting, whether in person or by proxy,
(a) waives objection to lack of notice or defective notice of the meeting,
unless the shareholder or his or her proxy at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting, and
(b) waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice,
unless the shareholder or his or her proxy objects to considering the matter
when it is presented. Each shareholder who has, in the manner above
provided, waived notice or objection to notice of a shareholders' meeting
shall be conclusively presumed to have been given due notice of such meeting,
including the purpose or purposes thereof.
If an annual or special shareholders' meeting is adjourned to a
different date, time or place, notice need not be given of the new date, time
or place if the new date, time or place is announced at the meeting before
adjournment, unless a new record date is or must be established for the
adjourned meeting.
Section 1.4. Business of Shareholder Meetings. At each annual
meeting, the shareholders shall elect the Directors and shall conduct only
such other business as shall have been properly brought before the meeting.
To be properly brought before an annual meeting, business must be
(a) specified in the notice of the meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, (b) otherwise properly
brought before the meeting by or at the direction of the Board of Directors
or (c) otherwise properly brought before the meeting by a shareholder of the
Corporation who (i) was a shareholder of record at the time of giving the
notice provided for in this Section 1.4, (ii) is entitled to vote at the
meeting and (iii) complied with the notice procedures set forth in this
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Section 1.4. For business to be properly brought before an annual meeting by
a shareholder, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation at the principal executive office
of the Corporation. To be timely, a shareholder's notice shall be delivered
not less than 60 days nor more than 90 days prior to the annual meeting;
provided, however, that in the event that less than 70 days' notice or prior
public announcement (as defined herein) of the date of the annual meeting is
given or made to shareholders, notice by the shareholder to be timely must be
so received not later than the close of business on the 10th day following
the day on which such notice of the date of the meeting was mailed or such
public announcement was made.
Such shareholder's notice shall set forth as to each matter the
shareholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting and any material interest
in such business of such shareholder and the beneficial owner, if any, on
whose behalf the proposal is made; (b) as to the shareholder giving the
notice and the beneficial owner, if any, on whose behalf the proposal is made
(i) the name and address of such shareholder, as they appear on the
Corporation's books, and the name and address of such beneficial owner,
(ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner as
of the date such notice is given, and (iii) a representation that such
shareholder intends to appear in person or by proxy at the meeting to propose
such business; (c) in the event that such business includes a proposal to
amend either the Articles of Incorporation or the By-Laws of the Corporation,
the language of the proposed amendment; and (d) if the shareholder intends to
solicit proxies in support of such shareholder's proposal, a representation
to that effect. The foregoing notice requirements shall be deemed satisfied
by a shareholder if the shareholder has notified the Corporation of his or
her intention to present a proposal at an annual meeting and such
shareholder's proposal has been included in a proxy statement that has been
prepared by management of the Corporation to solicit proxies for such annual
meeting; provided, however, that if such shareholder does not appear or send
a qualified representative to present such proposal at such annual meeting,
the Corporation need not present such proposal for a vote at such meeting,
notwithstanding that proxies in respect of such vote may have been received
by the Corporation. Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with this Section 1.4, and the Chairman of the Board, President or
other person presiding at an annual meeting of shareholders may refuse to
permit any business to be brought before an annual meeting without compliance
with the foregoing procedures or if the shareholder solicits proxies in
support of such shareholder's proposal without such shareholder having made
the representation required by clause (d) of the second preceding sentence.
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For the purposes of this Section 1.4, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). In addition to the provisions of this
Section 1.4, a shareholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth herein. Nothing in these By-Laws shall be deemed to
affect any rights of the shareholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
Section 1.5. Notice of Shareholder Nominations. Nominations of
persons for election as Directors may be made by the Board of Directors or by
any shareholder who is a shareholder of record at the time of giving the
notice of nomination provided for in this Section 1.5 and who is entitled to
vote in the election of Directors. Any shareholder of record entitled to
vote in the election of Directors at a meeting may nominate a person or
persons for election as Directors only if timely written notice of such
shareholder's intent to make such nomination is given to the Secretary of the
Corporation in accordance with the procedures for bringing business before an
annual meeting set forth in Section 1.4 of these By-Laws. To be timely, a
shareholder's notice shall be delivered with respect to an election to be
held at a meeting of shareholders, not less than 60 days nor more than
90 days prior to the meeting; provided, however, that in the event that less
than 70 days' notice or prior public announcement (as defined herein) of the
date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received no later than the close of
business on the 10th day following the day on which such notice of the date
of the meeting was mailed or such public announcement was made.
