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Exhibit 4.1
RESTATED
ARTICLES OF INCORPORATION
OF
IRWIN FINANCIAL CORPORATION
Irwin Financial Corporation, existing pursuant to the Indiana Business
Corporation Law, desiring to give notice of corporate action effectuating the
restatement of its Articles of Incorporation, sets forth the following:
Irwin Financial Corporation (the "Corporation") was incorporated on May 31,
1972 under the name Irwin Union Corporation. On August 21, 1990, the name was
changed to Irwin Financial Corporation. The Articles of Incorporation be and the
same are hereby restated and amended to read in its entirety as follows:
Article I
Name
The name of the Corporation is Irwin Financial Corporation.
Article II
Purposes
The purposes for which the Corporation is formed are: The transaction of
any and all lawful business for which corporations may be incorporated under the
Act, including by way of illustration and not of limitation, the following:
2.01 To Act as Holding Company. To purchase or otherwise acquire,
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own and hold the stock of other corporations and equity interests in other
business entities and to direct the operations of other corporations
through the ownership of stock therein and to direct the operations of
other business entities through the ownership of equity interests therein.
2.02 Capacity to Act. To have the capacity to act possessed by
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natural persons, but to have authority to perform only such acts as are
necessary, convenient or expedient to accomplish the purposes for which it
is formed and such as are not repugnant to law.
2.03 To Deal in Securities. To acquire, by purchase, subscription or
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otherwise and to receive, hold, own, guarantee, sell, assign, exchange,
transfer, mortgage, pledge or otherwise dispose of or deal in and with any
and all securities (as hereinafter defined) issued or created by any
corporation, firm, organization, association or other entity, public or
private, whether formed under the laws of the United States of America or
any state or commonwealth thereof, or any foreign country, or by any
agency, subdivision, territory, dependency, possession or municipality of
any of the foregoing, and as owner thereof to possess and exercise all of
the rights, powers and privileges of ownership,
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including the right to execute consents and vote thereon. The term
"securities" as used herein shall mean any and all notes, stocks, treasury
stocks, bonds, debentures, evidences of indebtedness, certificates of
interest or participation in any profit-sharing agreement, collateral trust
certificates, pre-organization certificates or subscriptions, transferable
shares, investment contracts, voting trust certificates, certificates of
deposit for a security, fractional undivided interests in oil, gas or other
mineral rights or, in general, any interests or instruments commonly known
as securities or any and all certificates of interest or participation in
temporary or interim certificates for, receipts for, guarantees of, or
warrants or rights to subscribe to or purchase any of the foregoing.
2.04 Investment Management. To make, establish and maintain
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investments in securities, funds or properties of any nature whatsoever and
to manage such funds; to do any and all acts and things for the
preservation, protection, improvement and enhancement of the value of such
property or securities or designed to accomplish any such purposes. To make
investigations as to the business affairs and property of corporations,
partnerships and various forms of business enterprises and to make
appraisals and valuations of all kinds and investigate and render opinions
as to the advisability from a financial standpoint of creating, merging,
combining or otherwise dealing in business enterprises.
2.05 Creation of Corporations and Other Entities. To cause to be
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organized under the laws of the United States of America or of any state,
commonwealth, territory, dependency or possession thereof, or of any
foreign country, or of any political subdivision, territory, dependency,
possession or municipality thereof, one or more corporations, firms,
organizations, associations or other entities, and to cause the same to be
dissolved, wound up, liquidated, merged or consolidated.
2.06 To Deal in Good Will. To acquire by purchase or exchange, or by
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transfer, or by merger or consolidation with, the Corporation of any
corporation, firm, organization, association or other entity owned or
controlled, directly or indirectly, by the Corporation, or otherwise to
acquire the whole or any part of the business, good will, rights or other
assets of any corporation, firm, organization, association or other entity
and to undertake or assume in connection therewith the whole or any part of
the liabilities and obligations thereof and to effect any such acquisition
in whole or in part by delivery of cash or other property, including
securities issued by the Corporation or by any other lawful means.
2.07 To Engage in Lending. To make loans and give other forms of
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credit including, but not limited to, financing, factoring and leasing,
with or without security, and to negotiate and make contracts and
agreements in connection therewith and to sell and underwrite credit
insurance and life, property and liability insurance, directly or through
subsidiaries.
2.08 To Aid Subsidiaries. To aid by loans, subsidy, guaranty or in
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any other
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lawful manner any corporation, firm, organization, association or other
entity of which any securities (as that term is defined in section C
hereof) are in any manner, directly or indirectly, held by the Corporation
or in which the Corporation or any such corporation, firm, organization,
association or entity may be or become otherwise interested; to guarantee
the payment of dividends on any stock issued by any such corporation, firm,
organization, association or entity; to guarantee or, to assume, with or
without recourse against any such corporation, firm, organization,
association or entity, the payment of the principal of, and/or the interest
and premium, if any, on any obligations issued or incurred by such
corporation, firm, organization, association or entity; to do any and all
other acts and things for the enhancement, protection or preservation of
any securities which are in any manner, directly or indirectly, held,
guaranteed or assumed by the Corporation, and to do any and all acts and
things designed to accomplish any such purpose.
2.09 To Provide Services. To render service, assistance, counsel and
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advice to and act as representative or agent in any capacity (whether
managing, operating, financial, purchasing, selling, advertising or
otherwise) for any corporation, firm, organization, association or other
entity and to gather, compile and disseminate information, data and advice
in respect to matters of a commercial, financial, statistical and business
nature and to act as consultants, counselors and advisors.
2.10 To Deal in Real Estate. To acquire by purchase, exchange, lease
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or otherwise, and to hold, own, improve, operate, manage, lease as lessee,
let as lessor, sell, convey or mortgage, whether alone or in conjunction
with others, real estate of every kind, character and description, and
wherever situated, or any interest therein, including, without limiting the
generality of the foregoing, the design, development, management,
acquisition, and operation of commercial, mercantile and service structures
and facilities of every character, recreational structures and facilities,
residential properties and structures, and mobile home parks.
2.11 To Deal in Personal Property. To acquire (by purchase,
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exchange, lease, hire or otherwise), hold, mortgage, pledge, hypothecate,
exchange, sell, deal in and dispose of, at wholesale or retail, alone or in
syndicates or otherwise in conjunction with others, commodities or other
personal property of every kind, character and description and wherever
situated, and any interest therein.
2.12 To Deal in its Own Securities. To acquire (by purchase,
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exchange, lease, hire or otherwise), hold, sell, transfer, reissue, or
cancel its own shares, or any securities or other obligations of the
Corporation, in the manner and to the extent now or hereafter permitted by
the laws of Indiana, except that the Corporation shall not use its funds or
other assets for the purchase of its own shares if such use would cause any
impairment of the capital of the Corporation, and except that its own
shares beneficially owned by the Corporation shall not be voted directly or
indirectly.
2.13 To Make Contracts. To enter into, make, perform and carry out,
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or cancel
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and rescind, contracts for any lawful purposes to its business.
2.14 To Enter into Partnerships. To enter into any lawful
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arrangement for sharing profits, union of interest, reciprocal association
or cooperative association with any corporation, association, partnership,
individual or other entity, for the carrying on of any business,
transaction, or venture, which the Corporation is authorized to carry on or
any business, transaction, or venture deemed necessary, convenient or
incidental to carrying out of any of the purposes of the Corporation.
2.15 To Engage in Business Generally. To engage in any commercial,
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financial, mercantile, industrial, manufacturing, marine, exploration,
mining, agricultural, research, licensing, servicing or agency business not
prohibited by law and any, some or all of the foregoing.
2.16 To Borrow Money. To borrow money for any business object or
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purpose of the Corporation from time to time without limit as to amount, to
issue any kind of indebtedness, whether or not in connection with borrowing
money, including evidences of indebtedness convertible into stock of the
Corporation, to secure the payment of any evidence of indebtedness by the
creation of any interest in any of the property or rights of the
Corporation, whether at that time owned or thereafter acquired.
2.17 To Execute Guarantees. To make any guarantee respecting stocks,
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dividends, securities, indebtedness, interest, contracts or other
obligations.
2.18 Stated Capital; Consideration for Shares. To determine the
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amount of the stated capital and increase or reduce stated capital and
determine the consideration to be received for shares issued from time to
time.
2.19 Rights, Privileges and Powers. Subject to any limitations or
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restrictions imposed by law or by these Articles of Incorporation to have
and exercise all the rights, privileges and powers specified in or
permitted under the Indiana Business Corporation Law.
2.20 General Powers. To do everything necessary, proper, advisable
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or convenient for the accomplishment of any of the purposes or the
attainment of any of the objects of the furtherance of any of the powers
herein set forth and to do every other act and thing incidental thereto or
connected therewith which is not forbidden by the laws of the State of
Indiana or by the provisions of these Articles of Incorporation.
2.21 Construction. The foregoing sections shall be construed as
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purposes as well as powers and the matters expressed in each section shall,
unless otherwise expressly provided, be in no way limited by reference to
or inference from the terms of any other section, each of such sections
being regarded as creating independent purposes and powers. The enumeration
shall not be construed as limiting or restricting in any manner
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either the meaning or general terms used in any of the sections or the
scope of the general powers of the Corporation created thereby. The
enumeration herein of any specific purposes or powers shall not be held to
limit or restrict in any manner the exercise by the Corporation of the
general powers now or hereafter conferred by the laws of the state of
Indiana nor shall the expression of one thing be deemed to exclude another
not expressed, whether or not it be of like nature. The titles contained
herein are solely for convenience and are not to be considered in
construing the various sections.
2.22 Limiting Clause. Nothing in this article shall be construed to
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authorize the conduct by the Corporation, directly or indirectly, of a
rural loan and savings association, credit union or a banking, railroad,
insurance, surety, trust, safe deposit, mortgage guarantee or building and
loan business or receiving deposits of money, bullion or foreign coins or
of issuing bills, notes, or other evidences of debt or circulation as
money; provided, however, that the Corporation may own, create or otherwise
acquire all or part of the issued and outstanding stock of corporations
lawfully engaged in any of such activities.
Article III
Period of Existence
The period during which the Corporation shall continue is perpetual.
Article IV
Resident Agent and Principal Office
4.1 Resident Agent. The name and address of the Resident Agent in
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charge of the Corporation's principal office is John A. Nash, 500
Washington Street, Columbus, Indiana 47201.
4.2 Principal Office. The post office address of the principal
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office of the Corporation is 500 Washington Street, Columbus, Indiana
47201.
Article V
Shares
5.1 Number and Classes of Shares. The total number of shares, which
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the Corporation shall have the authority to issue, is 44,000,000 shares.
The total authorized shares of the Corporation shall be divided into two
classes: a class of up to 40,000,000 Common Shares without par value (the
"Common Shares") and a class of up to 4,000,000 Preferred Shares without
par value (the "Preferred Shares"). The Common Shares and the Preferred
Shares are collectively referred to herein as the "Shares."
5.2 Terms.
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5.21 Rights.
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5.21.1 Common Shares. All Common Shares shall have the same
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rights and privileges. Common Shareholders shall have no preemptive rights.
5.21.2 Preferred Shares. The Board of Directors is expressly
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authorized at any time, and from time to time, by resolution, to determine
and state the designations, relative rights, preferences, limitations and
restrictions of any class or classes of Preferred Shares, or of any series
of any class or classes thereof, and to authorize the issuance of such
Preferred Shares upon compliance prior to the issuance of any such
Preferred Shares with the applicable provisions of the Act.
5.22 Dividends. Dividends or distributions may be declared and
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paid upon outstanding Shares at the discretion of the Board of Directors
from time to time out of earned surplus or capital surplus of the
Corporation. Dividends payable on the Shares of any class of Shares or
series thereof may be paid to the holders of Shares of that or any other
class of Shares or series thereof.
5.23 Issuance of and Consideration for Shares. Shares may be
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issued for such consideration as may be fixed from time to time by the
Board of Directors, which consideration may be equal to, less than or more
than the par value thereof. The judgment of the Board of Directors as to
(i) the value of any property or services received in full or partial
payment for Shares, and (ii) as to the value of the corporate assets in the
event of a Share dividend, shall be conclusive. When Shares are issued upon
payment of the consideration fixed by the Board of Directors, such Shares
shall be taken to be fully paid stock and shall be nonassessable.
5.24 Partial Distributions. The Board of Directors may make
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distributions to Shareholders out of capital surplus from time to time to
the extent permitted by law.
5.25 Facsimile Signatures. Facsimile signatures may be used in
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lieu of the manual signature of an officer or director of the Corporation.
