FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended July 4, 1998
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number 0-362
FRANKLIN ELECTRIC CO., INC.
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(Exact name of registrant as specified in its charter)
Indiana 35-0827455
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 East Spring Street
Bluffton, Indiana 46714
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(Address of principal executive offices) (Zip Code)
(219) 824-2900
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name, former address and former
fiscal year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
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Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Outstanding at
Class of Common Stock August 3, 1998
--------------------- ----------------
$.10 par value 5,765,805 shares
<PAGE>
FRANKLIN ELECTRIC CO., INC.
Index
PART I. FINANCIAL INFORMATION
- ---------------------------------
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
as of July 4, 1998 (Unaudited)
and January 3, 1998
Condensed Consolidated Statements of
Income for the Second Quarter and First
Half ended July 4, 1998 (Unaudited) and
June 28, 1997 (Unaudited)
Condensed Consolidated Statements
Of Cash Flows for the First Half
Ended July 4, 1998 (Unaudited) and
June 28, 1997 (Unaudited)
Notes to Condensed Consolidated
Financial Statements (Unaudited)
Item 2. Management's Discussion and Analysis
of Financial Condition and
Results of Operations
PART II. OTHER INFORMATION
- -----------------------------
Item 4. Submission of Matters to a Vote of
Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
Signatures
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<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
- -----------------------------
FRANKLIN ELECTRIC CO., INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands) July 4, January 3,
1998 1998
(Unaudited) (Audited)
----------- ---------
ASSETS
Current assets:
Cash and equivalents.................... $ 34,087 $ 23,191
Marketable securities................... 25,984 48,497
Receivables, less allowances of
$891 and $1,349, respectively......... 18,916 16,978
Inventories (Note 2).................... 44,020 31,259
Other current assets (including
deferred income taxes of $8,428
and $7,490, respectively)............. 9,614 8,575
-------- --------
Total current assets.................. 132,621 128,500
Property, plant and equipment,
net (Note 3)............................ 33,059 32,357
Deferred and other assets (including
deferred income taxes of $972
and $1,001, respectively)............... 2,073 2,253
-------- --------
Total assets.............................. $167,753 $163,110
======== ========
LIABILITIES AND SHAREOWNERS' EQUITY
Current liabilities:
Current maturities of long-term
debt and short-term borrowings........ $ 3,557 $ 1,196
Accounts payable........................ 7,277 10,472
Accrued expenses........................ 26,444 24,346
Income taxes............................ 30 4,513
-------- --------
Total current liabilities............. 37,308 40,527
Long-term debt............................ 19,103 19,163
Employee benefit plan obligations......... 8,437 7,237
Other long-term liabilities............... 3,213 3,342
Shareowners' equity:
Common stock (Note 5)................... 592 585
Additional capital...................... 12,667 10,295
Retained earnings....................... 91,516 87,508
Stock subscriptions..................... (136) (625)
Loan to ESOP Trust...................... (2,059) (2,292)
Accumulated other comprehensive
loss (Note 7)......................... (2,888) (2,630)
-------- --------
Total shareowners' equity............. 99,692 92,841
-------- --------
Total liabilities and shareowners' equity. $167,753 $163,110
======== ========
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
FRANKLIN ELECTRIC CO., INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(In thousands, except per share amounts)
Second Qtr. Ended First Half Ended
----------------- ----------------
July 4, June 28, July 4, June 28,
1998 1997 1998 1997
---- ---- ---- ----
Net sales.............................. $67,907 $75,935 $123,921 $140,135
Costs and expenses:
Cost of sales........................ 47,484 56,234 88,318 103,943
Selling and administrative expenses.. 11,197 11,504 20,924 22,968
Interest expense..................... 321 324 635 669
Other income, net.................... (889) (465) (1,764) (962)
------- ------- -------- --------
58,113 67,597 108,113 126,618
Income before income taxes............. 9,794 8,338 15,808 13,517
Income taxes........................... 3,799 3,069 6,153 5,053
------- ------- -------- --------
Net income............................. $ 5,995 $ 5,269 $ 9,655 $ 8,464
======= ======= ======== ========
Per share data (Note 6):
Net income per common share.......... $ 1.02 $ .90 $ 1.65 $ 1.43
======= ======= ======== ========
Net income per common share,
assuming dilution.................. $ .95 $ .84 $ 1.53 $ 1.33
======= ======= ======== ========
Dividends per common share........... $ .17 $ .15 $ .32 $ .27
======= ======= ======== ========
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
FRANKLIN ELECTRIC CO., INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands) First Half Ended
----------------
July 4, June 28,
1998 1997
---- ----
Cash flows from operating activities:
Net income................................ $ 9,655 $ 8,464
Adjustments to reconcile net income to net
cash flows from operating activities:
Depreciation and amortization........... 3,385 3,753
(Gain)/loss on disposals of plant
and equipment......................... (39) 41
Changes in assets and liabilities:
Receivables........................... (2,030) (1,537)
Inventories........................... (13,029) (12,736)
Other assets.......................... (979) (925)
Accounts payable and other accrued
expenses............................ (5,122) (6,714)
Employee benefit plan obligations..... 1,206 1,500
Other long-term liabilities........... (128) (109)
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Net cash flows from
operating activities.............. (7,081) (8,263)
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Cash flows from investing activities:
Additions to plant and equipment.......... (3,534) (2,273)
Proceeds from sale of plant and
equipment............................... 51 966
Purchase of marketable securities......... - (6,846)
Proceeds from maturities of marketable
securities ............................. 22,513 31,596
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Net cash flows from
investing activities.................. 19,030 23,443
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Cash flows from financing activities:
Repayment of long-term debt............... (58) (76)
Borrowing on line of credit............... 2,496 -
Repayment of line of credit............... (172) -
Proceeds from issuance of common stock.... 2,072 526
Purchase of common stock.................. (3,772) (24,000)
Proceeds from stock subscriptions......... 352 100
Reduction of loan from ESOP Trust......... 233 232
Dividends paid............................ (1,880) (1,591)
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Net cash flows from
financing activities.................. (729) (24,809)
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Effect of exchange rate changes on cash..... (324) 42
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Net change in cash and equivalents.......... 10,896 (9,587)
Cash and equivalents at
beginning of period....................... 23,191 22,968
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Cash and equivalents at end of period....... $34,087 $13,381
======= =======
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
FRANKLIN ELECTRIC CO., INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
Note 1: Condensed Consolidated Financial Statements
- ----------------------------------------------------
The accompanying unaudited condensed consolidated financial statements have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered necessary for
a fair presentation have been included. Operating results for the first half
ended July 4, 1998 are not necessarily indicative of the results that may be
expected for the year ending January 2, 1999. For further information, refer
to the consolidated financial statements and footnotes thereto included in
Franklin Electric Co., Inc.'s annual report on Form 10-K for the year ended
January 3, 1998.
Note 2: Inventories
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Inventories consist of the following:
(In thousands) July 4, January 3,
1998 1998
---- ----
Raw Materials........................ $11,593 $11,119
Work in Process...................... 5,225 5,157
Finished Goods....................... 37,378 24,911
LIFO Reserve......................... (10,176) (9,928)
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Total Inventory...................... $44,020 $31,259
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Note 3: Property, Plant and Equipment
- --------------------------------------
Property, plant and equipment, at cost, consists of the following:
(In thousands) July 4, January 3,
1998 1998
---- ----
Land and Building.................... $20,402 $20,018
Machinery and Equipment.............. 84,810 82,134
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105,212 102,152
Allowance for Depreciation........... 72,153 69,795
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$33,059 $32,357
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Note 4: Tax Rates
- ------------------
The effective tax rate on income before income taxes in 1998 and 1997 varies
from the United States statutory rate of 35 percent principally due to the
effect of state and foreign income taxes.
<PAGE>
Note 5: Shareowners' Equity
- ----------------------------
The Company had 5,914,805 shares of common stock (25,000,000 shares
authorized, $.10 par value) outstanding as of July 4, 1998. During the second
quarter of 1998, the Company amended its Articles of Incorporation to increase
the number of authorized common shares to 25,000,000.
During the second quarter of 1998, pursuant to the stock repurchase program
authorized by the Company's Board of Directors, the Company repurchased a
total of 32,000 shares for $2.0 million. All repurchased shares were retired.
Note 6: Earnings Per Share
- ---------------------------
Following is the computation of basic and diluted earnings per share:
(In thousands, except Second Qtr. Ended First Half Ended
per share amounts) ----------------- ----------------
July 4, June 28, July 4, June 28,
1998 1997 1998 1997
---- ---- ---- ----
Numerator:
Net Income..................... $5,995 $5,269 $9,655 $8,464
====== ====== ====== ======
Denominator:
Basic
Weighted average common
shares....................... 5,851 5,849 5,835 5,930
Diluted
Effect of dilutive securities:
Employee and director
incentive stock options
and awards................. 463 442 476 450
------ ------ ------ ------
Adjusted weighted average
common shares................ 6,314 6,291 6,311 6,380
====== ====== ====== ======
Basic earnings per share......... $ 1.02 $ .90 $ 1.65 $ 1.43
====== ====== ====== ======
Diluted earnings per share....... $ .95 $ .84 $ 1.53 $ 1.33
====== ====== ====== ======
<PAGE>
Note 7: Other Comprehensive Income
- -----------------------------------
The Company adopted Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income" in the first quarter of 1998. Comprehensive
income for the second quarter and first half ended July 4, 1998 and
June 28, 1997 are as follows:
(In thousands) Second Qtr. Ended First Half Ended
----------------- ----------------
July 4, June 28, July 4, June 28,
1998 1997 1998 1997
---- ---- ---- ----
Net income......................... $5,995 $5,269 $9,655 $8,464
Other comprehensive loss:
Foreign currency translation
adjustments..................... 153 (209) (258) (949)
------ ------ ------ ------
Comprehensive income, net of tax... $6,148 $5,060 $9,397 $7,515
====== ====== ====== ======
Accumulated other comprehensive loss consists of the following:
(In thousands) July 4, January 3,
1998 1998
---- ----
Cumulative translation adjustment........... $(2,652) $(2,394)
Minimum pension liability adjustment,
net of tax................................ (236) (236)
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$(2,888) $(2,630)
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Note 8: Accounting Pronouncements
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Disclosures about Pensions and Other Postretirement Benefits
- ------------------------------------------------------------
In February 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 132, "Employers' Disclosures about Pensions
and Other Postretirement Benefits" (SFAS No. 132). This statement revises
employers' disclosures about pension and other postretirement benefits. It
does not change the measurement or recognition of these plans. SFAS No. 132
requires additional information on changes in the benefit obligations and fair
values of plan assets and eliminates certain disclosures that are no longer
considered useful. The Company will include the new disclosures in the notes
to its financial statements beginning with the 1998 fiscal year end financial
reports.
<PAGE>
Item 2. Management's Discussion And Analysis Of Financial Condition
- --------------------------------------------------------------------
And Results Of Operations
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Operations
- ----------
Net sales for the second quarter of 1998 were $67.9 million, a 10.6 percent
decrease from 1997 second quarter net sales of $75.9 million. Year to date
1998 net sales were $123.9 million, down 11.6 percent from year to date 1997
net sales of $140.1 million. Prior year amounts include the sales of Oil
Dynamics, Inc. (ODI). ODI was a previously wholly owned subsidiary that was
sold in October 1997. Second quarter net sales for the Company's ongoing
operations were slightly lower than the prior year due to the strengthening
dollar and softness in the Asian market. Year to date net sales for the
Company's ongoing operations increased due to higher volume in the submersible
water systems motors and changes in the mix of products sold offset in part by
the effects of the strengthening dollar.
Cost of sales as a percent of net sales for the second quarter of 1998 was
69.9 percent, a decrease from 74.1 percent for the same period in 1997. Cost
of sales as a percent of net sales for the year to date 1998 was 71.3 percent,
a decrease from 74.2 percent for the same period in 1997. Prior year cost of
sales included ODI. The improvements are primarily a result of selling ODI and
productivity improvements.
Net income for the second quarter of 1998 was $6.0 million, or $.95 per
diluted share, a 13.8 percent increase compared to net income of $5.3 million,
or $.84 per diluted share, for the same period in 1997. Year to date 1998 net
income was $9.7 million, or $1.53 per diluted share, a 14.1 percent increase
compared to year to date 1997 net income of $8.5 million, or $1.33 per diluted
share.
Selling and administrative expenses as a percent of net sales for the second
quarter of 1998 was 16.5 percent compared to 15.1 percent for the same period
in 1997. Selling and administrative expenses as a percent of net sales for
the year to date 1998 was 16.9 percent compared to 16.4 percent for the year
to date 1997. Both the quarter and year to date selling and administrative
expenses as a percent of net sales increased primarily as a result of higher
employee related expenses.
Included in other income, net for the second quarter of 1998 was $.8 million
of interest income and $.1 of foreign currency gains compared to $.3 million
of interest income and $.1 of foreign currency losses for the second quarter
of 1997. Included in other income, net for the year to date 1998 was $1.8
million of interest income and $.1 million of foreign currency losses compared
to $.8 million of interest income and $.6 million of foreign currency losses
for the same period in 1997. Interest income was attributable to amounts
invested principally in short-term US treasury and agency securities.
Capital Resources and Liquidity
- -------------------------------
Cash, cash equivalents and marketable securities decreased $11.6 million
during the first half of 1998. The principal use of cash for operating
activities was the typical seasonal increase in inventories. Working capital
increased $7.3 million during the first half of 1998 and the current ratio was
3.6 and 3.2 at July 4, 1998, and January 3, 1998, respectively.
<PAGE>
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
- ------------------------------------------------------------
The 1998 Annual Meeting of Shareholders of the Company was held on
April 17, 1998 for the following purposes: 1) To elect two directors for
terms expiring at the 2001 Annual Meeting of Shareholders; 2) To approve an
amendment to the Franklin Electric Co., Inc. Amended 1988 Executive Stock
Purchase Plan; 3) To approve an amendment to the Restated Certificate of
Incorporation to increase the number of shares of authorized common stock;
and 4) To ratify the appointment of Deloitte & Touche LLP as independent
auditors for the 1998 fiscal year.