Such shareholder's notice shall set forth: (a) the name and
address of the shareholder who intends to make the nomination, of the person
or persons to be nominated and of the beneficial owner, if any, on whose
behalf the nomination is made; (b) a representation that the shareholder is a
holder of record of stock of the Corporation entitled to vote at such meeting
in such election and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice; (c) a description
of all arrangements or understandings between the shareholder, any such
beneficial owner, each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the shareholder; (d) such other information regarding each nominee
proposed by such shareholder as would have been required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had each nominee been nominated, or intended to be
nominated, by the Board of Directors; (e) the consent of each nominee to
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serve as a Director if so elected; and (f) if the shareholder intends to
solicit proxies in support of such shareholder's nominee(s), a representation
to that effect. The chairman of any meeting of shareholders to elect
Directors and the Board of Directors may refuse to acknowledge the nomination
of any person not made in compliance with the foregoing procedure or if the
shareholder solicits proxies in support of such shareholder's nominee(s)
without such shareholder having made the representation required by
clause (f) of the preceding sentence. In addition to the provisions of this
Section 1.5, a shareholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth herein.
Section 1.6. Voting. Except as otherwise provided by the Indiana
Business Corporation Law or the Corporation's Articles of Incorporation, each
share of the capital stock of any class of the Corporation that is
outstanding at the record date established for any annual or special meeting
of shareholders and is outstanding at the time of and represented in person
or by proxy at the annual or special meeting, shall entitle the record holder
thereof, or his proxy, to one (1) vote on each matter voted on at the
meeting.
Section 1.7. Quorum. Unless the Corporation's Articles of
Incorporation or the Indiana Business Corporation Law provide otherwise, at
all meetings of shareholders, a majority of the votes entitled to be cast on
a matter, represented in person or by proxy, constitutes a quorum for action
on the matter. Action may be taken at a shareholders' meeting only on
matters with respect to which a quorum exists; provided, however, that any
meeting of shareholders, including annual and special meetings and any
adjournments thereof, may be adjourned to a later date although less than a
quorum is present. Once a share is represented for any purpose at a meeting,
it is deemed present for quorum purposes for the remainder of the meeting and
for any adjournment of that meeting unless a new record date is or must be
set for that adjourned meeting.
Section 1.8. Vote Required To Take Action. If a quorum exists as
to a matter to be considered at a meeting of shareholders, action on such
matter (other than the election of Directors) is approved if the votes
properly cast favoring the action exceed the votes properly cast opposing the
action, except as the Corporation's Articles of Incorporation or the Indiana
Business Corporation Law require a greater number of affirmative votes.
Directors shall be elected by a plurality of the votes properly cast.
Section 1.9. Record Date. Only such persons shall be entitled to
notice of or to vote, in person or by proxy, at any shareholders' meeting as
shall appear as shareholders upon the books of the Corporation as of such
record date as the Board of Directors shall determine, which date may not be
earlier than the date seventy (70) days immediately preceding the meeting.
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In the absence of such determination, the record date shall be the fiftieth
(50th) day immediately preceding the date of such meeting. Unless otherwise
provided by the Board of Directors, shareholders shall be determined as of
the close of business on the record date.
Section 1.10. Proxies. A shareholder may vote his or her shares
either in person or by proxy. A shareholder may appoint a proxy to vote or
otherwise act for the shareholder (including authorizing the proxy to
receive, or to waive, notice of any shareholders' meeting within the
effective period of such proxy) by signing an appointment form, either
personally or by the shareholders' attorney-in-fact. An appointment of a
proxy is effective when received by the Secretary or other officer or agent
authorized to tabulate votes and is effective for eleven (11) months unless a
longer or shorter period is expressly provided in the appointment form. The
proxy's authority may be limited to a particular meeting or may be general
and authorize the proxy to represent the shareholder at any meeting of
shareholders held within the time provided in the appointment form. Subject
to the Indiana Business Corporation Law and to any express limitation on the
proxy's authority appearing on the face of the appointment form, the
Corporation is entitled to accept the proxy's vote or other action as that of
the shareholder making the appointment.