In case any officer or director who has signed or whose facsimile signature
has been placed upon any share certificate or other document issued by this
Corporation shall have ceased to be such an officer or director before such
certificate or other document is used, such certificate or other document
may be issued by the Corporation with the same effect as if such person
were an officer at the date of its issue.
5.26 Transfer of Shares. Transfer of Shares shall be governed
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by the By-Laws of the Corporation subject to applicable law.
5.27 Series A Convertible Preferred Shares. By Unanimous
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Written Consent effective as of October 8, 1999, the Board of Directors of
Irwin Financial
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Corporation (the "Corporation"), has amended the terms of its Series A
convertible Preferred Shares (the "Series A Preferred Shares"), to consist
of 66,666 shares, and further as follows:
5.27.1 Definitions.
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"Bank" means Irwin Union Bank and Trust Company, a
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commercial bank chartered under the laws of the State of
Indiana and a wholly-owned subsidiary of the Corporation.
"Banking Office" means, collectively, the banking
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offices operated by the Bank in Monroe County, Indiana,
including locations at 300 W. 6th St., Bloomington, IN 47404;
1175 College Mall Rd., Box A, Bloomington, IN 47401; and 528 S.
College Ave., Box A, Bloomington, IN 47401.
"Board" means the Board of Directors of the Corporation.
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"Common Shares" means the common shares of the
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Corporation.
"Corporation" means Irwin Financial Corporation, an
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Indiana corporation.
"Deposit Goal" means the goal that the average deposits
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at the Bank on behalf of the Banking Office for any calendar
quarter equal or exceed $50,000,000, with the calculations to
be made as set forth in Section 5.27.4(b)(iii) herein.
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"Person" means an individual, a partnership, a joint
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venture, a corporation, an association, a trust, or any other
entity or organization.
"Purchase Price" means the price per share at which the
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Series A Preferred Shares have been offered and sold by the
Corporation to qualified investors pursuant to a Confidential
Private Placement Memorandum.
"Series A Preferred Shares" means the Series A
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Convertible Preferred Shares of the Corporation.
"Start Date" means the first day of the calendar
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quarter following the closing date of the offering. The Start
Date is the date from which the Corporation will measure the
amount of
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deposits at the Bank on behalf of the Banking Office for the
purposes of determining conversion rights.
5.27.2 Dividends. The holders of outstanding Series A
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Preferred Shares shall not be entitled to receive any dividends on the
Series A Preferred Shares.
5.27.3 Redemption.
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(a) The outstanding Series A Preferred Shares are
redeemable at the option of the Corporation, out of the assets of the
Corporation legally available therefor, at any time or from time to
time, in whole and not in part, at a redemption price per share of
Series A Preferred Shares (the "Redemption Price") equal to the
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Purchase Price; provided, however, that for a period of not less than
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30 days prior to the date fixed for redemption (the "Redemption Date"),
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the holders of the outstanding Series A Preferred Shares shall have an
option to convert each Series A Preferred Share into 1.25 Common
Shares.
(b) Notice of any redemption of Series A Preferred
Shares, specifying the date fixed for redemption, the redemption price
and the place at which shareholders may obtain payment of the
Redemption Price upon surrender of their certificates, and the option
of the shareholders to convert their Series A Preferred Shares into
Common Shares, shall be mailed to each holder of record of the shares
to be redeemed, at such holder's address of record, not less than 35,
nor more than 90 days prior to the Redemption Date. Such notice shall
set forth the manner in which shareholders may convert their Series A
Preferred Shares into Common Shares, or to receive the Redemption
Price, upon surrender of their certificates.
(c) Unless the Corporation defaults in the payment in
full of the Redemption Price, (i) all rights of the holders of such
Series A Preferred Shares as shareholders of the Corporation by reason
of the ownership of such shares (including, without limitation, the
right to convert the Series A Preferred Shares into Common Shares)
shall cease on the Redemption Date except the right to receive the
amount payable upon redemption of such shares upon presentation and
surrender of the respective certificates evidencing such shares, and
(ii) such shares shall be deemed not to be outstanding after the
Redemption Date.
(d) Any Series A Preferred Shares that have been
redeemed shall, after such redemption, not be reissued as Series A
Preferred Shares, but shall become authorized but unissued Preferred
Shares of the
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Corporation, and the certificates evidencing such shares shall be
canceled.
(e) Any notice required by the provisions of this Section
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5.27.3 to be given to the holders of Series A Preferred Shares shall be
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deemed given if deposited in the United States mail postage prepaid,
and addressed to each holder of record at his, her or its address
appearing on the books of the Corporation.
5.27.4 Conversion Rights. The Series A Preferred Shares shall be
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convertible into Common Shares as follows:
(a) No Optional Conversion. Other than pursuant to a
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redemption of the Series A Preferred Shares as set forth in Section
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5.27.3 above, the holders of Series A Preferred Shares shall have no
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optional rights to convert such shares into Common Shares.
(b) Automatic Conversion. Each Series A Preferred
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Share shall be automatically converted, without any further act of the
Corporation or the holders of Series A Preferred Shares, into fully
paid and nonassessable Common Shares in the manner and at the times
specified below:
(i) Second Anniversary after Start Date. If the
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Deposit Goal is met prior to twenty-four (24) months from
the Start Date, (A) the date of the automatic conversion
into Common Shares shall be twenty-seven (27) months after
the Start Date, and (B) each Series A Preferred Share shall
automatically be converted into 1.25 Common Shares. If the
Deposit Goal has not been met prior to twenty-four (24)
months from the Start Date, the Series A Preferred Shares
will not be converted into Common Shares until after the
third anniversary of the Start Date.
(ii) Third Anniversary after Start Date. If the
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conversion of the Series A Preferred Shares into Common
Shares has not previously taken place within thirty-six (36)
months after the Start Date, then, thirty-nine (39) months
after the Start Date, each outstanding Series A Preferred
Share shall automatically be converted into (A) 1.10 Common
Shares if the Deposit Goal has been met prior to the end of
thirty-six (36) months after the Start Date, and (B) 1.02
Common Shares if the Deposit Goal has not been met prior to
the end of thirty-six (36) months after the Start Date.
(iii) Determination of Whether Deposit Goal Has
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Been Met. The Deposit Goal shall have been met prior to a
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specified date if the average deposits at the Bank on behalf
of the Banking Office for any calendar quarter prior to such
date equal or exceed $50,000,000. For the purposes of
determining whether the Deposit Goal has been met, the
Corporation will follow the following procedures:
Deposits: For the purpose of making the
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Deposit Goal calculations, "deposits" means the
book balances of all accounts which are insurable
by the Federal Deposit Insurance Corporation (such
as demand, savings, time, money market and NOW
accounts and certificates of deposit), including
the balances in such accounts in excess of
$100,000; provided, however, that certificates of
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deposit in amounts of $100,000 or more shall be
included in the total amount of deposits only to
the extent such certificates of deposit do not
exceed 10% of total deposits.
Credit for Deposits: The specific banking
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office at which a deposit account is opened
receives the credit for the account; provided,
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however, that if the Banking Office is not
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authorized to accept deposits or has not yet
opened for business, a deposit account may be
established at another banking office on behalf of
the Banking Office if designated as such. The
Bank's accounting system tracks and accounts for
all depository accounts on a daily basis.
Calendar Quarter Average: After a calendar
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quarter has expired, the Bank will calculate the
calendar quarter average of deposits for accounts
designated as gathered on behalf of the Banking
Office by adding the sum of the daily general
ledger balance for such deposits and then dividing
this sum by the number of days in the calendar
quarter.
All determinations regarding whether the Deposit Goal
has been met as of any date shall be made by the Corporation.
Such determinations in this regard shall be final and
conclusive for all purposes.
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(c) Mechanics of Conversion. Upon the occurrence of
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the dates specified in Section 5.27.4(b) above, the
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outstanding Series A Preferred Shares shall be converted
automatically without any further action by the holders of
such shares and whether or not the certificates representing
such shares are surrendered to the Corporation or its
transfer agent; provided, however, that the Corporation
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shall not be obligated to issue to any holder certificates
evidencing the Common Shares issuable upon such conversion
unless certificates evidencing the Series A Preferred Shares
are delivered either to the Corporation or any transfer
agent designated by the Corporation. Conversion shall be
deemed to have been effected on the date of the occurrence
of the dates specified in Section 5.27.4(b) above, as the
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case may be, and such date is referred to herein as the
"Conversion Date." Subject to the provisions of Section
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5.27.4(b) above, as promptly as practicable thereafter (and
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after surrender of the certificate or certificates
representing the Series A Preferred Shares to the
Corporation or any transfer agent designated by the
Corporation), the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of
full Common Shares to which such holder is entitled as
provided in Section 5.27.4(b) hereof. Subject to the
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provisions of Section 5.27.4(b), the person in whose name
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the certificate or certificates for Common Shares are to be
issued shall be deemed to have become a holder of record of
such Common Shares on the applicable Conversion Date.
(d) Fractional Shares. No fractional Common Shares
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or scrip shall be issued upon conversion of Series A
Preferred Shares. In lieu of any fractional Common Shares
which would otherwise be issuable upon conversion of any
Series A Preferred Shares, the number of full Common Shares
issuable upon conversion thereof shall be increased to the
next higher number of whole shares.
(e) Rights After Conversion Date. From and after
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Conversion Date (unless the Corporation defaults in issuing
Common Shares in conversion for the outstanding Series A
Preferred Shares on the Conversion Date), such Series A
Preferred Shares shall be deemed not to be outstanding and
all rights of the holders of such shares as Shareholders of
the Corporation by reason of the ownership of such shares
shall cease, except the right to receive Common Shares as
provided in Section 5.27.4(b) herein on presentation and
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surrender of the respective certificates evidencing such
Series A Preferred Shares. Upon presentation and surrender,
on or after the Conversion Date, of any certificate
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evidencing Series A Preferred Shares (properly endorsed or
assigned for transfer, if the Corporation shall so require),
such shares shall be converted by the Corporation for Common
Shares as provided in this Section 5.27.4.
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(f) Authorized, But Unissued Shares. Any Series A
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Preferred Shares that shall at any time have been converted
into Common Shares pursuant to this Section 5.27.4 shall,
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after such conversion become authorized but unissued
Preferred Shares of the Corporation, and the certificates
evidencing such shares shall be canceled.
(g) Reservation of Shares. The Corporation shall
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reserve at all times so long as any Series A Preferred
Shares remain outstanding, free from preemptive rights, out
of its treasury shares or its authorized but unissued Common
Shares, or both, solely for the purpose of effecting the
conversion of the Series A Preferred Shares, sufficient
Common Shares to provide for the conversion of all
outstanding Series A Preferred Shares.
(h) Fully Paid and Nonassessable Shares. All Common
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Shares or other securities which may be issued upon
conversion of the Series A Preferred Shares will upon
issuance by the Corporation be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issuance thereof and the
Corporation shall take no action which would cause a
contrary result.
5.27.5 Conversion Ratio Adjustments. The number of Common
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Shares into which the Series A Preferred Shares shall be
converted pursuant to Section 5.27.4 (the "Conversion Ratios")
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and the securities or other property deliverable upon conversion
of the Series A Preferred Shares shall be subject to adjustment
from time to time as follows:
(a) Share Subdivisions or Split-Ups. If the number of
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Common Shares outstanding at any time after the date of
issuance of the Series A Preferred Shares is increased by a
subdivision or split-up of Common Shares, then immediately
after the record date fixed for the determination of holders
of Common Shares entitled to receive such subdivision or
split-up, as the case may be, the Conversion Ratios shall be
appropriately increased so that the holder of any Series A
Preferred Shares thereafter converted shall be entitled to
receive the number of Common Shares of the Corporation which
the holder would have owned immediately
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following such action had such Series A Preferred Shares
been converted immediately prior thereto.
(b) Combinations of Shares. If the number of Common
----------------------
Shares outstanding at any time after the date of issuance of
the Series A Preferred Shares is decreased by a combination
of the outstanding Common Shares, then, immediately after
the effective date of such combination, the Conversion
Ratios applicable thereto shall be appropriately decreased
so that the holder of any Series A Preferred Shares
thereafter converted shall be entitled to receive the number
of Common Shares of the Corporation which the holder would
have owned immediately following such action had such Series
A Preferred Shares been converted immediately prior thereto.