The results were:
1) Nominees for Director For Withhold Authority
--------------------- --- ------------------
William H. Lawson 5,513,275 68,206
Donald J. Schneider 5,513,265 68,216
For Against Abstain
--- ------- -------
2) Amendment to the
Amended 1988 Executive
Stock Purchase Plan 4,871,618 115,914 17,116
3) Amendment to increase the
number of shares of
authorized common stock 5,175,339 400,376 5,766
4) Ratification of
Deloitte & Touche LLP 5,574,032 4,615 2,834
Total shares represented at the Annual Meeting in person or by proxy were
5,581,481 of a total of 5,870,960 shares outstanding. This represented 95.1
percent of Company common stock and constituted a quorum. Total broker non-
votes related to the proposal to amend the Amended 1988 Executive Stock
Purchase Plan were 576,833 shares.
Item 5. Other Information
- --------------------------
On August 3, 1998, the Company completed the repurchase of 125,000 shares of
its Common Stock pursuant to the stock repurchase program authorized by the
Company's Board of Directors. These shares were purchased from the Franklin
Electric Co., Inc. Basic Pension Plan and the Franklin Electric Co., Inc.
Contributory Pension Plan. The purchase price for these shares of $65.577 was
based upon the stock's average closing price for the twenty trading days prior
to the transaction date of July 31, 1998.
In addition to the above repurchase, the Company repurchased, in the open
market, a total of 26,000 shares of its Common Stock for $1.7 million during
the period from July 5, 1998 to August 3, 1998. All repurchased shares were
retired.
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
- -----------------------------------------
(a) Exhibits (Filed with this quarterly report)
3(i) Amended and Restated Articles of Incorporation of Franklin
Electric Co., Inc.
3(ii) Amended and Restated By-Laws of Franklin Electric Co., Inc.
(b) Reports on Form 8-K
None.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this quarterly report to be signed on its behalf by
the undersigned thereunto duly authorized.
FRANKLIN ELECTRIC CO., INC.
---------------------------
Registrant
Date August 3, 1998 By /s/ William H. Lawson
------------------------ ------------------------------
William H. Lawson, Chairman
and Chief Executive Officer
(Principal Executive Officer)
Date August 3, 1998 By /s/ Jess B. Ford
------------------------ ------------------------------
Jess B. Ford, Senior Vice
President and Chief Financial
Officer (Principal Financial
and Accounting Officer)
Exhibit 3(i)
FRANKLIN ELECTRIC CO., INC.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
ARTICLE I
Name
The name of the Corporation is Franklin Electric Co., Inc.
ARTICLE II
Purposes and Powers
2.01. Purposes. The purposes for which the Corporation is formed are (a) to
engage in the general business of manufacturing, production and selling
products, and (b) without limitation, to engage in any and all lawful business
or activity for which corporations may be incorporated under the Indiana
Business Corporation Law, as may be amended from time to time (the "IBCL").
2.02. Powers. The Corporation shall have (a) the same powers as an
individual to do all things necessary or convenient to carry out its business
and affairs, and (b) without limitation, all powers, rights and privileges
granted to corporations by the IBCL.
ARTICLE III
Term of Existence
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
Registered Office and Registered Agent
The current street address of the Corporation's registered office is 400 East
Spring Street, Bluffton, Indiana 46714, and the name of the Corporation's
registered agent at that office is Dean W. Pfister.
ARTICLE V
Amount of Capital Stock
The total number of shares into which the authorized capital stock of the
Corporation is divided is 25,513,200 shares, 513,200 shares without par value
and 25,000,000 shares with par value of $.10 per share.
ARTICLE VI
Terms of Capital Stock
The shares of authorized capital stock are divided into classes as follows:
150,000 shares of Class A Cumulative Preferred Stock without par value
(hereinafter sometimes referred to as "Class A Preferred Stock");
205,000 shares of Class B Cumulative Preferred Stock, without par value
(hereinafter sometimes referred to as "Class B Preferred Stock");
58,200 shares of Class C Cumulative Preferred Stock, without par value
(hereinafter sometimes referred to as "Class C Preferred Stock");
100,000 shares of Preference Stock, without par value (hereinafter sometimes
referred to as "Preference Stock"); and
25,000,000 shares of Common Stock, par value $.10 per share (hereinafter
sometimes referred to as "Common Stock").
The preferences, limitations and relative rights of each class are as follows:
A. Class A Preferred Stock
(1) Dividend Rights. The holders of Class A Preferred Stock shall be
entitled to receive, as and when declared by the Board of Directors, out of
any assets of the Corporation at the time legally available for the payment of
dividends, cumulative preferential dividends at the rate of $9.50 per share
per annum until and including February 15, 1993 and at the rate of $8.00 per
share per annum thereafter, and no more, payable quarterly on the fifteenth
day of each February, May, August and November in each year, and such
dividends shall accrue on each share, whether or not earned or declared, from
and after the date of issuance thereof.
So long as any Class A Preferred Stock remains outstanding, no dividends
(either in cash, stock or property) shall be paid or declared, or declared and
set apart for payment, on Common Stock or on any shares of any class of stock
(or series thereof) of the Corporation ranking, as to dividend rights, junior
to Class A Preferred Stock, nor shall any shares of any class of stock (or
series thereof) of the Corporation ranking, as to dividend rights, junior to
or on a parity with Class A Preferred Stock be purchased, redeemed or
otherwise acquired for value by the Corporation, except for conversions of
shares of Class B Preferred Stock into shares of Class A Preferred Stock,
unless there shall have been declared and paid, or declared and set apart for
payment, a sum sufficient for the payment of full dividends on all shares of
Class A Preferred Stock at the time outstanding for all past dividend periods
and for the then current dividend period. No dividends (either in cash, stock
or property) shall be paid or declared, or declared and set apart for payment,
on any shares of Class A Preferred Stock or on any shares of any class of
stock (or series thereof) of the Corporation ranking, as to dividend rights,
on a parity with Class A Preferred Stock for any dividend period unless at the
same time a like proportion of dividends for the same or similar dividend
period, ratably in proportion to the respective annual dividend rate fixed
therefor, shall be paid or declared, or declared and set apart for payment, on
all shares of Class A Preferred Stock and for all other shares of each class
of stock (or series thereof) of the Corporation then outstanding ranking, as
to dividend rights, on a parity with Class A Preferred Stock then outstanding
and at the time entitled to receive such dividends. Accumulations of
dividends shall not bear interest.
The dividend rights of Class A Preferred Stock shall be on a parity with the
dividend rights of Class B Preferred Stock, Class C Preferred Stock and with
each other class of stock (or series thereof) of the Corporation that may
hereafter be created and which, by the terms thereof, is declared to be on a
parity, as to dividend rights, with Class A Preferred Stock, Class B Preferred
Stock or Class C Preferred Stock. The dividend rights of Class A Preferred
Stock shall be senior to the dividend rights of Common Stock.
(2) Redemption at the Option of the Holders. The holder of each share
of Class A Preferred Stock may, at his option, require that the Corporation
redeem any or all shares of the holder's Class A Preferred Stock (i) at any
time and from time to time after the death of Edward J. Schaefer and (ii) at
any time and from time to time if such holder is an exempt organization for
purposes of Section 501 (c)(3) of the Internal Revenue Code of 1986, at a cash
price of $100 per share plus in each case all accrued and unpaid dividends
thereon, whether or not declared, to the redemption date. Each holder of
shares of Class A Preferred Stock calling for redemption shall surrender the
certificate or certificates representing the shares of Class A Preferred Stock
to be redeemed, duly endorsed, together with a written request for redemption
specifying the number of shares to be redeemed and a redemption date not less
than 60 nor more than 120 days after the request, to the Corporation, at the
office of any transfer agent for the Class A Preferred Stock (or other place
as may be designated by the Corporation) and shall thereupon be entitled to
receive payment of the redemption price including all accrued and unpaid
dividends thereon, whether or not declared, to the redemption date. If the
Corporation redeems less than all of the shares represented by a surrendered
certificate, the Corporation shall issue a new certificate representing the
unredeemed shares.
Shares of Class A Preferred Stock redeemed by the Corporation shall no longer
be outstanding and shall become authorized but unissued shares of Class A
Preferred Stock, and all rights with respect to such shares shall cease at the
close of business on the redemption date, except that the holders shall have
the right to receive the redemption price therefor, including all accrued and
unpaid dividends, whether or not declared, to the redemption date, without
interest, upon surrender of their certificates therefor.
(3) Redemption at the Call of the Corporation. Except as otherwise
provided herein, the Corporation may redeem any or all shares of Class A
Preferred Stock at its option by resolution of the Board of Directors, at any
time and from time to time (i) after any transfer of record of any shares of
Class A Preferred Stock to a holder other than Edward J. Schaefer, a lineal
descendant of Edward J. Schaefer, a trust for the benefit of Edward J.
Schaefer or a lineal descendant of Edward J. Schaefer, or The Schaefer
Foundation, but such right of redemption shall be applicable only as to the
shares of Class A Preferred Stock so transferred, or (ii) commencing eighteen
months after the death of Edward J. Schaefer, one of the initial holders of
Class A Preferred Stock, whichever is earlier, upon payment in cash, in
respect of each share redeemed, of $100 plus in each case all accrued and
unpaid dividends thereon, whether or not declared, to the date fixed for
redemption. In the event that the Corporation redeems less than all of the
shares of Class A Preferred Stock outstanding at any one time, the Corporation
shall select the shares to be redeemed pro rata (rounded to the nearest whole
share). Not less than 20 nor more than 120 days prior to the date fixed for
any entire or partial redemption of Class A Preferred Stock, the Corporation
shall cause to be mailed a notice of redemption to the holders of record of
the shares to be redeemed at their addresses as they appear on the stock
register of the Corporation. The notice of redemption shall state the time
and place of redemption and the redemption price and shall state that
dividends on the shares to be redeemed will cease to accrue on the date fixed
for redemption. Failure to mail a notice of redemption of particular shares
of Class A Preferred Stock or a defect in such a notice or its mailing shall
not affect the validity of the proceedings for the redemption of any other
shares of Class A Preferred Stock.
At any time after the mailing of a notice of redemption, each holder of shares
of Class A Preferred Stock called for redemption shall surrender his
certificate representing such shares to the Corporation or its agent at the
place designated in the notice of redemption. If the Corporation redeems less
than all of the shares represented by a surrendered certificate, the
Corporation shall issue a new certificate representing the unredeemed shares.
If the Corporation has duly given notice of redemption and if funds necessary
for the redemption are available on the date fixed for redemption, then
notwithstanding that any holder has not surrendered his certificate
representing shares called for redemption, such shares shall become authorized
but unissued shares of Class A Preferred Stock, and all rights with respect to
those shares shall cease at the close of business on the date fixed for
redemption, except that holders shall have the right to receive the redemption
price therefor, including all accrued and unpaid dividends, whether or not
declared, to the date fixed for redemption, without interest, upon surrender
of their certificates therefor.
(4) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of
Class A Preferred Stock shall be entitled to receive from the assets of the
Corporation a preferential amount equal to $100 per share plus all accrued and
unpaid dividends thereon, whether or not declared, to the date of payment,
before any distribution or payment shall be made to the holders of the Common
Stock or of any class of stock (or series thereof) of the Corporation ranking
junior, as to liquidation rights, to Class A Preferred Stock.
If upon such voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the assets of the Corporation available for distribution
to its shareholders shall be insufficient to permit the payment in full of the
amounts distributable to the holders of all shares of the Class A Preferred
Stock and of all other shares of each class of stock (or series thereof) of
the Corporation then outstanding with liquidation rights on a parity with, or
senior to, the liquidation rights of Class A Preferred Stock, then the entire
assets of the Corporation available for distribution to its shareholders,
after providing for distribution to the holders of all shares of each class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights senior to Class A Preferred Stock, shall be distributed ratably among
the holders of Class A Preferred Stock and the holders of each other class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights on a parity with the liquidation rights of Class A Preferred Stock.
The liquidation rights of Class A Preferred Stock shall be on a parity with
the liquidation rights of Class B Preferred Stock, Class C Preferred Stock and
each other class of stock (or series thereof) of the Corporation that may be
created and which, by the terms thereof, is declared to be on a parity, as to
liquidation rights with Class A Preferred Stock, Class B Preferred Stock or
Class C Preferred Stock. The liquidation rights of Class A Preferred Stock
shall be senior to the liquidation rights of Common Stock.
The merger or share exchange of the Corporation with any other corporation, or
a sale, lease or conveyance of all or substantially all of its assets, shall
not be regarded as a liquidation, dissolution or winding up of the Corporation
within the meaning of this section.
(5) Voting. Except as provided herein or as may be required by law,
the holders of shares of Class A Preferred Stock shall have no voting rights,
and such holders shall not be entitled to receive notice of any meeting at
which they are not entitled to vote.
In addition to any other voting rights as a separate class or otherwise to
which the holders of Class A Preferred Stock may be entitled by law, the
holders of Class A Preferred Stock shall be entitled, voting together as a
single class with the holders of Common Stock, Class B Preferred Stock, Class
C Preferred Stock and any other class of stock (or series thereof) of the
Corporation entitled to vote thereon, to one vote per share an such of the
following matters that are required by the Indiana Business Corporation Law to
be approved by holders of Common Stock(i) a merger, share exchange, business
combination or control share acquisition of the Corporation, (ii) a sale,
lease, exchange or other disposition of all or substantially all of the assets
of the Corporation, (iii) a liquidation, dissolution or winding up of the
Corporation, or (iv) a reclassification of the securities of the Corporation
or a recapitalization or other similar transaction by the Corporation.
