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EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
FIRST SHARES BANCORP, INC.
ARTICLE I
Name
The name of the corporation is First Shares Bancorp, Inc. (the "Corporation").
ARTICLE II
Purposes and Powers
Section 2.1. Purposes of the Corporation. The purposes for which the
Corporation is formed are to engage in the transaction of any or all lawful
business for which corporations may now or hereafter be incorporated under the
IBCL.
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 IBCL, (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 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.
ARTICLE IV
Registered Office and Agent
[Initial Registered Agent name and address deleted pursuant to IC 23-1-38-2(3)]
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ARTICLE V
Shares
Section 5.1. Authorized Classes and Number of Shares. The total number of
shares which the Corporation has authority to issue shall be 12 million shares,
consisting of 10 million shares of common stock (the "Common Stock") and 2
million preferred shares (the "Preferred Shares"). The Corporation's shares each
have a par value of $.01 per share.
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
applicable law (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 (and 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 Shares in the provisions of these Articles of Incorporation adopted
by the Board of Directors pursuant to Section 5.5 hereof 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 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,
applicable law and these 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 corporations 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.
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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 (and 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 Shares in the
provisions of these Articles of Incorporation adopted by the Board of Directors
pursuant to Section 5.5 hereof 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 IBCL and subject to
such shareholder disclosure and recognition procedures (which may including
voting prohibition sanctions) as the Corporation may by action of its Board of
Directors establish, the shares of Common Stock have unlimited voting rights and
each outstanding share shall, when validly issued by the Corporation, 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 Shares. Except as required by the IBCL or by the provisions
of these Articles of Incorporation adopted by the Board of Directors pursuant to
Section 5.5 hereof describing the terms of Preferred Shares or a series thereof,
the holders of Preferred Shares shall have no voting rights or powers. Preferred
Shares shall, when validly issued by the Corporation, 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 IBCL or under the provisions of
these Articles of Incorporation adopted by the Board of Directors pursuant to
Section 5.5 hereof describing the terms of Preferred Shares or a series thereof
(which provisions may provide for special, condition, 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 IBCL) 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 Shares issued under Section
5.5 hereof, 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
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the Corporation, either voluntary or involuntary, after payment shall have been
made to the holders of the Preferred Shares of the full amount to which they
shall e entitled under this Article V, the holders of Common Stock shall be
entitled, to the exclusion of the holders of the Preferred Shares 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 Shares.
(a) Preferred Shares 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
Articles of Incorporation. Subject to the requirements of the IBCL and subject
to all other provisions of these Articles of Incorporation, the Board of
Directors of the Corporation may create one or more series of Preferred Shares
and may determine the preferences, limitations, and relative voting and other
rights of one or more series of Preferred Shares before the issuance of any
shares of that series by the adoption of an amendment to these Articles of
Incorporation that specifies the terms of the series of Preferred Shares. All
shares of a series of Preferred Shares 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 Articles of
Incorporation so provides, no series of Preferred Shares need have preferences,
limitations or relative voting or other rights identical with those of any other
series of Preferred Shares.
Before issuing any shares of a series of Preferred Shares, the Board of
Directors shall adopt an amendment to these 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 shares, or no right to vote (except to the
extent required by the IBCL);
(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;
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(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 the Common Stock and shares of any other series of Preferred
Shares; 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 condition of
exercising such option), or upon the occurrence of a designated event
in 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 date
or events;
(5) Too 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 the Common Stock and shares of any
other series of Special Series; 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;
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(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 Articles of
Incorporation fixing the terms of any outstanding series of Preferred
Shares theretofore issued pursuant to this Section 5.5 and, if subject to
additional restrictions, the extent of such additional restrictions; and
(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 IBCL: provided, however,
that no such preferences, rights, qualifications, limitations or
restrictions shall be in conflict with these Articles of Incorporation or
any amendment thereof.
(b) Preferred Shares 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, shall have the status of authorized and unissued
Preferred Shares and may be reissued as a part of such series or of any other
series of Preferred Shares, subject to such limitations (if any) as may be fixed
by the Board of Directors with respect to such series of Preferred Shares in
accordance with subsection (a) of this Section 5.5.