(c) Reorganization, Reclassification, Merger, Sale of
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All Assets, etc. In case of any capital reorganization of
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the Corporation, or of any reclassification of the Common
Shares, or in case of the consolidation of the Corporation
with or the merger of the Corporation with or into any other
Person or of the sale, lease or other transfer of all or
substantially all of the assets of the Corporation to any
other Person, or in the case of any distribution of cash or
other assets or of notes or other indebtedness of the
Corporation or any other securities of the Corporation
(except Common Shares) to the holders of its Common Shares,
each Series A Preferred Share shall, after such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer or such distribution, be
convertible into the number of shares or other securities or
property to which the Common Shares issuable (at the time of
such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer or such
distribution) upon conversion of such Series A Preferred
Shares would have been entitled upon such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer or such distribution in place
of (or in addition to, in the case of any such event after
which Common Shares remain outstanding) the Common Shares
into which such Series A Preferred Shares would otherwise
have been convertible; and in any such case, if necessary,
the provisions set forth herein with respect to the rights
and interest thereafter of the holders of Series A Preferred
Shares shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares or
other securities or property thereafter deliverable on the
conversion of the Series A Preferred
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<PAGE>
Shares.
(d) Rounding of Calculations; Minimum Adjustment. All
--------------------------------------------
calculations under this Section 5.27.5 shall be made to the
--------------
nearest one hundredth (1/100th) of a Common Share, as the
case may be. Any provision of this Section 5.27.5 to the
--------------
contrary notwithstanding, no adjustment in the Conversion
Ratios shall be made if the amount of such adjustment would
be less than one hundredth of a Common Share, but any such
amount shall be carried forward and an adjustment with
respect thereto shall be made at the time of any subsequent
adjustment which, together with such amount and any other
amount or amounts so carried forward, shall aggregate one
hundredth of a Common Share or more.
(e) Timing of Issuance of Additional Common Shares
----------------------------------------------
upon Certain Adjustments. In any case in which the
------------------------
provisions of this Section 5.27.5 shall require that an
--------------
adjustment shall become effective immediately after a record
date for an event, the Corporation may defer until the
occurrence of such event issuing to the holder of any Series
A Preferred Shares converted after such record date and
before the occurrence of such event the additional Common
Shares or other property issuable or deliverable upon such
conversion by reason of the adjustment required by such
event over and above the Common Shares or other property
issuable or deliverable upon such conversion before giving
effect to such adjustment; provided, however, that the
-------- -------
Corporation upon request shall deliver to such holder a due
bill or other appropriate instrument evidencing such
holder's right to receive such additional shares or other
property, and such cash, upon the occurrence of the event
requiring such adjustment.
(f) Statement Regarding Adjustments. Whenever the
-------------------------------
Conversion Ratios shall be adjusted as provided in this
Section 5.27.5, the Corporation shall forthwith file, at the
--------------
office of any transfer agent for the Series A Preferred
Shares and at the principal office of the Corporation a
statement showing in detail the facts requiring such
adjustment and the Conversion Ratios that shall be in effect
after such adjustment, and the Corporation shall also cause
a copy of such statement to be mailed, first class postage
prepaid, to each holder of Series A Preferred Shares at its
address appearing on the Corporation's records.
(g) Cost. The Corporation shall pay all documentary,
----
14
<PAGE>
stamp, transfer or other transactional taxes attributable to
the issuance or delivery of Common Shares of the Corporation
or other securities or property upon conversion of any
Series A Preferred Shares; provided, however, that the
-------- -------
Corporation shall not be required to pay any taxes which may
be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares or
securities in the name other than that of the holder of
Series A Preferred Shares in respect of which such shares
are being issued.
5.27.6 Voting. The holders of Series A Preferred Shares
------
shall have no right or power to vote on any matter except as
required by law. In any matter on which the holders of Series A
Preferred Shares shall, as a matter of law, be entitled to vote,
the holders shall be entitled to one vote for each Series A
Preferred Share held.
5.27.7 Liquidation Rights.
------------------
(a) Upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the
holders of Series A Preferred Shares then outstanding shall
be entitled to receive out of the assets of the Corporation
available for distribution to equity holders, an amount per
share in cash equal to the Purchase Price before any payment
or distribution shall be made on the Common Shares or on any
other class of capital shares of the Corporation ranking
junior to the Series A Preferred Shares upon liquidation.
All outstanding shares of any other series of preferred
shares shall rank at parity with the Series A Preferred
Shares. The consolidation or merger of the Corporation, or a
sale, exchange or transfer of all or substantially all of
its assets as an entirety, shall not be regarded as a
"dissolution, liquidation or winding up of the Corporation"
within the meaning of this Section 5.27.7(a).
-----------------
(b) After the payment to the holders of Series A
Preferred Shares of the full preferential amounts fixed
hereby for Series A Preferred Shares, the holders of Series
A Preferred Shares as such shall have no right or claim to
any of the remaining assets of the Corporation.
(c) If the assets of the Corporation available for
distribution to the holders of Series A Preferred Shares
upon dissolution, liquidation or winding up of the
Corporation are insufficient to pay in full all amounts to
which such holders are
15
<PAGE>
entitled pursuant to Section 5.27.7(a), no distribution
-----------------
shall be made on account of any shares of a class or series
of capital shares of the Corporation ranking on a parity
with the Series A Preferred Shares, if any, upon such
dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the Series
A Preferred Shares, ratably, in proportion to the full
distributable amounts for which holders of all such parity
shares are respectively entitled upon such dissolution,
liquidation or winding up.
5.27.8 Reports to Holders of Series A Preferred Shares.
-----------------------------------------------
For so long as there shall remain outstanding any Series A
Preferred Shares, the Corporation shall furnish to each holder of
record of Series A Preferred Shares (i) all reports or other
correspondence sent by the Corporation to holders of record of
the Common Shares of the Corporation, and (ii) a quarterly report
setting forth the average monthly deposits on behalf of the
Banking Office.
5.27.9 Certain Covenants. So long as any Series A
-----------------
Preferred Shares are outstanding, without the prior written
consent of the holders of a majority of the outstanding Series A
Preferred Shares, the Corporation shall not amend, alter or
repeal any provisions of this Resolution Establishing Series A
Convertible Preferred Shares, or otherwise amend, alter or repeal
any provision of the Articles of Incorporation of the Corporation
so as to affect adversely the preferences, rights, powers or
privileges of the Series A Preferred Shares.
5.27.10 Certain Events. If any event occurs of the type
--------------
contemplated but not expressly provided for by the provisions of
Section 5.27.4 or Section 5.27.5 herein, then the Corporation's
-------------- --------------
Board of Directors will make an appropriate adjustment in the
Conversion Ratios for the Series A Preferred Shares to protect
the rights of the holders thereof.
5.27.11 Exclusion of Other Rights. Unless otherwise
-------------------------
required by law, the Series A Preferred Shares shall not have any
voting powers, preferences or relative, participating, optional
or other special rights other than those specifically set forth
herein.
5.28 Series B Convertible Preferred Shares. By Unanimous
-------------------------------------
Written Consent effective as of October 8, 1999, the Board of
Directors of Irwin Financial Corporation (the "Corporation"), has
amended the terms of its Series B Convertible Preferred Shares (the
"Series B Preferred Shares"), to consist of 66,666 shares, and further
as follows:
16
<PAGE>
5.28.1 Definitions.
-----------
"Bank" means Irwin Union Bank and Trust Company, a
----
commercial bank chartered under the laws of the State of
Indiana and a wholly-owned subsidiary of the Corporation.
"Banking Office" means the banking office operated by
--------------
the Bank at 555 W. Crosstown Parkway, Kalamazoo, Michigan
49008.
"Board" means the Board of Directors of the
-----
Corporation.
"Common Shares" means the common shares of the
-------------
Corporation.
"Corporation" means Irwin Financial Corporation, an
-----------
Indiana corporation.
"Deposit Goal" means the goal that the average deposits
------------
at the Bank on behalf of the Banking Office for any calendar
quarter equal or exceed $25,000,000, with the calculations
to be made as set forth in Section 4(b)(iii) herein.
-----------------
"Person" means an individual, a partnership, a joint
------
venture, a corporation, an association, a trust, or any
other entity or organization.
"Purchase Price" means the price per share at which the
--------------
Series B Preferred Shares have been offered and sold by the
Corporation to qualified investors pursuant to a
Confidential Private Placement Memorandum.
"Series B Preferred Shares" means the Series B
-------------------------
Convertible Preferred Shares of the Corporation.
"Start Date" means the first day of the calendar
----------
quarter following the closing date of the offering. The
Start Date is the date from which the Corporation will
measure the amount of deposits at the Bank on behalf of the
Banking Office for the purposes of determining conversion
rights.
5.28.2 Dividends. The holders of outstanding Series B
---------
Preferred Shares shall not be entitled to receive any dividends
on the Series B Preferred Shares.
17
<PAGE>
5.28.3 Redemption.
----------
(a) The outstanding Series B Preferred Shares are
redeemable at the option of the Corporation, out of the
assets of the Corporation legally available therefor, at any
time or from time to time, in whole and not in part, at a
redemption price per share of Series B Preferred Shares (the
"Redemption Price") equal to the Purchase Price; provided,
---------------- --------
however, that for a period of not less than 30 days prior to
-------
the date fixed for redemption (the "Redemption Date"), the
---------------
holders of the outstanding Series B Preferred Shares shall
have an option to convert each Series B Preferred Share into
1.25 Common Shares.
(b) Notice of any redemption of Series B Preferred
Shares, specifying the date fixed for redemption, the
redemption price and the place at which shareholders may
obtain payment of the Redemption Price upon surrender of
their certificates, and the option of the shareholders to
convert their Series B Preferred Shares into Common Shares,
shall be mailed to each holder of record of the shares to be
redeemed, at such holder's address of record, not less than
35, nor more than 90 days prior to the Redemption Date. Such
notice shall set forth the manner in which shareholders may
convert their Series B Preferred Shares into Common Shares,
or to receive the Redemption Price, upon surrender of their
certificates.
(c) Unless the Corporation defaults in the payment in
full of the Redemption Price, (i) all rights of the holders
of such Series B Preferred Shares as shareholders of the
Corporation by reason of the ownership of such shares
(including, without limitation, the right to convert the
Series B Preferred Shares into Common Shares) shall cease on
the Redemption Date except the right to receive the amount
payable upon redemption of such shares upon presentation and
surrender of the respective certificates evidencing such
shares, and (ii) such shares shall be deemed not to be
outstanding after the Redemption Date.
(d) Any Series B Preferred Shares that have been
redeemed shall, after such redemption, not be reissued as
Series B Preferred Shares, but shall become authorized but
unissued Preferred Shares of the Corporation, and the
certificates evidencing such shares shall be canceled.
18
<PAGE>
(e) Any notice required by the provisions of this
Section 5.28.3 to be given to the holders of Series B
--------------
Preferred Shares shall be deemed given if deposited in the
United States mail postage prepaid, and addressed to each
holder of record at his, her or its address appearing on the
books of the Corporation.
5.28.4 Conversion Rights. The Series B Preferred Shares
-----------------
shall be convertible into Common Shares as follows:
(a) No Optional Conversion. Other than pursuant to a
----------------------
redemption of the Series B Preferred Shares as set forth in
Section 5.28.3 above, the holders of Series B Preferred
--------------
Shares shall have no optional rights to convert such shares
into Common Shares.
(b) Automatic Conversion. Each Series B Preferred
--------------------
Share shall be automatically converted, without any further
act of the Corporation or the holders of Series B Preferred
Shares, into fully paid and nonassessable Common Shares in
the manner and at the times specified below:
(i) Second Anniversary after Start Date. If the
-----------------------------------
Deposit Goal is met prior to twenty-four (24) months
from the Start Date, (A) the date of the automatic
conversion into Common Shares shall be twenty-seven
(27) months after the Start Date, and (B) each Series B
Preferred Share shall automatically be converted into
1.25 Common Shares. If the Deposit Goal has not been
met prior to twenty-four (24) months from the Start
Date, the Series B Preferred Shares will not be
converted into Common Shares until after the third
anniversary of the Start Date.
(ii) Third Anniversary after Start Date. If the
----------------------------------
conversion of the Series B Preferred Shares into Common
Shares has not previously taken place within thirty-six
(36) months after the Start Date, then, thirty-nine
(39) months after the Start Date, each outstanding
Series B Preferred Share shall automatically be
converted into (A) 1.10 Common Shares if the Deposit
Goal has been met prior to the end of thirty-six (36)
months after the Start Date, and (B) 1.02 Common Shares
if the Deposit Goal has not been met prior to the end
of thirty-six (36) months after the Start Date.
19
<PAGE>
(iii) Determination of Whether Deposit Goal Has
-----------------------------------------
Been Met. The Deposit Goal shall have been met prior
--------
to a specified date if the average deposits at the Bank
on behalf of the Banking Office for any calendar
quarter prior to such date equal or exceed $25,000,000.