Section 1.11. Removal of Directors. Notwithstanding any other
provision of the Corporation Law, these Bylaws or the Restated Articles of
Incorporation of the Corporation, one or more directors of the Corporation
may be removed at any time, with or without cause, by the affirmative vote of
the holders of a majority or more of the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
shareholders called for that purpose, or by a majority vote of the entire
Board of Directors. Notwithstanding the foregoing, and except as otherwise
required by law, whenever the holders of any one or more series of Preferred
Stock shall have the right, voting separately as a class, to elect one or
more directors of the Corporation, the provisions of this Section 1.11 shall
not apply with respect to the director or directors elected by such holders
of Preferred Stock.
Section 1.12. Written Consents. Any action required or permitted
to be taken at a shareholders' meeting may be taken without a meeting if the
action is taken by all the shareholders entitled to vote on the action. The
action must be evidenced by one (1) or more written consents describing the
action taken, signed by all the shareholders entitled to vote on the action,
and delivered to the Corporation for inclusion in the minutes or filing with
the corporate records. Action taken under this Section 1.12 is effective
when the last shareholder signs the consent, unless the consent specifies a
different prior or subsequent effective date, in which case the action is
effective on or as of the specified date. Such consent shall have the same
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effect as a unanimous vote of all shareholders and may be described as such
in any document.
Section 1.13. Participation by Conference Telephone. The
President or the Board of Directors may permit any or all shareholders to
participate in an annual or special meeting of shareholders by, or through
the use of, any means of communication, such as conference telephone, by
which all shareholders participating may simultaneously hear each other
during the meeting. A shareholder participating in a meeting by such means
shall be deemed to be present in person at the meeting.
ARTICLE II
Directors
Section 2.1. Number and Terms. The business and affairs of the
Corporation shall be managed under the direction of a Board of Directors
consisting of not less than one (1) or more than fifteen (15) Directors. The
current Board of Directors consists of nine (9) Directors.
Each Director shall be elected for a term of office to expire at
the annual meeting of shareholders next following his or her election.
Despite the expiration of a Director's term, the Director shall continue to
serve until his or her successor is elected and qualified, or until the
earlier of the Director's death, resignation, disqualification or removal, or
until there is a decrease in the number of Directors. Any vacancy occurring
in the Board of Directors, from whatever cause arising, shall be filled by
selection of a successor by a majority vote of the remaining members of the
Board of Directors (although less than a quorum); provided, however, that if
such vacancy or vacancies leave the Board of Directors with no members or if
the remaining members of the Board are unable to agree upon a successor or
determine not to select a successor, such vacancy may be filled by a vote of
the shareholders at a special meeting called for that purpose or at the next
annual meeting of shareholders. The term of a Director elected or selected
to fill a vacancy shall expire at the end of the term for which such
Director's predecessor was elected, or if the vacancy arises because of an
increase in the size of Board of Directors, at the end of the term specified
at the time of election or selection.
The Directors and each of them shall have no authority to bind the
Corporation except when acting as a Board.
Section 2.2. Quorum and Vote Required To Take Action. A majority
of the whole Board of Directors shall be necessary to constitute a quorum for
the transaction of any business, except the filling of vacancies. If a
quorum is not present at any meeting of the Board of Directors, the Directors
present may adjourn the meeting from time to time, without notice other than
announcement of the meeting, until such a quorum is present. Except as
otherwise provided by law, the Corporation's Articles of Incorporation, these
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By-Laws or any contract or agreement to which the Corporation is a party, the
affirmative vote of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors.
Section 2.3. Annual and Regular Meetings. The Board of Directors
shall meet annually, without notice, immediately prior to or following the
annual meeting of the shareholders, for the purpose of transacting such
business as properly may come before the meeting. Other regular meetings of
the Board of Directors, in addition to said annual meeting, shall be held on
such dates, at such times and at such places as shall be fixed by resolution
adopted by the Board of Directors and specified in a notice of each such
regular meeting, or otherwise communicated to the Directors. The Board of
Directors may at any time alter the date for the next regular meeting of the
Board of Directors.
Section 2.4. Special Meetings. Special meetings of the Board of
Directors may be called by any member of the Board of Directors upon not less
than twenty-four (24) hours' notice given to each Director of the date, time
and place of the meeting, which notice need not specify the purpose or
purposes of the special meeting. Such notice may be communicated in person
(either in writing or orally), by telephone, by facsimile, by electronic
communication or by mail, and shall be effective at the earlier of the time
of its receipt or, if mailed, five (5) days after its mailing. Notice of any
meeting of the Board may be waived in writing at any time if the waiver is
signed by the Director entitled to the notice and is filed with the minutes
or corporate records. A Director's attendance at or participation in a
meeting waives any required notice to the Director of the meeting, unless the
Director at the beginning of the meeting (or promptly upon the Director's
arrival) objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to action taken at the
meeting.