Following the occurrence and during the existence of a default in preference
dividends, as the term "default in preference dividends" is hereinafter
defined, each share of Class A Preferred Stock shall be entitled to one vote
on each matter submitted to a vote of the shareholders of the Corporation.
For the purposes of this section, a "default in preference dividends" shall be
deemed to have occurred whenever the amount of dividends in arrears upon any
shares of Class A Preferred Stock, Class B Preferred Stock or Class C
Preferred Stock shall be equivalent to six (6) full quarterly dividends or
more, and having so occurred, such default in preference dividends shall be
deemed to exist thereafter until, but only until, all dividends in arrears, on
all shares of Class A Preferred Stock, Class B Preferred Stock and Class C
Preferred Stock then outstanding shall have been paid. The term "dividend in
arrears" whenever used in this section with reference to Class A Preferred
Stock, Class B Preferred Stock and Class C Preferred Stock, shall be deemed to
mean that amount which shall be equal to cumulative dividends at the rate
expressed in these Articles of Incorporation for such preferred stock for all
past quarterly dividend periods less the amount of all dividends paid, or
deemed paid, for all such periods upon such preferred stock.
Shares of Class A Preferred Stock are not entitled to vote after notice of
redemption has been mailed to the holders of Class A Preferred Stock and a sum
sufficient to redeem the shares has been deposited with a bank, trust company
or other financial institution under an irrevocable obligation to pay the
holders of Class A Preferred Stock the redemption price on surrender of the
shares.
(6) Priorities. So long as any Class A Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote or
written consent of the holders of a majority of the aggregate number of the
shares of Class A Preferred Stock at the time outstanding, create any other
class or classes of stock (or series thereof) of the Corporation ranking prior
to Class A Preferred Stock either as to dividends or distributions of assets,
or amend, alter or repeal any of the provisions of these Articles of
Incorporation so as adversely to affect the preferences, limitations and
relative rights of Class A Preferred Stock. So long as any Class A Preferred
Stock remains outstanding, Common Stock shall rank junior and be subject and
subordinate to Class A Preferred Stock. Subject to the preferences,
limitations and relative rights provided pursuant to this Article VI, each
share of Class A Preferred Stock shall be of equal rank with each share of
Class B Preferred Stock and each share of Class C Preferred Stock.
(7) Authorized but Unissued Shares. Authorized but unissued shares of
Class A Preferred Stock, including authorized but unissued shares that result
from the redemption of shares by the Corporation pursuant to Sections A(2) and
A(3) of this Article VI, and any shares of Class A preferred Stock which at
any time shall be purchased or otherwise acquired by the Corporation shall not
be reissued except upon conversion of shares of Class B preferred Stock. So
long as any shares of Class B Preferred Stock shall be outstanding and not
called for redemption the number of authorized but unissued shares of Class A
Preferred Stock shall not be reduced below the number that would be required
to be issued upon the conversion of all outstanding shares of Class B
Preferred Stock.
B. Class B Preferred Stock
(1) Dividend Rights. The holders of Class B Preferred Stock shall be
entitled to receive, as and when declared by the Board of Directors, out of
any assets of the Corporation at the time legally available for the payment of
dividends, cumulative preferential dividends at the rate of $11.00 per share
per annum until and including February 15, 1993 and at the rate of $9.50 per
share per annum thereafter, and no more, payable quarterly on the fifteenth
day of each February, May, August and November in each year, and such
dividends shall accrue on each share, whether or not earned or declared, from
and after the date of issuance thereof.
So long as any Class B Preferred Stock remains outstanding, no dividends
(either in cash, stock or property) shall be paid or declared, or declared and
set apart for payment, on Common Stock or on any shares of any class of stock
(or series thereof) of the Corporation ranking, as to dividend rights, junior
to Class B Preferred Stock, nor shall any shares of any class of stock (or
series thereof) of the Corporation ranking, as to dividend rights, junior to
or on a parity with Class B Preferred Stock be purchased, redeemed or
otherwise acquired for value by the Corporation, except for conversions of
shares of Class B Preferred Stock into shares of Class A Preferred Stock and
for redemptions of Class A Preferred Stock pursuant to Section A(2) of this
Article VI unless there shall have been declared and paid, or declared and set
apart for payment, a sum sufficient for the payment of full dividends on all
shares of Class B Preferred Stock at the time outstanding for all past
dividend periods and for the then current dividend period. No dividends
(either in cash, stock or property) shall be paid or declared, or declared and
set apart for payment, on any shares of Class B Preferred Stock or on any
shares of any class of stock (or series thereof) of the Corporation ranking,
as to dividend rights, on a parity with Class B Preferred Stock for any
dividend period unless at the same time a like proportion of dividends for the
same or similar dividend period, ratably in proportion to the respective
annual dividend rate fixed therefor, shall be paid or declared, or declared
and set apart for payment, on all shares of Class B Preferred Stock and for
all other shares of each class of stock (or series thereof) of the Corporation
then outstanding ranking, as to dividend rights, on a parity with Class B
Preferred Stock then outstanding and at the time entitled to receive such
dividends. Accumulations of dividends shall not bear interest.
The dividend rights of Class B Preferred Stock shall be on a parity with the
dividend rights of Class A Preferred Stock, Class C Preferred Stock and with
each other class of stock (or series thereof) of the Corporation that may
hereafter be created and which, by the terms thereof is declared to be on a
parity, as to dividend rights, with Class A Preferred Stock, Class B Preferred
Stock or Class C Preferred Stock. The dividend rights of Class B Preferred
Stock shall be senior to the dividend rights of Common Stock.
(2) Redemption. Except as otherwise provided herein, the Corporation
may redeem any or all shares of Class B Preferred Stock at its option by
resolution of the Board of Directors, at any time and from time to time (i)
after any transfer of record of any shares of Class B Preferred Stock to a
holder other than Edward J. Schaefer, a lineal descendant of Edward J.
Schaefer, a trust for the benefit of Edward J. Schaefer or a lineal descendant
of Edward J. Schaefer, or The Schaefer Foundation, but such right of
redemption shall be applicable only as to the shares of Class B Preferred
Stock so transferred, or (ii) commencing three years after the death of Edward
J. Schaefer, one of the initial holders of Class B Preferred Stock, whichever
is earlier, upon payment in cash, in respect of each share redeemed, of $100
plus in each case all accrued and unpaid dividends thereon, whether or not
declared, to the date fixed for redemption. In the event that the Corporation
redeems less than all of the shares of Class B Preferred Stock outstanding at
any one time, the Corporation shall select the shares to be redeemed pro rata
(rounded to the nearest whole share). Not less than 20 nor more than 120 days
prior to the date fixed for any entire or partial redemption of Class B
Preferred Stock, the Corporation shall cause to be mailed a notice of
redemption to the holders of record of the shares to be redeemed at their
addresses as they appear on the stock register of the Corporation. The notice
of redemption shall state the time and place of redemption and the redemption
price and shall state that dividends on the shares to be redeemed will cease
to accrue on the date fixed for redemption and that the right to convert the
shares of Class B Preferred Stock to be redeemed will terminate on the date of
the notice of redemption. Failure to mail a notice of redemption of
particular shares of Class B Preferred Stock or a defect in such a notice or
its mailing shall not affect the validity of the proceedings for the
redemption of any other shares of Class B Preferred Stock.
At any time after the mailing of a notice of redemption, each holder of shares
of Class B Preferred Stock called for redemption shall surrender his
certificate representing such shares to the Corporation or its agent at the
place designated in the notice of redemption. If the Corporation redeems less
than all of the shares represented by a surrendered certificate, the
Corporation shall issue a new certificate representing the unredeemed shares.
If the Corporation has duly given notice of redemption and if funds necessary
for the redemption are available on the date fixed for redemption, then
notwithstanding that any holder has not surrendered his certificate
representing shares called for redemption, such shares shall become authorized
but unissued shares of Class B Preferred Stock, and all rights with respect to
those shares shall cease at the close of business on the date fixed for
redemption, except that holders shall have the right to receive the redemption
price therefor, including all accrued and unpaid dividends, whether or not
declared, to the date fixed for redemption, without interest, upon surrender
of their certificates therefor.
Nothing in this section shall give any holder of Class B Preferred Stock the
right to require the Corporation to redeem any or all shares of the stock.
(3) Conversion. Subject to the limitations set forth below, at any time
and from time to time, shares of Class B Preferred Stock may be converted, at
the option of the holders thereof, in the manner hereinafter provided, into a
like number of fully paid and nonassessable shares of Class A Preferred Stock;
provided, however, that such right of conversion shall terminate as to shares
of Class B Preferred Stock called for redemption by the Corporation on the
date of the notice of redemption pursuant to Section B(2) of this Article VI
unless default shall be made in the payment of the redemption price.
The right of the holders of Class B Preferred Stock to convert such stock into
Class A Preferred Stock shall be subject to each of the following limitations:
(i) shares of Class B Preferred Stock may be converted into shares of Class A
Preferred Stock only to the extent that at the time the shares of Class B
Preferred Stock are surrendered for conversion, authorized but unissued shares
of Class A Preferred Stock are available for issuance and such conversion
would, if effected, result in no more than 150,000 shares of Class A Preferred
Stock being issued and outstanding; (ii) from and after the date that an
aggregate of 75,000 shares of Class B Preferred Stock shall have been
converted into shares of Class A Preferred Stock, no further shares of Class B
Preferred Stock shall be converted into shares of Class A Preferred Stock
until the next calendar year, and no more than 10,000 shares of Class B
Preferred Stock shall be converted into shares of Class A Preferred Stock in
such next calendar year or in any one of the three succeeding calendar years,
and no more than 25,000 shares of Class B Preferred Stock shall be converted
into shares of Class A Preferred Stock in any one succeeding calendar year
after such three succeeding calendar years; and (iii) shares of Class B
Preferred Stock may be converted into shares of Class A Preferred Stock only
to the extent that at the time shares of Class B Preferred Stock are
surrendered for conversion the total assets of the Corporation equal or exceed
by at least $5,000,000 the sum of its total liabilities (excluding for such
purpose amounts payable with respect to Class A Preferred Stock and the shares
of Class B Preferred Stock being surrendered for conversion) plus the amount
that would be needed to redeem all of the then issued and outstanding shares
of Class A Preferred Stock and the shares of Class A Preferred Stock issuable
upon conversion of the shares of Class B Preferred Stock then surrendered for
conversion.
In the event that the number of shares of Class B Preferred Stock surrendered
for conversion shall exceed the number of such shares that may then be
converted in accordance with any of the foregoing limitations, such number of
shares as may be converted, selected from the holders thereof in the order in
which surrendered, shall be converted into shares of Class A Preferred Stock,
and the remainder shall be returned to the holders thereof. The inability or
declination of the Corporation to convert shares of Class B Preferred Stock at
any time by reason of any of the foregoing limitations shall not affect the
convertibility of such shares at any other time.
Any conversion of Class B Preferred Stock into Class A Preferred Stock shall
be made by the surrender to the Corporation, at the office of any transfer
agent for the Class B Preferred Stock (or other place as may be designated by
the Corporation), of the certificate or certificates representing the shares
of Class B Preferred Stock to be converted, duly endorsed or assigned (unless
such endorsement or assignment be waived by the Corporation) together with a
written request for conversion.
All shares of Class B Preferred Stock which shall have been surrendered for
conversion as herein provided shall no longer be outstanding, and all rights
with respect to such shares, including the rights, if any, to receive notices
and to vote, shall forthwith cease, except only the right of the holders
thereof to receive Class A Preferred Stock in exchange therefor.
(4) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of
Class B Preferred Stock shall be entitled to receive from the assets of the
Corporation a preferential amount equal to $100 per share plus all accrued and
unpaid dividends thereon, whether or not declared, to the date of payment,
before any distribution or payment shall be made to the holders of the Common
Stock or of any class of stock (or series thereof) of the Corporation ranking
junior, as to liquidation rights, to Class B Preferred Stock.
If upon such voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the assets of the Corporation available for distribution
to its shareholders shall be insufficient to permit the payment in full of the
amounts distributable to the holders of all shares of Class B Preferred Stock
and of all other shares of each class of stock (or series thereof) of the
Corporation then outstanding with liquidation rights on a parity with, or
senior to, the liquidation rights of Class B Preferred Stock, then the entire
assets of the Corporation available for distribution to its shareholders,
after providing for distribution to the holders of all shares of each class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights senior to Class B Preferred Stock, shall be distributed ratably among
the holders of Class B Preferred Stock and the holders of each other class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights on a parity with the liquidation rights of Class B Preferred Stock.
The liquidation rights of Class B Preferred Stock shall be on a parity with
the liquidation rights of Class A Preferred Stock, Class C Preferred Stock and
each other class of stock (or series thereof) of the Corporation that may be
created and which, by the terms thereof, is declared to be on a parity, as to
liquidation rights, with Class A Preferred Stock, Class B Preferred Stock or
Class C Preferred Stock. The liquidation rights of Class B Preferred Stock
shall be senior to the liquidation rights of Common Stock.
The merger or share exchange of the Corporation with any other corporation, or
a sale, lease or conveyance of all or substantially all of its assets, shall
not be regarded as a liquidation, dissolution or winding up of the Corporation
within the meaning of this section.
(5) Voting. Except as provided herein or as may be required by law, the
holders of shares of Class B Preferred Stock shall have no voting rights, and
such holders shall not be entitled to receive notice of any meeting at which
they are not entitled to vote.
In addition to any other voting rights as a separate class or otherwise to
which the holders of Class B Preferred Stock may be entitled by law, the
holders of Class B Preferred Stock shall be entitled, voting together as a
single class with the holders of Common Stock, Class A Preferred Stock, Class
C Preferred Stock and any other class of stock (or series thereof) of the
Corporation entitled to vote thereon, to one vote per share on such of the
following matters that are required by the Indiana Business Corporation Law to
be approved by holders of Common Stock: (i) a merger, share exchange, business
combination or control share acquisition of the Corporation, (ii) a sale,
lease, exchange or other disposition of all or substantially all of the assets
of the Corporation, (iii) a liquidation, dissolution or winding up of the
Corporation, or (iv) a reclassification of the securities of the Corporation
or a recapitalization or other similar transaction by the Corporation.