For the purposes of determining whether the Deposit
Goal has been met, the Corporation will follow the
following procedures:
Deposits: For the purpose of making the
--------
Deposit Goal calculations, "deposits" means the
book balances of all accounts which are insurable
by the Federal Deposit Insurance Corporation (such
as demand, savings, time, money market and NOW
accounts and certificates of deposit), including
the balances in such accounts in excess of
$100,000; provided, however, that certificates of
-------- -------
deposit in amounts of $100,000 or more shall be
included in the total amount of deposits only to
the extent such certificates of deposit do not
exceed 10% of total deposits.
Credit for Deposits: The specific banking
-------------------
office at which a deposit account is opened
receives the credit for the account; provided,
--------
however, that if the Banking Office is not
-------
authorized to accept deposits or has not yet
opened for business, a deposit account may be
established at another banking office on behalf of
the Banking Office if designated as such. The
Bank's accounting system tracks and accounts for
all depository accounts on a daily basis.
Calendar Quarter Average: After a calendar
------------------------
quarter has expired, the Bank will calculate the
calendar quarter average of deposits for accounts
designated as gathered on behalf of the Banking
Office by adding the sum of the daily general
ledger balance for such deposits and then dividing
this sum by the number of days in the calendar
quarter.
All determinations regarding whether the Deposit Goal
has been met as of any date shall be made by the
Corporation. Such determinations in this regard shall be
final and conclusive for all purposes.
20
<PAGE>
(c) Mechanics of Conversion. Upon the occurrence of
-----------------------
the dates specified in Section 5.28.4(b) above, the
-----------------
outstanding Series B Preferred Shares shall be converted
automatically without any further action by the holders of
such shares and whether or not the certificates representing
such shares are surrendered to the Corporation or its
transfer agent; provided, however, that the Corporation
-------- -------
shall not be obligated to issue to any holder certificates
evidencing the Common Shares issuable upon such conversion
unless certificates evidencing the Series B Preferred Shares
are delivered either to the Corporation or any transfer
agent designated by the Corporation. Conversion shall be
deemed to have been effected on the date of the occurrence
of the dates specified in Section 5.28.4(b) above, as the
-----------------
case may be, and such date is referred to herein as the
"Conversion Date." Subject to the provisions of Section
---------------- -------
5.28.4(b) above, as promptly as practicable thereafter (and
---------
after surrender of the certificate or certificates
representing the Series B Preferred Shares to the
Corporation or any transfer agent designated by the
Corporation), the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of
full Common Shares to which such holder is entitled as
provided in Section 5.28.4(b) hereof. Subject to the
-----------------
provisions of Section 5.28.4(b), the person in whose name
-----------------
the certificate or certificates for Common Shares are to be
issued shall be deemed to have become a holder of record of
such Common Shares on the applicable Conversion Date.
(d) Fractional Shares. No fractional Common Shares or
-----------------
scrip shall be issued upon conversion of Series B Preferred
Shares. In lieu of any fractional Common Shares which would
otherwise be issuable upon conversion of any Series B
Preferred Shares, the number of full Common Shares issuable
upon conversion thereof shall be increased to the next
higher number of whole shares.
(e) Rights After Conversion Date. From and after the
----------------------------
Conversion Date (unless the Corporation defaults in issuing
Common Shares in conversion for the outstanding Series B
Preferred Shares on the Conversion Date), such Series B
Preferred Shares shall be deemed not to be outstanding and
all rights of the holders of such shares as Shareholders of
the Corporation by reason of the ownership of such shares
shall cease, except the right to receive Common Shares as
provided in Section 5.28.4(b) herein on presentation and
-----------------
surrender of the respective certificates evidencing such
Series B Preferred Shares. Upon presentation and
21
<PAGE>
surrender, on or after the Conversion Date, of any
certificate evidencing Series B Preferred Shares (properly
endorsed or assigned for transfer, if the Corporation shall
so require), such shares shall be converted by the
Corporation for Common Shares as provided in this Section
5.28.4. -------
------
(f) Authorized, But Unissued Shares. Any Series B
-------------------------------
Preferred Shares that shall at any time have been converted
into Common Shares pursuant to this Section 5.28.4 shall,
--------------
after such conversion become authorized but unissued
Preferred Shares of the Corporation, and the certificates
evidencing such shares shall be canceled.
(g) Reservation of Shares. The Corporation shall
---------------------
reserve at all times so long as any Series B Preferred
Shares remain outstanding, free from preemptive rights, out
of its treasury shares or its authorized but unissued Common
Shares, or both, solely for the purpose of effecting the
conversion of the Series B Preferred Shares, sufficient
Common Shares to provide for the conversion of all
outstanding Series B Preferred Shares.
(h) Fully Paid and Nonassessable Shares. All Common
-----------------------------------
Shares or other securities which may be issued upon
conversion of the Series B Preferred Shares will upon
issuance by the Corporation be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issuance thereof and the
Corporation shall take no action which would cause a
contrary result.
5.28.5 Conversion Ratio Adjustments. The number of Common
----------------------------
Shares into which the Series B Preferred Shares shall be
converted pursuant to Section 5.28.4 (the "Conversion Ratios")
--------------
and the securities or other property deliverable upon conversion
of the Series B Preferred Shares shall be subject to adjustment
from time to time as follows:
(a) Share Subdivisions or Split-Ups. If the
-------------------------------
number of Common Shares outstanding at any time after the
date of issuance of the Series B Preferred Shares is
increased by a subdivision or split-up of Common Shares,
then immediately after the record date fixed for the
determination of holders of Common Shares entitled to
receive such subdivision or split-up, as the case may be,
the Conversion Ratios shall be appropriately increased so
that the holder of any Series B Preferred Shares thereafter
converted shall be entitled to receive the number of Common
Shares of the
22
<PAGE>
Corporation which the holder would have owned immediately
following such action had such Series B Preferred Shares
been converted immediately prior thereto.
(b) Combinations of Shares. If the number of Common
----------------------
Shares outstanding at any time after the date of issuance of
the Series B Preferred Shares is decreased by a combination
of the outstanding Common Shares, then, immediately after
the effective date of such combination, the Conversion
Ratios applicable thereto shall be appropriately decreased
so that the holder of any Series B Preferred Shares
thereafter converted shall be entitled to receive the number
of Common Shares of the Corporation which the holder would
have owned immediately following such action had such Series
B Preferred Shares been converted immediately prior thereto.
(c) Reorganization, Reclassification, Merger, Sale of
-------------------------------------------------
All Assets, etc. In case of any capital reorganization of
---------------
the Corporation, or of any reclassification of the Common
Shares, or in case of the consolidation of the Corporation
with or the merger of the Corporation with or into any other
Person or of the sale, lease or other transfer of all or
substantially all of the assets of the Corporation to any
other Person, or in the case of any distribution of cash or
other assets or of notes or other indebtedness of the
Corporation or any other securities of the Corporation
(except Common Shares) to the holders of its Common Shares,
each Series B Preferred Share shall, after such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer or such distribution, be
convertible into the number of shares or other securities or
property to which the Common Shares issuable (at the time of
such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer or such
distribution) upon conversion of such Series B Preferred
Shares would have been entitled upon such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer or such distribution in place
of (or in addition to, in the case of any such event after
which Common Shares remain outstanding) the Common Shares
into which such Series B Preferred Shares would otherwise
have been convertible; and in any such case, if necessary,
the provisions set forth herein with respect to the rights
and interest thereafter of the holders of Series B Preferred
Shares shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares or
other securities or property thereafter deliverable on the
conversion of the Series B Preferred
23
<PAGE>
Shares.
(d) Rounding of Calculations; Minimum Adjustment. All
--------------------------------------------
calculations under this Section 5.28.5 shall be made to the
--------------
nearest one hundredth (1/100th) of a Common Share, as the
case may be. Any provision of this Section 5.28.5 to the
--------------
contrary notwithstanding, no adjustment in the Conversion
Ratios shall be made if the amount of such adjustment would
be less than one hundredth of a Common Share, but any such
amount shall be carried forward and an adjustment with
respect thereto shall be made at the time of any subsequent
adjustment which, together with such amount and any other
amount or amounts so carried forward, shall aggregate one
hundredth of a Common Share or more.
(e) Timing of Issuance of Additional Common Shares upon
---------------------------------------------------
Certain Adjustments. In any case in which the provisions of
-------------------
this Section 5.28.5 shall require that an adjustment shall
--------------
become effective immediately after a record date for an
event, the Corporation may defer until the occurrence of
such event issuing to the holder of any Series B Preferred
Shares converted after such record date and before the
occurrence of such event the additional Common Shares or
other property issuable or deliverable upon such conversion
by reason of the adjustment required by such event over and
above the Common Shares or other property issuable or
deliverable upon such conversion before giving effect to
such adjustment; provided, however, that the Corporation
-------- -------
upon request shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right
to receive such additional shares or other property, and
such cash, upon the occurrence of the event requiring such
adjustment.
(f) Statement Regarding Adjustments. Whenever the
-------------------------------
Conversion Ratios shall be adjusted as provided in this
Section 5.28.5, the Corporation shall forthwith file, at the
--------------
office of any transfer agent for the Series B Preferred
Shares and at the principal office of the Corporation a
statement showing in detail the facts requiring such
adjustment and the Conversion Ratios that shall be in effect
after such adjustment, and the Corporation shall also cause
a copy of such statement to be mailed, first class postage
prepaid, to each holder of Series B Preferred Shares at its
address appearing on the Corporation's records.
(g) Cost. The Corporation shall pay all documentary,
----
24
<PAGE>
stamp, transfer or other transactional taxes attributable to
the issuance or delivery of Common Shares of the Corporation
or other securities or property upon conversion of any
Series B Preferred Shares; provided, however, that the
-------- -------
Corporation shall not be required to pay any taxes which may
be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares or
securities in the name other than that of the holder of
Series B Preferred Shares in respect of which such shares
are being issued.
5.28.6 Voting. The holders of Series B Preferred Shares
------
shall have no right or power to vote on any matter except as
required by law. In any matter on which the holders of Series B
Preferred Shares shall, as a matter of law, be entitled to vote,
the holders shall be entitled to one vote for each Series B
Preferred Share held.
5.28.7 Liquidation Rights.
------------------
(a) Upon the dissolution, liquidation or winding up
of the Corporation, whether voluntary or involuntary, the
holders of Series B Preferred Shares then outstanding shall
be entitled to receive out of the assets of the Corporation
available for distribution to equity holders, an amount per
share in cash equal to the Purchase Price before any payment
or distribution shall be made on the Common Shares or on any
other class of capital shares of the Corporation ranking
junior to the Series B Preferred Shares upon liquidation.
All outstanding shares of any other series of preferred
shares shall rank at parity with the Series B Preferred
Shares. The consolidation or merger of the Corporation, or a
sale, exchange or transfer of all or substantially all of
its assets as an entirety, shall not be regarded as a
"dissolution, liquidation or winding up of the Corporation"
within the meaning of this Section 5.28.7(a).
-----------------
(b) After the payment to the holders of Series B
Preferred Shares of the full preferential amounts fixed
hereby for Series B Preferred Shares, the holders of Series
B Preferred Shares as such shall have no right or claim to
any of the remaining assets of the Corporation.
(c) If the assets of the Corporation available for
distribution to the holders of Series B Preferred Shares
upon dissolution, liquidation or winding up of the
Corporation are insufficient to pay in full all amounts to
which such holders are
25
<PAGE>
entitled pursuant to Section 5.28.7(a), no distribution
-----------------
shall be made on account of any shares of a class or series
of capital shares of the Corporation ranking on a parity
with the Series B Preferred Shares, if any, upon such
dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the Series
B Preferred Shares, ratably, in proportion to the full
distributable amounts for which holders of all such parity
shares are respectively entitled upon such dissolution,
liquidation or winding up.
5.28.8 Reports to Holders of Series B Preferred Shares.
-----------------------------------------------
For so long as there shall remain outstanding any Series B
Preferred Shares, the Corporation shall furnish to each holder of
record of Series B Preferred Shares (i) all reports or other
correspondence sent by the Corporation to holders of record of
the Common Shares of the Corporation, and (ii) a quarterly report
setting forth the average monthly deposits on behalf of the
Banking Office.