ARTICLE VI
Directors
Section 6.1. Number. The Board of Directors at the time of adoption of
these Articles of Incorporation is composed of seven members, and the number of
Directors shall be fixed by the By-Laws and may be changed from time to time by
amendment to the By-Laws. Whenever the by-Laws provide that the number of
Directors shall be two or more, the By-Laws may also provide for staggering the
terms of the members of the Board of Directors by dividing the total number of
Directors into two or three groups (with each group containing one-half or
one-third of the total, as near as may be) whose terms of office expire at
different times. Notwithstanding the first sentence of this Section 6.1, any
amendment to the By-Laws that would effect:
(a) any increase or reduction in the number of Directors over such number
as then in effect, or
(b) any elimination or modification of the groups or terms of office of the
Directors as the By-Laws then in effect may provide,
shall also be approved by the affirmative vote of a majority of the entire
number of directors of the Corporation who then qualify as Continuing Directors
with respect to all Related Persons (as such terms are defined for purposes of
Article III hereof).
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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 IBCL. 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 duties as a Director, including
his duties as a member of any committee of the Board of Directors upon which he
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 duties, a Director is entitled to rely on information,
opinions, reports or statements, including financial statements and other
financial date, if prepared or presented by:
(a) One or more officers or employees of the Corporation whom the
Director reasonably believes to be reliable and competent in the matters
presented;
(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 may, in considering the best interests
of the Corporation, consider the effects of any action on shareholders,
employees, suppliers and customers of the Corporation, and communities in which
offices or other facilities of the Corporation are located, and any other
factors the Director considers pertinent.
A Director shall not be liable for any action taken as a Director, or any
failure to take any action, unless (1) the Director has breached or failed to
perform the duties of the Director's office in compliance with this Section 6.4,
and (2) the breach of failure to perform constitutes willful misconduct or
recklessness.
Section 6.5. Removal of Directors. Any or all of the members of the Board
of Directors may be removed, for good cause, only at a meeting of the
shareholders called expressly for that purpose,
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by the affirmative vote of the holders of outstanding shares representing at
least 70% of all the votes then entitled to be cast at an election of Directors.
Directors may not be removed in the absence of good cause.
Section 6.6. Election of Directors by Holders of Preferred Shares. The
holders of one or more series of Preferred Shares 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 Articles of
Incorporation adopted by the Board of Directors pursuant to Section 5.5 hereof
describing the terms of the series of Preferred Shares.
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. Special Meetings of Shareholders. Special meetings of the
shareholders, for any purpose of purposes, unless otherwise prescribed by the
IBCL, may be called at any time by the Board of Directors or the person or
persons authorized to do so by the By-Laws and shall be called by the Board of
Directors if the Secretary of the Corporation receives one or more 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 25% of all the votes entitled to be case on any issue
proposed to be considered at the proposed special meeting; provided, however,
that any such demand(s) delivered to the Secretary at any time at which the
Corporation has more than 50 shareholders must be properly delivered by the
holders of shares representing at lest 70% of all the votes entitled to be case
on any issue proposed to be considered at the proposed special meeting. If the
Secretary receives one 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.
Section 7.3. 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.
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Section 7.4. 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 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 7.4 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, or all members of the committee,
as the case may be, and may be described as such in any document.
Section 7.5. 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 in Section 6.1 hereof and as
provided by the IBCL. All provisions for the regulation of the business and
management of the affairs of the Corporation not stated in these 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 both (a) a
majority of the entire number of Directors at the time and (b) a majority of the
entire number of Directors who then qualify as Continuing Directors with respect
to all Related Persons (as such terms are defined for purposes of Article VIII
hereof).
Section 7.6. 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 Directors' interest in the
transaction if any one 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; or
(3) The transaction was fair to the Corporation.
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(b) For purposes of this Section 7.6, a Director of the Corporation has an
indirect interest in a transaction if:
(1) Another entity in which the Director has a material financial
interest or in which the Director is a general partner is a party to the
transaction; or
(2) Another entity of which the Director is a director, officer or
trustee is a party to the transaction and the transaction is, or is
required to be, considered by the Board of Directors of the Corporation.
(c) For purposes of Section 7.6(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 7.6. 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
7.6(a)(1), if the transaction is otherwise authorized, approved or ratified as
provided in such subsection.
(d) For purposes of Section 7.6(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 7.6(b), may be counted in such a vote
of shareholders.
Section 7.7. 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 7.8. 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 7.8(f) or 7.8(g), to have acted in
good faith, in what he reasonably believed to be the best interests of the
Corporation or at lest 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
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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 of 1974 shall be deemed to have been taken in
what the Eligible Person reasonably believed to be the best interest 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 7.8 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 7.8 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 or fiduciary of another foreign or domestic corporation, partnership,
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 7.8 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 7.8 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 the institution of the same, 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
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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 7.8(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
7.8(f) is found not to be entitled thereto, or if the Board of Directors fails
to select a Referee under Section 7.8(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 7.8(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 7.8(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 7.8 shall be in
addition to any rights to which any Eligible Person may otherwise be entitled.