Section 2.5. Written Consents. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if the action is taken by all members of the Board. The action must
be evidenced by one (1) or more written consents describing the action taken,
signed by each Director, and included in the minutes or filed with the
corporate records reflecting the action taken. Action taken under this
Section 2.5 is effective when the last Director signs the consent, unless the
consent specifies a different prior or subsequent effective date, in which
cases the action is effective on or as of the specified date. A consent
signed under this Section 2.5 shall have the same effect as a unanimous vote
of all members of the Board and may be described as such in any document.
Section 2.6. Participation by Conference Telephone. The Board of
Directors may permit any or all Directors to participate in a regular or
special meeting by, or through the use of, any means of communication, such
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as conference telephone, by which all Directors participating may
simultaneously hear each other during the meeting. A Director participating
in a meeting by such means shall be deemed to be present in person at the
meeting.
Section 2.7. Committees. The Board of Directors may create
one (1) or more committees, including, without limitation, an Executive
Committee and appoint members of the Board of Directors to serve on them, by
resolution of the Board of Directors adopted by a majority of all the
Directors in office when the resolution is adopted. Each committee may
exercise the authority of the Board of Directors to the extent specified in
the resolution. Each committee may have one (1) or more members, and all the
members of such committee shall serve at the pleasure of the Board of
Directors.
Section 2.8. Limitations on Committees; Notice, Quorum and Voting.
(a) Neither an Executive Committee nor any other committee
hereafter established may:
(1) authorize dividends or other distributions, except a committee may
authorize or approve a reacquisition of shares or other
distribution if done according to a formula or method, or within a
range, prescribed by the Board of Directors;
(2) approve or propose to shareholders action that is required to
be approved by shareholders;
(3) fill vacancies on the Board of Directors or on any of its
committees;
(4) except as permitted under Section 2.8(a)(7) below, amend the
Corporation's Articles of Incorporation under IC 23-1-38-2;
(5) adopt, amend, repeal or waive provisions of these By-Laws;
(6) approve a plan of merger not requiring shareholder approval;
or
(7) authorize or approve the issuance or sale or a contract for
sale of shares, or determine the designation and relative
rights, preferences and limitations of a class or series of
shares, except the Board of Directors may authorize a
committee (or an executive officer of the Corporation
designated by the Board of Directors) to take the action
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described in this Section 2.8(a)(7) within limits prescribed
by the Board of Directors.
(b) Except to the extent inconsistent with the resolutions
creating a committee, Sections 2.1 through 2.6 of these By-Laws, which govern
meetings, action without meetings, notice and waiver of notice, quorum and
voting requirements and telephone participation in meetings of the Board of
Directors, apply to each committee and its members as well.
ARTICLE III
Officers
Section 3.1. Designation, Selection and Terms. The officers of
the Corporation shall consist of the Chairman of the Board, the President,
one or more Vice Presidents, the Chief Financial Officer, a Treasurer, a
Secretary, and such other officers or agents with such titles and such duties
as the Board of Directors may from time to time determine by resolution
creating the office and defining the duties thereof. In addition, the
President may, by a certificate of appointment creating the office and
defining the duties thereof delivered to the Secretary for inclusion with the
corporate records, from time to time create and appoint such assistant
officers as he or she deems desirable. The officers of the Corporation shall
be elected by the Board of Directors (or appointed by the President as
provided above) and need not be selected from among the members of the Board
of Directors, except for the Chairman of the Board and the President who
shall be members of the Board of Directors. Any two (2) or more offices may
be held by the same person. All officers shall serve at the pleasure of the
Board of Directors and, with respect to officers appointed by the President,
also at the pleasure of such officer. The election or appointment of an
officer does not itself create contract rights.
Section 3.2. Removal. The Board of Directors may remove any
officer at any time with or without cause. An officer appointed by the
President may also be removed at any time, with or without cause, by such
officer. Vacancies in such offices, however occurring, may be filled by the
Board of Directors at any meeting of the Board of Directors (or by
appointment by the President, to the extent provided in Section 3.1 of these
By-Laws).