5.28.9 Certain Covenants. So long as any Series B
-----------------
Preferred Shares are outstanding, without the prior written
consent of the holders of a majority of the outstanding Series B
Preferred Shares, the Corporation shall not amend, alter or
repeal any provisions of this Resolution Establishing Series B
Convertible Preferred Shares, or otherwise amend, alter or repeal
any provision of the Articles of Incorporation of the Corporation
so as to affect adversely the preferences, rights, powers or
privileges of the Series B Preferred Shares.
5.28.10 Certain Events. If any event occurs of the type
--------------
contemplated but not expressly provided for by the provisions of
Section 5.28.4 or Section 5.28.5 herein, then the Corporation's
-------------- --------------
Board of Directors will make an appropriate adjustment in the
Conversion Ratios for the Series B Preferred Shares to protect
the rights of the holders thereof.
5.28.11 Exclusion of Other Rights. Unless otherwise
-------------------------
required by law, the Series B Preferred Shares shall not have any
voting powers, preferences or relative, participating, optional
or other special rights other than those specifically set forth
herein.
5.29 Series C Convertible Preferred Shares. By Unanimous
-------------------------------------
Written Consent effective as of October 8, 1999, the Board of
Directors of Irwin Financial Corporation (the "Corporation"), has
approved and adopted the terms of Series C Convertible Preferred
Shares (the "Series C Preferred Shares"), to consist of 133,332
shares, as follows:
26
<PAGE>
5.29.1 Definitions.
-----------
"Bank" means Irwin Union Bank and Trust Company, a
----
commercial bank chartered under the laws of the State of
Indiana and a wholly-owned subsidiary of the Corporation.
"Banking Office" means, collectively, the banking
--------------
offices operated by the Bank in Hamilton County, Indiana,
and Marion County, Indiana, including locations at 11611 N.
Meridian St., Suite 100, Carmel, Indiana 46032 and 300 N.
Meridian St., Suite 1200, Indianapolis, Indiana 46204.
"Board" means the Board of Directors of the
-----
Corporation.
"Common Shares" means the common shares of the
-------------
Corporation.
"Corporation" means Irwin Financial Corporation, an
-----------
Indiana corporation.
"Deposit Goal" means the goal that the average
------------
deposits at the Bank on behalf of the Banking Office for any
calendar quarter equal or exceed $50,000,000, with the
calculations to be made as set forth in Section
-------
5.29.4(b)(iii) herein.
--------------
"Person" means an individual, a partnership, a joint
------
venture, a corporation, an association, a trust, or any
other entity or organization.
"Purchase Price" means the price per share at which
--------------
the Series C Preferred Shares have been offered and sold by
the Corporation to qualified investors pursuant to a
Confidential Private Placement Memorandum.
"Series C Preferred Shares" means the Series C
-------------------------
Convertible Preferred Shares of the Corporation.
"Start Date" means the first day of the calendar
----------
quarter following the closing date of the offering. The
Start Date is the date from which the Corporation will
measure the amount of deposits at the Bank on behalf of the
Banking Office for the purposes of determining conversion
rights.
27
<PAGE>
5.29.2 Dividends. The holders of outstanding Series C
---------
Preferred Shares shall not be entitled to receive any dividends
on the Series C Preferred Shares.
5.29.3 Redemption.
----------
(a) The outstanding Series C Preferred Shares are
redeemable at the option of the Corporation, out of the
assets of the Corporation legally available therefor, at any
time or from time to time, in whole and not in part, at a
redemption price per share of Series C Preferred Shares (the
---
"Redemption Price") equal to the Purchase Price; provided,
---------------- --------
however, that for a period of not less than 30 days prior to
-------
the date fixed for redemption (the "Redemption Date"), the
---------------
holders of the outstanding Series C Preferred Shares shall
have an option to convert each Series C Preferred Share into
1.25 Common Shares.
(b) Notice of any redemption of Series C Preferred
Shares, specifying the date fixed for redemption, the
redemption price and the place at which shareholders may
obtain payment of the Redemption Price upon surrender of
their certificates, and the option of the shareholders to
convert their Series C Preferred Shares into Common Shares,
shall be mailed to each holder of record of the shares to be
redeemed, at such holder's address of record, not less than
35, nor more than 90 days prior to the Redemption Date.
Such notice shall set forth the manner in which shareholders
may convert their Series C Preferred Shares into Common
Shares, or to receive the Redemption Price, upon surrender
of their certificates.
(c) Unless the Corporation defaults in the payment
in full of the Redemption Price, (i) all rights of the
holders of such Series C Preferred Shares as shareholders of
the Corporation by reason of the ownership of such shares
(including, without limitation, the right to convert the
Series C Preferred Shares into Common Shares) shall cease on
the Redemption Date except the right to receive the amount
payable upon redemption of such shares upon presentation and
surrender of the respective certificates evidencing such
shares, and (ii) such shares shall be deemed not to be
outstanding after the Redemption Date.
(d) Any Series C Preferred Shares that have been
redeemed shall, after such redemption, not be reissued as
Series C Preferred Shares, but shall become authorized but
unissued Preferred Shares
28
<PAGE>
of the Corporation, and the certificates evidencing such
shares shall be canceled.
(e) Any notice required by the provisions of this
Section 5.29.3 to be given to the holders of Series C
--------------
Preferred Shares shall be deemed given if deposited in the
United States mail postage prepaid, and addressed to each
holder of record at his, her or its address appearing on the
books of the Corporation.
5.29.4 Conversion Rights. The Series C Preferred Shares
-----------------
shall be convertible into Common Shares as follows:
(a) No Optional Conversion. Other than pursuant to
----------------------
a redemption of the Series C Preferred Shares as set forth
in Section 5.29.3 above, the holders of Series C Preferred
--------------
Shares shall have no optional rights to convert such shares
into Common Shares.
(b) Automatic Conversion. Each Series C Preferred
--------------------
Share shall be automatically converted, without any further
act of the Corporation or the holders of Series C Preferred
Shares, into fully paid and nonassessable Common Shares in
the manner and at the times specified below:
(i) Second Anniversary after Start Date. If
-----------------------------------
the Deposit Goal is met prior to twenty-four (24)
months from the Start Date, (A) the date of the
automatic conversion into Common Shares shall be
twenty-seven (27) months after the Start Date, and (B)
each Series C Preferred Share shall automatically be
converted into 1.25 Common Shares. If the Deposit Goal
has not been met prior to twenty-four (24) months from
the Start Date, the Series C Preferred Shares will not
be converted into Common Shares until after the third
anniversary of the Start Date.
(ii) Third Anniversary after Start Date. If
----------------------------------
the conversion of the Series C Preferred Shares into
Common Shares has not previously taken place within
thirty-six (36) months after the Start Date, then,
thirty-nine (39) months after the Start Date, each
outstanding Series C Preferred Share shall
automatically be converted into (A) 1.10 Common Shares
if the Deposit Goal has been met prior to the end of
thirty-six (36) months after the Start Date, and (B)
1.02 Common Shares if the Deposit Goal has not been
29
<PAGE>
met prior to the end of thirty-six (36) months after
the Start Date.
(iii) Determination of Whether Deposit Goal Has
-----------------------------------------
Been Met. The Deposit Goal shall have been met prior
--------
to a specified date if the average deposits at the Bank
on behalf of the Banking Office for any calendar
quarter prior to such date equal or exceed $50,000,000.
For the purposes of determining whether the Deposit
Goal has been met, the Corporation will follow the
following procedures:
Deposits: For the purpose of making the
--------
Deposit Goal calculations, "deposits" means the
book balances of all accounts which are insurable
by the Federal Deposit Insurance Corporation (such
as demand, savings, time, money market and NOW
accounts and certificates of deposit), including
the balances in such accounts in excess of
$100,000; provided, however, that certificates of
-------- -------
deposit in amounts of $100,000 or more shall be
included in the total amount of deposits only to
the extent such certificates of deposit do not
exceed 10% of total deposits.
Credit for Deposits: The specific banking
-------------------
office at which a deposit account is opened
receives the credit for the account; provided,
--------
however, that if the Banking Office is not
-------
authorized to accept deposits or has not yet
opened for business, a deposit account may be
established at another banking office on behalf of
the Banking Office if designated as such. The
Bank's accounting system tracks and accounts for
all depository accounts on a daily basis.
Calendar Quarter Average: After a calendar
------------------------
quarter has expired, the Bank will calculate the
calendar quarter average of deposits for accounts
designated as gathered on behalf of the Banking
Office by adding the sum of the daily general
ledger balance for such deposits and then dividing
this sum by the number of days in the calendar
quarter.
All determinations regarding whether the Deposit
30
<PAGE>
Goal has been met as of any date shall be made by the
Corporation. Such determinations in this regard shall
be final and conclusive for all purposes.
(c) Mechanics of Conversion. Upon the occurrence of
-----------------------
the dates specified in Section 5.29.4(b) above, the
-----------------
outstanding Series C Preferred Shares shall be converted
automatically without any further action by the holders of
such shares and whether or not the certificates representing
such shares are surrendered to the Corporation or its
transfer agent; provided, however, that the Corporation
-------- -------
shall not be obligated to issue to any holder certificates
evidencing the Common Shares issuable upon such conversion
unless certificates evidencing the Series C Preferred Shares
are delivered either to the Corporation or any transfer
agent designated by the Corporation. Conversion shall be
deemed to have been effected on the date of the occurrence
of the dates specified in Section 5.29.4(b) above, as the
-----------------
case may be, and such date is referred to herein as the
"Conversion Date." Subject to the provisions of Section
--------------- -------
5.29.4(b) above, as promptly as practicable thereafter (and
---------
after surrender of the certificate or certificates
representing the Series C Preferred Shares to the
Corporation or any transfer agent designated by the
Corporation), the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of
full Common Shares to which such holder is entitled as
provided in Section 5.29.4(b) hereof. Subject to the
-----------------
provisions of Section 5.29.4(b), the person in whose name
-----------------
the certificate or certificates for Common Shares are to be
issued shall be deemed to have become a holder of record of
such Common Shares on the applicable Conversion Date.
(d) Fractional Shares. No fractional Common Shares or
-----------------
scrip shall be issued upon conversion of Series C Preferred
Shares. In lieu of any fractional Common Shares which would
otherwise be issuable upon conversion of any Series C
Preferred Shares, the number of full Common Shares issuable
upon conversion thereof shall be increased to the next
higher number of whole shares.
(e) Rights After Conversion Date. From and after the
----------------------------
Conversion Date (unless the Corporation defaults in issuing
Common Shares in conversion for the outstanding Series C
Preferred Shares on the Conversion Date), such Series C
Preferred Shares shall be deemed not to be outstanding and
all rights of the holders of such shares as Shareholders of
the Corporation by reason of the ownership of such shares
shall cease, except the right
31
<PAGE>
to receive Common Shares as provided in Section 5.29.4(b)
----------------
herein on presentation and surrender of the respective
certificates evidencing such Series C Preferred Shares. Upon
presentation and surrender, on or after the Conversion Date,
of any certificate evidencing Series C Preferred Shares
(properly endorsed or assigned for transfer, if the
Corporation shall so require), such shares shall be
converted by the Corporation for Common Shares as provided
in this Section 5.29.4.
--------------
(f) Authorized, But Unissued Shares. Any Series C
-------------------------------
Preferred Shares that shall at any time have been converted
into Common Shares pursuant to this Section 5.29.4 shall,
--------------
after such conversion become authorized but unissued
Preferred Shares of the Corporation, and the certificates
evidencing such shares shall be canceled.
(g) Reservation of Shares. The Corporation shall
---------------------
reserve at all times so long as any Series C Preferred
Shares remain outstanding, free from preemptive rights, out
of its treasury shares or its authorized but unissued Common
Shares, or both, solely for the purpose of effecting the
conversion of the Series C Preferred Shares, sufficient
Common Shares to provide for the conversion of all
outstanding Series C Preferred Shares.
(h) Fully Paid and Nonassessable Shares. All Common
-----------------------------------
Shares or other securities which may be issued upon
conversion of the Series C Preferred Shares will upon
issuance by the Corporation be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issuance thereof and the
Corporation shall take no action which would cause a
contrary result.
5.29.5 Conversion Ratio Adjustments. The number of Common
----------------------------
Shares into which the Series C Preferred Shares shall be
converted pursuant to Section 5.29.4 (the "Conversion Ratios")
-------------- -----------------
and the securities or other property deliverable upon conversion
of the Series C Preferred Shares shall be subject to adjustment
from time to time as follows:
(a) Share Subdivisions or Split-Ups. If the number of
-------------------------------
Common Shares outstanding at any time after the date of
issuance of the Series C Preferred Shares is increased by a
subdivision or split-up of Common Shares, then immediately
after the record date fixed for the determination of holders
of Common Shares entitled to receive such subdivision or
split-up, as the case may be, the
32
<PAGE>
Conversion Ratios shall be appropriately increased so that
the holder of any Series C Preferred Shares thereafter
converted shall be entitled to receive the number of Common
Shares of the Corporation which the holder would have owned
immediately following such action had such Series C
Preferred Shares been converted immediately prior thereto.