Following the occurrence and during the existence of a default in preference
dividends, as the term "default in preference dividends" is hereinafter
defined, each share of Class B Preferred Stock shall be entitled to one vote
on each matter submitted to a vote of the shareholders of the Corporation.
For the purposes of this section, a "default in preference dividends" shall be
deemed to have occurred whenever the amount of dividends in arrears upon any
shares of Class A Preferred Stock, Class B Preferred Stock or Class C
Preferred Stock shall be equivalent to six (6) full quarterly dividends or
more, and having so occurred, such default in preference dividends shall be
deemed to exist thereafter until, but only until, all dividends in arrears on
all shares of Class A Preferred Stock, Class B Preferred Stock and Class C
Preferred Stock then outstanding shall have been paid. The term "dividend in
arrears' whenever used in this section with reference to Class A Preferred
Stock, Class B Preferred Stock and Class C Preferred Stock, shall be deemed to
mean that amount which shall be equal to cumulative dividends at the rate
expressed in these Articles of Incorporation for such preferred stock for all
past quarterly dividend periods less the amount of all dividends paid, or
deemed paid, for all such periods upon such preferred stock.
Shares of Class B Preferred Stock are not entitled to vote after notice of
redemption has been mailed to the holders of Class B Preferred Stock and a sum
sufficient to redeem the shares has been deposited with a bank, trust company
or other financial institution under an irrevocable obligation to pay the
holders of Class B Preferred Stock the redemption price on surrender of the
shares.
(6) Priorities. So long as any Class B Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote or
written consent of the holders of a majority of the aggregate number of the
shares of Class B Preferred Stock at the time outstanding, create any other
class or classes of stock (or series thereon of the Corporation ranking prior
to Class B Preferred Stock either as to dividends or distributions of assets,
or amend, alter or repeal any of the provisions of these Articles of
Incorporation so as adversely to affect the preferences, limitations and
relative rights of Class B Preferred Stock. So long as any Class B Preferred
Stock remains outstanding, Common Stock shall rank junior and be subject and
subordinate to Class B Preferred Stock. Subject to the preferences,
limitations and relative rights provided pursuant to this Article VI, each
share of Class B Preferred Stock shall be of equal rank with each share of
Class A Preferred Stock and each share of Class C Preferred Stock.
(7) Status of Reacquired Shares. The Corporation shall retire and
cancel any shares of Class B Preferred Stock that it redeems, purchases or
otherwise acquires, and such shares shall not be reissued.
C. Class C Preferred Stock
(1) Dividend Rights. The holders of Class C Preferred Stock shall be
entitled to receive, as and when declared by the Board of Directors, out of
any assets of the Corporation at the time legally available for the payment of
dividends, cumulative preferential dividends at the rate of $10.50 per share
per annum, and no more, payable quarterly on the fifteenth day of each
February, May, August and November in each year, and such dividends shall
accrue on each share, whether or not earned or declared, from and after the
date of issuance thereof.
So long as any Class C Preferred Stock remains outstanding, no dividends
(either in cash, stock or property) shall be paid or declared, or declared and
set apart for payment, on Common Stock or on any shares of any class of stock
(or series thereof) of the Corporation ranking, as to dividend rights, junior
to Class C Preferred Stock, nor shall any shares of any class of stock (or
series thereof) of the Corporation ranking, as to dividend rights, junior to
or on a parity with Class C Preferred Stock be purchased, redeemed or
otherwise acquired for value by the Corporation, except for conversions of
shares of Class B Preferred Stock into shares of Class A Preferred Stock,
unless there shall have been declared and paid, or declared and set apart for
payment, a sum sufficient for the payment of full dividends on all shares of
Class C Preferred Stock at the time outstanding for all past dividend periods
and for the then current dividend period. No dividends (either in cash, stock
or property) shall be paid or declared, or declared and set apart for payment,
on any shares of Class C Preferred Stock or on any shares of any class of
stock (or series thereof) of the Corporation ranking, as to dividend rights,
on a parity with Class C Preferred Stock for any dividend period unless at the
same time a like proportion of dividends for the same or similar dividend
period, ratably in proportion to the respective annual dividend rate fixed
therefor, shall be paid or declared, or declared and set apart for payment, on
all shares of Class C Preferred Stock and for all other shares of each class
of stock (or series thereof) of the Corporation then outstanding ranking, as
to dividend rights, on a parity with Class C Preferred Stock then outstanding
and at the time entitled to receive such dividends. Accumulations of
dividends shall not bear interest.
The dividend rights of Class C Preferred Stock shall be on a parity with the
dividend rights of Class A Preferred Stock, Class B Preferred Stock and with
each other class of stock (or series thereof) of the Corporation that may
hereafter be created and which, by the terms thereof, is declared to be on a
parity, as to dividend rights, with Class A Preferred Stock, Class B Preferred
Stock or Class C Preferred Stock. The dividend rights of Class C Preferred
Stock shall be senior to the dividend rights of Common Stock.
(2) Redemption. The Corporation may redeem any or all shares of Class C
Preferred Stock at its option by resolution of the Board of Directors, at any
time and from time to time from and after February 15, 1994, upon payment in
cash, in respect of each share redeemed, of $100 plus in each case all accrued
and unpaid dividends thereon, whether or not declared, to the date fixed for
redemption. In the event that the Corporation redeems less than all of the
shares of Class C Preferred Stock outstanding at any one time, the Corporation
shall select the shares to be redeemed pro rata (rounded to the nearest whole
share). Not less than 20 nor more than 120 days prior to the date fixed for
any entire or partial redemption of Class C Preferred Stock, the Corporation
shall cause to be mailed a notice of redemption to the holders of record of
the shares to be redeemed at their addresses as they appear on the stock
register of the Corporation. The notice of redemption shall state the time
and place of redemption and the redemption price and shall state that
dividends on the shares to be redeemed will cease to accrue on the date fixed
for redemption. Failure to mail a notice of redemption of particular shares
of Class C Preferred Stock or a defect in such a notice or its mailing shall
not affect the validity of the proceedings for the redemption of any other
shares of Class C Preferred Stock.
At any time after the mailing of a notice of redemption, each holder of shares
of Class C Preferred Stock called for redemption shall surrender his
certificate representing such shares to the Corporation or its agent at the
place designated in the notice of redemption. If the Corporation redeems less
than all of the shares represented by a surrendered certificate, the
Corporation shall issue a new certificate representing the unredeemed shares.
If the Corporation has duly given notice of redemption and if funds necessary
for the redemption are available on the date fixed for redemption, then
notwithstanding that any holder has not surrendered his certificate
representing shares called for redemption, such shares shall become authorized
but unissued shares of Class C Preferred Stock, and all rights with respect to
those shares shall cease at the close of business on the date fixed for
redemption, except that holders shall have the right to receive the redemption
price therefor, including all accrued and unpaid dividends, whether or not
declared, to the date fixed for redemption, without interest, upon surrender
of their certificates therefor.
(3) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of
Class C Preferred Stock shall be entitled to receive from the assets of the
Corporation a preferential amount equal to $100 per share plus all accrued and
unpaid dividends thereon, whether or not declared, to the date of payment,
before any distribution or payment shall be made to the holders of the Common
Stock or of any class of stock (or series thereof) of the Corporation ranking
junior, as to liquidation rights, to Class C Preferred Stock.
If upon such voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the assets of the Corporation available for distribution
to its shareholders shall be insufficient to permit the payment in full of the
amounts distributable to the holders of all shares of Class C Preferred Stock
and of all other shares of each class of stock (or series thereof) of the
Corporation then outstanding with liquidation rights on a parity with, or
senior to, the liquidation rights of Class C Preferred Stock, then the entire
assets of the Corporation available for distribution to its shareholders,
after providing for distribution to the holders of all shares of each class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights senior to Class C Preferred Stock, shall be distributed ratably among
the holders of Class C Preferred Stock and the holders of each other class of
stock (or series thereof) of the Corporation then outstanding with liquidation
rights on a parity with the liquidation rights of Class C Preferred Stock.
The liquidation rights of Class C Preferred Stock shall be on a parity with
the liquidation rights of Class A Preferred Stock, Class B Preferred Stock and
each other class of stock (or series thereof) of the Corporation that may be
created and which, by the terms thereof, is declared to be on a parity, as to
liquidation rights, with Class A Preferred Stock, Class B Preferred Stock or
Class C Preferred Stock. The liquidation rights of Class C Preferred Stock
shall be senior to the liquidation rights of Common Stock.
The merger or share exchange of the Corporation with any other corporation, or
a sale, lease or conveyance of all or substantially all of its assets shall
not be regarded as a liquidation, dissolution or winding up of the Corporation
within the meaning of this section.
(4) Voting. Except as provided herein or as may be required by law, the
holders of shares of Class C Preferred Stock shall have no voting rights, and
such holders shall not be entitled to receive notice of any meeting at which
they are not entitled to vote.
In addition to any other voting rights as a separate class or otherwise to
which the holders of Class C Preferred Stock may be entitled by law, the
holders of Class C Preferred Stock shall be entitled, voting together as a
single class with the holders of Common Stock, Class A Preferred Stock, Class
B Preferred Stock and any other class of stock (or series thereof) of the
Corporation entitled to vote thereon, to one vote per share on such of the
following matters that are required by the Indiana Business Corporation Law to
be approved by holders of Common Stock: (i) a merger, share exchange, business
combination or control share acquisition of the Corporation, (ii) a sale,
lease, exchange or other disposition of all or substantially all of the assets
of the Corporation, (iii) a liquidation, dissolution or winding up of the
Corporation, or (iv) a reclassification of the securities of the Corporation
or a recapitalization or other similar transaction by the Corporation.
Following the occurrence and during the existence of a default in preference
dividends, as the term "default in preference dividends" is hereinafter
defined, each share of Class C Preferred Stock shall be entitled to one vote
on each matter submitted to a vote of the shareholders of the Corporation.
For the purposes of this section, a "default in preference dividends" shall be
deemed to have occurred whenever the amount of dividends in arrears upon any
shares of Class A Preferred Stock, Class B Preferred Stock or Class C
Preferred Stock, shall be equivalent to six (6) full quarterly dividends or
more, and having so occurred, such default in preference dividends shall be
deemed to exist thereafter until, but only until, all dividends in arrears, on
all shares of Class A Preferred Stock, Class B Preferred Stock and Class C
Preferred Stock shall have been paid. The term "dividend in arrears" whenever
used in this section with reference to Class A Preferred Stock, Class B
Preferred Stock and Class C Preferred Stock shall be deemed to mean that
amount which shall be equal to cumulative dividends at the rate expressed in
these Restated Articles of Incorporation for such preferred stock for all past
quarterly dividend periods less the amount of all dividends paid, or deemed
paid, for all such periods upon such preferred stock.
Shares of Class C Preferred Stock are not entitled to vote after notice of
redemption has been mailed to the holders of Class C Preferred Stock and a sum
sufficient to redeem the shares has been deposited with a bank, trust company
or other financial institution under an irrevocable obligation to pay the
holders of Class C Preferred Stock the redemption price on surrender of the
shares.
(5) Priorities. So long as any Class C Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote or
written consent of the holders of a majority of the aggregate number of the
shares of Class C Preferred Stock at the time outstanding, create any other
class or class of stock (or series thereof) of the Corporation ranking prior
to Class C Preferred Stock either as to dividends or distributions of assets
or amend, alter or repeal any of the provisions of these Articles of
Incorporation so as adversely to affect the preferences, limitations and
relative rights of Class C Preferred Stock. So long as any Class C Preferred
Stock remains outstanding, Common Stock shall rank junior and be subject and
subordinate to Class C Preferred Stock. Subject to the preferences,
limitations and relative rights provided pursuant to this Article VI, each
share of Class C Preferred Stock shall be of equal rank with each share of
Class A Preferred Stock and each share of Class B Preferred Stock.
(6) Status of Reacquired Shares. The Corporation shall retire and
cancel any shares of Class C Preferred Stock that it redeems, purchases or
otherwise acquires, and such shares shall not be reissued.
D. Preference Stock
Shares of Preference Stock may be issued from time to time in one or more
series, in such amounts and for such consideration as the Board of Directors
may determine and with such preferences, limitations and relative rights as
shall be determined and stated by the Board of Directors. Such preferences,
limitations and relative rights shall be determined and stated for each such
series of Preference Stock by resolution of the Board of Directors prior to
the issuance of each of such series, which resolution shall authorize the
issuance of such series and the authority for which is hereby granted to the
Board of Directors of the Corporation. Without limiting the generality of the
authority granted to the Board of Directors herein, the Board of Directors
shall have the power, right and authority to determine the following
preferences, limitations and relative rights:
(1) Designation. The designation of each series, which designation
shall be by distinguishing letter, number, title or combination thereof.
(2) Number. The number of shares of any series to be issued.
(3) Dividend Source, Rate and Dates. The source, rate and dates of any
dividends payable with respect to shares of any series; provided, however,
that no dividends shall be payable upon the shares of Preference Stock to the
extent that (i) the Corporation would not be able to pay its debts as they
become due in the usual course of business; or (ii) the Corporation's total
assets would be less than the sum of its total liabilities plus (unless
otherwise provided in these Articles of Incorporation) the amount that would
be needed, if the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon dissolution of the
shareholders whose preferential rights are superior to those receiving the
distribution.
(4) Dividend Accumulations. Whether any dividends which may be payable
with respect to shares of any series shall be cumulative; and, if they shall
be cumulative, then the dates from which such dividends shall start to
cumulate.
(5) Dividend Preferences. The preference or preferences, if any, to be
accorded dividends payable with respect to shares of any series.