Section 3.3. Chairman of the Board. The Chairman of the Board
shall, if present, preside at all meetings of the shareholders and of the
Board of Directors and shall have such powers and perform such duties as are
assigned to him by the Board of Directors.
Section 3.4. President. The President shall be the chief
executive and principal policymaking officer of the Corporation. Subject to
the authority of the Board of Directors, he or she shall formulate the major
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policies to be pursued in the administration of the Corporation's affairs.
The President shall study and make reports and recommendations to the Board
of Directors with respect to major problems and activities of the Corporation
and shall see that the established policies are placed into effect and
carried out. In the absence of the Chairman of the Board, the President
shall preside at the meetings of the shareholders and of the Board of
Directors.
Section 3.5. Chief Financial Officer. The Chief Financial Officer
shall be the chief financial officer of the Corporation and shall perform all
of the duties customary to that office. He or she shall be responsible for
all of the Corporation's financial affairs, subject to the supervision and
direction of the President, and shall have and perform such further powers
and duties as the Board of Directors may, from time to time, prescribe and as
the President may, from time to time, delegate to him or her.
Section 3.6. Vice Presidents. Each Vice President shall have such
powers and perform such duties as the Board of Directors may, from time to
time, prescribe and as the President may, from time to time, delegate to him
or her.
Section 3.7. Treasurer. The Treasurer shall perform all of the
duties customary to that office, shall be the chief accounting officer of the
Corporation and shall be responsible for all of the Corporation's accounting
books and records and preparing its financial statements, subject to the
supervision and direction of the Chief Financial Officer and the President.
The Treasurer shall submit to the Board of Directors at such times as the
Board may require full statements showing in detail the financial condition
and affairs of the Corporation. He or she shall also be responsible for
causing the Corporation to furnish financial statements to its shareholders
pursuant to IC 23-1-53-1.
Section 3.8. Secretary. The Secretary shall be the custodian of
the books, papers, and records of the Corporation and of its corporate seal,
if any, and shall be responsible for seeing that the Corporation maintains
the records required by IC 23-1-52-1 (other than accounting records) and that
the Corporation files with the Indiana Secretary of State the biennial report
required by IC 23-1-53-3. The Secretary shall be responsible for preparing
minutes of the meetings of the shareholders and of the Board of Directors and
for authenticating records of the Corporation and shall perform all of the
other duties usual in the office of Secretary of a corporation.
Section 3.9. Assistant Treasurers or Secretaries. The Assistant
Treasurers and the Assistant Secretaries, if any, shall perform such duties
as shall be assigned to them by the Treasurer or Secretary, or by the
President or the Board of Directors.
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Section 3.10. Salary. The Board of Directors or any duly
designated committee of the Board of Directors may, at its discretion, from
time to time, fix the salary of any officer by resolution included in the
minute book of the Corporation.
ARTICLE IV
Checks
All checks, drafts or other orders for payment of money shall be
signed in the name of the Corporation by such officers or persons as shall be
designated from time to time by resolution adopted by the Board of Directors
and included in the minute book of the Corporation; and in the absence of
such designation, such checks, drafts or other orders for payment shall be
signed by the President or the Treasurer.
ARTICLE V
Loans
Such of the officers of the Corporation as shall be designated from
time to time by resolution adopted by the Board of Directors and included in
the minute book of the Corporation shall have the power, with such
limitations thereon as may be fixed by the Board of Directors, to borrow
money in the Corporation's behalf, to establish credit, to discount bills and
papers, to pledge collateral, and to execute such notes, bonds, debentures or
other evidences of indebtedness, and such mortgages, trust indentures and
other instruments in connection therewith as may be authorized from time to
time by such Board of Directors.
ARTICLE VI
Execution of Documents
The President or any other officer authorized by the President or
the Board of Directors may, in the Corporation's name, sign all deeds,
leases, contracts or similar documents unless otherwise directed by the Board
of Directors or otherwise provided herein or in the Corporation's Articles of
Incorporation, or as otherwise required by law.
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ARTICLE VII
Stock
Section 7.1. Execution. Certificates for shares of the capital
stock of the Corporation shall be signed by the President and by the
Secretary and the seal of the Corporation (or a facsimile thereof), if any,
may be thereto affixed. Where any such certificate is also signed by a
transfer agent or a registrar, or both, the signatures of the officers of the
Corporation may be facsimiles. The Corporation may issue and deliver any
such certificate notwithstanding that any such officer who shall have signed,
or whose facsimile signature shall have been imprinted on, such certificate
shall have ceased to be such officer.