(b) Combinations of Shares. If the number of Common
----------------------
Shares outstanding at any time after the date of issuance of
the Series C Preferred Shares is decreased by a combination
of the outstanding Common Shares, then, immediately after
the effective date of such combination, the Conversion
Ratios applicable thereto shall be appropriately decreased
so that the holder of any Series C Preferred Shares
thereafter converted shall be entitled to receive the number
of Common Shares of the Corporation which the holder would
have owned immediately following such action had such Series
C Preferred Shares been converted immediately prior thereto.
(c) Reorganization, Reclassification, Merger, Sale of
-------------------------------------------------
All Assets, etc. In case of any capital reorganization of
----------------
the Corporation, or of any reclassification of the Common
Shares, or in case of the consolidation of the Corporation
with or the merger of the Corporation with or into any other
Person or of the sale, lease or other transfer of all or
substantially all of the assets of the Corporation to any
other Person, or in the case of any distribution of cash or
other assets or of notes or other indebtedness of the
Corporation or any other securities of the Corporation
(except Common Shares) to the holders of its Common Shares,
each Series C Preferred Share shall, after such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer or such distribution, be
convertible into the number of shares or other securities or
property to which the Common Shares issuable (at the time of
such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer or such
distribution) upon conversion of such Series C Preferred
Shares would have been entitled upon such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer or such distribution in place
of (or in addition to, in the case of any such event after
which Common Shares remain outstanding) the Common Shares
into which such Series C Preferred Shares would otherwise
have been convertible; and in any such case, if necessary,
the provisions set forth herein with respect to the rights
and interest thereafter of the holders of Series C Preferred
Shares
33
<PAGE>
shall be appropriately adjusted so as to be applicable, as
nearly as may reasonably be, to any shares or other
securities or property thereafter deliverable on the
conversion of the Series C Preferred Shares.
(d) Rounding of Calculations; Minimum Adjustment. All
--------------------------------------------
calculations under this Section 5.29.5 shall be made to the
--------------
nearest one hundredth (1/100th) of a Common Share, as the
case may be. Any provision of this Section 5.29.5 to the
--------------
contrary notwithstanding, no adjustment in the Conversion
Ratios shall be made if the amount of such adjustment would
be less than one hundredth of a Common Share, but any such
amount shall be carried forward and an adjustment with
respect thereto shall be made at the time of any subsequent
adjustment which, together with such amount and any other
amount or amounts so carried forward, shall aggregate one
hundredth of a Common Share or more.
(e) Timing of Issuance of Additional Common Shares upon
---------------------------------------------------
Certain Adjustments. In any case in which the provisions of
-------------------
this Section 5.29.5 shall require that an adjustment shall
--------------
become effective immediately after a record date for an
event, the Corporation may defer until the occurrence of
such event issuing to the holder of any Series C Preferred
Shares converted after such record date and before the
occurrence of such event the additional Common Shares or
other property issuable or deliverable upon such conversion
by reason of the adjustment required by such event over and
above the Common Shares or other property issuable or
deliverable upon such conversion before giving effect to
such adjustment; provided, however, that the Corporation
-------- -------
upon request shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right
to receive such additional shares or other property, and
such cash, upon the occurrence of the event requiring such
adjustment.
(f) Statement Regarding Adjustments. Whenever the
-------------------------------
Conversion Ratios shall be adjusted as provided in this
Section 5.29.5, the Corporation shall forthwith file, at the
--------------
office of any transfer agent for the Series C Preferred
Shares and at the principal office of the Corporation a
statement showing in detail the facts requiring such
adjustment and the Conversion Ratios that shall be in effect
after such adjustment, and the Corporation shall also cause
a copy of such statement to be mailed, first class postage
prepaid, to each holder of Series C Preferred Shares at its
address
34
<PAGE>
appearing on the Corporation's records.
(g) Cost. The Corporation shall pay all
----
documentary, stamp, transfer or other transactional taxes
attributable to the issuance or delivery of Common Shares of
the Corporation or other securities or property upon
conversion of any Series C Preferred Shares; provided,
--------
however, that the Corporation shall not be required to pay
-------
any taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificate for
such shares or securities in the name other than that of the
holder of Series C Preferred Shares in respect of which such
shares are being issued.
5.29.6 Voting. The holders of Series C Preferred Shares
------
shall have no right or power to vote on any matter except as
required by law. In any matter on which the holders of Series C
Preferred Shares shall, as a matter of law, be entitled to vote,
the holders shall be entitled to one vote for each Series C
Preferred Share held.
5.29.7 Liquidation Rights.
------------------
(a) Upon the dissolution, liquidation or winding up
of the Corporation, whether voluntary or involuntary, the
holders of Series C Preferred Shares then outstanding shall
be entitled to receive out of the assets of the Corporation
available for distribution to equity holders, an amount per
share in cash equal to the Purchase Price before any payment
or distribution shall be made on the Common Shares or on any
other class of capital shares of the Corporation ranking
junior to the Series C Preferred Shares upon liquidation.
All outstanding shares of any other series of preferred
shares shall rank at parity with the Series C Preferred
Shares. The consolidation or merger of the Corporation, or a
sale, exchange or transfer of all or substantially all of
its assets as an entirety, shall not be regarded as a
"dissolution, liquidation or winding up of the Corporation"
within the meaning of this Section 5.29.7(a).
-----------------
(b) After the payment to the holders of Series C
Preferred Shares of the full preferential amounts fixed
hereby for Series C Preferred Shares, the holders of Series
C Preferred Shares as such shall have no right or claim to
any of the remaining assets of the Corporation.
(c) If the assets of the Corporation available for
35
<PAGE>
distribution to the holders of Series C Preferred Shares
upon dissolution, liquidation or winding up of the
Corporation are insufficient to pay in full all amounts to
which such holders are entitled pursuant to Section
-------
5.29.7(a), no distribution shall be made on account of any
---------
shares of a class or series of capital shares of the
Corporation ranking on a parity with the Series C Preferred
Shares, if any, upon such dissolution, liquidation or
winding up unless proportionate distributive amounts shall
be paid on account of the Series C Preferred Shares,
ratably, in proportion to the full distributable amounts for
which holders of all such parity shares are respectively
entitled upon such dissolution, liquidation or winding up.
5.29.8 Reports to Holders of Series C Preferred Shares.
-----------------------------------------------
For so long as there shall remain outstanding any Series C
Preferred Shares, the Corporation shall furnish to each holder of
record of Series C Preferred Shares (i) all reports or other
correspondence sent by the Corporation to holders of record of
the Common Shares of the Corporation, and (ii) a quarterly report
setting forth the average monthly deposits on behalf of the
Banking Office.
5.29.9 Certain Covenants. So long as any Series C
-----------------
Preferred Shares are outstanding, without the prior written
consent of the holders of a majority of the outstanding Series C
Preferred Shares, the Corporation shall not amend, alter or
repeal any provisions of this resolution establishing Series C
Convertible Preferred Shares, or otherwise amend, alter or repeal
any provision of the Articles of Incorporation of the Corporation
so as to affect adversely the preferences, rights, powers or
privileges of the Series C Preferred Shares.
5.29.10 Certain Events. If any event occurs of the type
--------------
contemplated but not expressly provided for by the provisions of
Section 5.29.4 or Section 5.29.5 herein, then the Corporation's
-------------- --------------
Board of Directors will make an appropriate adjustment in the
Conversion Ratios for the Series C Preferred Shares to protect
the rights of the holders thereof.
5.29.11 Exclusion of Other Rights. Unless otherwise
-------------------------
required by law, the Series C Preferred Shares shall not have any
voting powers, preferences or relative, participating, optional
or other special rights other than those specifically set forth
herein.
5.30 Series D Convertible Preferred Shares. By Resolution
-------------------------------------
effective as of December 16, 1999, the Board of Directors of Irwin
Financial Corporation (the
36
<PAGE>
"Corporation"), has approved and adopted the terms of Series D
Convertible Preferred Shares (the "Series D Preferred Shares"), to
consist of 66,666 shares, as follows:
5.30.1 Definitions.
-----------
"Bank" means Irwin Union Bank and Trust Company, a
----
commercial bank chartered under the laws of the State of
Indiana and a wholly-owned subsidiary of the Corporation.
"Banking Office" means, collectively, the banking
--------------
offices operated by the Bank at 0-185 44th Street,
Grandville, Michigan 49418.
"Board" means the Board of Directors of the
-----
Corporation.
"Common Shares" means the common shares of the
-------------
Corporation.
"Corporation" means Irwin Financial Corporation, an
-----------
Indiana corporation.
"Deposit Goal" means the goal that the average deposits
------------
at the Bank on behalf of the Banking Office for any calendar
quarter equal or exceed $25,000,000, with the calculations
to be made as set forth in Section 5.30.4(b)(iii) herein.
----------------------
"Person" means an individual, a partnership, a joint
------
venture, a corporation, an association, a trust, or any
other entity or organization.
"Purchase Price" means the price per share at which the
--------------
Series D Preferred Shares have been offered and sold by the
Corporation to qualified investors pursuant to a
Confidential Private Placement Memorandum.
"Series D Preferred Shares" means the Series D
-------------------------
Convertible Preferred Shares of the Corporation.
"Start Date" means the first day of the calendar
----------
quarter following the closing date of the offering. The
Start Date is the date from which the Corporation will
measure the amount of deposits at the Bank on behalf of the
Banking Office for the purposes of determining conversion
rights.
37
<PAGE>
5.30.2 Dividends. The holders of outstanding Series D
---------
Preferred Shares shall not be entitled to receive any dividends
on the Series D Preferred Shares.
5.30.3 Redemption.
----------
(a) The outstanding Series D Preferred Shares are
redeemable at the option of the Corporation, out of the
assets of the Corporation legally available therefor, at any
time or from time to time, in whole and not in part, at a
redemption price per share of Series D Preferred Shares (the
"Redemption Price") equal to the Purchase Price; provided,
however, that for a period of not less than 30 days prior to
the date fixed for redemption (the "Redemption Date"), the
holders of the outstanding Series D Preferred Shares shall
have an option to convert each Series D Preferred Share into
1.25 Common Shares.
(b) Notice of any redemption of Series D Preferred
Shares, specifying the date fixed for redemption, the
redemption price and the place at which shareholders may
obtain payment of the Redemption Price upon surrender of
their certificates, and the option of the shareholders to
convert their Series D Preferred Shares into Common Shares,
shall be mailed to each holder of record of the shares to be
redeemed, at such holder's address of record, not less than
35, nor more than 90 days prior to the Redemption Date.
Such notice shall set forth the manner in which shareholders
may convert their Series D Preferred Shares into Common
Shares, or to receive the Redemption Price, upon surrender
of their certificates.
(c) Unless the Corporation defaults in the payment in
full of the Redemption Price, (i) all rights of the holders
of such Series D Preferred Shares as shareholders of the
Corporation by reason of the ownership of such shares
(including, without limitation, the right to convert the
Series D Preferred Shares into Common Shares) shall cease on
the Redemption Date except the right to receive the amount
payable upon redemption of such shares upon presentation and
surrender of the respective certificates evidencing such
shares, and (ii) such shares shall be deemed not to be
outstanding after the Redemption Date.
(d) Any Series D Preferred Shares that have been
redeemed shall, after such redemption, not be reissued as
Series D Preferred
38
<PAGE>
Shares, but shall become authorized but unissued Preferred
Shares of the Corporation, and the certificates evidencing
such shares shall be canceled.
(e) Any notice required by the provisions of this
Section 5.30.3 to be given to the holders of Series D
--------------
Preferred Shares shall be deemed given if deposited in the
United States mail postage prepaid, and addressed to each
holder of record at his, her or its address appearing on the
books of the Corporation.
5.30.4 Conversion Rights. The Series D Preferred Shares
-----------------
shall be convertible into Common Shares as follows:
(a) No Optional Conversion. Other than pursuant to a
----------------------
redemption of the Series D Preferred Shares as set forth in
Section 3 above, the holders of Series D Preferred Shares
---------
shall have no optional rights to convert such shares into
Common Shares.