Irrespective of the provisions of this Section 7.8, the Board of Directors may,
at any time and from time to time, (1) approve 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.
(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 unless he is determined to be entitled to indemnification.
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(j) The provisions of this Section 7.8 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 7.8 that occurs subsequent to
such person becoming an Eligible Person.
(k) The provisions of this Section 7.8 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. Except as provided in Sections 8.2 and 8.3
hereof, neither the Corporation nor any of its Subsidiaries shall become a party
to any Business Combination with a Related Person without the prior affirmative
vote at a meeting of the Corporation's shareholders:
(a) Of not less than 70% of all the votes entitled to be cast by the
holders of the outstanding shares of all classes of Voting Stock of the
Corporation considered for purposes of this Article VIII as a single class,
and
(b) Of an Independent Majority of Shareholders.
Such favorable votes shall be in addition to any shareholder vote which
would be required without reference to this Section 8.1 and shall be required
notwithstanding the fact that no vote may be required, or that some lesser
percentage may be specified by law or elsewhere in these Articles of
Incorporation or the By-Laws of the Corporation or otherwise.
Section 8.2. Fair Price Exception. The provisions of Section 8.1 of this
Article VIII shall not apply to a Business Combination if all of the conditions
set forth in subsections(a) through (d) are satisfied.
(a) The fair market value of the property, securities, or other
consideration to be received per share by holders of each class or series of
capital stock of the Corporation in the Business Combination is not less, as of
the date of the consummation of the Business Combination (the "Consummation
Date"), than the higher of the following: (1) the highest per share price (with
appropriate adjustments for recapitalizations and for stock splits, stock
dividends, and like distributions), including brokerage commissions and
solicitation fees, paid by the Related Person in acquiring any of its holdings
of such class or series of capital stock within the two-year period immediately
prior to the first public announcement of the proposed Business Combination
("Announcement Date"), plus interest compounded annually from the date that the
Related Person became a Related Person (the "Determination Date"), or if later
from a date two years before the Consummation Date, through the Consummation
Date, at the rate publicly announced as the "prime
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rate" of interest of Citibank, N.A. (or of such other major bank headquartered
in New York as may be selected by a majority of the Continuing Directors) from
time to time in effect, less that aggregate amount of any cash dividends paid
and the fair market value of any dividends paid in other than cash on each share
of such stock from the date from which interest accrues under the preceding
clause through the Consummation Date up to but not exceeding the amount of
interest so payable per share; OR (2) the fair market value per share of such
class or series on the Announcement Date as determined by the highest closing
sale price during the 30-day period immediately preceding the Announcement Date
if such stock is listed on a securities exchange registered under the Securities
Exchange Act of 1934 or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to such stock during the 30-day
period preceding the Announcement Date on the National Association of Securities
Dealers, Inc. Automated Quotation System or any similar system then in use, or
if no such quotations are available, the fair market value of such stock
immediately prior to the first public announcement of the proposed Business
Combination as determined by the Continuing Directors in good faith. In the
event of a Business Combination upon the consummation of which the Corporation
would be the surviving corporation or company or would continue to exist (unless
it is provided, contemplated, or intended that as part of such Business
Combination or within one year after consummation thereof a plan of liquidation
or dissolution of the Corporation will be effected), the term "other
consideration to be received" shall include (without limitation) Common Stock
and/or the shares of any other class of stock retained by shareholders of the
Corporation other than Related Persons who are parties to such Business
Combination;
(b) The consideration to be received in such Business Combination by
holders of each class or series of capital stock of the Corporation other than
the Related Person involved shall, except to the extent that a shareholder
agrees otherwise as to all or part of the shares which he or she owns, be the
same form and of the same kind as the consideration paid by the Related Person
in acquiring the majority of the shares of capital stock of such class or series
already Beneficially Owned by it;
(c) After such Related Person became a Related Person and prior to the
consummation of such Business Combination: (1) such Related Person shall have
taken steps to ensure that the Board of Directors of the Corporation included at
all times representation by Continuing Directors proportionate to the ratio that
the number of shares of Voting Stock of the Corporation from time to time owned
by shareholders who are not Related Persons bears to all shares of Voting Stock
of the Corporation outstanding at the time in question (with a Continuing
Director to occupy any resulting fractional position among the Directors); (2)