(6) Redemption. The redemption rights and prices, if any, with respect
to shares of any series.
(7) Sinking Fund. The terms and amount of any sinking fund provided for
the redemption of shares of any series.
(8) Rights of Purchase. The rights, if any, of the Corporation to
purchase for retirement, other than by way of redemption, shares of any
series, and the terms and conditions of any such purchase rights.
(9) Conversion. Whether or not the shares of any series shall be
convertible into Common Stock or into shares of stock of any other series or
number of series or into any other security; and, if so, the conversion price
or prices, any adjustments thereof and/or any other terms and conditions upon
which such conversion may be effected.
(10) Liquidation. The preference or preferences, if any, with respect to
shares of any series entitled to receive the net assets of the Corporation
upon liquidation, dissolution or winding up of the Corporation.
(11) Voting. The voting rights, if any, to which the holders of the
shares of Preference Stock may be entitled.
E. Series I Junior Participating Preference Stock.
This Section E of this Article VI hereby creates a series of Preference
Stock and hereby states the designation and number of shares, and fixes the
relative powers, preferences and rights of such series.
(1) Designation and Amount. The shares of such series shall be
designated as "Series I Junior Participating Preference Stock" (the "Series I
Preference Stock") and the number of shares constituting the Series I
Preference Stock shall be 100,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of Series I Preference Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series I Preference Stock.
(2) Dividend Rights.
Subject to the rights of the holders of any shares of any series of
Preference Stock (or any similar shares) ranking prior and superior to the
Series I Preference Stock with respect to dividends, the holders of Series I
Preference Stock, in preference to the holders of Common Stock and of any
other junior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the fifteenth day of February, May,
August and November in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series I Preference Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (i) $16.00 or (ii) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in Common Stock or a subdivision of the outstanding Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any Series
I Preference Stock or fraction of a Series I Preference Stock. In the event
the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in Common Stock, or effect a subdivision or combination or
consolidation of the outstanding Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount to
which holders of Series I Preference Stock were entitled immediately prior to
such event under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
The Corporation shall declare a dividend or distribution on the Series I
Preference Stock as provided in this paragraph 2 immediately after it declares
a dividend or distribution on the Common Stock (other than a dividend payable
in Common Stock); provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $16.00 per share on the Series I Preference Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
Dividends shall begin to accrue and be cumulative on outstanding Series I
Preference Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of Series
I Preference Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid
on the Series I Preference Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of Series I Preference Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the payment
thereof.
(3) Redemption. The Series I Preference Stock shall not be redeemable.
(4) Conversion. The Series I Preference Stock shall not be convertible
into Common Stock or shares of any other series of any other class of
preferred stock of the Corporation ("Preferred Stock") or Preference Stock
unless the terms of any such series provide otherwise.
(5) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made, (i) to the holders of stock ranking junior (either as to
dividends or upon liquidation) to the holders of Series I Preference Stock
unless, prior thereto, the holders of Series I Preference Stock shall have
received from the assets of the Corporation a preferential amount equal to
$5,000 per share plus all accrued and unpaid dividends thereon, whether or not
declared, to the date of payment, provided that the holders of Series I
Preference Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock, or (ii) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series I
Preference Stock, except distributions made ratably on the Series I Preference
Stock and all such parity stock in proportion to the total amounts to which
the holders of all such stock are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in Common stock, or effect a
subdivision or combination or consolidation of the outstanding Common Stock
(by reclassification or otherwise than by payment of a dividend in Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of Series I Preference Stock
were entitled immediately prior to such event under the proviso in clause (i)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(6) Voting. Except as provided herein or as may be required by law,
holders of Series I Preference Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common stock as set forth herein) for taking any
corporate action.
In addition to any other voting rights as a separate class or otherwise to
which the holders of Series I Preference Stock may be entitled by law and
subject to the provision for adjustment hereinafter set forth, each share of
Series I Preference Stock shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of the shareholders of the Corporation. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in Common Stock, or effect a subdivision or combination
or consolidation of the outstanding Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the number of
votes per share to which holders of Series I Preference Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
Except as otherwise provided herein, in any other provisions of the Restated
Articles of Incorporation of the Corporation creating a series of Preferred
Stock or Preference Stock or any similar stock, or by law, the holders of
Series I Preference Stock and the holders of Common stock and any other
capital stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders of
the Corporation.
If at the time of any annual meeting of shareholders for the election of
directors a "default in preference dividends," (as that term is hereinafter
defined), on the Series I Preference Stock shall exist, the number of
directors constituting the Board of Directors of the Company shall be
increased by two (2), and the holders of the Series I Preference Stock and any
other series of Preference Stock (whether or not the holders of such stock
would be entitled to vote for the election of directors if such default in
preference dividends did not exist) shall have the right at such meeting,
voting together as a single class without regard to series, to the exclusion
of the holders of Common Stock, to elect two (2) directors of the Company to
fill such newly created directorships. Such right shall continue until there
are no dividends in arrears upon the Series I Preference Stock. Each director
elected by the holders of Series I Preference Stock and any other series of
Preference Stock (a "Preferred Director") shall continue to serve as such
director for the full term for which he shall have been elected,
notwithstanding that prior to the end of such term a default in preference
dividends shall cease to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders of record of the
outstanding Series I Preference Stock and any other series of Preference
Stock voting together as a single class without regard to series, at a meeting
of the shareholders or of the holders of Series I Preference Stock and any
other series of Preference Stock called for the purpose. So long as a default
in any preference dividends on the Series I Preference Stock shall exist, (i)
any vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (ii)) by an instrument in writing signed by
the remaining Preferred Director and filed with the Company and (ii) in the
case of the removal of any Preferred Director, the vacancy may be filled by
the vote of the holders of the outstanding Series I Preference Stock and any
other series of Preference Stock voting together as a single class without
regard to series, at the same meeting at which such removal shall be voted.
Each director appointed as aforesaid by the remaining Preferred Director shall
be deemed, for all purposes hereof, to be a Preferred Director. Whenever the
term of office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Company shall be reduced by two
(2). For the purposes hereof, a "default in preference dividends" on the
Series I Preference Stock shall be deemed to have occurred whenever the amount
of accrued dividends upon any series of the Series I Preference Stock shall be
equivalent to six (6) full quarterly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all Series I Preference Stock of each and
every series then outstanding shall have been paid to the end of the last
preceding quarterly dividend period.
(7) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series I Preference Stock as provided in paragraph 2 of this
Section E are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on Series I Preference
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series I Preference
Stock;
(ii) declare or pay dividends, or make any other distributions,
on any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series I Preference
Stock, except dividends paid ratably on the Series I Preference Stock
and all such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all such
stock are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series I Preference Stock, provided
that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for any shares of
the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series I Preference
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any Series I Preference Stock, or any stock ranking on a parity with
the Series I Preference Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such stock upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates
and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any stock of the
Corporation unless the Corporation could, under paragraph 7(a) of this Section
E, purchase or otherwise acquire such stock at such time and in such manner.
(8) Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
Common Stock is exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series I
Preference Stock shall at the same time be similarly exchanged or changed into
an amount per share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the event
the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in Common Stock, or effect a subdivision or combination or
consolidation of the outstanding Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of
Series I Preference Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(9) Priorities. So long as any Series I Preference Stock remains
outstanding, the Corporation shall not, without the affirmative vote or
written consent of the holders of at least two-thirds of the outstanding
Series I Preference Stock, voting together as a single class, amend, alter
or repeal any of the provisions of these Restated Articles of Incorporation
so as adversely to affect the preferences, limitations and relative rights
of Series I Preference Stock. So long as any Series I Preference Stock
remains outstanding, Series I Preference Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to any other
series of any other class of Preference Stock, unless the terms of any such
series shall provide otherwise.
(10) Status of Reacquired Shares. The Corporation shall retire and
cancel any shares of Series I Preference Stock that it redeems, purchases or
otherwise acquires. All such shares shall upon their cancellation become
authorized but unissued shares of Preference Stock and may be reissued as
part of a new series of Preference Stock subject to the conditions and
restrictions on issuance set forth in the restated Articles of Incorporation
creating a series of Preference Stock or as otherwise required by law.
F. Common Stock.
(1) Dividend Rights. Subject to the rights of all stock of the Corporation
ranking, as to dividends, senior to Common Stock, the holders of Common Stock
shall be entitled to receive such dividends, if any, as may be declared by the
Board of Directors of the Corporation from time to time and paid on Common
Stock out of any assets of the Corporation at the time legally available for
the payment of dividends.
(2) Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the shares of
Common Stock shall be entitled to share ratably in the assets of the
Corporation remaining after all distributions or payments shall have been made
to the holders of any class of stock (or series thereof) of the Corporation
ranking senior, as to liquidation rights, to Common Stock.
The merger or share exchange of the Corporation with any other corporation, or
a sale, lease or conveyance of all or substantially all of its assets, shall
not be regarded as a liquidation, dissolution or winding up of the Corporation
within the meaning of this section.
(3) Voting. Except as provided herein or as may be required by law, all
voting power shall vest exclusively in the holders of shares of Common Stock.
Each share of Common Stock shall be entitled to one vote on each matter
submitted to a vote of the shareholders of the Corporation.
D. Distributions to Shareholders.
The Board of Directors may authorize and the Corporation may make
distributions to its shareholders if, after giving the distribution effect,
(a) the Corporation would be able to pay its debts as they become due in the
usual course of business and, (b) the Corporation's total assets would be
greater than its total liabilities, without regard to any amount that would be
needed, if the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights are superior to those receiving the
distribution.
ARTICLE VII
Voting Rights of Common Stock
7.01. Common Stock. Every holder of shares of common stock shall have the
right, at every shareholders' meeting, to one vote for each share of common
stock standing in his name on the books of the Corporation, except as
otherwise provided in the IBCL.
ARTICLE VIII
Directors
8.01. Number. The number of Directors shall be not less than three (3) nor
more than eleven (11) and the exact number may from time to time be fixed by
the By-laws. If the By-laws do not fix the number of Directors, then the
number of Directors shall be five (5).
8.02. Classes of Director. The By-laws may provide that the Directors shall
be divided into two (2) or three (3) classes, with each class containing one-
half (1/2) or one third (1/3) of the total, with an equal number of Directors
or as near equal as may be, and whose terms of office shall expire at
different times. If Directors are divided into classes, the terms of the
Directors in the first class shall expire at the first annual shareholders'
meeting after their election, the terms of the second class shall expire at
the second annual shareholders' meeting after their election, and the terms of
the third class, if any, shall expire at the third annual shareholders'
meeting after their election. At each annual shareholders' meeting
thereafter, Directors shall be chosen for a term of two (2) years or three (3)
years, as the case may be, to succeed those whose term expire. If the By-laws
provide for a classified Board, then prior to the completion of their term of
office, a Director may be removed, with or without cause, only at a meeting of
the shareholders called and held for that purpose, by the affirmative vote of
the holders of outstanding shares of not less than two-thirds (2/3) of the
shares entitled to vote, by class, if applicable. Directors need not be
shareholders. A majority of the Directors at any time shall be citizens of
the United States.
8.03. Vacancies. Vacancies occurring in the Board of Directors shall be
filled in the manner provided in the By-laws, or if the By-laws do not provide
for the filling of vacancies then in the manner provided by Indiana law. The
By-laws may also provide that in certain circumstances specified therein,
vacancies occurring in the Board of Directors may be filled by vote of the
shareholders at a special meeting called for that purpose or at the next
annual meeting of shareholders.
8.04. Removal of Directors. Prior to the completion of their term of office,
and subject to the provisions of Section 8.02, a Director may only be removed
by the shareholders, and in the manner as provided under the IBCL.
ARTICLE IX
Provisions for Regulation of Business And
Conduct of Affairs of Corporation
9.01. Shareholder Meetings and Board Meetings. Meetings of the shareholders
may be held either at the principal office of the Corporation in the State of
Indiana or at any other place, within or without the State of Indiana, as
provided by the By-laws of the Corporation and the notices of such meetings.
Meetings of the Board of Directors may be held at such place, either within or
without the State of Indiana, as may be authorized by the By-laws.
9.02. Powers of Board. In addition to the powers and authorities
hereinabove or by statute expressly conferred, the Board of Directors
is hereby authorized to exercise all such powers and do all such acts and
things as may be exercised or done by a corporation organized and existing
under the provisions of the IBCL. The Board of Directors shall have the
exclusive power to make, amend, repeal or waive By-laws and the provisions
thereof.
9.03. Nonliability of Shareholders. Shareholders of the Corporation are not
personally liable for the acts or debts of the Corporation, nor is private
property of shareholders subject to the payment of corporate debt.
9.04. Interests of Directors.
(a) A conflict of interest transaction is a transaction with the Corporation
in which a Director of the Corporation has a direct or indirect interest. A
conflict of interest transaction is not voidable by the Corporation solely
because of the Director's interest in the transaction if any one (1) of the
following is true:
(1) The material facts of the transaction and the director's interest were
disclosed or known to the Board of Directors or a Committee of the Board of
Directors and the Board of Directors or committee authorized, approved, or
ratified the transaction.
(2) The material facts of the transaction and the Director's interest were
disclosed or known to the shareholders entitled to vote and they authorized,
approved, or ratified the transaction.
(3) The transaction was fair to the Corporation.
(b) For purposes of this Section 9.04, a Director of the Corporation has an
indirect interest in a transaction if:
(1) another entity in which the Director has a material financial interest or
in which the Director is a general partner is a party to the transaction, or
(2) another entity of which the Director is a director, officer, or trustee is
a party to the transaction and the transaction is, or is required to be,
considered by the Board of Directors of the Corporation.