(b) Automatic Conversion. Each Series D Preferred
--------------------
Share shall be automatically converted, without any further
act of the Corporation or the holders of Series D Preferred
Shares, into fully paid and nonassessable Common Shares in
the manner and at the times specified below:
(i) Second Anniversary after Start Date. If the
-----------------------------------
Deposit Goal is met prior to twenty-four (24) months
from the Start Date, (A) the date of the automatic
conversion into Common Shares shall be twenty-seven
(27) months after the Start Date, and (B) each Series D
Preferred Share shall automatically be converted into
1.25 Common Shares. If the Deposit Goal has not been
met prior to twenty-four (24) months from the Start
Date, the Series D Preferred Shares will not be
converted into Common Shares until after the third
anniversary of the Start Date.
(ii) Third Anniversary after Start Date. If the
----------------------------------
conversion of the Series D Preferred Shares into Common
Shares has not previously taken place within thirty-six
(36) months after the Start Date, then, thirty-nine
(39) months after the Start Date, each outstanding
Series D Preferred Share shall automatically be
converted into (A) 1.10 Common Shares if the Deposit
Goal has been met prior to the end of thirty-six (36)
months after the Start Date, and
39
<PAGE>
(B) 1.02 Common Shares if the Deposit Goal has not been
met prior to the end of thirty-six (36) months after
the Start Date.
(iii) Determination of Whether Deposit Goal Has
-----------------------------------------
Been Met. The Deposit Goal shall have been met prior
--------
to a specified date if the average deposits at the Bank
on behalf of the Banking Office for any calendar
quarter prior to such date equal or exceed $25,000,000.
For the purposes of determining whether the Deposit
Goal has been met, the Corporation will follow the
following procedures:
Deposits: For the purpose of making the
--------
Deposit Goal calculations, "deposits" means the
book balances of all accounts which are insurable
by the Federal Deposit Insurance Corporation (such
as demand, savings, time, money market and NOW
accounts and certificates of deposit), including
the balances in such accounts in excess of
$100,000; provided, however, that certificates of
-------- -------
deposit in amounts of $100,000 or more shall be
included in the total amount of deposits only to
the extent such certificates of deposit do not
exceed 10% of total deposits.
Credit for Deposits: The specific banking
-------------------
office at which a deposit account is opened
receives the credit for the account; provided,
--------
however, that if the Banking Office is not
-------
authorized to accept deposits or has not yet
opened for business, a deposit account may be
established at another banking office on behalf of
the Banking Office if designated as such. The
Bank's accounting system tracks and accounts for
all depository accounts on a daily basis.
Calendar Quarter Average: After a calendar
------------------------
quarter has expired, the Bank will calculate the
calendar quarter average of deposits for accounts
designated as gathered on behalf of the Banking
Office by adding the sum of the daily general
ledger balance for such deposits and then dividing
this sum by the number of days in the calendar
quarter.
40
<PAGE>
All determinations regarding whether the Deposit
Goal has been met as of any date shall be made by the
Corporation. Such determinations in this regard shall
be final and conclusive for all purposes.
(c) Mechanics of Conversion. Upon the occurrence of
-----------------------
the dates specified in Section 5.30.4(b) above, the
-----------------
outstanding Series D Preferred Shares shall be converted
automatically without any further action by the holders of
such shares and whether or not the certificates representing
such shares are surrendered to the Corporation or its
transfer agent; provided, however, that the Corporation
-------- -------
shall not be obligated to issue to any holder certificates
evidencing the Common Shares issuable upon such conversion
unless certificates evidencing the Series D Preferred Shares
are delivered either to the Corporation or any transfer
agent designated by the Corporation. Conversion shall be
deemed to have been effected on the date of the occurrence
of the dates specified in Section 5.30.4(b) above, as the
-----------------
case may be, and such date is referred to herein as the
"Conversion Date." Subject to the provisions of Section
---------------- -------
5.30.4(b) above, as promptly as practicable thereafter (and
---------
after surrender of the certificate or certificates
representing the Series D Preferred Shares to the
Corporation or any transfer agent designated by the
Corporation), the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of
full Common Shares to which such holder is entitled as
provided in Section 5.30.4(b) hereof. Subject to the
-----------------
provisions of Section 5.30.4(b), the person in whose name
-----------------
the certificate or certificates for Common Shares are to be
issued shall be deemed to have become a holder of record of
such Common Shares on the applicable Conversion Date.
(d) Fractional Shares. No fractional Common Shares or
-----------------
scrip shall be issued upon conversion of Series D Preferred
Shares. In lieu of any fractional Common Shares which would
otherwise be issuable upon conversion of any Series D
Preferred Shares, the number of full Common Shares issuable
upon conversion thereof shall be increased to the next
higher number of whole shares.
(e) Rights After Conversion Date. From and after the
----------------------------
Conversion Date (unless the Corporation defaults in issuing
Common Shares in conversion for the outstanding Series D
Preferred Shares on the Conversion Date), such Series D
Preferred Shares shall be deemed not to be outstanding and
all rights of the holders of such shares as Shareholders of
the Corporation by
41
<PAGE>
reason of the ownership of such shares shall cease, except
the right to receive Common Shares as provided in Section
-------
5.30.4(b) herein on presentation and surrender of the
--------
respective certificates evidencing such Series D Preferred
Shares. Upon presentation and surrender, on or after the
Conversion Date, of any certificate evidencing Series D
Preferred Shares (properly endorsed or assigned for
transfer, if the Corporation shall so require), such shares
shall be converted by the Corporation for Common Shares as
provided in this Section 5.30.4.
--------------
(f) Authorized, But Unissued Shares. Any Series D
-------------------------------
Preferred Shares that shall at any time have been converted
into Common Shares pursuant to this Section 5.30.4 shall,
--------------
after such conversion, become authorized but unissued (and
undesignated) preferred shares of the Corporation, and the
certificates evidencing such shares shall be canceled.
(g) Reservation of Shares. The Corporation shall
---------------------
reserve at all times so long as any Series D Preferred
Shares remain outstanding, free from preemptive rights, out
of its treasury shares or its authorized but unissued Common
Shares, or both, solely for the purpose of effecting the
conversion of the Series D Preferred Shares, sufficient
Common Shares to provide for the conversion of all
outstanding Series D Preferred Shares.
(h) Fully Paid and Nonassessable Shares. All Common
-----------------------------------
Shares or other securities which may be issued upon
conversion of the Series D Preferred Shares will upon
issuance by the Corporation be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issuance thereof and the
Corporation shall take no action which would cause a
contrary result.
5.30.5 Conversion Ratio Adjustments. The number of Common
----------------------------
Shares into which the Series D Preferred Shares shall be
converted pursuant to Section 5.30.4 (the "Conversion Ratios")
-------------- -----------------
and the securities or other property deliverable upon conversion
of the Series D Preferred Shares shall be subject to adjustment
from time to time as follows:
(a) Share Subdivisions or Split-Ups. If the number of
-------------------------------
Common Shares outstanding at any time after the date of
issuance of the Series D Preferred Shares is increased by a
subdivision or split-up of Common Shares, then immediately
after the record date fixed for the determination of holders
of Common Shares entitled
42
<PAGE>
to receive such subdivision or split-up, as the case may be,
the Conversion Ratios shall be appropriately increased so
that the holder of any Series D Preferred Shares thereafter
converted shall be entitled to receive the number of Common
Shares of the Corporation which the holder would have owned
immediately following such action had such Series D
Preferred Shares been converted immediately prior thereto.
(b) Combinations of Shares. If the number of Common
----------------------
Shares outstanding at any time after the date of issuance of
the Series D Preferred Shares is decreased by a combination
of the outstanding Common Shares, then, immediately after
the effective date of such combination, the Conversion
Ratios applicable thereto shall be appropriately decreased
so that the holder of any Series D Preferred Shares
thereafter converted shall be entitled to receive the number
of Common Shares of the Corporation which the holder would
have owned immediately following such action had such Series
D Preferred Shares been converted immediately prior thereto.
(c) Reorganization, Reclassification, Merger, Sale of
-------------------------------------------------
All Assets, etc. In case of any capital reorganization of
----------------
the Corporation, or of any reclassification of the Common
Shares, or in case of the consolidation of the Corporation
with or the merger of the Corporation with or into any other
Person or of the sale, lease or other transfer of all or
substantially all of the assets of the Corporation to any
other Person, or in the case of any distribution of cash or
other assets or of notes or other indebtedness of the
Corporation or any other securities of the Corporation
(except Common Shares) to the holders of its Common Shares,
each Series D Preferred Share shall, after such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer or such distribution, be
convertible into the number of shares or other securities or
property to which the Common Shares issuable (at the time of
such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer or such
distribution) upon conversion of such Series D Preferred
Shares would have been entitled upon such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer or such distribution in place
of (or in addition to, in the case of any such event after
which Common Shares remain outstanding) the Common Shares
into which such Series D Preferred Shares would otherwise
have been convertible; and in any such case, if necessary,
the provisions set forth herein with respect to the rights
43
<PAGE>
and interest thereafter of the holders of Series D Preferred
Shares shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares or
other securities or property thereafter deliverable on the
conversion of the Series D Preferred Shares.
(d) Rounding of Calculations; Minimum Adjustment. All
--------------------------------------------
calculations under this Section 5.30.5 shall be made to the
--------------
nearest one hundredth (1/100th) of a Common Share, as the
case may be. Any provision of this Section 5.30.5 to the
--------------
contrary notwithstanding, no adjustment in the Conversion
Ratios shall be made if the amount of such adjustment would
be less than one hundredth of a Common Share, but any such
amount shall be carried forward and an adjustment with
respect thereto shall be made at the time of any subsequent
adjustment which, together with such amount and any other
amount or amounts so carried forward, shall aggregate one
hundredth of a Common Share or more.
(e) Timing of Issuance of Additional Common Shares
----------------------------------------------
upon Certain Adjustments. In any case in which the
------------------------
provisions of this Section 5.30.5 shall require that an
--------------
adjustment shall become effective immediately after a record
date for an event, the Corporation may defer until the
occurrence of such event issuing to the holder of any Series
D Preferred Shares converted after such record date and
before the occurrence of such event the additional Common
Shares or other property issuable or deliverable upon such
conversion by reason of the adjustment required by such
event over and above the Common Shares or other property
issuable or deliverable upon such conversion before giving
effect to such adjustment; provided, however, that the
-------- -------
Corporation upon request shall deliver to such holder a due
bill or other appropriate instrument evidencing such
holder's right to receive such additional shares or other
property, and such cash, upon the occurrence of the event
requiring such adjustment.
(f) Statement Regarding Adjustments. Whenever the
-------------------------------
Conversion Ratios shall be adjusted as provided in this
Section 5.30.5, the Corporation shall forthwith file, at the
--------------
office of any transfer agent for the Series D Preferred
Shares and at the principal office of the Corporation a
statement showing in detail the facts requiring such
adjustment and the Conversion Ratios that shall be in effect
after such adjustment, and the Corporation shall also cause
a copy of such statement to be mailed, first class postage
44
<PAGE>
prepaid, to each holder of Series D Preferred Shares at its
address appearing on the Corporation's records.
(g) Cost. The Corporation shall pay all documentary,
----
stamp, transfer or other transactional taxes attributable to
the issuance or delivery of Common Shares of the Corporation
or other securities or property upon conversion of any
Series D Preferred Shares; provided, however, that the
-------- -------
Corporation shall not be required to pay any taxes which may
be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares or
securities in the name other than that of the holder of
Series D Preferred Shares in respect of which such shares
are being issued.
5.30.6 Voting. The holders of Series D Preferred Shares
------
shall have no right or power to vote on any matter except as
required by law. In any matter on which the holders of Series D
Preferred Shares shall, as a matter of law, be entitled to vote,
the holders shall be entitled to one vote for each Series D
Preferred Share held.
5.30.7 Liquidation Rights.
------------------
(a) Upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the
holders of Series D Preferred Shares then outstanding shall
be entitled to receive out of the assets of the Corporation
available for distribution to equity holders, an amount per
share in cash equal to the Purchase Price before any payment
or distribution shall be made on the Common Shares or on any
other class of capital shares of the Corporation ranking
junior to the Series D Preferred Shares upon liquidation.
The Series D Preferred Shares shall rank at parity with all
outstanding shares of any other series of preferred shares.
The consolidation or merger of the Corporation, or a sale,
exchange or transfer of all or substantially all of its
assets as an entirety, shall not be regarded as a
"dissolution, liquidation or winding up of the Corporation"
within the meaning of this Section 5.30.7(a).
-----------------
(b) After the payment to the holders of Series D
Preferred Shares of the full preferential amounts fixed
hereby for Series D Preferred Shares, the holders of Series
D Preferred Shares as such shall have no right or claim to
any of the remaining assets of the Corporation.