such Related Person shall not have acquired from the Corporation, directly or
indirectly, any shares of the Corporation (except upon conversion of convertible
securities acquired by it prior to becoming a Related Person or as a result of a
pro rata stock dividend, stock split, or division of shares or in a transaction
which satisfied all applicable requirements of this Article VIII); (3) such
Related Person shall not have acquired any additional shares of Voting Stock of
the Corporation or securities convertible into or exchangeable for shares of
Voting Stock except as a part of the transaction which resulted in such Related
Person's becoming a Related Person; and (4) such Related Person shall not have
received the benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges, or
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other financial assistance or tax credits provided by the Corporation or any
Subsidiary, or made any major change in the Corporation's business or equity
capital structure or entered into any contract, arrangement, or understanding
with the Corporation except any such change, contract, arrangement, or
understanding as may have been approved by the favorable vote of not less than a
majority of the Continuing Directors of the Corporation; and
(d) A proxy or information statement complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations of the Securities
and Exchange Commission thereunder, as then in force for corporations subject to
the requirements of Section 14 of such Act (even if the Corporation not
otherwise subject to Section 14 of such Act), shall have been mailed to all
holders of shares of the Corporation's capital stock entitled to vote with
respect to such Business Combination. Such proxy or information statement shall
contain on the face page thereof, in a prominent place, any recommendations as
to the advisability (or inadvisability) of the Business Combination which the
Continuing Directors, or any of them, may have furnished in writing and, if
deemed advisable by a majority of the Continuing Directors, a fair summary of an
opinion of a reputable investment banking firm addressed to the Corporation as
to the fairness (or lack of fairness) of the terms of such Business Combination
from the point of view of the holders of shares of Voting Stock other than any
Related Person (such investment banking firm to be selected by a majority of the
Continuing Directors, to be furnished with all information it reasonably
requests, and to be paid a reasonable fee for its services upon receipt by the
Corporation of such opinion).
Section 8.3. Director Approval Exception. The provisions of Section 8.1
hereof shall not apply to a Business Combination if:
(a) The Continuing Directors of the Corporation, by not less than a 70%
vote, (1) have expressly approved a memorandum of understanding with the Related
Person with respect to the Business Combination prior to the time that the
Related Person became a Related Person and the Business Combination is effected
on substantially the same terms and conditions as are provided by the memorandum
of understanding, or (2) have otherwise approved the Business Combination; or
(b) The Business Combination is solely between the Corporation and another
corporation, 100% of the Voting Stock of which is owned directly or indirectly
by the Corporation.
Section 8.4. Definitions. For purposes of this Article VIII:
(a) A "Business Combination" means:
(1) The sale, exchange, lease, transfer, or other disposition to or
with a Related Person or any Affiliate or Associate of such Related Person
by the Corporation or any Subsidiaries (in a single transaction or a Series
of Related Transactions) of all or substantially all, or any Substantial
Part, of its or their assets or businesses (including, without limitation,
securities issued by a Subsidiary, if any);
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(2) The purchase, exchange, lease, or other acquisition by the
Corporation or any Subsidiaries (in a single transaction or a Series of
Related Transactions) of all or substantially all, or any Substantial part,
of the assets or business of a Related Person or any Affiliate or Associate
of such Related Person;
(3) Any merger or consolidation of the Corporation or any Subsidiary
thereof into or with a Related Person or any Affiliate or Associate of such
Related Person or into or with another Person which, after such merger or
consolidation, would be an Affiliate or an Associate of a Related Person,
in each case irrespective of which Person is the surviving entity in such
merger or consolidation;
(4) Any reclassification of securities, recapitalization, or other
transaction (other than a redemption in accordance with the terms of the
security redeemed) which has an effect, directly or indirectly, of
increasing the proportionate amount of shares of Voting Stock of the
Corporation or any Subsidiary thereof which are Beneficially Owned by a
Related Person, or any partial or complete liquidation, spinoff, splitoff,
or splitup of the Corporation or any Subsidiary thereof; provided, however,
that this Section 8.4(a)(4) shall not relate to any transaction that has
been approved by a majority of the Continuing Directors; or
(5) The acquisition upon the issuance thereof of Beneficial Ownership
by a Related Person of shares of Voting Stock or securities convertible
into shares of Voting Stock or any voting securities or securities
convertible into voting securities of any Subsidiary of the Corporation, or
the acquisition upon the issuance thereof of Beneficiary Ownership by a
Related Person of any rights, warrants, or options to acquire any of the
foregoing or any combination of the foregoing shares of Voting Stock or
voting securities of a Subsidiary, if any.