(c) For purposes of Section 9.04(a)(1), a conflict of interest transaction is
authorized, approved, or ratified if it receives the affirmative vote of a
majority of the Directors on the Board of Directors (or on the committee) who
have no direct or indirect interest in the transaction, but a transaction may
not be authorized, approved, or ratified under this section by a single
Director. If a majority of the Directors who have no direct or indirect
interest in the transaction vote to authorize, approve, or ratify the
transaction, a quorum shall be deemed present for the purpose of taking action
under this Section 9.04. The presence of, or a vote cast by, a Director with
a direct or indirect interest in the transaction does not affect the validity
of any action taken under Section 9.04(a)(1), if the transaction is otherwise
authorized, approved, or ratified as provided in such subsection.
(d) For purposes of Section 9.04(a)(2), shares owned by or voted under the
control of a Director who has a direct or indirect interest in the
transaction, and shares owned by or voted under the control of an entity
described in Section 9.04(b), may be counted in a vote of shareholders to
determine whether to authorize, approve or ratify a conflict of interest
transaction.
(e) This Section 9.04 shall not be construed to require authorization,
ratification, or approval by the shareholders of any transaction or to
invalidate any transaction that would otherwise be valid under common or
statutory law.
ARTICLE X
Amendment or Repeal
10.01. Amendment or Repeal: Certain Provisions. Any amendment or repeal of
all or any part of this Article X and of Sections 8.01 and 8.02 of Article
VIII, shall require the affirmative vote of the holders of outstanding shares
of not less than two-thirds (2/3) of the shares entitled to vote, by class, if
applicable.
10.02. Amendment or Repeal: Other Provisions. Except as is otherwise
expressly provided in Section 10.01, all other provisions of the Articles of
Incorporation, as amended, may be amended or repealed in the manner now or
hereafter permitted by law, and all rights conferred upon shareholders by
these Articles of Incorporation, as amended, are conferred subject to this
reservation.
Exhibit 3(ii)
Effective as of July 22, 1998
AMENDED AND RESTATED
BY-LAWS OF
FRANKLIN ELECRIC CO., INC.
ARTICLE I.
OFFICES.
Section 1.1. Principal Office. The principal office of the Corporation
shall be in the City of Bluffton, County of Wells, State of Indiana.
Section 1.2. Other offices. The Corporation may also have other
offices at such places within or without the State of Indiana as the Board of
Directors may from time to time determine.
Section 1.3. Registered Office and Agent. The Corporation shall
maintain a Registered Office and Registered Agent as required by the Indiana
Business Corporation Law. The Registered Office need not be the same as the
Corporation's principal office.
ARTICLE II.
SHAREHOLDERS.
Section 2.1. Annual Meeting. The annual meeting of the shareowners of
the Corporation shall be held annually on the third Friday in April of each
year, 10:00 a.m., local time, at the principal office of the Corporation in
Bluffton, Indiana, or at such other place (either within or without the State
of Indiana) at a time (not later than the end of the sixth month following
the close of the fiscal year) as may be fixed by the Board of Directors and
designated in the notice or waiver of notice of such meeting. At the annual
meeting, the directors for the ensuing year shall be elected, and all such
other business as may properly be brought before the meeting shall be
transacted. The Secretary of the Corporation shall cause notice of the annual
meeting to be given to each shareowner of record of the Corporation entitled
to vote by depositing in the United States mail, postage prepaid, in an
envelope addressed to the latest address of such shareowner as the same
appears upon the records of the Corporation, a written or printed notice
stating the place, day and hour of the holding of such meeting, such notices
to be mailed no fewer than ten (10) nor more than sixty (60) days before the
date of such meeting. If required by any provision of the Indiana Business
Corporation Law as now or hereafter amended or by the Articles of
Incorporation of the Corporation, such notice shall also state the purpose or
purposes for which the meeting is called.
Nominations for the election of directors may be made by the Board of
Directors or by a committee appointed by the Board of Directors, or by any
shareowner entitled to vote in the election of directors generally provided
that such shareowner has given actual written notice of such shareowner's
intent to make such nomination or nominations to the Secretary of the
Corporation not later than (1) with respect to an election to be held at an
annual meeting of shareowners, ninety (90) days prior to the anniversary date
of the immediately preceding annual meeting of shareowners, and (2) with
respect to an election to be held at a special meeting of shareowners for the
election of directors, the close of business on the seventh day following (a)
the date on which notice of such meeting is first given to shareowners or (b)
the date on which public disclosure of such meeting is made, whichever is
earlier.
Each such notice shall set forth: (1) the name and address of the
shareowner who intends to make the nomination and of the person or persons to
be nominated; (2) a representation that the shareowner is a holder of record
of stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (3) a description of all arrangements or
understandings involving any two or more of the shareowners, each such
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
shareowner or relating to the Corporation or its securities or to such
nominee's service as director if elected; (4) such other information
regarding such nominee proposed by such shareowner as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (5) the consent of
each nominee to serve as a director of the Corporation if so elected. The
chairman of the meeting may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure.
At an annual meeting of the shareowners, only such business shall be
conducted as shall have been brought before the meeting (1) by or at the
direction of the Board of Directors or (2) by any shareowner of the
Corporation who complies with the notice procedures set forth in this Section
2.1. For business to be properly brought before an annual meeting by a
shareowner, the shareowner must have given timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a shareowner's notice must
be delivered to or mailed and received at the principal executive offices of
the Corporation, not less than ninety (90) days prior to the anniversary date
of the immediately preceding annual meeting of shareowners. A shareowner's
notice to the Secretary shall set forth as to each matter the shareowner
proposes to bring before the annual meeting (1) a full description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (2) the name and address, as
they appear on the Corporation's books, of the shareowner proposing such
business, (3) the class and number of shares of the Corporation which are
beneficially owned by the shareowner as of the record date of the meeting (if
such date has then been publicly available) and as of the date of such
notice, and (4) any material interest of the shareowner in such business.
Notwithstanding anything in these by-laws to the contrary, no business shall
be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 2.1. The chairman of an annual meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 2.1, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall
not be transacted.
Section 2.2. Special Meetings. Special meetings of the shareowners may
be held at the principal office of the Corporation in Bluffton, Indiana, or
at such other place within or without the State of Indiana, as may be
determined by the Board of Directors and as may be designated in the notice
or waiver of notice of such meeting. Special meetings may be called, in
writing, only by the Chairman, the President, the Secretary or a majority of
the Board of Directors. The Secretary of the Corporation shall cause notice
of the holding of any such special meeting to be given to each shareowner of
record of the Corporation entitled to vote upon the business to be transacted
at the meeting by depositing in the United States mail, postage prepaid, in
an envelope addressed to the shareowner's address shown in the Corporation's
current records of shareowners, a written or printed notice stating the
place, day, hour, and purpose or purposes for which such meeting is called,
the notices to be mailed no fewer than ten (10) nor more than sixty (60) days
before the date of such meeting. Only business within the purpose or purposes
described in the notice of the meeting may be conducted at the meeting.
Section 2.3. Waiver of Notice and Notice for Adjourned Meeting. A
shareholder may waive notice of any shareholder's meeting before or after the
date and time specified in the notice. The waiver must be in writing and be
delivered to the Corporation for inclusion in the minutes or filing with the
corporate records. A shareholder's attendance at a meeting: (1) waives
objection to lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting; and (2) 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
objects to considering the matter when it is presented.
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. If a new record date for the adjourned meeting is or
must be fixed under the Indiana Business Corporation Law or these by-laws,
however, notice of the adjourned meeting must be given to persons who are
shareholders as of the new record date.
Section 2.4. Quorum. At any meeting of the shareholders the holders of a
majority of the outstanding shares of the Corporation entitled to vote who
are present in person or represented by proxy shall constitute a quorum for
the transaction of business. 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
set or is required to be set under the Indiana Business Corporation Law or
otherwise.
If the holders of the amount of shares necessary to constitute a quorum
shall fail to attend in person or by proxy at the time and place fixed for
such meeting, a majority in interest of the shareholders present in person or
by proxy may adjourn from time to time, without notice (except as required by
Section 2.3 of these by-laws) other than announcement at the meeting, until
holders of the amount of stock requisite to constitute a quorum shall attend.
At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as
originally called.
Section 2.5. Voting. At each meeting of the shareholders, every
shareholder owning shares entitled to vote shall have the right to one (1)
vote for each such share standing in his name on the books of the
Corporation. Such shareholder may vote either in person or by proxy
appointed in writing and subscribed by such shareholder or by his duly
authorized attorney-in-fact and delivered to the Secretary of the Corporation
or other officer or agent authorized to tabulate votes at or before the time
of the holding of such meeting. No such proxy shall be valid after eleven
(11) months from the date of its execution unless a longer time is expressly
provided therein. Only shares which are fully paid and nonassessable may be
voted. If the name signed on a vote, consent, waiver, or proxy appointment
does not correspond to the name of its shareholder, the Corporation if acting
in good faith is nevertheless entitled to accept the vote, consent, waiver;
or proxy appointment and give it effect as the act of the shareholder if
(1) the shareholder is a corporation or other entity and the name
signed purports to be that of an officer or agent of the entity;
(2) the name signed purports to be that of an administrator, executor,
guardian, or conservator representing the shareholder and, if the Corporation
requests, evidence of fiduciary status acceptable to the Corporation has been
presented with respect to the vote, consent, waiver, or proxy appointment;
(3) the name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the Corporation requests, evidence of
this status acceptable to the Corporation has been presented with respect to
the vote, consent, waiver, or proxy appointment;
(4) the name signed purports to be that of a pledgee, beneficial owner,
or attorney-in-fact of the shareholder and, if the Corporation requests,
evidence acceptable to the Corporation of the signatory's authority to sign
for the shareholder has been presented with respect to the vote, consent,
waiver, or proxy appointment; or
(5) two (2) or more persons are the shareholder as cotenants or
fiduciaries and the name signed purports to be the name of at least one (1)
of the co-owners and the person signing appears to be acting on behalf of all
the co-owners.
The Corporation is entitled to reject a vote, consent, waiver, or proxy
appointment if the Secretary of other officer or agent authorized to tabulate
votes, acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority to sign
for the shareholder.
Section 2.6. Shareholder List. After the record date for, and more than
five (5) business days before, each shareholders' meeting, the Secretary of
the Corporation shall make, or cause to be made, an alphabetical list of the
names of the shareholders entitled to notice of the meeting, arranged by
voting group (and within each voting group by class or series of shares) and
showing the address of and the number of shares held by each shareholder.
Beginning five (5) business days before the date of the meeting and
continuing through the meeting, the list shall be on file at the principal
office of the Corporation (or at the place identified in the meeting notice
in the city where the meeting will be held) and shall be available for
inspection, by any shareholder entitled to vote at the meeting. During this
period a shareholder, or the shareholder's agent or attorney authorized in
writing, is entitled on written demand to inspect and copy the list during
regular business hours and at the shareholder's expense.
The list shall also be available at the shareholder's meeting and any
shareholder, or the shareholder's agent or attorney authorized in writing, is
entitled to inspect the list at any time during the meeting or any
adjournment.
The shareholder list and the information obtained from it may be used
and distributed only for the purposes and to the extent permitted by the
Indiana Business Corporation Law The shareholder, the shareholder's agents
and attorneys, and any other person who obtains the information shall use
reasonable care to ensure that the restrictions imposed by that Law are
observed.
Section 2.7. Address of Shareholder. The address of any shareholder
appearing upon the records of the Corporation shall be deemed to be:
(I) The latest address of the shareholder appearing on the records
maintained by the transfer agent or registrar (as the case may be) for the
class of stock held by the shareholder, if the Corporation has a transfer
agent or registrar (or both) for that class of shares held by the shareholder
and the Board of Directors has provided in the resolution appointing the
transfer agent or registrar (or both) that notices of change of address shall
be given to one of such agents by shareholders of that class of shares.
(2) the latest address of the shareholder that has been furnished in
writing to the Corporation by such shareholder if the Corporation has no
transfer agent or registrar for that class of shares held by the
shareholders, or if it has a transfer agent or registrar (or both) for that
class of shares but the resolution of the Board of Directors appointing such
transfer agent or registrar (or both) does not provide that notices of change
of address shall be given to one of those agents by shareholders of that
class of shares.
ARTICLE III.
DIRECTORS.
Section 3.1. Number and Classes. The number of directors shall be nine
(9). Subject to the rights of the holders of any series of Preferred Stock
outstanding, the directors shall be divided into three (3) Classes designated
as Classes I, II and III. Each class shall have three (3) members. At the
time of the 1998 annual meeting of the shareholders, the directors' terms of
office shall be as follows: Class I directors' terms shall be for one (1)
year and shall expire at the 1999 annual shareholder's meeting; Class II
directors' term shall be for two (2) years and shall expire at the 2000
annual shareholder's meeting and Class III directors' terms shall be for
three (3) years and shall expire at the 2001 annual shareholder's meeting.
At each annual shareholder's meeting after 1998, the directors of the class
being elected shall have served a term of three (3) years and until their
successors shall be elected and qualified.
Section 3.2. Resignation, Vacancies and Removal of Directors. Any
director may resign his office at any time by delivering his resignation in
writing to the Board of Directors, its Chairman (if any), or the Secretary of
the Corporation, and the acceptance of such resignation, unless required by
the terms thereof, shall not be necessary to make such resignation effective.
The resignation shall be effective when the notice is delivered unless the
notice specifies a later effective date. If any vacancy occurs on the Board
of Directors caused by resignation, death, or other incapacity, or increase
in the number of directors, then (a) the Board of Directors may fill the
vacancy; or (b) if the directors remaining in office constitute fewer than a
quorum of the Board, they may fill the vacancy by the affirmative vote of a
majority of all directors remaining in office; or (c) if a majority of the
directors remaining in office are unable to agree on a person to fill the
vacancy, then the remaining directors may call a special shareholders'
meeting to fill the vacancy. The term of a director elected to fill a vacancy
expires at the end of the term for which the director's predecessor was
elected. Prior to the completion of their term of office, a director may
only be removed in the manner as provided in the Articles of Incorporation.