Section 7.2. Contents. Each certificate issued after the adoption
of these By-Laws shall state on its face the name of the Corporation and
that it is organized under the laws of the State of Indiana, the name of the
person to whom it is issued, and the number and class of shares and the
designation of the series, if any, the certificate represents, and shall
state conspicuously on its front or back that the Corporation will furnish
the shareholder, upon his or her written request and without charge, a
summary of the designations, relative rights, preferences and limitations
applicable to each class and the variations in rights, preferences and
limitations determined for each series (and the authority of the Board of
Directors to determine variations for future series).
Section 7.3. Transfers. Except as otherwise provided by law or by
resolution of the Board of Directors, transfers of shares of the capital
stock of the Corporation shall be made only on the books of the Corporation
by the holder thereof, in person or by duly authorized attorney, on payment
of all taxes thereon and surrender for cancellation of the certificate or
certificates for such shares (except as hereinafter provided in the case of
loss, destruction or mutilation of certificates) properly endorsed by the
holder thereof or accompanied by the proper evidence of succession,
assignment or authority to transfer, and delivered to the Secretary or an
Assistant Secretary.
Section 7.4. Stock Transfer Records. There shall be entered upon
the stock records of the Corporation the number of each certificate issued,
the name and address of the registered holder of such certificate, the
number, kind and class of shares represented by such certificate, the date of
issue, whether the shares are originally issued or transferred, the
registered holder from whom transferred, and such other information as is
commonly required to be shown by such records. The stock records of the
Corporation shall be kept at its principal office, unless the Corporation
appoints a transfer agent or registrar, in which case the Corporation shall
keep at its principal office a complete and accurate shareholders' list
giving the names and addresses of all shareholders and the number and class
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of shares held by each. If a transfer agent is appointed by the Corporation,
shareholders shall give written notice of any changes in their addresses from
time to time to the transfer agent.
Section 7.5. Transfer Agents and Registrars. The Board of
Directors may appoint one or more transfer agents and one or more registrars
and may require each stock certificate to bear the signature of either or
both.
Section 7.6. Loss, Destruction, or Mutilation of Certificates.
The holder of any of the capital stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of the
certificate therefor, and the Board of Directors may, in its discretion,
cause to be issued to him a new certificate or certificates of stock, upon
the surrender of the mutilated certificate, or, in the case of loss or
destruction, upon satisfactory proof of such loss or destruction. The Board
of Directors may, in its discretion, require the holder of the lost or
destroyed certificate or his legal representative to give the Corporation a
bond in such sum and in such form, and with such surety or sureties as it may
direct, to indemnify the Corporation, its transfer agents and registrars, if
any, against any claim that may be made against them or any of them with
respect to the capital stock represented by the certificate or certificates
alleged to have been lost or destroyed, but the Board of Directors may, in
its discretion, refuse to issue a new certificate or certificates, save upon
the order of a court having jurisdiction in such matters.
Section 7.7. Form of Certificates. The form of the certificates
for shares of the capital stock of the Corporation shall conform to the
requirements of Section 7.2 of these By-Laws and be in such printed form as
shall from time to time be approved by resolution of the Board of Directors.
ARTICLE VIII
Seal
The corporate seal of the Corporation shall, if the Corporation
elects to have one, be in the form of a disc, with the name of the
Corporation and "INDIANA" on the periphery thereof and the word "SEAL" in the
center.
ARTICLE IX
Miscellaneous
Section 9.1. Indiana Business Corporation Law. The provisions of
the Indiana Business Corporation law, as amended, applicable to all matters
relevant to, but not specifically covered by, these By-Laws are hereby, by
reference, incorporated in and made a part of these By-Laws.
Section 9.2. Fiscal Year. The fiscal year of the Corporation
shall end on December 31 of each year.
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Section 9.3. Amendments. These By-Laws may be rescinded, changed
or amended, and provisions hereof may be waived, at any meeting of the Board
of Directors by the affirmative vote of a majority of the entire number of
Directors at the time, except as otherwise required by the Corporation's
Articles of Incorporation, by the Indiana Business Corporation Law, or by
specific sections of these By-Laws.
Section 9.4. Definition of Articles of Incorporation. The term
"Articles of Incorporation" as used in these By-Laws means the Articles of
Incorporation of the Corporation as from time to time are in effect.
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