(b) A "Series of Related Transactions" shall be deemed to include not only
a series of transaction with the same Related Person, but also a series of
separate transactions with a Related Person or any Affiliate or Associate of
such Related Person.
(c) A "Person" shall mean any individual, firm, corporation, or other
entity and any partnership, syndicate, or other group.
(d) "Related Person" shall mean any Person (other than the Corporation or
any Subsidiary of the Corporation or the Continuing Directors, singly or as a
group) who or that at any time described in the last sentence of this first
paragraph of this subsection (d):
(1) is the Beneficial Owner, directly or indirectly, of more than 10%
of the voting power of the outstanding shares of Voting Stock and who has
not been the Beneficial Owner, directly or indirectly, of more than 10% of
the voting power of the outstanding shares of Voting Stock for a continuous
period of two years prior to the date in question; or
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(2) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question (but not
continuously during such two-year period) was the Beneficial owner,
directly or indirectly, of 10% or more of the voting power of the then
outstanding shares of Voting Stock; or
(3) is an assignee of or has otherwise succeeded to any shares of the
Voting Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Related Person, if
such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933, as amended.
A Related Person shall be deemed to have acquired a share of the
Corporation at the time when such Related person became the Beneficial Owner
thereof. For the purposes of determining whether a Person is the Beneficial
owner of 10% or more of the voting power of the then outstanding Voting Stock,
the outstanding Voting Stock shall be deemed to include any Voting Stock that
may be issuable to such Person pursuant to a right to acquire such Voting Stock
and that is therefore deemed to be Beneficially Owned by such Person pursuant to
Section 8.4(e)(2)(A). A Person who is a Related Person at (1) the time any
definitive agreement relating to a Business Combination is entered into, (2) the
record date for the determination of shareholders entitled to notice of and to
vote on a Business Combination, or (3) the time immediately prior to the
consummation of a Business Combination shall be deemed a Related Person.
(e) A Person shall be a "Beneficial Owner" of any shares of Voting Stock:
(1) which such Person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(2) which such Person or any of its Affiliates or Associates has (A)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement, or
understanding or upon the exercise of conversion rights, exchange rights,
warrants, or options, or otherwise, or (B) the right to vote pursuant to
any agreement, arrangement, or understanding; or
(3) which are beneficially owned, directly or indirectly, by any other
Person with which such Person or any of its Affiliates or Associates has
any agreement, arrangement, or understanding for the purpose of acquiring,
holding, voting, or disposing of any shares of Voting Stock.
(f) An "Affiliate" of, or a person Affiliated with, a specific Person means
a Person that directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified.
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(g) The term "Associate" used to indicate a relationship with any Person,
means (1) any corporation or organization (other than this Corporation or a
majority owned Subsidiary of this Corporation) of which such Person is an
officer or partner or is, directly or indirectly, the Beneficial Owner of 5% or
more of any class of equity securities, (2) any trust or other estate in which
such Person has a substantial beneficial interests or as to which such Person
serves as trustee or in a similar fiduciary capacity, (3) any relative or spouse
of such Person, or any relative of such spouse, who has the same home as such
Person, or (4) any investment company registered under the Investment Company
Act of 1940, as amended, for which such Person or any Affiliate of such Person
serves as investment adviser.
(h) "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Related Person set forth in
Section 8.4(d) hereof, the term "Subsidiary" shall mean only a corporation of
which a majority of each class of equity security is owned, directly or
indirectly, by the Corporation.
(i) "Continuing Director" means any member of the Board of Directors of the
Corporation (the "Board") who is not associated with the Related Person and was
a member of the Board prior to the time that the Related Person became a Related
Person, and any successor of a Continuing Director who is not associated with
the Related Person and is recommended to succeed a Continuing Director by not
less than two-thirds of the Continuing Directors then on the Board.
(j) "Independent Majority of Shareholders" shall mean the holders of the
outstanding shares of Voting Stock representing a majority of all the votes
entitled to be cast by all shares of Voting Stock other than shares Beneficially
Owned or controlled, directly or indirectly, by a Related Person.
(k) "Voting Stock" shall mean all outstanding shares of capital stock of
the Corporation or another corporation entitled to vote generally on the
election of Directors, and each reference to a proportion of shares of Voting
Stock shall refer to such proportion of the votes entitled to be cast by such
shares.