Section 3.3. Regular Meetings. A regular meeting of the Board of
Directors will be held at the place of (or reasonably near thereto) and
promptly following the annual meeting of the shareholders. At the annual
meeting, the Board shall elect the officers of the Corporation for the
ensuing year. Other regular meetings may be held at the principal office of
the Corporation or at any other place and at such times as the Board may fix
from time to time. No notice shall be required for regularly scheduled Board
meetings.
Section 3.4. Special Meetings. Special meetings of the Board of
Directors shall be at the principal office of the Corporation or at any other
place reasonably convenient for directors to attend whenever called by the
Chairman, the President or the Secretary of the Corporation or by any two of
the members of the Board. The Secretary shall give notice of the date, time
and place of such special meeting to each director personally, by written
notice deposited in the United States mail, postage prepaid in an envelope
addressed to such director, or by telephone, telegraph, teletype, or other
form of wireless communication. Such notice need not specify the purpose of
such special meeting. Except in emergency situations, such notice shall be
given at least twenty-four (24) hours before any such special meeting. For
purposes of dealing with emergency situations, as conclusively determined by
the officer or members of the Board of Directors calling such special meeting
as set forth above, such notice shall be given at least two (2) hours before
such special meeting. Notice of the date, time and place of such special
meeting may be waived, before or after the date and time stated in the
notice, in writing and signed by any director and filed with the minutes or
corporate records. A director's attendance at or participation in any
meeting shall constitute a waiver of the notice of such 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 3.5. Quorum and Voting. A majority of the actual number of
directors elected and qualified from time to time shall be necessary to
constitute a quorum for the transaction of any business excepting as may be
provided in Section 3.2 above concerning the filling of vacancies. The act of
a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors, unless the act of a greater
number is expressly required by the Indiana Business Corporation Law, the
Articles of Incorporation, or another provision of these by-laws.
Section 3.6. Compensation. Each member of the Board of Directors shall
be paid such compensation as shall be fixed by the Board of Directors,
provided, that nothing herein contained shall be construed to preclude any
director from serving in any other capacity and receiving compensation
therefor.
Section 3.7. Qualification. Except with respect to current Board members
Edward J. Schaefer and Gerard E. Veneman, to whom the following provisions do
not apply, qualifications for directors shall be as follows:
No person age 70 or older shall be eligible for election, re-election,
or appointment as a member of the Board of Directors of the Corporation,
except the persons currently serving as directors who have already attained
age 70. In addition, if an officer retires before age 70, only the President
or Chairman will be eligible to stay on as a director. All other officers
may remain as a director until the next shareowner's meeting, but such
officers will not be eligible for re-election to the Board of Directors.
Section 3.8. Board Committees. Board Committees and responsibilities
shall be those shown on the attached marked as Exhibit A.
Section 3.9. Directors' or Committee Action by Consent in Lieu of
Meeting. Any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting if
the action is taken by all members of the Board. The action shall be
evidenced by one (1) or more written consents describing the action taken,
signed by each director, and is included in the minutes or filed with the
Corporation's records reflecting the action taken. Any such written consent
is effective when the last director signs the consent, unless the consent
specifies a different prior or subsequent effective date.
Section 3. l0. Meetings by Telephone or Other Communications. The Board
of Directors may permit any or all directors to participate in a regular or
special meeting by, or conduct the meeting through the use of any means of
communication by which all directors participating may simultaneously hear
each other during the meeting. A director participating in a meeting by this
means is deemed to be present in person at the meeting.
Section 3.11. Assent by Director to Action Taken at a Meeting. A
director who is present at a meeting of the Board of Directors or a committee
of the Board at which action on any corporate matter is taken is deemed to
have assented to the action taken unless:
(1) the director objects at the beginning of the meeting (or
promptly upon the director's arrival) to holding it or transacting business
at the meeting;
(2) the director's dissent or abstention from the action taken is
entered in the minutes of the meeting; or
(3) the director delivers written notice of the director's dissent
or abstention to the presiding officer of the meeting before its adjournment
or to the Secretary of the Corporation immediately after adjournment of the
meeting.
The right of dissent or abstention is not available to a director who
votes in favor of the action taken.
ARTICLE IV.
OFFICERS.
Section 4. I. Officers (Including Removal). The officers of the
Corporation shall consist of a Chairman of the Board, a President, one or
more Vice Presidents, one of whom may be an Executive Vice President, a
Treasurer and a Secretary; and if so determined by the Board, an Assistant
Treasurer and Assistant Secretary, all of whom shall be elected by the Board
of Directors of the Corporation at the first meeting thereof immediately
following the annual meeting of the shareholders, and shall hold office until
their successors are elected and qualify. One person may hold more than one
office. The Board of Directors shall have the power from time to time to
appoint such other officers as may be necessary for the proper conduct of the
business of the Corporation. Any officer elected or appointed by the Board
of Directors may be removed at any time by the affirmative vote of a majority
of the whole Board of Directors.
Any officer of the Corporation may be removed by the Board of Directors
at any time with or without cause. Such removal does not affect the
officer's contract rights, if any, with the Corporation. An officer's
resignation does not affect the Corporation's contract rights, if any, with
the officer. The election or appointment of an officer does not itself
create contract rights.
Section 4.2. Compensation. The compensation of the officers of the
Corporation elected shall be fixed by the Board of Directors. The
compensation of agents and employees not appointed by the Board shall be
fixed by the President.
Section 4.3. Duties. The Chairman shall preside at all meetings of the
shareholders and of the Board of Directors; in his absence the President or
such other person appointed by the Chairman will preside. The Board of
Directors shall by resolution designate who will be the chief executive
officer of the Corporation. The chief executive officer shall have the
powers and perform the duties usually incident to that office. The President
shall have the power to appoint such agents and employees, other than those
whose appointment is provided for in these By-laws, as in his judgment may be
necessary or proper for the transaction of the business of the Corporation,
and shall determine their duties and fix their compensation. The President
is authorized to sign, on behalf of the Corporation, contracts and other
instruments in writing, including bonds and other obligations required in
legal proceedings, surety and indemnity bonds required in the conduct of the
business of the Corporation, papers required by the laws of any state with
respect to the right to conduct business in such State and reports required
by the laws of any State. The Secretary shall thereupon attest any such
documents requiring such attestation under the corporate seal of the
Corporation. In the absence or inability of the President to act, a Vice
President appointed by the Chairman shall perform the duties of the President
and shall also perform such other duties as may be delegated to him by the
Board of Directors. The Secretary shall keep or cause to be kept a full,
true, and complete record of all of the meetings of the shareholders and of
the Board of Directors and shall have charge of the minute book of the
Corporation and of all its other books and documents. He shall have custody
of the corporate seal and he shall affix the same to and countersign papers
requiring such acts but only upon the order of the Board of Directors or the
President, and shall perform such other duties as may be required by the
Board of Directors or the President. The Treasurer shall have custody of the
funds and securities of the Corporation and shall keep, or cause to be kept,
correct and accurate books of account and shall also deposit, or see to the
deposit of the funds of the Corporation in a depository to be approved by the
Board of Directors. The Treasurer shall also perform such other duties as
the President or the Board of Directors shall require. The Treasurer shall,
before entering upon his duties, if required by the Board of Directors,
execute a bond with surety to be approved and in an amount to be fixed by the
Board of Directors.
ARTICLE V.
COMMITTEES OF THE BOARD OF DIRECTORS.
Section 5.1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the actual number of directors elected and
qualified, designate and elect an Executive Committee to consist of two (2)
or more of the directors of this Corporation and shall designate the Chairman
thereof. The Committee shall, to the extent provided in these by-laws
(except as may be further limited by said resolution), have and exercise in
the interim between meetings of the Board all of the powers of the Board in
accordance with the general policy of the Board. A committee member may be
removed at any time by resolution passed by a majority of the actual number
of directors elected and qualified.
Section 5.2. Other Committees. Other committees of the Board of
Directors may be designated by resolution passed by a majority of the whole
Board, which shall define the membership and fix the duties of the committee.
Section 5.3. Limitations on Authority of Committee. Committees of the
Board shall not have authority to:
(a) authorize dividends or other distributions;
(b) amend the Articles of Incorporation or By-laws;
(c) adopt an agreement or plan of merger even if the agreement or plan
does not require shareholder approval;
(d) authorize or approve the reacquisition of shares unless pursuant
to a general formula or method specified by the Board of Directors;
(e) recommend to shareholders a voluntary dissolution of the
Corporation or a revocation thereof;
(f) fill vacancies on the Board of Directors or any of its committees;
or
(g) approve or propose to shareholders action that the Indiana
Business Corporation Law requires to be approved by shareholders.
Section 5.4. Procedures of Executive and Other Committees. The
functions of any Committee may be performed by meeting of the committee held
in the regular way or through the means referred to in Section 5.5, may
decide any matters coming within the scope of the committee's powers. A
committee shall keep due record of all meetings and actions of the committee
and such records shall at all times be open to the inspection of any director
and from time to time shall be filed with the Board of Directors at the
meetings thereof. Such records and all actions of the committee recorded
therein shall be subject to the supervision and ratification of the Board.
Meetings of a committee may be called at any time by the Chairman or any two
(2) members of the Committee, by giving in advance to each member twenty-four
(24) hours notice of the time and place of such meeting. Notice may be
waived in writing and attendance at a meeting constitutes a waiver of notice
thereof. A majority of the members of a committee shall constitute a quorum
at such meeting for the transaction of business. Members of a committee, as
such, shall receive no stated salary for their services, but by resolution of
the Board of Directors a fixed sum and expenses of attendance, if any, may be
allowed for attendance at each regular or special meeting of a committee. No
member of a committee shall continue to be a member thereof after he ceases
to be a director of the Corporation.
Section 5.5. Action Other than at a Meeting. Any committee may act by
written consent in lieu of a meeting, as provided in Section 3.9 of Article
III hereof. Any committee may allow members to participate in a meeting by
or through the use of the means of communication and in the manner as
provided in Section 3.10 of Article III.
ARTICLE VI.
CAPITAL STOCK.
Section 6.1. Certificates for Shares. Unless the Articles of
Incorporation provide otherwise, all shares of stock of the Corporation shall
be represented by a certificate. The certificates for shares of the
Corporation shall be in such form not inconsistent with the Articles of
Incorporation and the Indiana Business Corporation Law and as shall be
approved by the Board of Directors. At a minimum, each certificate for
shares must state on its face:
(1) The name of the Corporation and that it is organized under the law of
the State of Indiana;
(2) The name of the person to whom issued; and
(3) The number and class of shares and the designation of the series, if
any, the certificate represents.
Each certificate must be signed (either manually or in facsimile) by the
Chairman or the President and Secretary or such other two (2) officers as may
be designated by the Board. Share certificates which have been signed
(whether manually or in facsimile) by officers may be used and shall continue
to be valid even though any individual whose signature appears on a
certificate shall no longer be an officer of the Corporation at the time of
the issue of the certificate.
Section 6.2. Registration of Transfer and Registered Shareholders.
Registration of transfer of shares and issuance of a new certificate or
certificates therefor shall be made only upon surrender to the Corporation or
its transfer agent and cancellation of a certificate or certificates for a
like number of shares of the same class, properly endorsed for transfer,
accompanied by (a) such assurance as the Corporation or transfer agent may
require as to the genuineness and effectiveness of each necessary
endorsement, (b) satisfactory evidence of compliance with all laws relating
to collection of taxes, and (c) satisfactory evidence of compliance with or
removal of any restriction on transfer of which the Corporation or transfer
agent may have notice.
As respects the Corporation, its stock record books shall be conclusive
as to the ownership of its shares for all purposes and the Corporation shall
not be bound to recognize adverse claims.
Section 6.3. Consideration for Issue of Shares. The shares of the
capital stock of the Corporation may be issued by the Corporation from time
to time for such an amount of consideration as may be fixed by the Board of
Directors and consisting of any tangible or intangible property or benefit to
the Corporation, including cash, promissory notes, services performed,
contracts for services to be performed, or other securities of the
Corporation. When payment of the consideration for which any share was
authorized to be issued shall have been received by the Corporation, the
shares issued therefor shall be fully paid and nonassessable. Shares may be
issued to the Corporation's shareholders without consideration to the extent
permitted by the Indiana Business Corporation Law and shares so issued shall
be fully paid and nonassessable. If the Corporation authorizes the issuance
of shares for promissory notes or for promises to render services in the
future, the Corporation shall report in writing to the shareholders the
number of shares authorized to be issued with or before the notice of the
next shareholders' meeting. The Board may (but is not required) to place in
escrow shares issued for a contract for future services or benefits or a
promissory note or may make such other arrangements or conditions or place
such other restrictions on the transfer of the shares until the services are
performed, the note is paid, or the benefits are received.
Section 6.4. Lost, Stolen or Destroyed Certificates. No certificate
for shares of the capital stock of the Corporation shall be issued in place
of any certificate alleged to have been lost, stolen or destroyed except upon
proper evidence to the satisfaction of the Board of Directors of such loss,
theft, or destruction, and (unless waived by the Board of Directors) except
upon delivery to the Corporation of a bond of indemnity in such amount as may
be fixed by the Board of Directors, executed by the person to whom the new
certificate or certificates should be issued and also by a surety company
approved by the Board of Directors, indemnifying the Corporation against any
claim upon or in respect of such lost, stolen, or destroyed certificate;
provided, however, that whenever this Corporation has a duly appointed,
qualified and acting transfer agent for its said shares, the Board of
Directors may delegate to said transfer agent the authority to determine the
sufficiency of the proof of such loss, theft or destruction and to issue new
certificate or certificates in replacement thereof; and the Board of
Directors may waive the necessity of obtaining a separate bond of indemnity
in connection with the issuance of each certificate replacing such lost,
stolen or destroyed certificates and in lieu thereof may authorize such
transfer agent to obtain a blanket lost original instruments bond naming this
Corporation and such transfer agent as the obligees therein.