45
<PAGE>
(c) If the assets of the Corporation available for
distribution to the holders of Series D Preferred Shares
upon dissolution, liquidation or winding up of the
Corporation are insufficient to pay in full all amounts to
which such holders are entitled pursuant to Section
-------
5.30.7(a), no distribution shall be made on account of any
---------
shares of a class or series of capital shares of the
Corporation ranking on a parity with the Series D Preferred
Shares, if any, upon such dissolution, liquidation or
winding up unless proportionate distributive amounts shall
be paid on account of the Series D Preferred Shares,
ratably, in proportion to the full distributable amounts for
which holders of all such parity shares are respectively
entitled upon such dissolution, liquidation or winding up.
5.30.8 Reports to Holders of Series D Preferred Shares.
-----------------------------------------------
For so long as there shall remain outstanding any Series D
Preferred Shares, the Corporation shall furnish to each holder of
record of Series D Preferred Shares (i) all reports or other
correspondence sent by the Corporation to holders of record of
the Common Shares of the Corporation, and (ii) a quarterly report
setting forth the average monthly deposits on behalf of the
Banking Office.
5.30.9 Certain Covenants. So long as any Series D
-----------------
Preferred Shares are outstanding, without the prior written
consent of the holders of a majority of the outstanding Series D
Preferred Shares, the Corporation shall not amend, alter or
repeal any provisions of this resolution establishing Series D
Convertible Preferred Shares, or otherwise amend, alter or repeal
any provision of the Articles of Incorporation of the Corporation
so as to affect adversely the preferences, rights, powers or
privileges of the Series D Preferred Shares.
5.30.10 Certain Events. If any event occurs of the type
--------------
contemplated but not expressly provided for by the provisions of
Section 5.30.4 or Section 5.30.5 herein, then the Corporation's
-------------- --------------
Board of Directors will make an appropriate adjustment in the
Conversion Ratios for the Series D Preferred Shares to protect
the rights of the holders thereof.
5.30.11 Exclusion of Other Rights. Unless otherwise
-------------------------
required by law, the Series D Preferred Shares shall not have any
voting powers, preferences or relative, participating, optional
or other special rights other than those specifically set forth
herein.
5.4 Voting Rights.
-------------
46
<PAGE>
5.41 Voting Rights.
-------------
5.41.1 Common Shares. Every holder of the Common Shares of
-------------
the Corporation shall have the right at every Shareholders'
meeting, to one vote for each Common Share standing in his or her
name on the books of the Corporation.
5.41.2 Preferred Shares. Holders of Preferred Shares shall
----------------
have no right to vote upon any question except as shall be
affirmatively provided in the Act, or in the remaining sections
of this article.
5.42 No Greater Requirements. Nothing in these Articles shall be
-----------------------
deemed to require any greater portion of the Shares to concur in any
action taken by the Shareholders than is required by law.
5.43 Record Date. The By-Laws may provide for a record date for
-----------
determining Shareholders entitled to receive payment of any dividend
or for determining Shareholders for any other purpose.
5.44 Mergers and Consolidations. Any class of Shares of this
--------------------------
Corporation shall be entitled to vote as a class if the agreement of
merger or consolidation contains any provision which, if contained in
a proposed amendment to the Articles of Incorporation of the
Corporation, would entitle such class of Shares to vote as a class.
5.45 Voting on Special Corporate Transactions. In voting on
----------------------------------------
adoption of any proposal for a special corporate transaction or for
dissolution of the Corporation, all Shares shall vote as a single
class and no Shares shall be entitled to vote as a separate class.
5.46 Mergers With Subsidiaries. Nothing herein contained shall
-------------------------
limit the power of the Corporation or prescribe the procedures to be
followed in any merger or consolidation of any subsidiary of this
Corporation, ninety-five percent (95%) (or such lesser percentage as
may hereafter be prescribed by law) or more of the outstanding Shares
of which subsidiary are owned by this Corporation and any such merger
or consolidation of any such subsidiary may be accomplished by the
Board of Directors of this Corporation in the manner prescribed by
law.
5.47 Class Voting. If the holders of any class of Shares are
------------
entitled to vote as a class, the proposal shall be adopted upon
receiving the affirmative vote of the holders of at least a majority
(or such greater proportion as these Articles of Incorporation may
require) of the Shares of each class of Shares entitled to vote
47
<PAGE>
thereon as a class and of the total Shares entitled to vote thereon.
Article VI
Requirements Prior To Doing Business
The stated capital of the Corporation is at least $1000.00.
Article VII
Director(s)
7.01 Number of Directors. The Board of Directors is composed of
-------------------
sixteen (16) members. The number of directors may be from time to time
fixed by the By-Laws of the Corporation at any number. In the absence of a
By-Law fixing the number of directors, the number shall be sixteen.
7.02 Section Qualifications of Directors. No qualifications are
----------------------------
prescribed by these Articles.
Article VIII
Incorporator(s)
The name(s) and post office address(es) of the President and Executive Vice
President, Secretary of the Corporation are:
<TABLE>
<CAPTION>
Number and Street or
Name Building City State Zip Code
---- -------- ---- ----- --------
<S> <C> <C> <C> <C>
Paul N. Dinkins 500 Washington Street Columbus Indiana 47201
(President)
John A. Nash 500 Washington Street Columbus Indiana 47201
(Executive Vice President,
Secretary)
</TABLE>
Article IX
Provisions for Regulation of Business and Conduct of Affairs of Corporation
9.01 Code of By-Laws. The Board of Directors of the Corporation shall
---------------
have power, without the assent of the Shareholders, to make, alter, amend
or repeal the Code of By-Laws of the Corporation, but the affirmative vote
of a majority of the members of the Board of Directors for the time being
shall be necessary to make such Code or to effect any alteration, amendment
or repeal thereof. All provisions for the regulation of business and
management of the affairs of the Corporation shall be stated in the By-
Laws.
9.02 Meetings of Shareholders. Meetings of the Shareholders of the
------------------------
48
<PAGE>
Corporation shall be held at such place within or without the State of
Indiana as may be specified in the respective notices or waivers of notice
thereof or as specified in the By-Laws.
9.03 Meetings of Directors. Meetings of the Board of Directors and
---------------------
committees thereof of the Corporation shall be held at such place within or
without the State of Indiana as may be specified in the respective notices
or waivers of notice thereof or as specified in the By-Laws. The By-Laws
shall prescribe the manner in which notice of such meetings may be given
and the time before such meeting in which such notice shall be given,
unless waived.
9.04 Interest of Directors in Contracts. Any contract or other
----------------------------------
transaction between the Corporation and any corporation in which this
Corporation owns all or a part of the capital stock shall be valid and
binding notwithstanding the fact that the officers and/or directors
executing the contract on behalf of this Corporation are the same or a
majority of them are the same or the participating directors or officers
are the same. With the exception provided above, any contract or other
transaction between the Corporation and any one or more of its directors or
between the Corporation and any firm of which one or more of its directors
are members or employees or in which they are interested or between the
Corporation and any corporation or association in which one or more of its
directors are stockholders, members, directors, officers or employees or in
which they are interested, shall be valid for all purposes notwithstanding
the presence of such director or directors at the meeting of the Board of
Directors which acts upon or in reference to such contract or transaction
and notwithstanding his or their participation in such action if the fact
of such interest shall be disclosed or known to the Board of Directors and
the Board of Directors shall authorize, approve and ratify such contract or
transaction by a vote of the majority of the directors present, such
interested director or directors to be counted in determining whether a
quorum is present but not to be counted in calculating the majority of such
quorum necessary to carry such vote. This section shall not be construed
to invalidate any contract or other transaction which would otherwise be
valid under the common and statutory law applicable thereto.
9.05 Indemnification of Directors, Officers and Employees.
----------------------------------------------------
9.05.1 "Liability;" "Expense;" As used in this Section 9.05 the
----------------------- ------------
terms "liability" and "expense" shall include but shall not be limited
to attorneys' fees and disbursements and amounts of judgment, fines or
penalties against and amounts paid in settlement by the directors,
officers or employees.
9.05.2 "Claim." As used in this Section 9.05, the term "claim"
-------- ------------
shall include: (i) any claim, action, suit or proceeding, whether
actual or threatened, brought by or in the right of this Corporation
or another corporation or otherwise, civil, criminal or administrative
or in connection with an investigation or appeal relating thereto,
(ii) against a person who is or was a director, officer or employee of
this Corporation or a person who was serving as a director, officer or
employee
49
<PAGE>
of any other corporation at the request of this Corporation, and (iii)
which is asserted against or threatened against him, as a party or
otherwise, by reason of his having been a director, officer or
employee of this Corporation or such other corporation or by reason of
any past or future action taken or not taken in his capacity as such
director, officer or employee, whether or not he continues to be such
at the time the claim is asserted or threatened.
9.05.3 Indemnity. Any such director, officer or employee who
---------
has been wholly successful on the merits or otherwise with respect to
any claim of the character described herein shall be entitled to
indemnification as of right. Except as provided in the preceding
sentence, any indemnification hereunder shall be made at the
discretion of the Corporation but only if (i) the Board of Directors
acting by a quorum consisting of directors who are not parties to or
who have been wholly successful with respect to such claim, action,
suit or proceeding shall find that the person to be indemnified acted
in good faith in what he reasonably believed to be the best interests
of this Corporation or such other corporation, as the case may be,
and, in addition, in any criminal action or proceeding (which shall
not be deemed to include civil, administrative or investigative
actions or proceedings in which conduct which violates a criminal
statute is alleged) he had no reasonable cause to believe that his
conduct was unlawful, or (ii) independent legal counsel (who may be
regular counsel of the Corporation) shall deliver to it its written
opinion that the person to be indemnified so acted.
9.05.4 No Presumption. The termination of any claim by
--------------
judgment, settlement (whether with or without court approval) or
conviction or upon a plea of guilty or of nolo contendere or its
---- ----------
equivalent shall not create a presumption that the person to be
indemnified did not meet the standard of conduct set forth in Section
-------
9.05.3.
------
9.05.5 Several Claims. If several claims, issues or matters of
--------------
action are involved, any such person may be entitled to
indemnification as to some matters even though he is not entitled as
to other matters.
9.05.6 Advances. The Corporation may advance expenses to or,
--------
where appropriate, may at its expense undertake the defense of any
such director, officer or employee upon receipt of an undertaking by
or on behalf of such person to repay such expenses if it should
ultimately be determined that he is not entitled to indemnification
under this Section 9.05.
------------
9.05.7 Applicability. The provisions of this Section 9.05 shall
------------- ------------
be applicable to claims, actions, suits or proceedings made or
commenced after the adoption hereof, whether arising from acts or
omissions to act during, before or after the adoption hereof.
50
<PAGE>
9.05.8 Extent of Rights. The rights of indemnification provided
----------------
hereunder shall be in addition to any rights to which any person
concerned may otherwise be entitled by contract or as a matter of law
and shall inure to the benefit of the heirs, executors and
administrators of any such person.
9.05.9 Insurance. The Corporation may purchase and maintain
---------
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent
of another corporation against any liability asserted against him and
incurred by him in any capacity or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Section 9.05 or
------------
otherwise.
9.06 Partnerships. The Board of Directors shall have the power to
------------
authorize the Corporation to enter into partnerships or any other lawful
arrangement for the sharing of profits, union of interest, reciprocal
association, cooperative association, partnership, joint venture or
syndicate with any corporation, association, partnership, individual, firm
or other legal entity for the purpose of carrying on any lawful business.
9.07 Committees. The By-Laws may provide for an executive committee
----------
and other committees, which shall have the fullest authority to act for the
Board of Directors permitted under the laws of Indiana.
9.08 Removal of Directors. The Shareholders shall have no power to
--------------------
remove directors during their terms of office. Any director may be removed
for specific cause found and determined by a vote of not less than two-
thirds (2/3) of the entire Board of Directors at any time.
9.09 Term of Directors. When the Board of Directors consists of nine
-----------------
(9) or more directors, the By-Laws may specify that the directors shall be
apportioned into two or more classes whose terms of office shall expire at
different times, but no term shall continue longer than three (3) years.
9.10 Amendment of Articles of Incorporation. The Corporation reserves
--------------------------------------
the right to alter, amend and repeal any provisions contained in these
Articles of Incorporation in the manner now or hereafter prescribed by the
provisions of the Act or any other pertinent enactment of the General
Assembly of the State of Indiana and all rights and powers conferred hereby
on Shareholders, directors and officers of the Corporation are subject to
such reserved right.
51