(l) "Substantial Part" means properties and assets involved in any
single transaction or a Series of Related Transactions having an aggregate fair
market value of more than ten percent (10%) of the total consolidated assets of
the Person in question as determined immediately prior to such transaction or
Series of Related Transactions.
Section 8.5. Director Determinations. A majority of the Continuing
Directors shall have the power to determine for the purposes of this Article
VIII, on the basis of information known to them: (a) the number of shares of
Voting Stock of which any Person is the Beneficial Owner, (b) whether a Person
is an Affiliate or Associate of another, (c) whether a Person has an agreement,
arrangement or understanding with another as to the matters referred to in the
definition of "Beneficial Owner," (d) whether the assets subject to any Business
Combination constitute a Substantial Part, (e) whether
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two or more transactions constitute a Series of Related Transactions, and (f)
such other matters with respect to which a determination is required under this
Article VIII.
Section 8.6. Nonmonetary Factors in Acquisition Proposals. In connection
with the exercise of its judgment in determining what is in the best interests
of the Corporation and its shareholders when evaluating a proposal by another
person or persons to acquire some material part or all of the business or
properties of the Corporation (whether by merger, consolidation, purchase of
assets, stock reclassification or recapitalization, spinoff, liquidation, or
otherwise) or to acquire some material part or al of the stock of the
Corporation (whether by a tender or exchange offer or some other means), the
Board of Directors of the Corporation shall, in addition to considering the
adequacy of the consideration to be paid in connection with any such
transaction, consider all of the following factors and any other factors that it
deems relevant: (a) the social and economic effects of the transaction on the
Corporation and its subsidiaries and their employees, customers, creditors and
communities in which the Corporation and its subsidiaries operate or are
located; (b) the business and financial condition and earnings prospects of the
acquiring person or persons, including but not limited to, debt service and
other existing or likely financial obligations of the acquiring person or
persons and their affiliates and associates, and the possible effect of such
conditions upon the Corporation and its subsidiaries and the communities in
which the Corporation and its subsidiaries operate or are located; and (c) the
competence, experience and integrity of the acquiring person or persons and its
or their management and affiliates and associates.
Section 8.7. Amendment of Article VIII or Certain Other Provisions. Any
amendment, change, or repeal of this Article VIII, or of Sections 6.1, 6.5, 72.,
10.2, or 10.3, or any other amendment of these Articles of Incorporation which
would have the effect of modifying or permitting circumvention of this Article
VIII or such other provisions of these Articles of Incorporation, shall require
the affirmative vote, at a meeting of shareholders of the Corporation:
(a) Of at least 70% of the votes entitled to be cast by the holders of the
outstanding shares of all classes of Voting Stock of the Corporation considered
for purposes of this Article VIII as a single class; and
(b) Of an Independent Majority of Shareholders;
provided, however, that this Section 8.7 shall not apply to, and such vote shall
not be required for, any such amendment, change or repeal recommended to
shareholders by the favorable vote of not less than 70% of the Directors who
then qualify as Continuing Directors with respect to all Related Persons and any
such amendment, change, or repeal so recommended shall require only the vote, if
any, required under the applicable provisions of the IBCL.
Section 8.8. Fiduciary Obligations Unaffected. Nothing in this Article VIII
shall be construed to relieve any Related Person from any fiduciary duty imposed
by law.
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Section 8.9. Article VIII Nonexclusive. The provisions of this Article VIII
are nonexclusive and are in addition to any other provisions of law or these
Articles of Incorporation or the By-Laws of the Corporation relating to Business
Combinations, Related Person, or similar matters.
ARTICLE IX
Incorporator
The name and address of the incorporator of the Corporation is J. Jeffrey
Brown, Baker & Daniels, 300 North Meridian Street, Suite 2700, Indianapolis,
Indiana 46204.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendment or Repeal. Except as otherwise expressly provided
for in these 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 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 10.2. Redemption of shares Acquired in Control Share Acquisitions.
If and whenever the provisions of IC 23-1-42 apply to the Corporation, it is
authorized to redeem its securities pursuant to IC 23-1-42-10.
Section 10.3. Election To Be Subject To Five-Year Freeze Statute. Unless
the Corporation's By-Laws provide that it elects not to be governed by IC
23-1-43, the Corporation elects to have the provisions of IC 23-1-43 apply to it
if and whenever such provisions are permitted to apply to it, regardless of
whether or not it has a class of voting securities registered with the
Securities and Exchange Commission under Section 12 of the Securities Exchange
Act of 1934.
Section 10.4. Captions. The captions of the Articles and Sections of these
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.
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