Section 6.5. Fixing of Record Date or Closing of Transfer Books
6.5.1. Shareholders' Meetings and Other Purposes. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders, to demand a special meeting, or to take any other action, the
Board of Directors may fix in advance a date, not more than seventy (70) days
prior to the date of such meeting or action as the record date for such
determination of shareholders. In the absence of such a determination by the
Board of Directors, the date for the determination of shareholders shall be
ten (10) days prior to the date of such meeting or action. Only such
shareholders as shall be shareholders of record at the close of business on
the record date so fixed shall be entitled to notice of and to vote at such
meeting or to take action, notwithstanding any registration of transfer of
shares on the books of the Corporation after such record date. A
determination of shareholders entitled to notice of or to vote at a
shareholders' meeting is effective for any adjournment of the meeting unless
the board of directors fixes a new record date, which it shall do if the
meeting is adjourned to a date more than one hundred twenty (120) days after
the date fixed for the original meeting.
6.5.2. For Distributions (Including Dividends). For the purpose of
determining shareholders entitled to receive distributions (including
dividends), the Board of Directors may fix a record date, declaration date,
and payment date. If the Board of Directors does not fix a record date for
determining shareholders entitled to a distribution (other than one involving
a repurchase or reacquisition of shares), then it is the date the Board of
Directors authorizes the distribution. Only such shareholders who are
shareholders of record at the close of business on the date fixed as a record
date as provided herein shall be deemed shareholders for the purpose of
receiving the distribution, notwithstanding any registration of transfer of
shares on the books of the Corporation after such record date.
ARTICLE VII
INDEMNIFICATION
Section 1. Definitions. As used in this Article VII:
(a) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other
enterprise, whether for profit or not. A director is considered to be
serving an employee benefit plan at the Corporation's request if the
director's duties to the Corporation also impose duties on, or otherwise
involve services by, the director to the plan or to participants in or
beneficiaries of the plan. "Director" includes, unless the context requires
otherwise, the estate or personal representative of a director.
(b) "Expenses" include counsel fees.
(c) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(d) "Officer" means an individual who is or was an officer of the
Corporation or an individual who, while an officer of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other
enterprise, whether for profit or not. An officer is considered to be
serving an employee benefit plan at the Corporation's request if the
officer's duties to the Corporation also impose duties on, or otherwise
involve services by, the officer to the plan or to participants in or
beneficiaries of the plan. "Officer" includes, unless the context requires
otherwise, the estate or personal representative of an officer.
(e) "Official capacity" means:
(1) when used with respect to a director, the office of director in the
Corporation;
(2) when used with respect to an officer, the office of the Corporation
held by the officer; and
(3) when used with respect to an individual other than an officer or
director, the employment or agency relationship undertaken by the employee or
agent on behalf of the Corporation.
"Official capacity" does not include service for any other foreign or
domestic corporation or any partnership, joint venture, trust, employee
benefit plan, or other enterprise, whether for profit or not.
(f) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or Completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
Section 2. Indemnification.
(a) The Corporation shall indemnify an individual made a party to a
proceeding because the individual is or was a director or officer against
liability incurred in the proceeding if:
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed:
(A) in the case of conduct in the individual's official
capacity with the Corporation, that the individual's conduct was in its best
interests; and
(B) in all other cases, that the individual's conduct was at least not
opposed to its best interest; and
(3) in the case of any criminal proceeding, the individual either:
(A) had reasonable cause to believe the individual's conduct was lawful;
or
(B) had no reasonable cause to believe the individual's conduct was
unlawful.
(b) A director's or officer's conduct with respect to an employee
benefit plan for a purpose the director or officer reasonably believed to be
in the interests of the participants in and beneficiaries of the plan is
conduct that satisfies the requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself; determinative that the director or officer did not meet the standard
of conduct described in this Section 2.
Section 3. Additional Indemnification. In addition to the
indemnification to which a director or officer may be entitled pursuant to
Section 2 of this Article VII, the Corporation shall indemnify a director or
officer who was wholly successful, on the merits or otherwise, in the defense
of any proceeding to which the director or officer was a party because the
director or officer was a director or officer of the Corporation against
reasonable expenses incurred by the director or officer in connection with
the proceeding.
Section 4. Advance Indemnification.
(a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director or officer who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) the director or officer furnishes the Corporation a written
affirmation of the director's or officer's good faith belief that the
director or officer has met the standard of conduct described in Section 2 of
this Article VII.
(2) the director or officer furnishes the Corporation a written
undertaking, executed personally or on the director's or officer's behalf; to
repay the advance if it is ultimately determined that the director or officer
did not meet the standard of conduct; and
(3) a determination is made that the facts then known to those
making the determination would not preclude indemnification under this
Article VII.
(b) The undertaking required by subsection (a)(2) must be an
unlimited general obligation of the director or officer but need not be
secured and may be accepted without reference to financial ability to make
repayment.
(c) Determinations and authorizations of payments under this
section shall be made in the manner specified in Section 5 of this Article
VII.
Section 5. Procedure for Determining Indemnification.
(a) The Corporation may not indemnify a director or officer under
Section 2 of this Article VII unless authorized in the specific case after a
determination has been made that indemnification of the director or officer
is required in the circumstances because the director or officer has met the
standard of conduct set forth in Section 2 of this Article VII.
(b) The determination shall be made by any one (1) of the following
procedures:
(1) By the board of director by majority vote of a quorum consisting of
directors not at the time parties to the proceeding.
(2) If a quorum cannot be obtained under subdivision (1), by majority
vote of a committee duly designated by the board of directors (in which
designation directors who are parties may participate), consisting solely of
two (2) or more directors not at the time parties to the proceeding.
(3) by special legal counsel:
(A) selected by the board of directors or its committee in the
manner prescribed in subdivision (1) or (2); or
(B) if a quorum of the board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision (2),
selected by majority vote of the full board of directors (in which selection
directors who are parties may participate).
(4) By the shareholders, but shares owned by or voted under the control
of directors who are at the time parties to the proceeding may not be voted
on the determination.
(c) Authorization of indemnification and evaluation as to reasonableness
of expenses shall be made in the same manner as the determination that
indemnification is required, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection
(b))(3) to select counsel.
Section 6. Indemnification of Agents and Employees.
(a) The Corporation may indemnify and advance expenses under this
Article VII to an employee, or agent of the Corporation, whether or not an
officer or director, to the same extent as to a director or officer; and
(b) The Corporation may also indemnify and advance expenses to an
officer, employee or agent, whether or not a director, to the extent,
consistent with public policy, that may be provided by the articles of
incorporation, bylaws, general or specific action of the board of directors,
or contract.
Section 7. Indemnification Not Exclusive.
(a) The indemnification and advance for expenses provided for or
authorized by this Article VII does not exclude any other rights to
indemnification and advance for expenses that a person may have under:
(1) the Indiana Business Corporation Law, as now or hereafter in effect;
(2) the Corporation's article of incorporation or bylaws;
(3) a resolution of the board of directors or of the shareholders;
(4) any contract or policy of insurance; or
(5) any other authorization, whenever adopted, after notice, by a
majority vote of all the voting shares then issued and outstanding.
(b) Without limiting the foregoing subsection (a), nothing contained in
this Article VII shall be construed to limit in any manner the
indemnification or advance for expenses that may be permitted or required, in
the absence of the provisions of this Article VII, pursuant to the Indiana
Business Corporation Law, as now or hereafter in effect.
(c) This Article VII does not limit the Corporation's power to pay or
reimburse expenses incurred by a director, officer, employee, or agent in
connection with the person's appearance as a witness in a proceeding at a
time when the person has not been made a named defendant or respondent to the
proceeding.
Section 8. Contract With The Corporation. The provisions of this
Article VII shall be deemed to be a contract between the Corporation and each
director or officer who serves in any such capacity at any time while this
Article VII is in effect, and any repeal or modification of any provisions of
this Article VII shall not affect any rights or obligations theretofore
accruing under this Article VII with respect to any state of facts then or
theretofore existing or any claim, action, suit or proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such
state of facts.
ARTICLE VIII.
SEAL.
The use of a corporate seal is not required. If a corporate seal is
used, it shall have inscribed thereon the name of the Corporation around the
circumference thereof and the word 'Seal" in the center thereof. The seal
can be used by causing it or a facsimile thereof to be impressed, affixed,
reproduced or otherwise.
ARTICLE IX.
FISCAL YEAR.
The fiscal year of the Corporation shall end with the Saturday nearest
to December 31 and begin with the Sunday following the Saturday nearest to
December 31.
ARTICLE X.
FUNDS.
Section 10.1. Depository. The funds of the Corporation shall be
deposited in a depository or depositories to be selected by the Board of
Directors of the Corporation.
Section 10.2. Withdrawal of Funds. The funds of the Corporation may be
withdrawn and disbursed by such officers as may be designated by order of the
Board of Directors.
ARTICLE XI.
RECORDS.
Section 11.1. Records.
(a) The Corporation shall keep as permanent records minutes of all
meetings of the shareholders and Board of Directors, a record of all actions
taken by the shareholders or Board of Directors without a meeting, and a
record of all actions taken by a committee of the Board of Directors in place
of the Board of Directors on behalf of the Corporation.
(b) The Corporation shall maintain appropriate accounting records.
(c) The Corporation or its agent shall maintain a record of the
shareholders, in a form that permits preparation of a list of the names and
addresses of all shareholders, in alphabetical order by class of shares
showing the number and class of shares held by each.
(d)The Corporation shall maintain its records in written form or in
another form capable of conversion into written form within a reasonable
time.
(e)The Corporation shall keep a copy of the following records at the
principal office
(1) The Articles or Restated Articles of Incorporation and all amendments
to them currently in effect.
(2) The by-laws or restated by-laws and all amendments to them currently
in effect.
(3)Resolutions adopted by the Board of Directors with respect to one (1)
or more classes or series of shares and fixing their relative rights,
preferences, and limitations, if shares issued pursuant to those resolutions
are outstanding.
(4)The minutes of all shareholders' meetings, and records of all action
taken by shareholders without a meeting, for the past three (3) years.
(5)All written communications to shareholders generally within the past
three (3) years, including any financial statements furnished for the past
three (3) years as required by the Indiana Business Corporation Law.
(6)A list of the names and business addresses of the current directors
and officers.
(7)Its most recent annual report delivered to the Secretary of State.
Section 11.2. Shareholder's Right to Inspect and Copy. A shareholder
may inspect and copy the Corporation's records only as permitted by the
Indiana Business Corporation Law. The shareholder, the shareholder's agents
and attorneys, and any other person who obtains the information may use and
distribute the records and the information only for the purposes and to the
extent permitted by the Indiana Business Corporation Law and shall use
reasonable care to ensure that the restrictions imposed by that Law are
observed.
ARTICLE XII.
REPORTS.
Section 12.1. Annual Financial Reports to Shareholders.
(a)The Corporation shall furnish the shareholders annual financial
statements, which may be consolidated or combined statements of the
Corporation and one (1) or more of its subsidiaries, as appropriate, that
include a balance sheet as of the end of the fiscal year, an income statement
for that year, and a statement of changes in shareholders' equity for the
year unless that information appears elsewhere in the financial statements.
If financial statements are prepared for the Corporation on the basis of
generally accepted accounting principles, the annual financial statements
must also be prepared on that basis.
(b)If the annual financial statements are reported upon by a public
accountant, the public accountant's report must accompany them. If not, the
statements must be accompanied by a statement of the President or the person
responsible for the Corporation's accounting records:
(1) stating the person's reasonable belief whether the statements were
prepared on the basis of generally accepted accounting principles and, if
not, describing the basis of preparation; and
(2) describing any respects in which the statements were not prepared on
a basis of accounting consistent with the statements prepared for the
preceding year.
(c)The Corporation shall mail the annual financial statements to each
shareholder within one hundred twenty (120) days after the close of each
fiscal year. Thereafter, on written request from a shareholder who was not
mailed the statements, the Corporation shall mail the shareholder the latest
financial statements.
Section 12.2. Reports to Shareholders of Indemnification.
(a) If a corporation indemnifies or advances expenses to a director under
these by-laws or otherwise, in connection with a proceeding by or in the
right of the Corporation, the Corporation shall report the indemnification or
advance in writing to the shareholders with or before the notice of the next
shareholders' meeting.
(b) If the Corporation authorizes the issuance of shares for promissory
notes or for promises to render services in the future, the Corporation shall
report in writing to the shareholders the number of shares authorized to be
so issued with or before the notice of the next shareholders' meeting.
Section 12.3. Annual Reports to Secretary of State. The Secretary of
the Corporation shall cause each annual report to the Secretary of State of
Indiana to be filed as required by the Indiana Business Corporation Law.
ARTICLE XIII.
AMENDMENT.
These by-laws may be amended by the Board of Directors, by the
affirmative votes of a majority of all the members of the Board of Directors,
at any regular or special meeting notice of which contains the proposed
amendment or a digest thereof, or at any meeting, regular or special, at
which all directors are present, or by the written consents of all directors
pursuant to Section __ of Article ______ of these by-laws.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
THE FORM 10-Q FOR THE PERIOD ENDED JULY 4, 1998 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JAN-02-1999
<PERIOD-END> JUL-04-1998
<CASH> 34,087
<SECURITIES> 25,984
<RECEIVABLES> 19,807
<ALLOWANCES> 891
<INVENTORY> 44,020
<CURRENT-ASSETS> 132,621
<PP&E> 105,212
<DEPRECIATION> 72,153
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<CURRENT-LIABILITIES> 37,308
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0
0
<COMMON> 592
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<TOTAL-LIABILITY-AND-EQUITY> 167,753
<SALES> 67,907
<TOTAL-REVENUES> 68,796
<CGS> 47,484
<TOTAL-COSTS> 59,002
<OTHER-EXPENSES> 0
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<INTEREST-EXPENSE> 321
<INCOME-PRETAX> 9,794
<INCOME-TAX> 3,799
<INCOME-CONTINUING> 5,995
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<EPS-PRIMARY> 1.02
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